Agrégateur de flux

Procédure civile

All the recent studies I am aware of on the application in practice of the EU private international law instruments claim that legal practitioners are not aware of the regulations/directives, or do not know how to apply them. They conclude there is a need for training.

Having been a University professor for now some years, my first spontaneous reaction to such assertion is always inward-looking: we (lecturers, professors) are being told that what is done at the Universities is not enough. Indeed, it would be naïve to believe law schools alone produce PIL experts. However, I can’t help wondering where higher education stands in the Commission’s pursuit of the “correct and uniform application of EU law” which should “built mutual trust in cross-border judicial proceedings, thus helping to develop the EU area of justice”.

The quotes belong to the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions Ensuring justice in the EU — a European judicial training strategy for 2021-2024, published in December 2020, which explains the focus and scope of training in EU law for the years to come: the rule of law (upholding fundamental rights), upscaling the digitalisation of justice (prepare justice professionals to embrace digitalisation and the use of artificial intelligence ), keeping pace with developing EU law. A strategy addressed to judges, but this time also to other stakeholders: mediators, legal interpreters and translators, court experts, court staff, lawyers, even probation officers.

Higher education is not mentioned once. It does not necessarily mean that the Commission has not it in mind. Surely there are other initiatives one could find digging further. And then, most probably there are also issues of competence; the responsibility of educating future professionals lies primarily with the Member States (which is why the Bologna process will, in my view, never achieve its ultimate goal).

Be it as it may: for PIL fans in general (ie., beyond the University crowd) there is in the Communication a further fact to worry about. Cross-border cooperation is expressly mentioned and reference made to key EU instruments for cross-border judicial cooperation, at p. 3:

European judicial training should enable justice practitioners to see the role of EU law in their daily practice, give it full effect and secure the respect of rights and obligations stemming from EU law in national judicial proceedings. It is also important that they keep up to date with the development of EU law. Any new legislation and CJEU case-law developments necessitate training if they are to have the intended effects and justice professionals are to have the requisite knowledge and skills. In particular, this applies to the key EU instruments for cross-border judicial cooperation.”

Great, except that thereafter only cross-border cooperation in criminal matters is referred to.

Has the Commission forgotten judicial training regarding the EU regulations in civil and commercial matters? What does this absence entail in terms of funding of training activities?

A look into the website of the European Judicial Training Network shows how little place is left for European private international law and procedural law. Until June there is no activity planned on any of our core topics. In June, there will be a seminar on “Cross-border civil cases” (program not available yet; which kind of cases are meant is therefore not clear); and another one entitled “Jurisdiction, recognition, enforcement of judgments and determination of the applicable law under Regulation 1215/2012 (sic). The new Insolvency Regulation 848/2015”. Nothing else afterwards.

Of course, the EJTN is not the only training service provider. Three other well-known ones are the Academy of European Law (ERA), the European Institute of Public Administration (EIPA), and the European University Institute (EUI). In addition, the Justice Programme of the European Union supports as well national projects, such as FRICoRE. It may be that one or some of those offer seminars covering cross-border cooperation in civil and commercial matters. After consulting the program at the ERA until June, I am not too optimistic, though: there are many interesting activities, but only two relate directly to “our” topics.

In addition, I am not sure about what it means to be a “service provider”, in terms of how much of the training is publicly funded and how much attendants have to pay themselves; if I am not wrong, the seminars and workshops of the EJTN are for free, while the rest are not. On the side of the training experts there is probably not much difference: at least in our field colleagues are called to teach both by the EJTN and by the other providers; hence the quality of the training should be the same. But access to training is definitely not.

The European judicial training strategy of the Commission for the years to come foresees as well the launch of the European Training Platform (ETP), defined as “a search tool put at the service of legal practitioners and justice professionals who want to train themselves on any practice area of EU law or related matters”. It is too early to have an opinion on the platform. However, as of today, it is not a promise of open-access, neither to the courses nor to the materials. According to the information on the website, “The training providers inform potential trainees about the training activities they organise everywhere in the EU and in different languages.” So, at first sight the ETP will just be a repository of activities planned and undertaken by the four institutions indicated above. Not much of a step further regarding access to training.

On a less pessimistic note, it is true that the message goes on saying “The European Commission contributes to the platform with ready-to-use training materials or handbooks produced notably thanks to EU financial support”. And later in the webpage one can read “You will find many training courses on EU law advertised on the European Training Platform as well as training material for self-learning”. Maybe this means that training packages and publications will at some point be available to all stakeholders as in a public library. To be seen but… let’s hope.

Issues relating to succession and administration of estate of a deceased person raise significant issues in Nigerian private international law (or conflict of laws), whether a person dies testate or intestate. In the very recent case of Sarki v Sarki & Ors,[1] the Nigerian Court of Appeal considered the issue of what court had territorial jurisdiction in a matter of succession and administration of estate of a deceased person’s property under Nigerian conflict of laws dealing with inter-state matters. While this comment agrees with the conclusion reached by the Court of Appeal, it submits that the rationale for the Court’s decision on the issue of territorial jurisdiction for succession and administration of estates under Nigerian private international law in inter-state matters is open to question.

In Sarki, the claimants/respondents were the parents of the deceased person, while the defendant/appellant was the wife of the deceased person. The defendant/appellant and her late husband were resident in Kano State till the time of his death. The deceased was intestate, childless, and left inter alia immovable properties in some States within Nigeria – Bauchi State, Gombe State, Plateau State, Kano State, Jigawa State and the Federal Capital Territory, Abuja. The deceased’s family purported to distribute his property in accordance with Awak custom (the deceased’s personal law) with an appreciable proportion to the defendant/appellant. The defendant/appellant was apparently not pleased with the distribution and did not cooperate with the deceased’s family, who tried to gain access to the deceased’s properties. The claimants/respondents brought an action against the defendant/appellant before the Gombe State High Court. The claimants/respondents claimed inter alia that under Awak custom, which was the personal law of the deceased person, they are legitimate heirs of his property, who died childless and intestate; a declaration that the distribution made on 22 August 2015 by the deceased’s family in accordance with Awak custom, giving an appreciable sum of the property to the defendant/appellant is fair and just; an order compelling the defendant/appellant to produce and hand over all the original title documents of the landed properties and boxer bus distributed by the deceased family on 22 August 2015; and cost of the action. In response, the defendant/appellant made a statement of defense and counter-claim to the effect that she and the deceased are joint owners of all assets and properties acquired during their marriage; a declaration that the estate of the deceased is subject to rules of inheritance as envisaged by marriage under the Marriage Act[2] and not native law and custom; a declaration that as court appointed Administratrix, she is entitled to administer the estate of the deceased person; an order of injunction restraining the claimants/respondents to any or all of the assets forming part of the estate of the deceased person based on custom and tradition; and costs of the action.

The Gombe State High Court held that the Marriage Act was applicable in distributing the estate of the deceased person and not native law and custom. However, he distributed the property evenly between the claimants/respondents and defendant/appellants evenly on the basis that it will be unfair for the claimants/respondents as parents of the deceased not to have access to the deceased property. The defendant/appellant successfully appealed this ruling and won on the substantive aspect of the case. The private international law issue was whether the Gombe State High Court had territorial jurisdiction in this case, rather than the Kano State High Court where the defendant/appellant alleged the cause of action arose? The defendant/appellant argued that the cause of action arose exclusively in Kano State because that is where the deceased lived and died, and the defendant/appellant had obtained letters of administration issued by the Kano State High Court. The defendant/appellant lost on this private international law issue.

The Court of Appeal began on the premise that the issue of whether Gombe State or Kano State had jurisdiction was a matter of private international law, and not an issue of that was governed by a States’ civil procedures rules that governs dispute within a judicial division.[3] It also held that it is the plaintiff’s statement of claim that determines jurisdiction.[4] The Court of Appeal then approved its previous decisions that in inter-state matters of a private international law matter, a State High Court is confined to the location of the cause of action.[5] In this connection, the Court of Appeal rejected the argument of counsel for the defendant/appellant and held that the cause of action arose both in Kano and Gombe State – the latter State being the place where the dispute arose with the deceased’s family on the distribution of the deceased’s estate. Thus, both the Kano State High Court and Gombe State High Court could assume jurisdiction over the matter.[6] The Court of Appeal further held that other States such as Kano, Bauchi and Plateau could also assume jurisdiction because letters of administration were granted by the State High Courts of these jurisdictions.[7] In the final analysis, the Court of Appeal held that the claimants/respondents could either institute its action in either Gombe, Kano, Bauchi and Plateau – being the place where the cause of action arose, but procedural economy (which leads to convenience, saving time, saving costs, and obviates the risk of conflicting orders) encouraged the claimants/respondents to concentrate its proceedings in one of these courts – Gombe State High Court in this case.[8] Accordingly, this private international law issue was resolved in favour of the claimants/respondents.

There are three comments that could be made about the Court of Appeal’s judgments. First, it appears the issue of territorial jurisdiction was raised for the first time on appeal. It does not appear that this issue was raised at the lower court. If this is the case, it is submitted that the defendant/appellant should have been deemed to have waived its procedural right on jurisdiction on the basis that it submitted to the jurisdiction of the Gombe State High Court. Matters of procedural jurisdiction can be waived by the parties but not substantive jurisdiction such as jurisdiction mandatorily prescribed by the constitution or enabling statutes in Nigeria.[9] The issue of territorial jurisdiction among various State High Courts was a procedural matter and should have been raised promptly by the defendant/appellant or it would be deemed to have waived its right to do so by submitting to the jurisdiction of the Gombe State High Court.

Second, the Court of Appeal appeared to miss the point that there are Nigerian Supreme Court authorities that addressed the issue before it. According to the Supreme Court of Nigeria, in matters of succession and administration of states, the lex situs is given a predominant role for matters of jurisdiction purposes so that a Nigerian court would ordinarily not assume jurisdiction over foreign property, whether in an international or inter-state matter. Nigerian courts, as an exception, apply the rule to the effect that, where the Court has jurisdiction to administer an estate or trust, and the property includes movables or immovables situated in Nigeria and immovables situated abroad, the court has jurisdiction to determine questions of title to the foreign immovables for the purpose of administration. Again Nigerian courts apply this rule both in inter-State and international matters.[10] This rule established by the Nigerian Supreme Court in accordance with the English common law doctrine should have guided the Court of Appeal to hold that since it had jurisdiction over the deceased immovable properties in Gombe State, it also had jurisdiction over other immovable properties constituting the deceased’s estate in other States in Nigeria. The issue of where the cause of action arose was clearly irrelevant.

This brings me to the third and final comment – the issue of territorial jurisdiction. The Nigerian Supreme Court has held in some decided cases that in inter-state matters, a State High Court cannot assume jurisdiction over a matter where the cause of action is exclusively located in another State, irrespective of whether the defendant is resident and willing to submit to the court’s jurisdiction.[11] This current approach by the Supreme Court may have influenced the Court of Appeal to be fixated on the issue of territorial jurisdiction and confining itself to where the cause of action arose. Looking at the bigger picture, the current approach of the Nigerian Supreme Court in relation to matters of action in personam demonstrates a clear misunderstanding of applying common law private international law matters of jurisdiction in inter-state matters.[12] If a defendant is resident in a State and/or willing to submit, it shouldn’t matter where the cause of action arose in inter-state and international matters. Indeed, there is no provision of the Nigerian 1999 Constitution or enabling statute that prohibits a State High Court from establishing extra-territorial jurisdiction in inter-state or international matters, provided the defendant is resident and/or wiling to submit to the Court’s jurisdiction. The approach of the Nigerian court also risks making Nigerian courts inaccessible in matters of international commercial litigation in matters that occur exclusively outside Nigeria, thereby making the Nigerian court commercially unattractive for litigation.[13] Therefore it is time for the Supreme Court to overrule itself and revert to its earlier approach that held that in inter-state or international matters a Nigerian court can establish jurisdiction, irrespective of where the cause of action arose, where the defendant is resident and/or submits to the jurisdiction of the Nigerian court.[14]

In my final analysis, I would state that the Court of Appeal in Sarki reached the right conclusion on the issue of private international law, but the rationale for its decision is open to question. Moreover, though this private international law issue was resolved against the defendant/appellant, it substantially won on the substantive issues in the case. If this case goes on appeal to the Supreme Court, it should be an opportunity for the Supreme Court to set the law right again on the concept of jurisdiction in matters of succession and administration and estates, and overrule itself where it held that in inter-state matters, a State High Court is restricted to the place where the cause of action arose, irrespective of whether the defendant is resident and/or willing to submit to its jurisdiction.

[1] (2021) LPELR – 52659 (CA).

[2] Cap 218 LFN 1990.

[3]Sarki (n 1) 13-14.

[4] Ibid  14.

[5] Ibid  14-18, approving Lemit Engineering Ltd v RCC Ltd (2007) LPELR-42550 (CA).

[6] Sarki (n 1) 21.

[7]Ibid 21-3.

[8] Ibid 23-5, approving Onyiaorah v Onyiaorah (2019) LPELR-47092 (CA).

[9] See generally Odua Investment Co Ltd v Talabi ( 1997 ) 10 NWLR (Pt. 523) 1 ; Jikantoro v Alhaji Dantoro ( 2004 ) 5 SC (Pt. II) 1, 21 . This is a point that has been stressed by Abiru JCA in recent cases such as Khalid v Ismail ( 2013 ) LPELR-22325 (CA ); Alhaji Hassan Khalid v Al-Nasim Travels & Tours Ltd ( 2014 ) LPELR-22331 (CA) 23 – 25 ; Nigerian National Petroleum Corporation v Zaria ( 2014 ) LPELR-22362 (CA) 58 – 60; Obasanjo Farms (Nig) Ltd v Muhammad ( 2016 ) LPELR-40199 (CA). See also The Vessel MT. Sea Tiger & Anor v Accord Ship Management (HK) Ltd (2020) 14 NWLR (Pt. 1745) 418.

[10] Ogunro v Ogedengbe (1960) 5 SC 137; Salubi v Nwariaku (2003) 7 NWLR 426.

[11] Capital Bancorp Ltd v Shelter Savings and Loans Ltd (2007) 3 NWLR 148; Dairo v Union Bank of Nigeria Plc (2007) 16 NWLR (Pt 1059) 99. See also Mailantarki v Tongo & Ors (2017) LPELR-42467.

[12]See generally Abiru JCA in Muhammed v Ajingi LPELR-20372 (CA) 23 – 25, 25 – 26;  CSA Okoli and RF Oppong, Private International Law in Nigeria (1st edition, Hart, Oxford, 2020) 95-103; AO Yekini, “Comparative Choice of Jurisdiction Rules in Cases having a Foreign Element: are there any Lessons for Nigerian Courts?” (2013) 39 Commonwealth Law Bulletin 333; Bamodu O., “In Personam Jurisdiction: An Overlooked Concept in Recent Nigerian Jurisprudence” (2011) 7 Journal of Private International Law 273.

[13] See for example First Bank of Nigeria Plc v Kayode Abraham (2003) 2 NWLR 31 where the Court of Appeal held the lower court did not have jurisdiction because the cause of action arose exclusively outside Nigeria. This decision was however overturned by the Supreme Court in First Bank of Nigeria Plc v Kayode Abraham (2008) 18 NWLR (Pt 1118) 172.

[14] See generally Nigerian Ports Authority v Panalpina World Transport (Nig) Ltd (1973) 1 ALR Comm 146.

Invitation by Pietro Franzina

The Catholic University of the Sacred Heart in Milan will host a webinar on The Fundamental Rights of Persons with Cognitive Disabilities in Cross-border Situations – Time for Italy and Spain to Join the Hague Adults Convention, on 22 February 2021, from 5 pm to 7 pm CET.

The speakers – Philippe Lortie (First Secretary of The Hague Conference on Private International Law), Salomé Adroher Biosca (Comillas Pontifical University), Pietro Franzina (Catholic University of the Sacred Heart) and Geraldo Maciel Rocha Mendes Ribeiro (University of Coimbra) – will analyse the Hague Convention of 13 January 2000 on the International Protection of Adults and the prospect that Italy and Spain might join the thirteen States which are currently bound by that regime.

Attendance is free. No prior registration is required.

For more information, including the link to access the webinar, see here.

Written by Dr Ben Köhler, MPI Hamburg

Last week, following severe criticisms of its procurement strategy and a dispute with AstraZeneca over the delays in delivery of the vaccine, the EU Commission has published the Advance Purchase Agreement for the Production, Purchase and Supply of a Covid-19 Vaccine in the European Union (APA) it had concluded with AstraZeneca in August 2020. Although some important clauses were blackened at the request of AstraZeneca, the document gives interesting insights into the procurement practice of the EU and has incited a plethora of comments by the legal experts. Despite the broad coverage in legal and non-legal press, the issue of applicable law has received comparably little attention (but see Till Maier-Lohmann on the CISG’s potential applicability). In its first part, this post will argue that, as far as one can tell by the published document, the CISG is likely to be the applicable law to the contract, before outlining some of the consequences of the CISG’s potential application in the second part.

1. The CISG as the applicable law to the APA?

The issue of the applicable law would be considered by Belgian courts that are exclusively competent under the APA’s forum selection clause (§ 18.5 (b) APA). Since Belgium is a Contracting State to the CISG, Belgian courts are bound to apply the CISG’s provisions on its sphere of application that take precedence over the conflict rules in the Rome I-Regulation (Article 25 Rome I-Regulation). Pursuant to Article 1 (1) (a) CISG, the Convention applies to contracts of sale of goods between parties that have their places of business in different Contracting States.

1. Vaccine procurement as a (private) contract for the sale of goods?

The CISG does not distinguish between private law and public law entities and is not limited to contracts between private parties.[1] It is therefore applicable to sales contracts concluded by public law entities such as States if these entities do not act in exercise of their sovereign powers but iure gestionis like a private person could act as well,[2] irrespective of whether a public law tender procedure has preceded the conclusion of the contract.[3] The tender process that precedes the conclusion of the contract also does not fall under the exclusion of sales by auction in Art. 2 (b) CISG.[4]

A more nuanced question is whether the APA is a contract for the sale of goods. The question may seem moot since the parties themselves have labelled the agreement Advance Purchase Agreement and the contract provides for the delivery of vaccines against payment. However, it also contains some other elements that may be relevant for the qualification as a sales contract under Articles 1, 3 CISG. The first question is whether the buyers’ involvement in the manufacturing process is relevant. Pursuant to Article 3 (1) CISG, the Convention applies to the sale of goods to be manufactured unless the party ordering the goods undertakes to supply a substantial part of the materials. Indeed, the APA contains an obligation of the buyers to “use Best Reasonable Efforts to assist AstraZeneca in securing the supply” of drug substances and other materials (§ 6.1 APA) as well as an obligation to provide funding to AstraZeneca in order to enable it to procure the necessary materials (§ 7.1 APA). However, this assistance and funding does not seem to amount to an undertaking to supply a substantial part of the materials, particularly as the contract stipulates that “AstraZeneca shall secure the supply of all drug substances […] and drug product capacity […] as well as components critical to the development, manufacture and supply of the Initial Europe Doses” (§6.1). The second question is whether the obligation to deliver vaccines is “the preponderant part of the obligations” of the seller under Article 3 (2) CISG. Here, it seems clear that the core of the contract is the delivery of the vaccines, not the provision of a service of any kind. Other obligations, such as the reporting obligations (§§ 6.3, 10.2 APA), only seem to serve a complementary purpose to ensure the successful delivery of effective vaccines.

Finally, the APA purports to be merely an advance agreement.[5] The decisive factor is, however, not the designation of the agreement but whether it already contains the essential features of a sales contract.[6] The APA contains obligations to produce and deliver the vaccine for AstraZeneca (using their ‘best reasonable efforts’ in the manufacturing) and obliges the Commission and the Participating Member States to acquire vaccines. The APA is thus a sales contract for the purposes of Article 1 (1) (a) CISG.[7]

1. Parties having their places of business in different Contracting States?

Pursuant to Article 1 (1) (a) CISG, the parties to the APA need to have places of business in different Contracting States. The first difficulty is thus to identify the parties to the APA.[8] According the APA, the parties are AstraZeneca AB and the European Commission “acting on behalf and in the name of the member states of the European Union”. The APA goes on to state that “[t]he Commission, the Participating Member States and AstraZeneca may each be referred to herein individually as a ‘Party’ and collectively as the ‘Parties’.” Taken at face value, this would mean that, on the side of the buyers, both the European Commission and the Participating Member States are the parties to the contract in terms of Article 1 (1) (a) CISG. This understanding is in line with the APA’s provisions that not only contain obligations of the Participating Member States but also of the Commission (see e.g. § 9.1 APA).

The parties to the APA need to have their respective places of business in different Contracting States, irrespective of where the goods are manufactured or whereto they are delivered.[9] As per the APA, AstraZeneca AB has its place of business in Sweden while the Commission has its place of business in Brussels. Both Belgium and Sweden are Contracting States. Questions arise only in relation to some of the 27 Participating Member States.[10] While most Participating Member States are Contracting States to the CISG, Ireland and Malta are not. Portugal recently acceded to the CISG but the Convention has not yet entered into force. Amongst the other Participating Member States, Sweden has its place of business in the same Contracting State as AstraZeneca, ie in Sweden,[11] and Finland and Denmark are Contracting States in general but have declared a reservation under Article 94 CISG that exempts sales contracts between parties with their places of business in different Scandinavian States from the CISG’s sphere of application.[12]According to the prevailing view, however, in cases of multiparty contracts, it is sufficient that one party on either side of the transaction have their respective places of business in different Contracting States for the whole contract to be governed by the CISG.[13] Given that the Commission and most of the Participating Member States have their respective places of business in Contracting States other than Sweden, Finland or Denmark, the CISG would be applicable. I have argued elsewhere that the prevailing view is too expansive and that, in cases of multiparty contracts, courts should apply Article 10 (a) CISG by analogy to the different parties (rather than merely to different places of business) on either side of the transaction.[14] Even if one were to follow this approach, the APA would arguably still fall within the sphere of application of the CISG, since the most closely connected place of business on the side of the buyers seems to be the place of business of the Commission that is acting on behalf and in the name of the Participating Member States. The Parties to the APA thus have their respective places of business in different Contracting States pursuant to Article 1 (1) (a) CISG.

However, even if one of the parties were considered to have its place of business in a non-Contracting State,[15] the Convention would still apply by virtue of Article 1 (1) (b) CISG since the Belgian conflict of laws rules, most notably Article 3 (1) Rome I-Regulation, would point to the law of Belgium as a Contracting State to the CISG.

1. Exclusion of the CISG by the Parties in the APA?

The Parties are free to exclude the CISG pursuant to Article 6 CISG. In their choice of law clause, the Parties have chosen the “laws of Belgium” to govern the APA. Although the question of whether the parties wished to exclude the Convention is to be decided on a case-by-case basis, it seems firmly established that, as a general matter, the choice of the law of a Contracting State does not amount to an exclusion of the Convention as the CISG forms part of the Contracting State’s law.[16] Importantly, Belgian courts have repeatedly held that the choice of Belgian law includes the Convention. The choice of law clause would thus in principle not impede the application of the Convention by Belgian courts.

An analysis of the publicly available documents seems to suggest that Belgian courts would indeed apply the CISG to the APA if a claim was brought.[17]

1. Some of the consequences of the CISG’s application

The question one might ask now is: does it matter at all whether the CISG is applicable? After all, there are a lot of detailed provisions in the contract, for instance on force majeure (§ 18.7 APA) and termination for cause (§ 12.3 APA), that take precedence over the default rules laid down in the Convention (Article 6 CISG). I will briefly outline two of the many consequences of the application of the CISG to the APA.

1. Interpretation of contract

Many of the issues that are currently debated with respect to the contract are ultimately issues of interpretation of contract. For instance, the questions of whether AstraZeneca is only obliged to deliver vaccines that are produced in the EU or of how to apply the notion of ‘best reasonable efforts’ will turn on how different sections of the APA are interpreted. The relevant CISG provision here is Article 8 CISG, although the Convention’s rules on interpretation may, to a certain extent, be modified by the APA’s provisions, most notably by the clause on interpretation of the agreement (§ 18.1 APA) and the Entire Agreement-Clause (§ 18.9 APA). Pursuant to Article 8 (1), (2) CISG, the interpretation of the contract is controlled by a common intention of the parties and, lacking such intention, by the understanding of a reasonable third party.

2. Allocation of vaccines amongst several buyers in cases of shortage of supply

It was reported that AstraZeneca limited its delivery to the EU while fulfilling its obligations towards other third-party buyers such as the United Kingdom. The allocation of scarce goods amongst competing buyers has been debated in CISG scholarship and the prevailing opinion seems to point to a pro rata delivery to the different buyers in proportion to their respective contractual entitlements.[18] Of course, this default position may need to be reconsidered in light of the provisions of the APA, eg the default allocation between Participating Member States on a pro rata basis reflecting the size of their respective populations (§ 8.3 (b)) or AstraZeneca’s warranties (§ 13 APA).

Conclusion

The above analysis may be surprising: Why should a Convention that is unknown even to many lawyers govern the arguably most important procurement contracts in recent European history? Conversely, however, one might ask which legal instrument should be more appropriate to govern an international sales contract between 29 Parties from 27 different States? More than forty years after its adoption, the CISG may face its first test on global centre stage – it will be up to the test!

[1] Peter Mankowski in: Mankowski (ed.), Commercial Law (C.H. Beck Hart Nomos, 2019), CISG, Art. 1, para. 31; Ulrich G. Schroeter, „Grenzfragen des Anwendungsbereichs und international einheitliche Auslegung des UN-Kaufrechts (CISG)“, IHR 2019, 133, 134.

[2] Mankowski (n 1) Art. 1, para. 31.

[3] Schroeter (n 1) 134.

[4] Ulrich Magnus in: Staudinger-BGB, CISG, [2018], Art.2, para. 34; Schroeter (n 1) 134; Frank Spohnheimer in: Kröll, Mistelis & Perales Viscasillas (eds), UN Convention on Contracts for the International Sale of Goods (CISG) (2nd edn, C.H. Beck Hart Nomos 2018), Art. 2, para. 30.

[5] Till Maier-Lohmann, “EU-AstraZeneca contract – applicability of the CISG?”.

[6] See Magnus (n 4) Art. 1, para. 13; Ingeborg Schwenzer & Pascal Hachem in: Schwenzer (ed.), Schlechtriem & Schwenzer Commentary on the UN Convention on the International Sale of Goods (CISG) (4th edn, C.H. Beck Oxford University Press 2016) Art. 1, para. 8.

[7] Maier-Lohmann (n 5); see, on the application of the CISG to purchase options, Magnus (n 4) Art. 1, para. 41; Schwenzer & Hachem (n 6) Art. 1, para. 10.

[8] Maier-Lohmann (n 5).

[9] See Clayton P. Gillette & Stephen D. Walt, The UN Convention on Contracts for the International Sale of Goods – Theory and Practice (2nd edn, Cambridge University Press 2016) 27; Magnus (n 4) Art. 1, para. 11, with further references.

[10] See APA, Schedule B.

[11] Maier-Lohmann (n 5), with the question of how this may affect the CISG’s applicability.

[12] According to the prevailing opinion, the reservation is also to be applied in other Contracting States such as Belgium, Johnny Herre in: Kröll et al. (n 4) Art. 94, para. 5; Schwenzer & Hachem (n 6) Art. 94, para. 7.

[13] Schweizerisches Bundesgericht, Entscheid vom 28.5.2019 – 4A_543/2018, CISG-online no. 4463, IHR 2019, 236; Ulrich G. Schroeter, „Irrtumsanfechtung nach nationalem Recht und Anforderungen an Ausschlussvereinbarungen bei Anwendbarkeit des UN-Kaufrechts (CISG)“, IHR 2019, 231, 232.

[14] Claude Witz & Ben Köhler, “Panorama Droit uniforme de la vente internationale de marchandises“, Recueil Dalloz 2020, 1074, 1077.

[15] See, the question of Maier-Lohmann (n 5), hinting at AstraZeneca’s presence in the UK.

[16] Maier-Lohmann (n 5); see, with further references, CISG Advisory Council Opinion no. 16: “Exclusion of the CISG under Article 6, Rapporteur: Lisa Spagnolo, Comment 4 (b) (i); Mankowski (n 5) Art. 6, para. 8.

[17] See also Maier-Lohmann (n 5): „the Convention’s applicability cannot be excluded from the outset”.

[18] Christoph Brunner in: Brunner & Gottlieb (eds), Commentary on the UN Sales Law (CISG) (Kluwer 2019) Art. 79, para. 12; Schwenzer in: Schwenzer (ed.) (n 6) Art. 79, para. 28; Ben Köhler, Die Vorteils- und Gewinnherausgabe im CISG (MohrSiebeck, forthcoming 2021) 225.

Carlos Santaló Goris, Researcher at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law and Ph.D. candidate at the University of Luxembourg, offers a summary and a compelling analysis of the Czech domestic legislation regarding the EAPO Regulation.

Introduction

On 22 January 2021, the Czech Chamber of Deputies approved “the government act amending Act No. 6/2002 Coll., on courts, judges, lay judges and the state administration of courts and amending certain other acts (the Courts and Judges Act), the wording of later regulations, and other related laws, according to the Chamber of Deputies 630 as amended by the Chamber of Deputies”. The reform is now pending before the Czech Senate.

The first legislative implementation of the EAPO Regulation in the Czech national law

This act introduces the very first amendment of the Czech domestic legislation regarding Regulation No 655/2014, establishing a European Account Preservation Order (“EAPO Regulation”).

The act foresees the concentration of all the applications for EAPOs in one single court, and namely the Prague 1 District Court (Obvodní soud pro Prahu 1). Nowadays, based on the information available in the e-justice portal, the competent court corresponds to the territorially competent court in the debtor’s domicile. However, if the debtor lives outside the Czech Republic, the competent court is the one of the district where the debtor is domiciled.

The upcoming reform envisaged with the act will also affect the application mechanism to gather information on the bank accounts established in Article 14 of the EAPO Regulation. Creditors can also request to investigate if debtors hold bank accounts in the other Member States. Each Member State has an information authority which is charge of searching for the information on the bank accounts. Member States had to notify the Commission with the names of the information authorities by 16 July 2016.

Currently, there is no central information authority in the Czech Republic. Any district court with territorial competence over the debtor’s domicile is an information authority for the purposes of the EAPO Regulation. When the debtor is not domiciled in the Czech Republic, the information authority is the competent court in the district where the bank, which holds the accounts, is located. This can result in challenges for the courts of other Member States searching the information. In case the creditor even ignores the name of the debtor’s bank, how can the competent authority to provide the information on the bank accounts be identified? One Luxemburgish judge has experienced this very dilemma.

The information on the bank accounts is obtained directly from the banks. Czech courts submit a request to “all banks in its territory to disclose, upon request by the information authority, whether the debtor holds an account with them” (Article 14(5)(b) of the EAPO Regulation).

Eventually, if the reform is approved by the Czech Senate, the information authority will also be centralized in the Prague 1 District Court.

The reasons behind the implementation

According to Dr. Katerina Valachová, the member of the Czech Chamber of Deputies who sponsored the amendments concerning the EAPO Regulation, the reform is due to “the complexity of the legislation on the EAPO, as well as the short deadlines set by the EAPO Regulation”. Having a single court for all the EAPO applications will help in terms of specialization. Furthermore, since most of the headquarters of the banks that operate in the Czech Republic are located within the area of the Prague 1 District Court when the court acts as an information mechanism, it can obtain the information on the bank accounts from the banks faster.

The Czech reform in the European context

Establishing a central authority to gather information on the bank accounts is the most common solution followed among those Member States in which the EAPO Regulation applies. Only four out of the twenty-six Member States (France, Finland, Latvia, and the Netherlands), have opted for a complete decentralized information authority. Two other Member States, Austria, and Italy adopted a hybrid approach: they have a central authority when the debtor is domiciled abroad and a decentralized authority when the debtor is domiciled in the country.

However, establishing a centralized court to handle all EAPO applications is a less common choice among other Member States. Only three countries have appointed centralized courts to issue EAPOs: Austria, Slovakia, and Finland.

The Czech Republic’s two neighbouring Member States, Slovakia and Austria, introduced a partial centralization of the EAPOs applications. In Slovakia, the Banská Bystrica District Court (Okresný súd Banská Bystrica) handles all the EAPO applications when the debtor’s “general territorial affiliation cannot be determined” within the Slovakian territory. In Austria, the Vienna Inner City District Court (Bezirksgericht Innere Stadt Wien) is responsible for issuing all the EAPOs when requested before initiation of the proceedings on the merits and before the enforcement of the judgment on the merits of the claim.

Finland has gone a step further than Austria and Slovakia. Similarly, to the ongoing Czech reform, it appointed one sole court – the district court of Helsinki – responsible for issuing all EAPOs.

Outside the EAPO Regulation scheme, we can also find examples of domestic “centralized courts” responsible for other European civil proceedings. For instance, in Germany the European Payment Order (“EPO”) was centralized in the Local Court in Wedding, Berlin. In 2019, France the French legislator approved the creation of a centralized court, which will handle all the EPO applications.

A more efficient application of the EAPO Regulation

Establishing a centralized court for the EAPO Regulation in Czechia is very welcome among those of us who want the EAPO Regulation to become a successful instrument. The future central court will become specialized with the EAPO Regulation, an instrument that can result too complex and requires a certain amount time for its adequate understanding. The centralization will also assure a coherent and uniform application of the EAPO Regulation at the Czech national level. Moreover, in case an issue on the interpretation of the text of that Regulation arises, that centralized court might be more willing to make a preliminary reference to the European Court of Justice (“ECJ”) than regular judges who might not encounter many applications for EAPOs. The ECJ has itself expressly acknowledged the benefits of the centralization in the context of the Maintenance Regulation. In fact, in C-400/13, Sanders and Huber, the ECJ affirmed that “a centralization of jurisdiction, such as that at issue in the main proceedings, promotes the development of specific expertise, of such a kind as to improve the effectiveness of recovery of maintenance claims, while ensuring the proper administration of justice and serving the interests of the parties to the dispute” (C-400/13, Sanders and Huber, 18 December 2014, ECLI:EU:C:2014:2461, para. 45).

Hopefully, in the future more Member States will follow the example of Czechia or Finland and will concentrate the application of the EAPO in a sole court in their territories.

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on 11 February 2021 at 8:00 am (Mexico City time – CST), 3:00 pm CET time. The topic of the webinar is the HCCH Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children – a perspective from Europe and will be presented by Professor Beatriz Campuzano Díaz (in Spanish).

The details of the webinar are:

Link: https://us02web.zoom.us/j/82362628717?pwd=QWNSdTRVWHY0dllhNzlINEthTUZnQT09

Meeting ID: 823 6262 8717

Password: BMAAMEDIP

Participation is free of charge.

This event will also be streamed live: https://www.facebook.com/AmedipMX/about

Cecilia Rizcallah (ULB & University of Saint-Louis, Belgium) has just published a monograph on the principle of mutual trust in EU Law, based on her doctoral thesis: Le principe de confiance mutuelle en droit de l’Union européenne – Un principe essentiel à l’épreuve d’une crise de valeur, Bruylant, 2020.

The author has provided the following abstract in English:

The legal structure of the European Union “is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the Union is founded, as stated in Article 2 TEU”, states the Court of Justice of the European Union. Among these common values, fundamental rights, the rule of law and democracy occupy a central position. This “premiss”, according to the Court, “implies and justifies the existence of mutual trust between the Member States”.

Yet, as we all know, the European Union is currently facing a “crisis of values”. This crisis results from the increasingly frequent questioning, in the European Union, of the values on which it is allegedly based. The semantics of mutual trust between Member States has nevertheless never been more present in official speeches. Like the dictum according to which “we never talk as much about water as in the desert”, should the rise of the discourses on mutual trust be seen as an “excess of vocabulary” symptomatic of the climate of mistrust between Member States?

 This question, prompted by the success of the principle of mutual trust at a time when the context reveals fundamental divisions between Member States as to the meaning of European integration and the values on which it is based, is at the heart of this book.

In order to provide some answers, the first part of the book proposes to “clear the ground” and offer a cross-cutting definition of the principle of mutual trust in Union law, which applies both to internal market law and to the law of the Area of freedom, security and justice. It is the presumptive mechanism that seems, in this respect, to offer the best description of the principle under consideration.

The book then analyses the apparently consubstantial link between this principle and the founding values of the Union. Constituting an uncertain foundation and an imperfect limit to mutual trust, the EU founding values have an ambivalent relationship with the principle under consideration.

Finally, this book concludes with a third part which analyses the essential role played by the principle of mutual trust in Union law, at the crossroads of the imperatives of unity, diversity and equality. Because of the risks entailed by this principle regarding EU founding values, the book, however, argues in favour of moving mutual trust from the rank of postulate to that of method.

More details are available here, including a foreword by Eleanor Sharpston (Former Advocate General at Court of Justice of the European Union).

Since mutual trust is of particular interest for EU Private international law experts, Cecilia will soon provide the readers of this blog with a special focus on the principle of mutual trust in the field of EU judicial cooperation in civil matters, based on her doctoral research.

L’enfant, né sur le territoire d’un établissement cédé, postérieurement à l’expiration du délai d’option pour souscrire une déclaration de nationalité, n’est pas soumis aux dispositions du traité de cession. Il a un statut autonome de celui de son père, lui permettant de revendiquer la nationalité française sur le fondement du droit interne. 

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The U.S. Supreme Court issued its decision yesterday in Federal Republic of Germany v. Philipp. This is the case we previewed here concerning the Guelph treasure, allegedly taken by Nazis from its Jewish owners via a coerced sale for a fraction of its value prior to World War II. The heirs of the rightful owners and the government had agreed to conciliate the claim before a German Commission, which found that the taking had not been coerced. Dissatisfied with the decision, the heirs sued in Washington under the expropriation exception to the Foreign Sovereign Immunities Act, which provides that a foreign state is not immune from jurisdiction of the U.S. courts in cases “in which rights in property taken in violation of international law are in issue.” The District Court and the DC Circuit held that Germany was not immune, and the Supreme Court granted Germany’s petition for review. There were a number of issues at play in this case, but Germany’s primary argument was that a state does not violate international law by expropriating the property of its own nationals.

The Court, in a unanimous decision by Chief Justice Roberts, sided with Germany. When the FSIA was enacted in 1976, Roberts said, it was “clear” that a taking of property violated international law only when a state took an alien’s property. The text of the statute also “places repeated emphasis on property and property-related rights, while injuries and acts we might associate with genocide are notably lacking.” Put simply, the Court viewed the statute as linked to direct expropriation of alien property, and not as a way for U.S. courts to hear any claims arising under international law. Repeating a theme against asserting U.S. jurisdiction to acts occurring abroad, Justice Roberts stressed that “United States law . . . does not rule the world,” and noted that the Court will interpret our laws to “to avoid, where possible, “producing friction in our relations with [other] nations.”

Due to its decision on the expropriation exception, the Court did not need to decide whether comity provided an independent basis for dismissal. The court also issued a one-sentence opinion vacating a lower-court ruling in Republic of Hungary v. Simon, a similar lawsuit brought by Holocaust survivors seeking compensation for Hungary’s confiscation of Jewish property.

Procédure civile

Procédure civile

Appel civil

Procédures civiles d'exécution

On 22 February 2021, from 5 to 7 pm CET, the Catholic University of the Sacred Heart in Milan will host a webinar titled The Fundamental Rights of Persons with Cognitive Disabilities in Cross-border Situations – Time for Italy and Spain to Join the Hague Adults Convention.

The Hague Convention of 13 January 2000 on the International Protection of Adults is currently in force for thirteen States. As the Hague Conference on Private International Law is preparing to host a Special Commission to review the practical operation of the Convention, scheduled to take place in 2022, other States – including Italy and Spain – are considering ratification.

The purpose of the webinar is to give an account of the domestic rules of private international law governing the protection of adults in Spain and Italy, and explore the benefits that joining the Convention would entail in the two countries for the adults concerned, the competent authorities and legal practitioners, including notaries.

In carrying out this exercise, regard will be had, in particular, to the experience of Portugal, which became a party to the Convention in 2018.

The organisers also seek to collect the views of stakeholders, notably human rights organisations with a focus on the rights of those with cognitive disabilities, regarding the issues surrounding the protection of such rights in cross-border situations, and the role that the Convention may play in enhancing such protection.

Speakers include Philippe Lortie (First Secretary of The Hague Conference on Private International Law), Salomé Adroher Biosca (Comillas Pontifical University), Pietro Franzina (Catholic University of the Sacred Heart) and Geraldo Maciel Rocha Mendes Ribeiro (University of Coimbra).

Attendance is free. No prior registration is required.

For more information, including the link to access the webinar, see here.