Agrégateur de flux

 

Sweet & Maxwell is offering a 15% discount on all orders of the book until January 31st 2024. To receive your discount on purchases of the hardback and ProView eBook versions of The European Private International Law of Obligations please visit Sweet & Maxwell’s estore and quote the discount code EPILOO23 at checkout OR call +44 (0)345 600 9355. Offer valid from 22nd December to 31st January 2024. 

 

The European Private International Law of Obligations is a practitioners’ work that is evidently written at a very high standard. This is perhaps unsurprising because the authors, Mr Michael Wilderspin is a legal adviser to the European Commission, and Sir Richard Plender was an English Judge in his lifetime.

In the 6th edition of this authoritative and very illuminating book, Michael Wilderspin now assumes responsibility for its writing. The first edition of the book (in 1991) was solely written by Richard Plender, but he brought in Michael Wilderspin to work on the second edition with him. They worked together on successive editions of the book for a long time. Unfortunately, Richard Plender passed away in 2020, after the 5th edition of this book which was published in 2019.

 

The book is regularly cited in English courts, and it is likely that this tradition will be maintained in the 6th edition of the book. In this new edition over 70 recently decided cases (from the UK, Court of Justice of the European Union (“CJEU”) and other Member States of the EU) have been incorporated into the analysis. The new edition also incorporates many recent secondary sources in its analysis.

 

The book contains four main parts. Part One contains what is described as “COMMON PRINCIPLES” on Rome I and Rome II Regulations. This runs from pages 3 to 91, focusing on preliminary matters such as the history and interpretative approaches of Rome I and Rome II, and a comparison of both Regulations.  Part Two contains what is described as “CONTRACT” based on Rome I. This runs from pages 95 to 488, focusing on a detailed analysis of the Articles of Rome I. Part Three contains what is described as “THE LAW APPLICABLE TO NON-CONTRACTUAL OBLIGATIONS.” This runs from pages 491 to 860, focusing on a detailed analysis of the Articles of Rome II. Part Four contains what is described as “ROME I AND II REGULATIONS IN THE UK.” This runs from pages 863 to 868, focusing on the changes brought by Brexit to Rome I and Rome II as provided in The Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc.) (EU Exit) Regulations 2019.

 

Each chapter usually commences with a very useful legislative history. There is very impressive knowledge of Rome I and Rome II from a European comparative perspective and comparisons with other international conventions. The interaction between domestic private law in Member States and England, and law applicable to contract and torts is an underlying theme that is explored well in the book. In this regard, there is impressive knowledge of the domestic private laws and conflict of laws rules of many Member States in the EU and England, making this book genuinely European. One point worth mentioning is that the authors also note the final decision of Member State Courts that refer a matter to the CJEU on the applicable law of obligations. For example, in analysing the  decision of the CJEU in Haeger  (2015) which interprets Article 4(4) of the Rome Convention on the law applicable to contract of carriage of goods, Wilderspin also notes the final decision of the French Cour de Cassation that referred the question (see paragraph 8-016, footnote 37). Similarly, in analysing the decision of the CJEU in Nikiforidis (2016) which interprets Article 9 of Rome I on overriding mandatory rules, Wilderspin also notes the final decision of the German Court that referred the question (see paragraph 12-041).

 

Wilderspin notes in the Preface that whilst Richard Plender did not challenge the accuracy of his views, he encouraged him to use a more polite language in writing. Indeed, Wilderspin is a bold writer. He fiercely engages with both primary and secondary sources. On some occasions, he is very blunt. For example, Recital 12 to the Rome I Regulation provides in interpreting Article 3 of Rome I that:

“An agreement between the parties to confer on one or more courts or tribunals of a Member State exclusive jurisdiction to determine disputes under the contract should be one of the factors to be taken into account in determining whether a choice of law has been clearly demonstrated.”

 

Many French scholars like Professor Maxi Scherer (2011) are of the view that there is a requirement of corroboration with other factors in utilising an exclusive jurisdiction agreement to imply a choice of law under Article 3 of Rome I. However, Wilderspin disagrees and regards this view as a “scarcely credible claim” and “very weak.” This tops my chart as one of the strong languages used by a conflict of laws’ academic to disagree with another academic.

 

Wilderspin now appears to have changed his view on the significance of the word “clearly demonstrated” under Article 3 of Rome I (see para 6-028 and 29-104). Wilderspin and Plender previously expressed the view that there is no significant difference between “demonstrated with reasonable certainty” under Article 3 of the Rome Convention and “clearly demonstrated” under Article 3 of Rome I, on the ground that the change was made to merely align the English and German version with the French version. This is a view that has been endorsed by English judges in Lawlor (at para 3) and Aquavita International SA v Ashapura Minecham Ltd [2014] EWHC 2806 (Comm) [20], citing inter alia, older editions of Plender and Wilderpin. Wilderspin now expresses the view that the English version of Article 3 of Rome I is “apparently stricter” than Article 3 of the Rome Convention, and notes that “although the English version was in line with the majority of the other language versions, in particular the German, those versions have become aligned with the minority, French version” (see para 6-028 and 29-104). This change of view by Wilderspin can be attributed to the influence of the outstanding work of Mr Michael McParland (2015) on Rome I Regulation, who at paras 9.37-9.72 notes the detailed legislative history that brought about the significant change in wording under Article 3 of Rome I. Indeed, he cites McParland. However, at para 11-027, footnote 48, Wilderspin notes that the difference between the wording of Article 3 of the Rome Convention and Article 3 of Rome I is “probably more apparent than real.” I think this statement might be an error that was carried over from the last edition. I also take this view because Wilderspin refers to the old paragraph 6-024 instead of the new 6-026 of the new edition of the book.

In the light of this modified view by Wilderspin, it is open to question if English judges and other courts of Member State courts will apply a stricter approach in interpreting Article 3 of Rome I. For example, Professor Pietro Franzina also notes in a book chapter (at para 3.1.1) that the Italian  Supreme Court (Cass., 10 April 2019, No. 10045, Pluris) held that while the wording of Article 3 of the Rome Convention and Rome I were not identical, “they must be understood to have, in substance, the same meaning” on tacit choice of law.

 

The book is a highly specialist work that is meticulously written. Nevertheless, I found what I consider to be only three minor typographical errors the author may correct for the next edition. These are odd references to “CHECK” at paragraph 9-061, “that1” at paragraph 9-064, and “pr” at paragraph 9-089.

 

My final verdict is that the 6th edition of this book will make an excellent Christmas and New Year’s gift in the library of any academic and/or practitioner with an interest in conflict of laws. I highly recommend it without any reservations.

 

 

 

The recently published Volume 433 of the Collected Courses of the Hague Academy of International Law includes the course by Kartsten Thorn (Bucerius Law School) on The Protection of Small and Medium-sized Enterprises in Private International Law.

Speaking about the protection of structurally weaker parties in private international law, this normally refers to non-business parties as consumers or employees. However, in many cases also entrepreneurs are protected. Well-known examples are the commercial agent under European law, the subcontractor in France and the franchisee in many US jurisdictions.

This paper systematizes these cases, looks for underlying policies and develops a proposal for future private international law rules with regard to small and medium sized enterprises (SMEs). It understands private international law in the broad French sense encompassing jurisdiction rules and even international commercial arbitration.

Methodologically, the interplay between substantive law, conflict of laws rules and jurisdiction rules for the protection of weaker parties in the context of different legal systems is shown and evaluated with special consideration of their internationally mandatory rules. Legal gaps to European Private International law are identified in comparison to foreign jurisdictions. Following an economic analysis, a new approach to the protection of SMEs is presented which also encompasses international commercial arbitration as an alternative method of dispute resolution.

The latest issue of RabelsZ has just been released. It contains the following contributions:

ESSAYS

Mareike Schmidt, Kulturalität der Rechtsanwendung und internationale Rechtsvereinheitlichung – Überlegungen am Beispiel des UN-Kaufrechts, 643–671, DOI: https://doi.org/10.1628/rabelsz-2023-0077

Cultural Dimensions in the Application of Law and International Unification of Law – The Example of the CISG. – The uniform application of law, in general, and of international uniform law, in particular, is confronted with the challenges of cultural diversity. Drawing on a meaning-based understanding of culture and using the example of the United Nations Convention on Contracts for the International Sale of Goods, the article examines the extent to which cultural conceptions of normality shape the individual steps in the application of law and illustrates this influence with concrete examples. Overall, it becomes clear that the cultural nature of the application of law goes well beyond what is usually discussed. The analysis advances an understanding of the application of international uniform law as the processing of cultural difference, in the context of which – and within an entire network of actors – foreign conceptions of normality are often interpreted with the aim of integrating them into one’s own system of meaning. The resulting depiction of interconnections within this network, which concludes the text, can serve as a starting point for a more detailed analysis of the processes involved.

Maarten Herbosch, Contracting with Artificial Intelligence – A Comparative Analysis of the Intent to Contract, 672–706, DOI: https://doi.org/10.1628/rabelsz-2023-0076

Computer systems based on artificial intelligence (AI) are an increasing presence in everyday legal practice. They may even be used to form contracts on behalf of their users. In such instances, it is not necessarily required that the system has been set up to take precise, pre-specified actions from an engineering perspective. As a result, the system may enter into contracts unforeseen by its user. This comes into friction with the requirements that contract formation depends on the contracting parties’ intent to be bound or that a contract constitutes a meeting of the minds. It is obscure how the intent to form a specific contract or a meeting of the minds can be present if one of the parties may not even know that a particular contract is being entered into. To tackle this challenge, this article thoroughly examines the intent requirement in various legal systems. It becomes clear that the intent requirement is often loosely applied and that its role is formulated too generally, unnecessarily obstructing a straightforward application to contract formation via AI systems. Supplying nuance to the role of intent in contract formation helps clarify that the intent requirement is not in fact an obstacle to contract formation via AI systems.

SYMPOSIUM: Fundamental Rights and Private International Law

Ralf Michaels: Einleitung zum Symposium: Grundrechte und IPR im Lichte der Entscheidung des Bundesverfassungsgerichts zum Kinderehenbekämpfungsgesetz, 707–713, DOI: https://doi.org/10.1628/rabelsz-2023-0084 [Open Access: CC BY-SA 4.0]

Symposium Introduction: Fundamental Rights and Private International Law after the Federal Constitutional Court Decision on the Act to Combat Child Marriages. – This issue presents the contributions to a symposium which examined the German Federal Constitutional Court’s ruling on the Act to Combat Child Marriages from the perspectives of constitutional law and the conflict of laws. This introduction summarizes the Court’s ruling and situates it in the scheme of German jurisprudence; thereafter, the symposium and the presented papers are described.

Henning Radtke, Zu den Maßstäben der verfassungsrechtlichen Beurteilung von Regelungen des deutschen Internationalen Privatrechts, 714–727, DOI: https://doi.org/10.1628/rabelsz-2023-0083 [Open Access: CC BY-SA 4.0]

On the Standards of Constitutional Review of Provisions of German Private International Law. – The German Federal Constitutional Court regularly reviews the constitutionality of domestic provisions of private international law and their application by the competent courts. In doing so, it takes into account the special features of this type of legislation that result, for example, from the cross-border dimension of the situations it is supposed to address and from the necessary respect for the validity of foreign legal systems. With regard to the protection of marriage and the family, this applies in particular when determining the scope of protection and the structural principles underlying art. 6 para. 1 and other provisions under the German Basic Law. The level of scrutiny when examining constitutionality is primarily determined on the basis of the principle of proportionality.

 

Susanne Lilian Gössl, Grundrechte und IPR – Von beidseitigem Desinteresse zu höflicher Aufmerksamkeit – und zu angeregtem Austausch?, 728–747, DOI: https://doi.org/10.1628/rabelsz-2023-0075 [Open Access: CC BY-SA 4.0]

Fundamental Rights and Private International Law: From Mutual Disinterest to Respectful Attention – and on to Animated Exchange? – The relationship between German constitutional law and the field of conflict of laws has been discussed for decades, especially when decisions of the Constitutional Court (BVerfG) addressing private international law issues have been pending or published. The most recent occasion to reflect on this relationship is the decision of the BVerfG on the Act to Combat Child Marriages. Initially, German scholars had assumed that conflict of laws, as a value-neutral and merely technical body of law, was constitutionally irrelevant. Fundamental rights could – according to a first Constitutional Court decision – at most become relevant through the ordre public clause. Foreign law was subsequently upgraded by the widow’s pension decision, with the result that foreign rules can expand the scope of German fundamental rights. Ultimately, the BVerfG has affirmed that – like private law generally – private international law is bound to the German Constitution as part of the collective legal order and, furthermore, that it shapes the expression of constitutional guarantees in the German legal order. Nevertheless, many theoretically intriguing questions remain open, such as the character of foreign law in the jurisprudence of the Constitutional Court. These questions invite further inquiry and academic exchange.

 

Lars Viellechner, Die Anwendbarkeit der Grundrechte im Internationalen Privatrecht: Zur Methodik der Entscheidung des Bundesverfassungsgerichts über die Kinderehe, 748–765, DOI: https://doi.org/10.1628/rabelsz-2023-0078 [Open Access: CC BY-SA 4.0]

The Applicability of Fundamental Rights in Private International Law: On the Methodology of the Federal Constitutional Court’s Decision Regarding Child Marriage. – In its decision on the Act to Combat Child Marriages, the Federal Constitutional Court of Germany does not explicitly address the applicability of fundamental rights in private international law. It only considers some cross-border effects of the statute in the context of the proportionality test. According to its own earlier case law, however, it should have taken a position on this question. It could also have taken the opportunity to further develop a constitutional notion of conflict of laws, which equally shines through its decisions on the relationship between the Basic Law and both international law as well as European Union law. With resort to such a method, not only could it have clarified a question of principal significance regarding the relationship between fundamental rights and private international law, it might also have reached a different result in the present case.

 

Dagmar Coester-Waltjen, Die »Kinderehen«-Entscheidung des Bundesverfassungsgerichts: Welche Schlussfolgerungen ergeben sich für das internationale Eheschließungsrecht?, 766–785, DOI: https://doi.org/10.1628/rabelsz-2023-0069 [Open Access: CC BY-SA 4.0]

The Early Marriage Decision of the Federal Constitutional Court: What Does It Mean for International Marriage Law? – The decision of the Federal Constitutional Court on art. 13 para. 3 no. 1 of the Introductory Act to the Civil Code raises many questions of private international law. Although the court ultimately held the provision unconstitutional, a welcome outcome, the decision also weakens the protection of legal statuses acquired under foreign law and allows the specifications and classifications of German internal law to apply as the standard even for marriages validly entered into under foreign law. The court roughly indicates a few possible ways to remedy the disproportionality of the provision, but it would seem difficult to implement these remedies in a way that both systematically conforms with the principles of private international law and does not create serious practical issues. As an alternative, the legislator should instead consider declaring all underage marriages, including the »earliest of the early«, to be voidable, because although the court’s ruling accepts their classification as non-marriages, it does not necessarily require such a harsh categorization. The article concludes by examining the potential of a fundamental reform of art. 13 of the Introductory Act to the Civil Code.

 

BOOK REVIEWS

As always, this issue also contains several reviews of literature in the fields of private international law, international civil procedure, transnational law, and comparative law (pp. 786–853).

The latest issue of the RabelsZ (Rabels Zeitschrift für ausländisches und internationales Privatrecht) has been published. This issue features a symposium with several articles focussing on fundamental rights and private international law, one of them in English, the others in German. The following abstracts have been kindly provided to us by the editor of the journal.

Mareike Schmidt, Kulturalität der Rechtsanwendung und internationale Rechtsvereinheitlichung – Überlegungen am Beispiel des UN-Kaufrechts (Cultural Dimensions in the Application of Law and International Unification of Law – The Example of the CISG)

The uniform application of law, in general, and of international uniform law, in particular, is confronted with the challenges of cultural diversity. Drawing on a meaning-based understanding of culture and using the example of the United Nations Convention on Contracts for the International Sale of Goods, the article examines the extent to which cultural conceptions of normality shape the individual steps in the application of law and illustrates this influence with concrete examples. Overall, it becomes clear that the cultural nature of the application of law goes well beyond what is usually discussed. The analysis advances an understanding of the application of international uniform law as the processing of cultural difference, in the context of which – and within an entire network of actors – foreign conceptions of normality are often interpreted with the aim of integrating them into one’s own system of meaning. The resulting depiction of interconnections within this network, which concludes the text, can serve as a starting point for a more detailed analysis of the processes involved.

Maarten Herbosch, Contracting with Artificial Intelligence – A Comparative Analysis of the Intent to Contract

Computer systems based on artificial intelligence (AI) are an increasing presence in everyday legal practice. They may even be used to form contracts on behalf of their users. In such instances, it is not necessarily required that the system has been set up to take precise, pre-specified actions from an engineering perspective. As a result, the system may enter into contracts unforeseen by its user. This comes into friction with the requirements that contract formation depends on the contracting parties’ intent to be bound or that a contract constitutes a meeting of the minds. It is obscure how the intent to form a specific contract or a meeting of the minds can be present if one of the parties may not even know that a particular contract is being entered into. To tackle this challenge, this article thoroughly examines the intent requirement in various legal systems. It becomes clear that the intent requirement is often loosely applied and that its role is formulated too generally, unnecessarily obstructing a straightforward application to contract formation via AI systems. Supplying nuance to the role of intent in contract formation helps clarify that the intent requirement is not in fact an obstacle to contract formation via AI systems.

Ralf Michaels, Einleitung zum Symposium: Grundrechte und IPR im Lichte der Entscheidung des Bundesverfassungsgerichts zum Kinderehenbekämpfungsgesetz ( Symposium Introduction: Fundamental Rights and Private International Law after the Federal Constitutional Court Decision on the Act to Combat Child Marriages)

This issue presents the contributions to a symposium which examined the German Federal Constitutional Court’s ruling on the Act to Combat Child Marriages from the perspectives of constitutional law and the conflict of laws. This introduction summarizes the Court’s ruling and situates it in the scheme of German jurisprudence; thereafter, the symposium and the presented papers are described.

Henning Radtke, Zu den Maßstäben der verfassungsrechtlichen Beurteilung von Regelungen des deutschen Internationalen Privatrechts (On the Standards of Constitutional Review of Provisions of German Private International Law)

The German Federal Constitutional Court regularly reviews the constitutionality of domestic provisions of private international law and their application by the competent courts. In doing so, it takes into account the special features of this type of legislation that result, for example, from the cross-border dimension of the situations it is supposed to address and from the necessary respect for the validity of foreign legal systems. With regard to the protection of marriage and the family, this applies in particular when determining the scope of protection and the structural principles underlying art. 6 para. 1 and other provisions under the German Basic Law. The level of scrutiny when examining constitutionality is primarily determined on the basis of the principle of proportionality.

Susanne Lilian Gössl, Grundrechte und IPR – Von beidseitigem Desinteresse zu höflicher Aufmerksamkeit – und zu angeregtem Austausch? (Fundamental Rights and Private International Law: From Mutual Disinterest to Respectful Attention – and on to Animated Exchange?)

The relationship between German constitutional law and the field of conflict of laws has been discussed for decades, especially when decisions of the Constitutional Court (BVerfG) addressing private international law issues have been pending or published. The most recent occasion to reflect on this relationship is the decision of the BVerfG on the Act to Combat Child Marriages. Initially, German scholars had assumed that conflict of laws, as a value-neutral and merely technical body of law, was constitutionally irrelevant. Fundamental rights could – according to a first Constitutional Court decision – at most become relevant through the ordre public clause. Foreign law was subsequently upgraded by the widow’s pension decision, with the result that foreign rules can expand the scope of German fundamental rights. Ultimately, the BVerfG has affirmed that – like private law generally – private international law is bound to the German Constitution as part of the collective legal order and, furthermore, that it shapes the expression of constitutional guarantees in the German legal order. Nevertheless, many theoretically intriguing questions remain open, such as the character of foreign law in the jurisprudence of the Constitutional Court. These questions invite further inquiry and academic exchange.

Lars Viellechner, Die Anwendbarkeit der Grundrechte im Internationalen Privatrecht: Zur Methodik der Entscheidung des Bundesverfassungsgerichts über die Kinderehe (The Applicability of Fundamental Rights in Private International Law: On the Methodology of the Federal Constitutional Court’s Decision Regarding Child Marriage)

In its decision on the Act to Combat Child Marriages, the Federal Constitutional Court of Germany does not explicitly address the applicability of fundamental rights in private international law. It only considers some cross-border effects of the statute in the context of the proportionality test. According to its own earlier case law, however, it should have taken a position on this question. It could also have taken the opportunity to further develop a constitutional notion of conflict of laws, which equally shines through its decisions on the relationship between the Basic Law and both international law as well as European Union law. With resort to such a method, not only could it have clarified a question of principal significance regarding the relationship between fundamental rights and private international law, it might also have reached a different result in the present case.

Dagmar Coester-Waltjen, Die »Kinderehen«-Entscheidung des Bundesverfassungsgerichts: Welche Schlussfolgerungen ergeben sich für das internationale Eheschließungsrecht? (The Early Marriage Decision of the Federal Constitutional Court: What Does It Mean for International Marriage Law?)

The decision of the Federal Constitutional Court on art. 13 para. 3 no. 1 of the Introductory Act to the Civil Code raises many questions of private international law. Although the court ultimately held the provision unconstitutional, a welcome outcome, the decision also weakens the protection of legal statuses acquired under foreign law and allows the specifications and classifications of German internal law to apply as the standard even for marriages validly entered into under foreign law. The court roughly indicates a few possible ways to remedy the disproportionality of the provision, but it would seem difficult to implement these remedies in a way that both systematically conforms with the principles of private international law and does not create serious practical issues. As an alternative, the legislator should instead consider declaring all underage marriages, including the »earliest of the early«, to be voidable, because although the court’s ruling accepts their classification as non-marriages, it does not necessarily require such a harsh categorization. The article concludes by examining the potential of a fundamental reform of art. 13 of the Introductory Act to the Civil Code.

The table of contents in German is available here.

United Parcel Service / Commission
Droit institutionnel
Fin de l’accord de fusion UPS-TNT : l’irrégularité commise par la Commission n’est pas la cause déterminante du prétendu manque à gagner d’UPS et ne justifie donc pas de l’indemniser

Commission / Danemark (Durée maximale de stationnement)
Transport
Manquement d’État : la Cour rejette le recours de la Commission contre le Danemark concernant la durée maximale de stationnement sur les aires d’autoroute

G. K. e.a.
Espace de liberté, sécurité et justice COJP
Parquet européen : la Cour clarifie l’exercice du contrôle juridictionnel des mesures d’enquêtes transfrontières par les juges nationaux

GN (Motif de refus fondé sur l’intérêt supérieur de l’enfant)
Espace de liberté, sécurité et justice
Mandat d’arrêt européen : la remise d’une personne recherchée ne peut être refusée au seul motif qu’elle est la mère d’enfants en bas âge

Krajowa Rada Sądownictwa (Maintien en fonctions d’un juge)
Droit institutionnel
Système judiciaire polonais : une formation de jugement de la chambre de contrôle extraordinaire et des affaires publiques de la Cour suprême ne constitue pas un tribunal indépendant et impartial, établi préalablement par la loi

Royal Antwerp Football Club
Libre circulation des personnes

Football : les règles de l’UEFA et de l’URBSFA sur les « joueurs formés localement » pourraient être contraires au droit de l’Union

Chief Appeals Officer e.a.
Libre circulation des personnes
Libre circulation : la mère d’un travailleur migrant de l’Union peut, dès lors qu’elle est à la charge de ce travailleur, demander une prestation d’assistance sociale sans que cette demande remette en question son droit de séjour

European Superleague Company
Concurrence

Les règles de la FIFA et de l’UEFA sur l’autorisation préalable des compétitions de football interclubs, telle que la Superleague, violent le droit de l’Union

International Skating Union / Commission
Concurrence

Les règles de l'International Skating Union sur l’autorisation préalable des compétitions de patinage de vitesse sur glace violent le droit de l'Union

BMW Bank
Environnement et consommateurs
Un consommateur qui conclut un contrat de leasing automobile sans obligation d’achat ne dispose pas d’un droit de rétractation

On 7 December 2023, The Council presidency and European Parliament representatives reached a provisional agreement on a reform of the Statute of the Court of Justice (last version available here).

Among other things, the reform will permit the transfer of jurisdiction over preliminary rulings to the General Court in specific areas, while the Court of Justice will retain jurisdiction over questions of principle, like those that involve interpretation of the Treaties or the Charter of Fundamental Rights.

The amendment, which is meant to reduce the workload of the Court of Justice and, therefore, to help her work more efficient, represents an essential step in the history of the institution as we know it.

The possibility of the handover is formally established by Article 256 TFEU, according to which:

3. The General Court shall have jurisdiction to hear and determine questions referred for a preliminary ruling under Article 267, in specific areas laid down by the Statute.

Where the General Court considers that the case requires a decision of principle likely to affect the unity or consistency of Union law, it may refer the case to the Court of Justice for a ruling.

Decisions given by the General Court on questions referred for a preliminary ruling may exceptionally be subject to review by the Court of Justice, under the conditions and within the limits laid down by the Statute, where there is a serious risk of the unity or consistency of Union law being affected.

It should be noted that the provision is not a novelty in EU law; it corresponds to former Article 225 TEC. In fact, the transfer to the General Court of partial jurisdiction to give preliminary rulings had already been considered in the past: at the end of last century, first, against the background of the Treaty of Amsterdam and the foreseen enlargement of the Union; and later, around 2015, in view of the increasing number of requests for preliminary rulings. However, in 2017, in a report submitted pursuant to Article 3(2) of Regulation (EU, Euratom) 2015/2422 of the European Parliament and of the Council amending Protocol No 3 on the Statute of the Court of Justice of the European Union, the Court of Justice had denied the need of a transfer at the time. On the other hand, it  simultaneously stressed that such standpoint “should not at all be understood as a definitive position on the question of the distribution of jurisdiction to give preliminary rulings between the Court of Justice and the General Court”. And, indeed, it has not been a definitive position.

For the readers of this blog the essential question is, of course, what the impact of the competences adjustment will be on preliminary rulings conerning PIL instruments.

The simple answer would be that, in principle, none is to be expected. The specific areas in which the General Court will be competent over preliminary rulings are: the common system of value added tax; excise duties; the Customs Code; the tariff classification of goods under the Combined Nomenclature; compensation and assistance to passengers in case of delay or cancellation of transport services or denied boarding; the scheme for greenhouse gas emission allowance trading. In other words, as of today requests on the instruments for judicial cooperation in civil and commercial matters are not affected, i.e., they fall under the scope of exclusive competence of the Court of Justice.

But this, of course, can change any moment in the future. More importantly, already now it is legitimate to have doubts as to the operation of the assignments to, respectively, the Court of Justice and the General Court: one single request for a preliminary ruling may concern at the same time one of the above-mentioned areas and another one; besides, requests related to one of those matters may as well entail questions of principle or of a cross-cutting nature.

More concretely, with an example: should the request for a preliminary ruling in, let’s say, case C‑213/18, or in case C-20/21, had been referred to Luxembourg after the transfer has been accomplished, who would have taken care?

In the Council’s press release of 7 December 2023 (the same date as the agreement’s) not much is said to shed light on this and similar questions. It is explained, though, that, ‘On the procedural aspects, the reform provides for a “one-stop-shop” mechanism, under which national judges will continue to address requests for preliminary rulings to the Court of Justice, which will in turn forward to the General Court the questions under its jurisdiction’.

This possibly means that a screening will take place at the level of the Court of Justice, and that a substantiated decision will be made there on the allocation of requests not squarely corresponding to one of the categories listed above. No doubt, for the sake of transparency the criteria for such allocation will also be communicated to the public at some point, likely soon. It is also to be expected (and it is hoped) that resources of the Court will be invested in making sure that, from the very beginning, they are consistently applied.

La rédaction de Dalloz actualité prend ses quartiers d’hiver, le temps des fêtes de fin d’année bien méritées !

Nous serons de retour dès le mardi 9 janvier 2023.

Merci de votre fidélité et joyeuses fêtes !

en lire plus

From 15 February 2024 to 17 February 2024, an early career research workshop will be held at Freie Universität Berlin to discuss works in progress on dispute resolution mechanisms and competence-competence in multi-level systems. The workshop invites young researchers working on related topics from all fields of legal research and is open to different methodological approaches to analyse the research questions. The workshop aims to generate a constructive and friendly atmosphere to test working hypotheses and discuss findings.
You can find further information in the call for abstracts here.

Important dates

Deadline for abstracts:                19 January 2024

Information on acceptance:       26 January 2024

Workshop:                                     15–17 February 2024

Applications and questions can be addressed to maren.vogel@fu-berlin.de

My thoughts on the Court of Appeal’s finding in Zubaydah v FCO are here. I am pleased to have played a role for claimant’s lawyers, pro bono, in the proceedings before the UK Supreme Court, which held today in Zubaydah (Respondent) v Foreign, Commonwealth and Development Office and others (Appellants).

The issue in the appeal is whether the law applicable under sections 11 and 12 of the Private International Law (Miscellaneous Provisions) Act 1995 (“PILA”) to torts alleged to have been committed by two of the UK’s security agencies  is the law of England and Wales or the law of each of the six countries in which the claimant alleges he was unlawfully detained and tortured by the CIA. The High Court had held for the latter, which follows from the generally applicable lex loci damni rule. The Court of Appeal reversed, holding for the former on the basis of the small window to displace the general rule and this finding has now been confirmed by the Supreme Court.

The relevant PILA sections read as follows

“11. Choice of applicable law: the general rule.

(1) The general rule is that the applicable law is the law of the country in which the events constituting the tort or delict in question occur.

(2) Where elements of those events occur in different countries, the applicable law under the general rule is to be taken as being—

(a) for a cause of action in respect of personal injury caused to an individual or death resulting from personal injury, the law of the country where the individual was when he sustained the injury;

(b) for a cause of action in respect of damage to property, the law of the country where the property was when it was damaged; and

(c) in any other case, the law of the country in which the most significant element or elements of those events occurred.

(3) In this section “personal injury” includes disease or any impairment of physical or mental condition.”

“12. Choice of applicable law: displacement of general rule.

(1) If it appears, in all the circumstances, from a comparison of—

(a) the significance of the factors which connect a tort or delict with the country whose law would be the applicable law under the general rule; and

(b) the significance of any factors connecting the tort or delict with another country,

that it is substantially more appropriate for the applicable law for determining the issues arising in the case, or any of those issues, to be the law of the other country, the general rule is displaced and the applicable law for determining those issues or that issue (as the case may be) is the law of that other country.

(2) The factors that may be taken into account as connecting a tort or delict with a country for the purposes of this section include, in particular, factors relating to the parties, to any of the events which constitute the tort or delict in question or to any of the circumstances or consequences of those events.”

Two background documents are of particular relevance: ‘LCR’ = the Law Commission Report December 1990; and ‘JCP’ =  the Joint Consultation Paper 1984. The LCR [2.6] ff had justified its proposal for amendment to the English prior rule of double actionability for torts, by suggesting it does away with 3 main challenges of the double actionability rule:

• • • its anomalous character (it was said to give too much weight to English and Scots law as lex fori, contrary to the UK’s general happiness to apply foreign law);
    • its injustice in terms of giving an advantage to the wrongdoer (the victim’s burden of proof under the double actionability rule is particularly heavy); and
    • the uncertainty and speculative implication NOT in the rule but in a relevant exception, Boys v Chaplin [1971] AC 356.

[54] The approach to be adopted when considering whether the general rule is displaced pursuant to section 12 was considered by the Court of Appeal in VTB Capital plc v Nutritek International Corpn [2012] EWCA Civ 808 and in current case Lord Lloyd-Jones and Lord Stephens for the majority [54] ff summarise the four principles that follow from that case.

Note that [62] the Supreme Court criticises parties’ agreement that the determination of the defendants’ appeal did not require any consideration of the potential application of section 14 PILA (the ordre public correction):

We consider that there is an artificiality about deciding which law governs the liability in tort of the UK Services without considering public policy considerations under section 14 of the PILA. Although, we express no view on the matter, there is scope for suggesting, for example, that on the presumed facts of this case, it is a constitutional imperative that the applicable law in relation to the tort of misfeasance in public office in relation to the acts and omissions of the UK Services should be the law of England and Wales. However, we have been presented with a preliminary issue on sections 11 and 12 of the PILA and must seek to address it solely on that basis. We conclude this part of the judgment by observing that, depending on the outcome of the appeal, it may be necessary for a court to consider the impact, if any, of section 14 of the PILA at a later stage of these proceedings.

[73] the Court of Appel was held to have been correct in rebuking the first instance judge for focusing too much on the role of the CIA

The required focus is on the torts committed by the defendants or those for whom they are responsible. Instead, the Court of Appeal considered, the judge had focused on the overall conduct of the CIA. In our view, there is force in this criticism.

[74] ff discusses the treatment by the first instance judge of factors relevant in displacing the locus damni general rule: (1) First, the claimant had no control over his location and in all probability no knowledge of it. (2) So far as the UK Services were concerned, the claimant’s location from time to time was irrelevant and may well have been unknown. (3) The claimant had been rendered to the Six Countries precisely because this would enable him to be detained and tortured outside the laws and legal systems of those countries.  The Supreme Court agrees with the Court of Appeal’s finding that the judge had wrongly applied the relevance of these factors. Those finding fault with the Supreme Court’s approach may find this too much of a factual analysis rather than a point of law I imagine (as indeed Lord Sales does to some degree in his dissent).

[80] the Court of Appeal itself is then held to have fallen short of the proper exercise in applying s12:

It seems to us, however, that the Court of Appeal has also fallen into error in relation to the required focus under section 12 of the PILA on the torts committed by the defendants. Section 11(1) provides that the general rule is concerned with “the country in which the events constituting the tort … in question occur”. Similarly, section 12 refers to “the significance of the factors which connect a tort … with the country whose law would be the applicable law under the general rule” and with “another country”. In our view, the Court of Appeal, in approaching the section 12 exercise, interpreted the scope of the relevant torts too narrowly in that it equated the torts in question with the conduct of the UK Services which is alleged to be wrongful.

Rather than conflating the conduct of the UK Services with the torts,

The Court of Appeal should have focused on the torts alleged against the UK Services for which the defendants are said to be vicariously responsible

leading [82] ff the SC itself completing the s12 exercise.

The significance of the connection between the torts and each of the Six Countries arising from the claimant’s detention there and the infliction of his injuries there is held to be massively reduced by the factors discussed in [92] ff:

reasonable expectations and involuntary presence [93];

the security services’ indifference as to where the claimant was held and them never expecting or intending to have their conduct judged by reference to the laws of the places where he was held [94];

the insulated environments within which claimant was held and where he could be denied any access to the local law (alleged to apply in Moziak fashion by the defendants) or recourse to local courts [95], countries which in effect were insulated form the courts [97];

the sheer number of black sites in which the claimant was held diminishes the significance of the law of any one of them, and moreover it would be impossible for him to establish where he sustained which injury [96];

[98] ff conversely, the strong factors connecting the torts to the UK:

the alleged vicarious liability of the UK Government [99];

the relevant acts and omissions of the UK Services in requesting information from the CIA were more likely than not to have taken place in England, and were likely committed by the UK Services for the perceived benefit of the United Kingdom [100]; and

the actions were taken by UK executive agencies acting in their official capacity in the purported exercise of powers conferred under the law of England and Wales [101].

Lord Sales dissented, pointing also to the Court of Appeal and the High Court simply disagreeing on the weight to be given to the various factors, and in his own analysis of those factors he reaches the conclusion that the Mozaik of the 6 laws should apply.

It is rare for an applicable law issue in tort to be discussed to such extent by the Supreme Court and the judgment carries great relevance.

Geert.

Illegal rendition, applicable law, displacement of the ordinary lex loci damni rule
More soon (and background here https://t.co/dYdGJILOJ2)
Pleased to have played a small (pro bono) role in the appeal with the SC. https://t.co/szromMgIQp

— Geert Van Calster (@GAVClaw) December 20, 2023

 

 

A new special issue of the University of Brasilia Law Journal is dedicated to the topic “Private International Law and Sustainable Development: Global and Latin American Perspectives”. The issue, co-edited by Véronica Ruiz Abou-Nigm and María Mercedes Albornoz, is based on contributions to a panel at the 15th conference of ASADIP in Asunción, Paraguay (2022), and contains some articles in Spanish, some in English. The issue is available as open access.

The European Group for Private International Law (GEDIP) has recently adopted a Position paper on the Proposal for a Council Regulation in matters of Parenthood.

The Group welcomes the EU’s intention to legislate in this field, since parenthood is a status from which persons derive numerous rights and obligations.  However, the Group is of the opinion that there are important shortcomings in the Proposal due to the narrow perspective taken and an insufficient consideration of the legal complexities concerning parenthood in cross-border situations. It therefore encourages a reconsideration of the Proposal in the light of its observations.