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The first post of the EAPIL blog was published one year ago, on 25 November 2019. More than 300 posts have followed since, written by the blog’s editors and by no less than twenty guests.

We are trying to make the blog richer in contents, and improve its visibility.

Various private international law specialists across Europe and beyond have offered to prepare guest posts for publication in the coming days or weeks. We are eager to read their contributions and share them with our readers.

In the meanwhile, we are working to make the blog – and the Association, generally – more active on social media.

Marco Pasqua, an Associate Member of the Association, with a special interest in collective redress and the liability of corporate groups for violation of EU competition law, has kindly accepted to serve as the Association’s social media manager. Thanks a lot, Marco!

So, join us also on Twitter (@eapilorg) and Linkedin!

Planning to become a member of EAPIL, and join the 255 scholars and practitioners who have already done so? We are glad to provide you with one more reason to submit your application before the end of the year!

While, as a general rule, fees are due for each calendar year, those applying for membership in December 2020 will not be required to pay any fees for 2020. The first fees due by such new members will be the fees due for 2021.

See here for information on the benefits you would be entitled to as a member, as well as on the types of membership offered and the admission process.

Once you are ready to apply for membership, just fill in the form you find here!

Hier soir, la commission des lois de l’Assemblée a adopté le projet sur le parquet européen. Un texte qui brasse de nombreux champs de la justice pénale et civile. Ce projet de loi était une occasion rare pour que débouchent plusieurs réformes voulues par Éric Dupond-Moretti. Si des amendements importants ont été adoptés sur des sujets variés, le ministre a souvent temporisé.

en lire plus

The 2020 Annual Conference of the French Association for European Studies (AFEE) will focus on Family within the Legal Order of the European Union, based on a collective research led by academics and practitioners from different EU countries, which resulted in a book edited by Elsa Bernard (University of Lille), Marie Cresp (University of Bordeaux) and Marion Ho-Dac (University of Valenciennes), to be published soon by Bruylant.

This year’s conference will take place on 11 December 2020, in the form of a Zoom webinar, from 11.45 to 14.30 MET, with the participation of the book’s authors and other speakers. It will be preceded, starting on 7 December 2020, by the posting of a series of short videos devoted to the contributions in the book.

Attendance is free, but those interesting in attending are required to register by 9 December 2020, by sending and e-mail to aline.dherbet@univ-lille.fr.

Family law, with its civil law tradition, and strong roots in the national cultures of the Member States, does not normally fall within the scope of European law. However, it is no longer possible to argue that family law is outside European law entirely. There are many aspects of the family which are subject to European influence, to the point that the outlines of a «European family» are starting to emerge. This book is intended to highlight the European experience of family law as well as its substantive (i.e. European citizenship, EU social policy, EU civil service…) and private international law aspects. Union law therefore contains a form of «special» family law which is shared between the Member States and supplements their national family laws. Its theoretical and political importance in the Union, as well as its future, are discussed by the authors. Far from remaining fragmented alongside the national laws of Member States, it will likely develop to offer European citizens and residents a common family law within the EU.

Contributors include: Katharina Boele-Woelki, Marlene Brosch, Christelle Chalas, Kiteri Garcia, Susanne Lilian Gössl, Loïc Grard, Víctor Luis Gutiérrez Castillo, Anastasia Iliopoulou-Penot, Beata Jurik, Hester Kroeze, Laure Lévi, Cristina M. Mariottini, Martina Melcher, Benjamin Moron-Puech, Marion Nadaud, Nicolas Nord, Cyril Nourissat, Ludovic Pailler, Nausica Palazzo, Amélie Panet-Marre, Etienne Pataut, Delphine Porcheron, Isabelle Rein Lescastereyeres, Sophie Robin-Olivier, Mathieu Rouy, Sandrine Sana Chaillé de Néré, Solange Ségala, Gaëlle Widiez et Geoffrey Willems.

Guillaume Payan (University of Toulon, France) is the editor of a new book offering commentaries of the most important of the judgments delivered by the Court of Justice of the European Union in the field of European civil procedure (Espace judiciaire européen – Arrêts de la CJUE et commentaires).

The author has provided the following abstract:

For twenty years, European directives and regulations have been multiplied in the field of the European judicial area in civil matters (Treaty on the Functioning of the European Union, art. 81). Their implementation in the various member states of the European Union is the source of significant litigation. In order to settle the disputes submitted to them, national Courts frequently request the Court of Justice of the European Union, submitting a request for a preliminary ruling on interpretation.

Knowledge of preliminary ruling is essential for a good understanding of European Union legislation, it being understood that the terms used therein are interpreted independently, by referring mainly to the objectives and scheme of European regulation and directive concerned, in order to ensure the uniform application.

The book “European civil judicial area: judgments of CJEU and comments” contains analyzes of more than 300 judgments of the Court of Justice.

In this book, the judgments of the Court of Justice of the European Union – and the older ones of the Court of Justice of the European Communities – are not arranged in chronological order, as is traditionally the case. However, their presentation follows the structure of the directives and regulations adopted in the field of the European Civil Judicial Area.

However, in the same case, the Court of Justice may have to interpret several provisions appearing in the same European legislative instrument or in separate European legislative instruments. As a result, some judgments appear at different places in the book. In such a case, each analysis is focused on a precise aspect of the solution adopted and references are made to the other comments relating to these judgments.

This choice pursues the objective of facilitating the identification of the correct meaning of the concepts which punctuate the European Union legislation developed in the field of judicial cooperation in civil matters. In the same perspective, in each analysis, the extracts from the judgments – and the conclusions of the Advocates General relating to them – appear in italics. In addition, the comments are preceded by the reproduction of the relevant extract from the judgment studied. This extract corresponds to all or part of its ruling. In addition, the list of judgments analyzed is reproduced at the end of the book in an alphabetical table of case law.

This work was written under the direction of Guillaume Payan (University of Toulon, France) and includes a foreword of Professor Hélène Gaudemet-Tallon. The contributors to the books are I. Barrière-Brousse, J. Bauchy, A. Berthe, V. Egéa, E. Guinchard, L.-C. Henry, M. Ho-Dac, F. Jault-Seseke, N. Joubert, M.-C. Lasserre, F. Mailhé, S. Menetrey, P. Nabet, P. Oudot, G. Payan, F. Reille.

More details can be found here, including the table of contents of the book which is available here.

The CJEU held yesterday (Tuesday) in C-59/19 Wikingerhof v Booking.com. I reviewed the AG’s Opinion here. The case was held in Grand Chamber, which might have provoked expectations yet the judgment is not exactly a bang. Neither however can it be described a whimper. As I note in my review of the Opinion, the case in my view could have been held acte clair. The AG did take the opportunity in his Opinion to discuss many issues which the CJEU was bound not to entertain, at least not in as much detail as the AG did.

Let me first signal what I believe might be the biggest take-away of the litigation, if at least the referring court is followed. That is the Bundesgerichtshof’s finding that  there is no durable record of the alleged consent by Wikingerhof of the amended GTCs, including choice of court, effected via amendments on the ‘Extranet’, which is the portal via which the hotel may update its information and retrieve reservations. Booking.com claimed these amounted to a ‘form which accords with practices which the parties have established between themselves’ pursuant to Article 25(1)(b). Parties will still argue on the merits whether the initial consent to the primary GTCs was strong-armed because of booking.com’s dominant position.

With respect to to the jurisdictional issue, the CJEU in a succinct judgment firstly points to the need for restrictive interpretation. It points at 29 to the claimant being the trigger of A7(1) or (2). Without a claimant’s decision to base a claim on the Articles, they simply do not get to be engaged. That is a reference to the forum shopping discussion of the AG. Still, the court hearing the action must assess whether the specific conditions laid down by those provisions are  met.

At 32, with reference to Brogsitter, ‘an action concerns matters relating to a contract within the meaning of [A7(1)(a) BIa] if the interpretation of the contract between the defendant and the applicant appears indispensable to establish the lawful or, on the contrary, unlawful nature of the conduct complained of against the former by the latter’.  ‘That is in particular the case of an action based on the terms of a contract or on rules of law which are applicable by reason of that contract’ (reference to Holterman and to Kareda, with the latter itself referring to De Bloos). At 33  ‘By contrast, where the applicant relies, in its application, on rules of liability in tort, delict or quasi-delict, namely breach of an obligation imposed by law, and where it does not appear indispensable to examine the content of the contract concluded with the defendant in order to assess whether the conduct of which the latter is accused is lawful or unlawful, since that obligation applies to the defendant independently of that contract, the cause of the action is a matter relating to tort, delict or quasi-delict’.

At 32 therefore the CJEU would seem to confirm De Bloos’ awkward (given the Regulation’s attention to predictability) support for forum shopping based on claim formulation yet corrected by what is more akin to Sharpston AG’s approach in Ergo and the Court’s approach in Apple v eBizcuss, a judgment not referred in current judgment: namely that the judge will have to consider whether contractual interpretation is strictly necessary (the Court uses ‘indispensable’) to judge the case on the merits. Here, Wikingerhof rely on statutory German competition law (at 34-36): therefore the claim is one covered by Article 7(2).

The judgment confirms the now very fine thread between jurisdictional and merits review for the purposes of tort-based litigation between two contracting parties.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2, Heading 2.2.11.2.9. 3rd ed. 2021 para 2.469.

 

The EU “Parliament today endorsed a new law that will allow groups of consumers to join forces and launch collective action in the EU. […] All member states must put in place at least one effective procedural mechanism that allows qualified entities (e.g. consumer organisations or public bodies) to bring lawsuits to court for the purpose of injunction (ceasing or prohibiting) or redress (compensation). […]

More rights for consumers and safeguards for traders

The European class action model will allow only qualified entities, such as consumer organisations, to represent groups of consumers and bring lawsuits to court, instead of law firms.

In order to bring cross-border actions to court, qualified entities will have to comply with the same criteria across the EU. They will have to prove that they have a certain degree of stability and be able to demonstrate their public activity, and that they are a non-profit organisation. For domestic actions, entities will have to fulfil the criteria set out in national laws.

The rules also introduce strong safeguards against abusive lawsuits by using the “loser pays principle”, which ensures that the defeated party pays the costs of the proceedings of the successful party.

To further prevent representative actions from being misused, punitive damages should be avoided. Qualified entities should also establish procedures to avoid conflict of interest and external influence, namely if they are funded by a third party.

Collective actions can be brought against traders if they have allegedly violated EU law in a broad range of areas such as data protection, travel and tourism, financial services, energy and telecommunication.

Finally, the directive also covers infringements that have stopped before the representative action is brought or concluded, since the practice might still need to be banned to prevent it from recurring.

[…]

Next steps

The directive will enter into force 20 days following its publication in the Official Journal of the EU. Member states will then have 24 months to transpose the directive into their national laws, and an additional six months to apply it. The new rules will apply to representative actions brought on or after its date of application”.

Source: https://www.europarl.europa.eu/news/en/press-room/20201120IPR92116/

Earlier today, the Grand Chamber of the CJEU rendered its long-awaited decision in Case C-59/19 Wikingerhof. The case, which concerns the claim for an injunction brought by a German hotel against the online platform booking.com, goes back to the age-old question of where to draw the line between special jurisdiction for contract and tort under Article 7 Brussels Ia if the two parties are bound by a contract but the claim is not strictly-speaking based on it.

Arguably the Court’s most authorative statement on this question can be found in Case C-548/12 Brogsitter, where the Court held that a claim needed to be qualified as contractual if the parties are bound by a contract and ‘the conduct complained of may be considered a breach of [this] contract, which may be established by taking into account the purpose of the contract’ (para. 24). Some of the Court’s later decisions such as the one in Joined Cases C-274/16, C-447/16, and C- 448/16 flightright could however be seen as a (cautious) deviation from this test.

In Wikingerhof, the claimant sought an injunction against certain practices relating to the contract between the parties, which the claimant argued they had been forced to agree to due to the dominant market position of the defendant, which violated German competition law. According to AG Saugsmandsgaard Øe – whose Opinion has been discussed on this blog here and here – this claim had to be qualified as non-contractual as it was effectively based not on the contract, but on rules of competition law which did not require a taking into account of the contract in the sense seemingly required under Brogsitter.

In its relatively short judgment, the Court appears to agree with this assessment. Using the applicant’s choice of the relevant rule of special jurisdiction as the starting point (para. 29; which might be seen as a deviation from the purely objective characterisation attempted in Case 189/87 Kalfelis and Brogsitter), the Court held that

[33] … where the applicant relies, in its application, on rules of liability in tort, delict or quasi-delict, namely breach of an obligation imposed by law, and where it does not appear indispensable to examine the content of the contract concluded with the defendant in order to assess whether the conduct of which the latter is accused is lawful or unlawful, since that obligation applies to the defendant independently of that contract, the cause of the action is a matter relating to tort, delict or quasi-delict within the meaning of point 2 of Article 7 of Regulation No 1215/2012.

Despite repeated references to the decision in Brogsitter, the Court thus seems to move the focus away from whether ‘the conduct complained of may be considered a breach of contract’ towards what may be seen as a lower threshold of whether an examination of the content of the contract is ‘indispensable’. (Similar wording was admittedly also used in Brogsitter (paras. 25–26) but did not made it into the dispositif of the decision.) Applying this test to the case at hand, the Court explained that

[34] In the present case, Wikingerhof relies, in its application, on an infringement of German competition law, which lays down a general prohibition of abuse of a dominant position, independently of any contract or other voluntary commitment. Specifically, Wikingerhof takes the view that it had no choice but to conclude the contract at issue and to suffer the effect of subsequent amendments to Booking.com’s general terms and conditions by reason of the latter’s strong position on the relevant market, even though certain of Booking.com’s practices are unfair.

[35] Thus, the legal issue at the heart of the case in the main proceedings is whether Booking.com committed an abuse of a dominant position within the meaning of German competition law. As the Advocate General stated in points 122 and 123 of his Opinion, in order to determine whether the practices complained of against Booking.com are lawful or unlawful in the light of that law, it is not indispensable to interpret the contract between the parties to the main proceedings, such interpretation being necessary, at most, in order to establish that those practices actually occur.

[36] It must therefore be held that, subject to verification by the referring court, the action brought by Wikingerhof, in so far as it is based on the legal obligation to refrain from any abuse of a dominant position, is a matter relating to tort, delict or quasi-delict within the meaning of point 2 of Article 7 of Regulation No 1215/2012.

Considering the limited popularity of the Brogsitter judgment, today’s restatement of the test will presumably be welcomed by many scholars.

 

 

The Colloquium on Applicable Law in Insolvency Proceedings, organized by the UNCITRAL secretariat in cooperation with the Hague Conference on Private International Law, will be held online on 11 December 2020.

This Colloquium is organized with a view to exploring submitting concrete proposals for UNCITRAL’s possible future work on the topic of applicable law in insolvency proceedings for consideration by UNCITRAL at its fifty-fourth session in June 2021.

The tentative programme, information on how to register and additional information on the context of the Colloquium are available on the UNCITRAL website.

Guillaume Payan (University of Toulon, France) is the editor of a new book offering commentaries of the most important of the judgments delivered by the Court of Justice of the European Union in the field of European civil procedure (Espace judiciaire européen – Arrêts de la CJUE et commentaires).

The author has provided the following abstract:

For twenty years, European directives and regulations have been multiplied in the field of the European judicial area in civil matters (Treaty on the Functioning of the European Union, art. 81). Their implementation in the various member states of the European Union is the source of significant litigation. In order to settle the disputes submitted to them, national Courts frequently request the Court of Justice of the European Union, submitting a request for a preliminary ruling on interpretation.

Knowledge of preliminary ruling is essential for a good understanding of European Union legislation, it being understood that the terms used therein are interpreted independently, by referring mainly to the objectives and scheme of European regulation and directive concerned, in order to ensure the uniform application.

The book “European civil judicial area: judgments of CJEU and comments” contains analyzes of more than 300 judgments of the Court of Justice.

In this book, the judgments of the Court of Justice of the European Union – and the older ones of the Court of Justice of the European Communities – are not arranged in chronological order, as is traditionally the case. However, their presentation follows the structure of the directives and regulations adopted in the field of the European Civil Judicial Area.

However, in the same case, the Court of Justice may have to interpret several provisions appearing in the same European legislative instrument or in separate European legislative instruments. As a result, some judgments appear at different places in the book. In such a case, each analysis is focused on a precise aspect of the solution adopted and references are made to the other comments relating to these judgments.

This choice pursues the objective of facilitating the identification of the correct meaning of the concepts which punctuate the European Union legislation developed in the field of judicial cooperation in civil matters. In the same perspective, in each analysis, the extracts from the judgments – and the conclusions of the Advocates General relating to them – appear in italics. In addition, the comments are preceded by the reproduction of the relevant extract from the judgment studied. This extract corresponds to all or part of its ruling. In addition, the list of judgments analyzed is reproduced at the end of the book in an alphabetical table of case law.

This work was written under the direction of Guillaume Payan (University of Toulon, France) and includes a foreword of Professor Hélène Gaudemet-Tallon. The contributors to the books are I. Barrière-Brousse, J. Bauchy, A. Berthe, V. Egéa, E. Guinchard, L.-C. Henry, M. Ho-Dac, F. Jault-Seseke, N. Joubert, M.-C. Lasserre, F. Mailhé, S. Menetrey, P. Nabet, P. Oudot, G. Payan, F. Reille.

More details can be found here, including the table of contents of the book which is available here.

Révision et réexamen des décisions pénales

This report has been prepared by Carlos Santaló Goris, a researcher at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law, and Ph.D. candidate at the University of Luxembourg.

On 29-30 October 2020, ERA – the Academy of European Law – organized a conference on “Recent Developments in the European Law of Civil Procedure”, offering a comprehensive overview of civil procedural matters at the European and global level. The program proved very successful in conveying the status quo of, but also a prospective outlook on, the topics that currently characterise the debates on cross-border civil procedure, including the Brussels I-bis Regulation and 2019 HCCH Judgments Convention, the digitalisation of access to justice, the recent developments on cross-border service of documents and taking of evidence, and judicial cooperation in civil and commercial matters in the aftermath of Brexit.

For those who did not have the opportunity to attend this fruitful conference, this report offers a succinct overview of the topics and ideas exchanged over this two-day event.

Day 1: The Brussels I (Recast) and Beyond

The Brussels regime, its core notions and the recent contributions by the CJEU via its jurisprudence were the focus of the first panel. In this framework, Cristina M. Mariottini (Max Planck Institute Luxembourg) tackled the core notion of civil and commercial matters (Art. 1(1)) under the Brussels I-bis Regulation. Relying, in particular, on recent CJEU judgments, among which C-551/15, Pula Parking; C-308/17, Kuhn; C-186/19, Supreme Site Services, she reconstructed the functional test elaborated by the CJEU in this area of the law, shedding the light on the impact of recent developments in the jurisprudence of the Court, i.a., with respect to immunity claims raised by international organizations.

Marta Pertegás Sender (Maastricht University and University of Antwerp) proceeded then with a comprehensive overview of the choice-of-court agreement regimes under the Brussels I-bis Regulation and the 2005 Hague Convention on choice of court agreements. Relying, inter alia, on the CJEU case law on Article 25 of the Brussels I-bis Regulation (C-352/13, CDC Hydrogen; C-595/17, Apple Sales; C-803/18, Balta; C-500/18, AU v. Reliantco; C-59/19, Wikingerhof (pending)), she highlighted the theoretical and practical benefits of party autonomy in the field of civil and commercial matters.

The interface between the Brussels I-bis Regulation and arbitration, and the boundaries of the arbitration exclusion in the Regulation, were the focus of Patrick Thieffry (International Arbitrator; Member of the Paris and New York Bars) in his presentation. In doing so he analysed several seminal cases in that subject area (C-190/89, Marc Rich; C-391/95, Van Uden; C-185/07, West Tankers; C?536/13, Gazprom), exploring whether possible changes were brought about by the Brussels I-bis Regulation.

The evolution of the CJEU’s jurisprudence vis-à-vis the notions of contractual and non-contractual obligations were at the heart of the presentation delivered by Alexander Layton (Barrister, Twenty Essex; Visiting Professor at King’s College, London). As Mr Layton effectively illustrated, the CJEU’s jurisprudence in this field is characterized by two periods marking different interpretative patterns: while, until 2017, the CJEU tended to interpret the concept of contractual matters restrictively, holding that “all actions which seek to establish the liability of a defendant and which are not related to a contract” fall within the concept of tort (C-189/87, Kalfelis), the Court interpretation subsequently steered towards an increased flexibility in the concept of “matters relating to a contract” (C-249/16, Kareda; C-200/19, INA).

 

The principle of mutual trust of the European Area of Freedom, Security and Justice vis-à-vis the recent Polish judicial reform (and its consequential backlash on the rule of law) was the object of the presentation delivered by Agnieszka Fr?ckowiak-Adamska (University of Wroc?aw). Shedding the light on the complex status quo, which is characterized by several infringement actions initiated by the European Commission (C?192/18, Commission v Poland; C?619/18, Commission v Poland; C?791/19 R, Commission v Poland (provisional measures)) as well as CJEU case law (e.g. C?216/18 PPU, Minister for Justice and Equality v LM), Ms Fr?ckowiak-Adamska also expounded on the decentralised remedies that may be pursued by national courts in accordance with  the EU civil procedural instruments, among which public policy, where available, and refusal by national courts to qualify Polish judgments as  “judgments” pursuant to those instruments.

The second half of the first day was dedicated to the 2019 HCCH Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. In this context, it is of note that the EU, among others, has opened a Public Consultation into a possible accession to the Convention (see, esp., Thomas John’s posting announcing the EU’s public consultation). While Ning Zhao (Senior Legal Officer, HCCH) gave an overview of the travaux preparatoires of the 2019 HCCH Convention and of the main features of this instrument, Matthias Weller (University of Bonn) delved into the system for the global circulation of judgments implemented with the Convention, highlighting its traditional but also innovative features and its potential contributions, in particular to cross-border dealings.

The roundtable that followed offered the opportunity to further expound on the 2019 HCCH Judgments Convention. Namely, Norel Rosner (Legal and Policy Officer, Civil Justice, DG for Justice and Consumers, European Commission) explained that the EU has a positive position towards the Convention, notably because it facilitates the recognition and enforcement of EU judgments in third countries and because it will help create a more coherent system of recognition and enforcement in the EU Member States of judgments rendered in other (of course, non-EU) Contracting States. The roundtable also examined the features and objectives of Article 29, which puts forth an “opt-out” mechanism that allows Contracting States to mutually exclude treaty obligations with those Contracting States with which they are reluctant to entertain the relations that would otherwise arise from the Convention. As Ms Mariottini observed, this provision – which combines established and unique characters compared to the systems put forth under the previous HCCH Conventions – contributes to defining the “territorial geometry” of the Convention: it enshrines a mechanism that counterbalances the unrestricted openness that would otherwise stem from the universality of the Convention, and is a valuable means to increase the likelihood of adherence to the Convention. Matthias Weller proceeded then to explore the consequences of limiting a Contracting State’s objection window to 12 months from adherence to the Convention by the other Contracting State and raised the case of a Contracting State whose circumstances change so dramatically, beyond the 12-month window, that it is no longer possible to assure judicial independence of its judiciary. In his view, solutions as the ones proposed by Ms Fr?ckowiak-Adamska for the EU civil procedural instruments may also apply in such circumstances.

 

 

Day 2: European Civil Procedure 4.0.

Georg Haibach (Legal and Policy Officer, Civil Justice, DG for Justice and Consumers, European Commission), opened the second day of the conference with a detailed presentation on the ongoing recast of the Service Regulation (Regulation (EC) No 1393/2007). Emphasizing that the main objective of this reform focuses on digitalization – including the fact that the proposed recast prioritises the electronic transmission of documents – Mr Haibach also shed the light on other notable innovations, such as the possibility of investigating the defendant’s address.

The Evidence Regulation (Council Regulation No. 1206/2001), which is also in the process of being reformed, was at the core of the presentation delivered by Pavel Simon (Judge at the Supreme Court of the Czech Republic, Brno) who focuses not only on the status quo of the Regulation as interpreted by the CJEU (C-283/09, Wery?ski; C-332/11, ProRail; C-170/11, Lippens), but also tackled the current proposals for a reform: while such proposals do not appear to bring major substantive changes to the Regulation, they do suggest technological improvements, for instance favouring the use of videoconference.

In her presentation, Xandra Kramer (University of Rotterdam and Utrecht University) analysed thoroughly two of the CJEU judgments on “satellite” instruments of the Brussels I-bis Regulation: the EAPO Regulation (Regulation No. 655/2014); and the EPO Regulation (Regulation No. 1896/2006). C-555/18, was the very first judgment that the CJEU rendered on the EAPO Regulation. Xandra Kramer remarked the underuse of this instrument. In the second part of her lecture, she identified two trends in the judgments on the EPO Regulation (C?21/17, Caitlin Europe; Joined Cases C?119/13 and C?120/13, ecosmetics; Joined Cases C?453/18 and C?494/18, Bondora), observing that the CJEU tries, on the one hand, to preserve the efficiency of the EPO Regulation, while at the same time seeking to assure an adequate protection of the debtor’s position.

In the last presentation of the second day, Helena Raulus (Head of Brussels Office, UK Law Societies) explored the future judicial cooperation in civil matters between the EU and the United Kingdom in the post-Brexit scenario. Ms Raulus foresaw two potential long-term solutions for the relationship: namely, relying either on the 2019 Hague Convention, or on the Lugano Convention. In her view, the 2019 Hague Convention would not fully answer the future challenges of potential cross-border claims between EU Member States and the UK: it only covers recognition and enforcement, while several critical subject areas are excluded (e.g. IP-rights claims); and above all, from a more practical perspective, it is still an untested instrument. Ms Raulus affirmed that the UK’s possible adherence to the Lugano Convention is the most welcomed solution among English practitioners. Whereas this solution has already received the green light from the non-EU Contracting States to the Lugano Convention (Iceland, Norway, and Switzerland), she remarked that to date the EU has not adopted a position in this regard.

The conference closed with a second roundtable, which resumed the discussions on the future relations between the EU and the UK on judicial cooperation in civil law matters. Christophe Bernasconi (Secretary General, HCCH) offered an exhaustive review on the impact of the UK withdrawal from the EU on all the existing HCCH Conventions. From his side, Alexander Layton wondered if it might be possible to apply the pre-existing bilateral treaties between some EU Member States and the UK: in his view, those treaties still have a vestigial existence in those matters non-covered by the Brussels I-bis Regulation, and thus they were not fully succeeded. In Helena Raulus’s view, such treaties would raise competence issues, since the negotiating of such treaties falls exclusively with the EU (as the CJEU found in its Opinion 1/03). As Ms Raulus observed, eventually attempts to re-establish bilateral treaties between the Member States and the UK might trigger infringement proceedings by the Commission against those Member States. The discussion concluded by addressing the 2005 Hague Convention and it is applicability to the UK after the end of the transition period.

Overall, this two-day event was characterized by a thematic and systematic approach to the major issues that characterize the current debate in the area of judicial cooperation in civil and commercial matters, both at the EU and global level. By providing the opportunity to hear, from renowned experts, on both the theoretical and practical questions that arise in this context, it offered its audience direct access to highly qualified insight and knowledge.

The editors of Afronomicslaw.org have invited Dr. Chukwuma Okoli and Professor Richard Frimpong Oppong to organise a symposium on Private International Law in Nigeria. The purpose of the symposium is to discuss important issues on the subject of private international law in Nigeria with principal reference to Chukwuma and Richard’s recent pioneer work on the subject that was published under the Hart Studies in Private International Law. Drawing on over five hundred Nigerian cases, relevant statutes, and academic commentaries, the book examines the rules, principles, and doctrines in Nigerian law for resolving cases involving cross-border issues. It is the first book-length treatise devoted to the full spectrum of private international law issues in Nigeria.

Four papers have now been selected for the symposium, which will first be published in Afronomicslaw.org sometime in December this year, and later in conflictoflaws.net, where Chukwuma is an editor. The names of the persons presenting are Dr. Abubakri Yekini (Lecturer in Law at Lagos State University, Nigeria), Orji Uka (Senior Associate at African Law Practice, Nigeria), Anthony Kennedy (Associate Member of Serle Court, England), and Richard Mlambe (Lecturer in Law at University of Malawi – Polytechnic).

Openbaar Ministerie (Faux en écritures)
Espace de liberté, sécurité et justice
Les procureurs aux Pays-Bas ne constituent pas une « autorité judiciaire d’exécution » dans le cadre de l’exécution d’un mandat d’arrêt européen, étant donné qu’ils sont susceptibles d’être soumis à des instructions individuelles de la part du ministre de la Justice néerlandais

Wikingerhof
Espace de liberté, sécurité et justice
Un hôtel utilisant la plate-forme Booking.com peut en principe attraire celle-ci devant une juridiction de l’État membre dans lequel cet hôtel est établi pour faire cesser un éventuel abus de position dominante

Minister van Buitenlandse Zaken
Espace de liberté, sécurité et justice
Un État membre qui prend une décision de refus de visa « Schengen », en raison d’une objection émise par un autre État membre, doit identifier, dans cette décision, l’État membre concerné ainsi que le motif de refus spécifique basé sur cette objection, accompagné, le cas échéant, des raisons de cette objection

The HCCH has today launched the publication from HCCH a|Bridged – Edition 2019. This was the inaugural edition of HCCH a|Bridged, held in December 2019, the focus of which was the ‘The HCCH Service Convention in the Era of Electronic and Information Technology’. The post-event publication builds on the discussions and compiles written contributions from each of the speakers. It is available for download in English, together with videos of each of the sessions, on the dedicated page of the Service Section of the HCCH website.

This post is published by the Permanent Bureau of the Hague Conference of Private International Law (HCCH).

Call for Papers: Brussels II bis Recast

The long-awaited revision of the Brussel II-bis Regulation has been finalized and the instrument enters into force on 1st August 2022. In anticipation of this event, the Dutch Journal of Private International Law (Nederlands Internationaal Privaatrecht – NIPR) wishes to invite researchers in the field of private international family law to submit abstracts for an upcoming Special devoted to the Recast. The abstract should focus on one of the following topics:

• Divorce jurisdiction
• Choice of forum clauses in parental responsibility cases
• Referral of cases within the Brussels II-bis Recast
• Child Abduction cases
• Provisional and protective measures
• Recognition and enforcement of judgments
• Coordination with other instruments

 Abstracts should be no longer than 500 words and should be submitted by 15 January 2021 to nipr.redactie@asser.nl. Submissions are limited. The selection criteria will be based on the quality of the research and its originality. We also strive to ensure a diversity of represented legal systems and topics.

The accepted papers will also be invited to present their findings during a seminar to be held in cooperation with Tilburg University, the Netherlands. More information about this event will be distributed after acceptance of the abstract.

The author of this post is Prof Dr Dan Jerker B. Svantesson, Professor at the Faculty of Law, Bond University (Australia), Visiting Professor at Masaryk University (Czech Republic) and Associated Researcher at the Swedish Law & Informatics Research Institute, Stockholm University (Sweden).

On 6 December 2020, I had the great honour of giving a presentation at the Royal Netherlands Society of International Law’s Annual General Meeting. The topic I had been invited to address was the questions of whether (public and private) international law is ready for the, already ongoing, digital age. In essence, I made six observations:

1. Examples can be found of the online environment undermining the proper functioning of public and private international law structures;
2. As structured and applied online today, public and private international law creates a situation of ‘hyperregulation’;
3. The complexity of international law stems in part from the fact that the frameworks and concepts applied were developed in other eras and under other conditions resulting in them being insufficient to address the issues with which we are confronted now at the beginning of the 21st century;
4. The international law community must do more to engage with, and prioritise, Internet-related legal issues, and must seek to increase the profile of public and private international law in the Internet regulation community;
5. Examples can already be found of, more or less, self-regulatory Internet-related ADR schemes that effectively exclude international law altogether (see here). We must recognise that, with a proliferation of such schemes, the role and influence of international law decreases; and
6. The international law community ought to do more to engage with large, forward-looking, questions such as how AI may support, and indeed reform, how we work with international law (see further here). In this context, we must be brave enough to be willing to reconsider also the most entrenched notions.

I am happy to have the opportunity to summarise some of my arguments here. Focus will be placed on the first four of the topics outlined above.

The Online Environment Undermining the Proper Functioning of Public and Private International Law Structures

There is a long-standing recognition of a tension between the largely borderless Internet and the border-focused law. However, here I want to point to a more specific (and recent) illustration of how the online environment challenges the proper functioning of private international law.

Ordinarily, the need for recognition and enforcement works to counter the impact of excessive foreign claims of jurisdiction that are contrary to a country’s public policy. However, the protection and equalising effect normally provided by the need for recognition and enforcement has been severely undermined by courts claim a broad ‘scope of jurisdiction’ (see also here) or ‘scope of remedial jurisdiction’ as preferred by the Court of Appeal for British Columbia (see here).

Scope of jurisdiction relates to the appropriate geographical scope of orders rendered by a court that has personal jurisdiction and subject matter jurisdiction. This question has gained far less attention to date than the other two types of jurisdiction. Yet, to understand its significance we need only consider the fact that, any time a court orders an Internet actor to block, delist, deindex, de-reference, delete, remove, or takedown content, it will need to consider whether to grant that order only in relation to publications in the state where the court sits, or to extend the order more widely – perhaps even globally. Thus, it is unsurprising that scope of jurisdiction has emerged as one of the most hotly contested ‘battle ground’ in the intersection between international law and the Internet.

In a situation where a court claims worldwide scope of jurisdiction in the context of an order against a major Internet platform, and that platform complies with the order, there simply is no need for recognition and enforcement – the worldwide impact is automatic.

Imagine, for example, that a Dutch citizen in the Netherlands posts something on a US social media site. The posting, while perfectly legal in both the Netherlands and in the US, is seen to be offensive to the Communist Party of China and a Chinese court or authority orders its removal. If the US social media company complies, the removal is effective worldwide without the need for any enforcement action in neither the Netherlands nor in the US. In fact, the laws and legal systems – including the public policies – of these countries do then not feature in the equation at all.

The threats to free speech posed by this scenario are beyond intelligent dispute. However, things get much worse when we consider that the CJEU’s recently adopted approach means that Internet platforms are not only subject to orders to remove posted content, but also to block – potentially with worldwide effect – future content that is ‘equivalent’ to the content removed (see further here and here).

Applying this to the China-related example above, we are heading towards a situation in which e.g. Chinese law may stifle regime critics from other countries to the degree that their postings, while lawful where the person resides, are censored by non-Chinese Internet platforms. In such a situation, the private international law of the state in which the person or the platform are based, has no influence. Further, it is doubtful that public international law as it stands provides sufficient protection, at least if the interpretation of the relevant rules of public international law are left to the country wishing to effect the censorship as suggested by the CJEU.

As Structured and Applied Online Today, (Public and) Private International Law Creates a Situation of ‘Hyperregulation’

The only reason law does not make impossible the operation of the Internet is found in the combined effect of, on the one hand, self-imposed state restraint in not applying their laws as widely as they could and, on the other hand, more pragmatically, enforcement difficulties. Worryingly, it seems to me that the latter of these factors plays a considerably larger role than does the former.

To see the extent of the challenge, we need only consider the number of countries’ laws that may apply to something as mundane as an unflattering social media post about another person. The person making the posting may have to take account of the law of the country she is in at the time of making the posting, the law of the country in which she is habitually residing (and/or has domicile) and, if different, the law(s) of her country of citizenship(s). Then she will probably also need to consider US law as most major social media platforms are based in the US (although there is also a considerable uptake in social media – such as the Chinese platform TikTok – from other parts of the world). We are here already confronted by a few, potentially very different, legal systems providing laws with which the person making the posting is meant to comply.

Given that our hypothetical posting relates to another person, we may also need to consider the laws of that person’s location, residence, domicile and citizenship(s). And we may also need to consider the laws of any additional countries in which that person has a reputation to protect.

Furthermore, under the law of many, not to say most, countries focus may be placed on where content is downloaded or read; two distinct, but often conflated, activities. Thus, the person making the posting will also need to comply with the laws of all the countries in which her ‘friends’ or ‘connections’ are found; and less predictably, the laws of all the countries in which they may be located when reading her posting. It goes without saying that, the number of additional legal systems to be considered grows with the number, and geographical diversity, of her friends or connections, and in light of the mobility of people, may never be fully ascertained at the time of posting.

As if the complexity alluded to so far was not enough, things get even messier when we confront the liability that may stem from re-publications; that is, to map out the full extent of potentially applicable laws, we must also take account of the laws of all the countries in which re-posted versions of the original posting may be downloaded or read. Here the original poster obviously loses all possibilities of predicting the scope of laws to which she may be exposed.

Finally, content placed on social media platforms is often stored in ‘the cloud’, and while we as users may not necessarily be able to find out where our content is located, we may be legally obligated to consider the laws of the country in which it is stored.

This legal situation, of extraordinary complexity, is what billions of social media users face on a daily basis. For the absolute majority, their postings will not lead to any legal drama. However, the thought of being exposed to potential legal liability in a large number of countries should be a concern to anyone. And of course, the very idea that you strictly speaking should inform yourself of all those laws you are meant to follow is daunting indeed.

Elsewhere (see here), I have described this as a situation of ‘hyperregulation’ characterised by the following conditions:

1. the complexity of a party’s contextual legal system (i.e., the combination of all laws that purport to apply to that party in a given context) amounts to an insurmountable obstacle to legal compliance; and
2. the prospect of legal enforcement of (at least parts of) the laws that make up the contextual legal system is more than a theoretical possibility.

The Complexity of International Law Frameworks and Concepts

In the context of applying international law to Internet activities or situations there are numerous instances of competing legitimate interests; State A’s protection of free speech may be difficult to reconcile with State B’s restrictions on hate speech, and so on. On a slightly more general level, we may observe that broad claims of jurisdiction may unreasonably interfere with the rights of people in other States, while restrictive approaches to jurisdiction may render a victim without realistic access to justice. Thus, the difficulties we experience in applying international law to the Internet stem from the fact that the ‘genuine regulatory challenges’ we need to work with are both numerous and go to the depth of involving the most fundamental legal notions. Yet this does not fully explain the complexity of our situation.

The application online of the pre-Internet legal concepts that make up public, and private, international law often involves decisions on the appropriate analogies and metaphors. As I have been arguing for the past 15 years, we must try to avoid inappropriate reliance on metaphors and analogies (see here).

In the survey that formed the base for the Internet & Jurisdiction Global Status Report 2019, several interviewed experts emphasised the concern that, in the jurisdiction field, legal concepts are old fashioned and outdated. Furthermore, one of the survey questions posed the claim that we already apply the right legal concepts to address cross-border legal challenges on the Internet. Among the surveyed experts, 46% either disagreed or strongly disagreed, 36% indicated that they neither agreed nor disagreed, and only 18% either agreed or strongly agreed.

This, it is submitted, hints at what may be termed ‘artificial (i.e. manmade) regulatory challenges’ in that the frameworks and concepts being applied are insufficient to address the issues with which we are confronted. In general, it seems that international lawyers are looking at all changes taking place in today’s world through the lenses of vested concepts such as extraterritoriality, sovereignty etc. They want the world to be guided by reference to these concepts. Yet it should perhaps be the other way round – the concepts we use should be guided by how the world in fact is. While we of course ought to make use of those concepts that truly remain useful, we must also be prepared to develop new concepts if reality so requires. In other words, the inadequacy of the tools may cause regulatory challenges preventing, or at least limiting, progress.

It seems to me that the Internet jurisdiction debate these days is focused on tackling the most imminent day-to-day issues (some of the ‘genuine regulatory challenges’), at the expense of attention being directed at the underlying conceptual mess (the ‘artificial regulatory challenges’). This is of course natural given the very real impact these challenges have for society. However, real progress can only be made where we also tackle the ‘artificial regulatory challenges’.

Examples of proposals I have advanced to address these artificial regulatory challenges include:

1. A new jurisprudential framework for the concept of jurisdiction (see here);
2. The categorisation of types of jurisdiction under public international law, introducing the concept of ‘investigative jurisdiction’ (see here);
3. The introduction of the concept of ‘scope of jurisdiction’ (discussed above); and
4. A clarification of the status of ‘sovereignty’ (see here).

The International Law Community and the Internet

In 2019, online retailer Amazon surpassed Walmart to become the world’s largest retailer, and tech companies feature prominently on lists ranking the world’s most powerful companies. The world’s most populous states – China and India – have an estimated 1.39 and 1.35 billion citizens respectively; but Facebook has a ‘population’ of 2.45 billion active users. Thus, a rule introduced in the laws of China directly affects just over half as many people as does a rule introduced in Facebook’s Terms of Service!

In addition, there is a clear ongoing trend of borders between the online data-driven world and the physical world are eroding. In the Internet of Things (IoT) era, however, the speed with which these borders erode is increasing dramatically, with effects for all aspects of society. Put simply, the offline world is no longer offline.

To all this may be added the changes in the world due to the, at the time of writing, ongoing pandemic. With large parts of the physical world currently in lockdown, it may be said that the online world is now working better than does its offline counterpart.

Our currently increased reliance on online at the expense of the offline may well affect behaviour patterns long-term, meaning that we will continue to live an even greater segment of our lives online in the future also after the world has overcome the pandemic. This is an aspect of a broader phenomenon that may be termed ‘COVID-19 driven trend acceleration’; that is, already existing trends are significantly accelerated due to the COVID-19 pandemic and how society adjusts to it.

The message stemming from the above is clear, loud and beyond intelligent dispute – cross-border Internet-related legal issues are central matters in society and need to be treated as such also private and public international law.

Yet, law in general, but public and private international law in particular, treats Internet issues as an exotic side dish to the main course taken for granted as being the offline – physical – world. Anyone doubting this claim need only take a glance at the tables of content of textbooks and journals in those respective fields: Internet issues do feature but typically only to a very limited, subsidiary, extent. Approaching Internet-related legal issues in this manner is unsustainable in today’s world where cyber is such a big part of our lives.

Thus, it seems to me that an important task that remains to be completed is to recalibrate the debate from one of a clash between (international) law and the Internet, to one focused on how international law can better help facilitate a desirable online environment.

Final Remarks

As it turns out, the Internet is not a fad after all. It is not just here to stay; it is here to dominate our lives. Looking at news reports, and indeed society in general, this is obvious. Yet looking at legal literature in general, and international law in particular, it is not adequately reflected. This is unsustainable and those who take pride in proclaiming that they do not deal with Internet issues are escapists at risk of irrelevance. What is worse, much could have been achieved to create better Internet regulation – and ultimately a better world – had more experts from non-technology fields been more willing to engage with these novel legal issues as they became apparent. I hope the 2020 Royal Netherlands Society of International Law’s debate on a current issue in the domain of international law can help create real awareness and greater discussions of these issues, at least for the Netherlands – a longstanding leader in progressive, constructive, and creative thinking in international law – but hopefully more broadly.

But as noted by Juenger: “[T]urmoil is bound to happen whenever old principles clash with new realities” (see here), and in few other areas has this so clearly proven to be the case as it has when applying private and public international law principles to the online environment. Much remains to be done to improve the relationship between international law and the Internet, and the tasks that lie ahead – tasks for us all – are huge indeed. But they are neither unsurmountable, nor are they optional.