Agrégateur de flux

Written by Fieke van Overbeeke, Legal Counsel at the International Institute for International and Foreign Law  – the Netherlands and research fellow at the University of Antwerp – Belgium

On 10 June conflictoflaws.net posted a piece about ‘new conflict of laws rule for minimum wages in road transport’. At that time it seemed that the EU institutions still needed to overcome severe difficulties. However, fully according to the course of events around this very unpredictable file, on 10 July the institutions officially reached a compromise: the directive with conflict of law rules for road transport was finally has adopted and it will enter into force 18 months after publication in the EU’s Official Journal.

In short about these conflict of law rules: 1) Transit operations do not fall under the Posting of Working Directive and the labour conditions, i.a. minimum wages, cannot be applied to this type of transport; 2) Cabotage operations do fall under the Posting of Working Directive and the labour conditions should be guaranteed to this type of transport (‘guaranteed’ because this only needs to be done in case these conditions are more favourable to the lorry driver, see Article 3 section 7 Posting of Working Directive); 3) Bilateral operations do not fall under the Posting of Working Directive, and some correlated crosstrade operations do not either; 4) Crosstrade operations are supposed to fall under the Posting of Working Directive (however, a clear rule about this is lacking and provokes many questions).

Tribunal de police de Bordeaux, 13 juillet 2020

Pourvoi c/ cour d'appel de Paris, 11 octobre 2019

Pourvoi c/ cour d'appel de Lyon, 30 janvier 2020

Pourvoi c/ cour d'appel de Paris, 26 novembre 2019

The author of this post is Giulio Monga, a PhD student at the Catholic University of the Sacred Heart, Milan.

On 16 April 2019, the Italian Supreme Court (Corte di Cassazione) ruled on the relevance of the Incoterm “FCA – Free Carrier (named place of delivery)” to the operation of Article 5(1) of the Brussels I Regulation , corresponding to Article 7(1) of the Brussels I bis Regulation.

The Facts

An Italian company (Agusta) sued a French company (Team) before the Court of Frosinone seeking the termination of the sales agreement concluded between the two, on the ground that the goods supplied by the latter were defective. Team argued that the seised court lacked jurisdiction. It observed that the goods had been sold FCA (Free Carrier) the Paris International Airport, thereby contending that Paris ought to be regarded as the place of delivery agreed by the parties for the purposes of Article 5(1)(b), first indent, of the Brussels I Regulation (pursuant to the latter provision, jurisdiction over sales of goods lies with the courts for the place “where, under the contract, the goods were delivered or should have been delivered”).

The Relevance of Incoterms to Jurisdiction over Contractual Matters

Incoterms are standard commercial terms drawn up by the International Chamber of Commerce (ICC). Under the FCA rule, the seller undertakes to deliver the goods, cleared for export, to the carrier or another person nominated by the buyer at the seller’s premises or at another named place. The seller bears all costs and risks of delivery, while the buyer undertakes to take care of the delivery of the goods to their final destination, bearing the costs and risks of the onward carriage.

The Italian Supreme Court recalled that in Electrosteel the Court of Justice of the European Union held that the seised court, in order to verify its jurisdiction under Article 5(1)(b), first indent, of Brussels I Regulation, must first ascertain whether the parties have agreed on a place of delivery in the contract. For this, account must be taken “of all the relevant terms and clauses … which are capable of clearly identifying that place, including terms and clauses which are generally recognised and applied through the usages of international trade or commerce, such as the Incoterms …”. According to the Corte di Cassazione, where an Incoterm is incorporated into a contract, and the issue arises of the relevance of that incorporation to the issue of jurisdiction, the seised court must assess whether the Incoterm in question is merely concerned with the allocation of the risks and costs related to the transaction, or whether the parties also meant it to identify – with sufficient clarity – the place of delivery of the goods.

The Judgment

The Corte di Cassazione concluded that by incorporating the Incoterm FCA into their contract, the parties failed to agree on a clear identification of the place of delivery of the goods for the purposes of Article 5(1)(b) of the Brussels I Regulation. The Incoterm FCA, the Court argued, concerns nothing more than the allocation between the parties of the risks and costs related to the transaction.

Some Remarks

Regrettably, the Corte di Cassazione failed to state the reasons for the latter finding. The Court acknowledged that the key issue is whether the chosen Incoterm conveys an agreement of the parties as to the place of delivery of the goods, but did not provide an analysis of the Incoterm FCA, as used in the contract at issue, and did not explain why the naming of the International Airport of Paris could not be regarded as signifying an agreement to that effect (according to the ICC rules that accompany the Incoterms, when goods are sold FCA the seller ‘must deliver the goods to the carrier … nominated by the buyer at the named point, if any, at the named place …’).

Actually, all Incoterms concern the allocation of risks and costs between the parties. By providing for such allocation they perform, in fact, the key part of their job. On top of that, however, they may – as the Court of Justice acknowledged in Electrosteel – convey an agreement as regards the place of delivery. Whether this happens in a particular case depends on the analysis of the circumstances. The way in which the Corte di Cassazione engaged in this analysis is, methodologically, unconvincing. Arguably, one should examine the rules set out by the ICC itself to describe the Incoterm in question, and any other element as may help determine the intended meaning of the agreement (the negotiations between the parties etc.). The fact is that the Corte di Cassazione failed to indicate the circumstances which it considered to be relevant to the issue, and failed to elaborate on their assessment. It merely stated, in rather general terms, that the incorporation of the Incoterm FCA is not evidence, as such, of an agreement as to the place of delivery of the goods.

It’s a missed opportunity, for establishing a clear methodology, ideally one shared by domestic courts across the EU, would serve the needs of predictability and would foster the uniform application of the Brussels I regime.

Jorg Sladič is an associate professor of international and European law at the European faculty of law in Ljubljana (Slovenia). He was a member of the European Commission’s expert group on modernisation of judicial cooperation in civil and commercial matters. This post is based on an article to be published shortly in the Revue des affaires européennes (L’obtention de preuves en matière civile et commerciale dans l’espace judiciaire européen : status quaestionis et la réforme envisagée, RAE 2020/1, pp. 191 – 212).

Taking of evidence abroad is hampered not only by foreign languages, distances etc. The scope of application ratione loci of a given law of civil procedure is limited by the principle of territoriality. Therefore the gathering of evidence in a pending civil proceedings before a forum is limited by the forum’s traditional inherent inability to perform judicial activities abroad. However, Europe is changing. Therefore an assessment of the principle of territoriality in the law of civil procedure is required.

1. Evidence Taking in Civil Procedure in Continental Europe as acta jure imperii

In the EU, judicial cooperation in civil and commercial matters also covers international legal assistance – comprising traditionally the service of judicial and extrajudicial documents abroad and taking of evidence abroad. European rules on cross-border taking of evidence are to be found in the Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters. The said regulation can be regarded as an update of existing traditional methods of international legal assistance and is heavily influenced by the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters. Even the direct taking of evidence by the requiring forum goes back to influences of the 1970 Hague Convention.

Traditionally a forum from one EU Member State cannot take evidence in other EU Member States. Continental European States consider evidence gathering and taking as acta jure imperii. The Latin maxim judici fit probatio explains it all (see e.g. O. L. Knöffel, Grenzüberschreitende Beweisaufnahme durch Private, in R. Geimer, R. A. Schütze, T. Garber (eds.), Europäische und internationale Dimension des Rechts, Festschrift für Daphne-Ariane Simotta, Vienne, LexisNexis, 2012, p. 333 and 334; M. Virgós Soriano, F. J. Garcimartín Alférez, Derecho procesal civil internacional : litigación internacional, 2nd ed., Madrid, Thomson Reuters, 2007, p. 486; B. Audit, L. D’avout, Droit international privé, 7th ed., Paris, Economica, 2013, par 484). Evidence is taken by the judge (forum). However, in the common law world, evidence is taken by the parties before the judge and not by the judge. Gathering of evidence is rather a private matter left to the parties. However, in all Member States the Regulation is applied under the principle of national procedural autonomy.

This difference between evidence taking as a private matter between the parties or evidence taking as a performance of public authority by a forum is in short also a major part of the of the famous Justizkonflikt between the US and Germany.

Practical aspects of evidence taking abroad were assessed in the 2017 Luxembourg Study (see B. Hess, M. Requejo Isidro, F. Gascón Inchausti, P. Oberhammer, E. Storskrubb, G. Cuniberti, C. Kern, K. Weitz, X. Kramer, An evaluation study of national procedural laws and practices in terms of their impact on the free circulation of judgments and on the equivalence and effectiveness of the procedural protection of consumers under EU consumer law, Report prepared by a Consortium of European universities led by the MPI Luxembourg for Procedural Law as commissioned by the European Commission, JUST/2014/RCON/PR/CIVI/0082, Strand 1, Mutual Trust and Free Circulation of Judgments, Brussels, Luxembourg, 2017, paras 240 – 263).

2. Principle of Territoriality of a Pending Civil Procedure

As judicial functions belong to performance of a public authority of a State, they are not supposed to be performed in an extraterritorial manner (the principle of territoriality of a pending civil procedure). Without going in the famous Lotus case law of the PCIJ the European version (Opinion of Advocate General JÄÄSKINEN, Lippens, C-170/11) of the rule reads as:

29. A court of a Member State can validly exercise its powers and make use of its ‘imperium’, that is to say, its power of enforcement, only within the limits of its geographical jurisdiction. Measures of inquiry are an exception to this rule in that they can be taken over the whole of national territory. Nevertheless, in view of the principle of territoriality in international law, which is linked to the principle of State sovereignty, the court cannot normally take action to enforce such measures in another Member State.

Fn. 44: However, a court ruling on a civil or commercial matter covered by Regulation No 1206/2001 cannot exercise public authority outside the territory of the Member State in which it is situated by carrying out substantive acts necessitating the use of State coercion such as using the State’s police force to bring a party resident in another Member State by force to appear before it.

It might also be added that the principle of territoriality prohibits in the continental legal thinking the recognition of foreign anti-suit injunctions, an issue that will become of importance if post Brexit negotiations do not produce a sufficient PIL framework between the EU and the UK.

According to the Belgian Court of Cassation, Belgian courts can condemn a third party residing in another EU Member State to produce documents in accordance with the Belgian lex fori and even apply the periodic monetary penalties (astreinte). The application of the regulation Nr 1206/200 is not mandatory (Court of Cassation, 1st Chamber, 26 April 2018, case Banque de Luxembourg, n° C.16.0192.N). The Belgian Court of Cassation also ruled quite laconically that it results clearly from the judgment of the Court of Justice in Lippens (C-170/11) that a court of a Member State may condemn a party resident in another Member State to produce a documents before it in accordance with its lex fori and even apply sanctions for non production of documents (Court of Cassation, 1st Chamber, 25 April 2013, aff. Fortis Luxembourg Vie, n° C.11.0103.F/1). However, as far as sanctioning witnesses residing abroad and having defaulted, the situation appears to be different. The Austrian Regional Court of Appeal in Linz dealt with the question of a regularly summoned German witness residing in Germany and not appearing before an Austrian forum (Oberlandesgericht Linz, 5 September 2013, case 3 R 145/13h, ECLI:AT:OLG0459:2013:RL0000147). The forum of first instance issued a heavy fine against the German witness. The appellate court ruled however that, due to the principle of territoriality of the pending civil proceedings, such a witness is not subject to jurisdiction of Austrian courts. An Austrian forum may summon him so that he can appear and testify, however, due to a non-existent duty to testify in another state, such a witness doesn’t have to comply with the summons. A foreign witness who fails to comply with the summons cannot to be sanctioned. Where the evidence is located abroad, an Austrian forum can order that this evidence be transferred to Austria as for example in the case of the summons of a witness – or may within the scope of Regulation No 1206/2001 proceed to the taking of evidence abroad, either through the requested court (Art. 10 and following of the regulation), or directly (art. 17 of the regulation). The regulation does not prevent the forum to summon a witness living abroad. However, means of constraint cannot be applied against such a witness residing abroad.

3. Methods of Taking of Evidence Abroad

It is generally recognised that evidence from abroad is to be gathered according to certain methods (A. Sengstschmid, Die europäische Beweisaufnahme, in P.G. Mayr (ed.), Handbuch des europäischen Zivilverfahrensrechts, Vienna, Manz, 2017, par. 15.1; L. Fumagalli, La disciplina comunitaira dell’assunzione delle prove all’estero in materia civile e commerciale: il regolamento (CE) n. 1206/2001 in S. M. Carbone, M. Frigo, L. Fumagalli, Diritto processuale civile e commerciale comunitario, Milano, Giuffrè, 2004, pp. 169 and 170):

1. the order of the forum before which the proceedings are pending ordering the parties to transfer themselves the evidence (or the means of evidence) which is located abroad to the forum State;
2. the active international legal assistance (the requesting court issues a letter rogatory which will be executed by the foreign requested forum according to the lex diligentiae, see Art. 10 of the Regulation Nr. 1206/2001);
3. the passive international legal assistance (the requesting court performs itself or through its agents directly the taking of evidence abroad according to its own lex fori. In principle, such an approach requires a prior consent of the requested foreign state. There is also the problem of coercive measures adopted by the requesting forum on the territory of the requested State. Such direct taking of evidence is allowed in the EU Under the conditions of Art. 17 of the Regulation Nr. 1206/2001);
4. videoconferencing or any other modern means of communication where the evidence remains abroad while the proceedings take place before the forum of origin (see Art. 10(4) of the Regulation Nr. 1206/2001);
5. the taking of evidence is performed in cooperation or dialogue between the requesting forum and the requested forum (see Art. 10(3) and (4) and Art. 12 of the Regulation Nr. 1206/2001));
6. obtaining evidence through diplomatic officers or consular agents.

Neither obtaining evidence through diplomatic officers or consular agents nor the request of the forum before which the proceedings are pending ordering the parties to transfer themselves the evidence (or the means of evidence) which is located abroad to the forum State are regulated by the Regulation Nr. 1206/2001.

In this framework the Council Statement Nr. 54/01 of 4 July 2001 on Regulation Nr. 1206/2001 shall be mentioned. According to the Council of the EU “The scope of application of this Regulation shall not cover pre-trial discovery, including the so-called “fishing expeditions”.” (Statement, p. 16).

4. Effet utile of the Regulation Nr. 1206/2001 – Is it of American origin?

However, the effet utile of the Regulation Nr. 1206/2001 has lead the Court of Justice in cases Lippens (C-170/11) and ProRail (C-332/11) to construe that text as being optional and facultative.

It would appear that the US Supreme Court’s decision in case Société Nationale Industrielle Aérospatiale et al. V. United States District Court for The Southern District of Iowa 82 U.S. 522 (1987), on the 1970 Hague Convention was a direct though not cited source of the European case-law. According to the US case law the “Convention does not provide exclusive or mandatory procedures for obtaining documents and information located in a foreign signatory’s territory”. “its purpose [is] to “facilitate” discovery and to “improve mutual judicial co-operation.”” “Although they are not mandatory, the Convention’s procedures are available whenever they will facilitate the gathering of evidence, and “apply” in the sense that they are one method of seeking evidence that a court may elect to employ”.

Documents having lead to the Lippens case, especially the opinion of Advocate General before the High Council of the Netherlands (Hoge Raad der Nederlanden, the Dutch Supreme Court) M. P. Vlas of 1st April 2011, ECLI:NL:PHR:2011:BP3048 and the preliminary reference, judgement of the High Council of the Netherlands, 1st Chamber, 1st April 2011, case 10/02071, ECLI:NL:HR:2011:BP3048, show an in-depth assessment of the US Société Nationale Industrielle Aérospatiale case.

The interpretation of facultative and facilitative nature of international instruments on taking of evidence abroad was extended by the CJEU to the Regulation Nr. 1206/2001. Such an interpretation is indeed not a forgone conclusion. If the rigour used to combat conflicts caused created between EU private international law (Brussels Ia Regulation) and national traditions in anti-suit injunctions (Turner, C-159/02, Allianz, C-185/07, Gazprom, C-536/13) and the forum non conveniens doctrine (Owusu, C-281/02) were to be extended also to the Regulation Nr. 1206/2001, then there there could be no space for facilitative nature of the Regulation Nr. 1206/2001 (C. Thole, Kein abschließender Charakter der Europäischen Beweisaufnahmeverordnung, IPrax, Nr. 3/2014, p. 255). Indeed, there are connecting points linking the Regulation on taking of evidence and the Brussels Ia regulation such as exclusion of arbitration (see on that issue B. Hess, Europäisches Zivilprozessrecht, Heidelberg, C.F. Müller, 2010, p. 465; M. Fartunova-Michel, JurisClasseur Europe Traité, fasc. 2800 : Obtention des preuves en matière civile et commerciale – Coopération entre les juridictions des États membres – Règlement (CE) n° 1206/2001 », update 27 May 2019, par. 20). However, the effet utile lead to a different conclusion.

Indeed, the CJEU ruled in Lippens:

according to recitals 2, 7, 8, 10 and 11 in the preamble to Regulation No 1206/2001, the aim of the regulation is to make the taking of evidence in a cross-border context simple, effective and rapid. The taking, by a court of one Member State, of evidence in another Member State must not lead to the lengthening of national proceedings. […]. Thus, it is clear that, in certain circumstances, in particular if the party summoned as a witness is prepared to appear voluntarily, it may be simpler, more effective and quicker for the competent court to hear him in accordance with the provisions of its national law instead of using the means of taking evidence provided for by Regulation No 1206/2001. (paras. 29 and 31)

Finally, the interpretation according to which Regulation No 1206/2001 does not govern exhaustively the taking of cross-border evidence, but simply aims to facilitate it, allowing use of other instruments having the same aim, is supported by Article 21(2) of Regulation No 1206/2001, which expressly authorises agreements or arrangements between Member States to further facilitate the taking of evidence, provided that they are compatible with the regulation. (par 33)

However, the facilitative nature of the Regulation Nr. 1206/2001 is limited by an exception of public powers of EU Member States (see e.g. C. Thole, op. cit., p. 257 ; G. Cuniberti, L’expertise judiciaire en droit judiciaire européen, Rev. crit. DIP, Nr. 3/2015, p. 535 ; M. Fartunova-Michel, op. cit., point 2 ; see in general law of international civil procedure S. Triva, M. Dika, Građansko parnično procesno pravo, Narodne novine, Zagreb, 2004, p. 57 ; A. Maganić, Pravna pomoć u građanskim stvarima između Republike Hrvatske i Republike Makedonije », Zbornik PFZ, 2/2011 p. 245).

Indeed, the CJEU has ruled in ProRail:

47. in so far as the expert designated by a court of a Member State must go to another Member State in order to carry out the investigation which has been entrusted to him, that might, in certain circumstances, affect the powers of the Member State in which it takes place, in particular where it is an investigation carried out in places connected to the exercise of such powers or in places to which access or other action is, under the law of the Member State in which the investigation is carried out, prohibited or restricted to certain persons.

48. In such circumstances, unless the court wishing to order cross-border expert investigation foregoes the taking of that evidence, and in the absence of an agreement or arrangement between Member States within the meaning of Article 21(2) of Regulation No 1206/2001, the method of taking evidence laid down in Articles 1(1)(b) and 17 thereof is the only means to enable the court of a Member State to carry out an expert investigation directly in another Member State.

Such a ruling was then interpreted e.g. by the Belgian Court of Cassation as follows. A plea entirely based on the argument that the forum of a Member State which requires the act of investigation entrusted to an expert to be performed in the territory of another Member State is always required to request a prior authorization of the other Member State in accordance with Article 17 of Regulation (EC) No 1206/2001, without distinguishing according to whether the taking of evidence may or may not have an influence on the powers of this other Member State or according to whether or not there is a convention or regulation within the meaning of the second paragraph of Article 21 of Regulation 1206/2001, is not founded (Court of Cassation, 1st Chamber, 7 November 2013, case C.10.0286.N/1)

5. Reform

The European Commission proposed a reform of the Regulation Nr. 1206/2001. The EAPIL reported extensively on that. As a consequence an indepth assessment in the article was superseded by posterior legal development. Such direct taking of evidence is allowed in the EU under conditions of Art. 17 of the Regulation Nr. 1206/2001.

The third 2020 issue of RabelsZ has been released this week. It contains the following articles:

Reinhard Zimmermann, Pflichtteil und Noterbenrecht in historisch-vergleichender Perspektive (Compulsory Portion and Forced Heirship in Historical and Comparative Perspective), pp. 465–547

The essay traces the development of mandatory family protection from Roman law through the ius commune to the modern civilian codifications. The Justinianic reform of 542 AD had failed to streamline and simplify the pertinent rules of classical Roman law. It was left, therefore, to the draftsmen of the codifications from the end of the 18th century onwards to tackle that task. Two models were particularly influential; one of them can be found in the Austrian Civil Code of 1811, the other in the French Code civil of 1804. Germany adopted the Austrian model of a „compulsory portion“ (i.e. a personal claim for the value of a part of the estate). Outside of Germany, the French model of „forced heirship“ (part of the testator’s property is reserved to his closest relatives) was extremely influential at first. The essay then looks at reforms in a number of countries of the Germanic and Romanistic legal systems, with some of the Romanistic countries having undergone a change of system. Mandatory family protection by means of a compulsory portion thus appears to gain ascendancy. Apart from that the range of persons entitled to such compulsory portion tends to be drawn more narrowly today than in earlier times. Also, the quotas granted to persons entitled to mandatory family protection have, in many places, been lowered.

Characteristic for a number of legal systems and reform drafts is also an endeavour to render the law concerning mandatory family protection more flexible. The power to deprive a person of his right to a compulsory portion, or to become forced heir, has been extended in some legal systems. Finally, in view of the long-standing tradition in the continental legal systems of fixed quotas it is interesting to see that, time and again, the concept of a needs-based claim for maintenance has been considered, or even implemented, particularly for the surviving spouse.

 

Frederick Rieländer, Schadensersatz wegen Klage vor einem aufgrund Gerichtsstandsvereinbarung unzuständigen Gericht (Damages for Breach of an Exclusive Jurisdiction Agreement), p.. 548-592

Whilst the prima facie remedy for breach of an exclusive jurisdiction clause at common law had always been a stay of proceedings or an anti-suit injunction, English courts started to embrace the remedy of damages for breach of a choice-of-court agreement by the turn of the millennium. This trend is gradually spilling over to civil law jurisdictions as a recent decision by the German Federal Court of Justice indicates. Although this judgment may be welcomed in policy terms, many issues remain unresolved. At the heart of the debate lies the question whether damages for breach of a choice-of-court clause are available in the intra-European context. If the non-chosen court gives effect to the jurisdiction clause by dismissing the proceedings, there is no reason to preclude an action for damages brought in another Member

State per se. An award of damages over and above any costs order awarded by the non-chosen court would not undermine the fundamental policy goals underlying the Brussels regime. While some commentators argue that damages should be available even if the non-chosen court decides to hear the case on the merits, this amounts to an inadmissible jurisdictional review and is likely to infringe the effet utile of cross-border recognition of judgments within the EU. Moreover, since Gothaer Allgemeine may be extended so as to apply to a decision by the non-chosen court on the merits in respect of the incidental question of the invalidity of the choice-of-court agreement, this decision could acquire the binding force of res judicata in all other Member States. Hence, the defendant in the court first seised will be precluded from establishing a breach of contract.

 

Jan Frohloff, Das anwendbare Recht auf Kollisionen im Weltraum (The Law Applicable to Collisions in Space), pp. 593-614

Dropping costs in both the manufacturing and launch of spacecraft have increased the orbital traffic around Earth. An ever-increasing number of spacecraft in orbit brings a rise in the likelihood of collisions between them. Assessing the claims arising from such collisions necessitates the determination of the applicable law. The determining factors should take into account the particularities of space and planetary orbits, in and on which spacecraft move differently and with considerably higher speeds than vessels on water and in the air.

In geostationary orbit, satellites sit in fixed orbital slots, which are limited in number and allotted to states by the International Telecommunications Union. Thus, a collision in this orbit is likely the result of a (defective) satellite drifting out of its orbital slot along the orbital arch into another slot. The law applicable to this collision should be the law of the state to which the orbital position in which the collision occurred is allotted. Although not a lex loci damni proper, applying the law of the state to which the orbital slot is allotted is the closest to the law of the state where the damage occurred in a space that is not subject to national appropriation.

In low Earth orbit and medium Earth orbit, satellites move relative to Earth. Here, the factors for designating the applicable law should be whether one of the satellites had a propulsion system and which satellite was in orbit first so as to incentiviseoperators to act against the most pressing problem in low and medium Earth orbit: the danger of defunct satellites and debris. As a result, where one of the satellites in the collision has a propulsion system and the other does not, the applicable law should be the law of the state to which the satellite with the propulsion system is registered (regardless of who was in orbit first). Where both satellites have a propulsion system or neither does, it should be the law of the state where the satellite in orbit first is registered.

These factors for the law applicable to collisions in space are easy to determine in practice and would enhance the foreseeability of court decisions, while at the same time ensuring a reasonable balance between the interests of the spacecraft operators involved.

 

Dorota Miler, Evasion of the Law Resulting from a Choice of Law under the Succession Regulation, pp. 615–636

Excerpt taken from the introduction]:

[This paper] will consider whether a German court can identify a case of evasion of the law as resulting from a choice of law made under the Regulation, based on different jurisdictions’ varying regulation of the circumstances that allow for a disqualification from forced heirship. Could the exercise of the right to choose the applicable law (Art. 22 of the Regulation) be challenged under certain circumstances as an evasion of the law under private international law? Particularly, where the aim of the testator’s choice was to deprive his descendants of a compulsory portion based on facts (disqualification by conduct) that would not support such an action under German law, could a German court conclude that the result would be inappropriate from the perspective of German law?

In considering these questions, [the paper] will first give some brief examples of factual circumstances that would, in jurisdictions outside Germany, allow a testator to deprive his family member of a forced heirship, these being circumstances that vary significantly from those provided under German law. Secondly, [it] will identify the conditions for finding an evasion of law under European and German private international law and, in turn, consider those instances where a choice of law under Art. 22 of the Regulation might serve to fulfil these conditions. In conclusion, [the paper] will reflect on the likelihood of a German court making a finding of evasion of law under private international law.

 

Konrad Duden, Richterwahl und parteipolitische Einflussnahme. Vergleichende Anregungen zum Schutz der Unabhängigkeit des Bundesverfassungsgerichts und der obersten Bundesgerichte (The Selection of Judges and Partisan Justice – Comparative Inspiration for the Protection of the Independence of Germany’s Federal Courts), pp. 637-665

In many countries, politicians are attempting to influence the selection of supreme court judges and to achieve a court composition favourable to their party’s positions. This paper highlights that it would be possible to achieve changes in the composition of Germany’s federal courts similar to those that have recently taken place in Poland and the USA. This observation poses a question: How can the courts be protected from partisan influence? One possibility would be a protection againstchanging the courts’ constitution by including core features of the courts’ institutional design into the German Constitution. Such an approach is not without flaws, however. Accordingly, this paper suggests to at least compliment such steps with measures to protect the courts when changing the courts’ constitution. The proposed measures do not seek to protect certain specific features of the institutional design; rather, they look to ensure that changes to that design are based on a consensus between the ruling government and the opposition. Such a consensus would support the presumption that undertaken changes do not aim at advancing the partisan influence of one political party.

Détention provisoire

In Avonwick Holdings Ltd v Azitio Holdings Ltd & Ors [2020] EWHC 1844 (Comm), Picken J among quite a few other claims, at 146 ff discussed a suggested defrauding by misrepresentation of the best available market price for a bundle of stocks. Toss-up was between Ukranian law and English law and, it was suggested, was only relevant with respect to the issue of statute of limitation. Counsel for both parties agreed that the material differences between Ukranian and English law were minor.

They omitted, it seems, to discuss the relationship between statute of limitations and the carve-out in Rome II for procedural issues.

At 151:

It was not in dispute…that the default applicable law under Article 4(1) is the law of Cyprus in that this was the country in which the event giving rise to the damage occurred since, although Avonwick was incorporated in the BVI and its entry into the Castlerose SPA was formally authorised in Ukraine, Avonwick’s directors were based in Cyprus and the steps necessary to transfer its shares in Castlerose to Azitio and Dargamo would, therefore, have been taken by those directors in Cyprus.

Here I am simply lost. A4(1) does not suggest locus delicti commissi (‘country in which the event giving rise to the damage occurred’) rather it instructs specifically to ignore that. Even if a locus damni consideration was at play, for purely economic loss as readers will know, there is considerable discussion on that exact location. How the judgment could have ended up identifying locus delicti commissi is a bit of a mystery.

At 153 then follows a discussion of a displacement of Cypriot law by virtue of A4(3)’s ‘manifestly more closely connected’ rule, including interesting analysis of any role which Article 12’s culpa in contrahendo provision might play.

For the reasons listed at 166 ff, the judge agrees that A4(3) applies to replace Cypriot law with Ukranian (not: English) law. Those reasons do seem to make sense – yet despite this, the A4(1) analysis should have been carried out properly.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 4, Heading 4.5.2.

 

Picken J: 'very substantial proceedings..described..as being akin to divorce proceedings between 3 extremely wealthy Ukrainian businessmen.

Tortious shenanigans re share transfers.
Extensive discussion of A4 Rome II: applicable law for tort, particularly 'more closely connected' https://t.co/htk39XHQeq

— Geert Van Calster (@GAVClaw) July 14, 2020

Détention provisoire

On 21 July 2020 the Unidroit Secretariat released a Note on the UNIDROIT Principles of International Commercial Contracts and the COVID-19 health crisis.

As stated in the website of Unidroit, the Note is to be considered as work in progress, and the Secretariat welcomes any comments or suggestions.

The Note’s presentation reads:

In the context of the outbreak of COVID-19, UNIDROIT has prepared this note as a form of guidance as to how the Principles could help address the main contractual disruptions caused by the pandemic directly as well as by the measures adopted as a consequence thereof. The note analyses whether parties may invoke COVID-19 as an excuse for non-performance, and if so, based on which concepts and under what conditions. The analysis also covers the scenario, likely to be common in practice, where performance is still possible, but has become substantially more difficult and/or onerous under the circumstances.

The document aims to guide the reader through the process, leading her to ask appropriate questions and to consider the relevant facts and circumstances of each case. Naturally, solutions will vary according to the particular context of the pandemic in each jurisdiction and there is no one-size-fits-all approach. In particular, the document, considering the different ways the Principles have so far been used in practice, aims to: (i) help parties use the Principles when implementing and interpreting their existing contracts or when drafting new ones in the times of the pandemic and its aftermath; (ii) assist courts and arbitral tribunals or other adjudicating bodies in deciding disputes arising out of such contracts; and (iii) provide legislators with a tool to modernise their contract law regulations, wherever necessary, or possibly even to adopt special rules for the present emergency situation.

The open nature of the Principles furnishes the parties and interpreters with a much-needed flexibility in such an extreme context, constituting an efficient tool to offer a nuanced solution that can help preserve valuable contracts for the parties. Especially in mid-to-long term contracts, and in view of the – apparently – temporary nature of the impediment, mechanisms that allow for an adequate renegotiation and proportionate allocation of losses could ultimately help preserve the contract and maximise value for the jurisdiction(s) involved.

Arguably, the world of contracts has never suffered such an unforeseeable, global, and intense interference. Extraordinary situations require extraordinary solutions, and there is a global need to ensure the economic value enshrined in commercial exchanges is not destroyed. The Principles offer state-of-the-art, best-practice tools to deal with the problem; a set of rules that result from years of study and analysis, with the participation and consensus of the most prominent academics and practitioners in the field, from civil law and common law traditions.

— Many thanks to Carmen Tamara Ungureanu (Alexandru Ioan Cuza University of Iasi, Romania) for drawing the editors’ attention to this development.

La première chambre civile casse un arrêt d’appel ayant retenu que le règlement Bruxelles II bis n’a vocation à réglementer que les rapports entre ressortissants d’États membres de l’Union.

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The Committee on Civil Liberties, Justice and Home Affairs (Rapporteur: Juan Fernando López Aguilar) released earlier this week (20 July 2020) its interim report on the proposal for a Council decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law (COM(2017)0835 – 2017/0360R(NLE)), PE650.665v03-00. You can read it here.

Carlos Manuel Vazquez (Georgetown University Law Center) has posted Extraterritoriality as Choice of Law on SSRN.

The abstract reads:

The proper treatment of provisions that specify the extraterritorial scope of statutes has long been a matter of controversy in Conflict of Laws scholarship. This issue is a matter of considerable contemporary interest because the Third Restatement of Conflict of Laws proposes to address such provisions in a way that diverges from how they were treated in the Second Restatement. The Second Restatement treats such provisions — which I call geographic scope limitations — as choice-of-law rules, meaning, inter alia, that the courts will ordinarily disregard them when the forum’s choice-of-law rules or a contractual choice-of-law clause selects the law of a state as the governing law. The Third Restatement does not consider them to be choice-of-law rules, instead maintaining that they are indistinguishable from limitations on the statute’s internal scope, such as a provision specifying that a statute prohibiting vehicles applies only in parks. This means, according to the Third Restatement, that contractual choice-of-law clauses are presumed to select the chosen state’s law subject to their geographic scope limitations, and that the courts of other states are obligated to give effect to such limits when applying the law of the state that enacted the statute with the geographic scope limitation. Indeed, according to the Third Restatement, failure to do so would violate the obligation of U.S. states to give Full Faith and Credit to the laws of sister states.

This article defends the Second Restatement’s understanding of geographic scope limitations as choice-of-law rules. Limits on a statute’s territorial scope are fundamentally different from limits on a statute’s internal scope. When a state enacts a statute and specifies that it applies only to conduct occurring within the state’s territory, or to residents of the state, it has limited the reach of the law out of deference to the legislative authority of other states. The state does not have a different rule for conduct that occurs on the territory of other states or for persons who are not residents. The territorial scope provision tells us only that cases beyond the statute’s specified scope should be governed by the law of a different state. For this reason, such provisions are best understood as choice-of-law rules.

The Third Restatement treats geographic scope limitations as prescribing non-regulation for cases beyond the statute’s specified geographic scope. This understanding of geographic scope limitations is highly implausible and, indeed, either unconstitutionally discriminatory or unconstitutionally arbitrary. Failure to give effect to such provisions does not violate the Full Faith and Credit Clause. Rather, under the Supreme Court’s analysis in Franchise Tax Board v. Hyatt, such provisions violate the Full Faith and Credit Clause. Understood as choice-of-law rules, geographic scope limitations are binding on the courts of the enacting state, and other states may take them into account in determining whether to apply the law of the enacting state. But, if the forum’s choice-of-law rules select the law of the enacting state as the governing law, the constitutional obligation of U.S. states to respect the laws of their sister states poses no impediment to application of the statute’s substantive provisions to cases beyond the statute’s specified geographic scope.

University of Rijeka, Faculty of Law announces its call for RIDOC 2020: Rijeka Doctoral Conference. This conference has a stong international character and gathers promising law doctoral students, both from Europe and beyond. They will have the oportunity to test their working hypothesis before international panels composed of renown academics. Given the circumstances, the conference is planned as a hybrid online-onsite event or online only. The call may be downloaded here, while programmes of the former conferences are available at this site.

Important dates
Deadline for applications: 25 August 2020.
Information on the acceptance: 25 September 2020.
Conference and book of abstracts: 4 December 2020.

Applications and questions should be addressed to ridoc@pravri.hr.

La chambre d’application des peines de la cour d’appel, appelée à statuer sur la révocation d’un sursis avec mise à l’épreuve concernant une personne remise aux autorités françaises en vertu d’un mandat d’arrêt européen, ne peut se déclarer incompétente pour statuer sur l’exception tirée de la violation du principe de spécialité.

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When I reviewed Szpunar AG’s opinion, I pointed out that the crux of this case is the determination of ‘centre of main interests’ in the context of natural persons not exercising an independent business or professional activity, who benefit from free movement. The CJEU has now held.

With respect to natural persons outside of a profession, the Insolvency Regulation 2015/848 (‘EIR 2015’) determines ‘(i)n the case of any other individual, the centre of main interests shall be presumed to be the place of the individual’s habitual residence in the absence of proof to the contrary. This presumption shall only apply if the habitual residence has not been moved to another Member State within the 6-month period prior to the request for the opening of insolvency proceedings.’

‘Habitual residence’ is not defined by the EIR 2015. The CJEU runs along the usual themes: need for predictability and autonomous interpretation; emphasis on the Regulation generally defining COMI as ‘the place where the debtor conducts the administration of his interests on a regular basis and is therefore ascertainable by third parties’ (at 19 and referring to recital 13 of the previous Regulation); among those third parties, the important position of (potential) creditors and whether they may ascertain said centre (at 21); to agree with the AG at 24 that

relevant criteria for determining the centre of the main interests of individuals not exercising an independent business or professional activity are those connected with their financial and economic situation which corresponds to the place where they conduct the administration of their economic interests or the majority of their revenue is earned and spent, or the place where the greater part of their assets is located.

Like the AG, the CJEU holds that the mere presence of a natural person’s one immovable asset (the ‘family home’, GAVC) in another Member State than that of habitual residence, in and of itself does not suffice to rebut COMI (at 28).

At 30, the Court specifically flags that COMI in effect represents the place of the ’cause’ of the insolvency, i.e. the place from where one’s assets are managed in a way which led the insolvent into the financial pickle: 

In that regard, although the cause of the insolvency is not, as such, a relevant factor for determining the centre of the main interests of an individual not exercising an independent business or professional activity, it nevertheless falls to the referring court to take into consideration all objective factors, ascertainable by third parties, which are connected with that person’s financial and economic situation. In a case such as the one in the main proceedings, as was observed in paragraph 24 above, that insolvency situation is located in the place where the applicants in the main proceedings conduct the administration of their economic interests on a regular basis or the majority of their revenue is earned and spent, or the place where the greater part of their assets is located.

As in all other scenarios of rebuttal, the ascertainability in particular by (potential) creditors is key and is a factual consideration which the national courts have to make.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5, Heading 5.6.1.

San Marino, the independent State surrounded by Italy, is home to about 5,000 undertakings. Unsurprisingly, given the size of the country (61 km2) and its population (33,344), a significant part of the business carried out in the small Republic is related to Italy. In fact, it is not infrequent for Italian courts to be seised of disputes opposing businesses based in Italy and San Marino, respectively.

Service of Judicial Documents Between Italy and San Marino

Where this occurs, the issue arises, among others, of the (cross-border) service of the document instituting the proceedings.

San Marino is a party to the 1965 Hague Service Convention, since 2002. Italy, too, is a party to that Convention.

However, the application of the Convention between the two countries is proving problematic, at least in Italy.

The difficulties revolve around the declaration issued by San Marino under Article 21(2)(a) of the Convention, whereby San Marino made known its opposition to service by postal channels. In fact, Article 10(a) stipulates that the Convention ‘shall not interfere with … the freedom to send judicial documents, by postal channels, directly to persons abroad’, provided, however, that ‘the State of destination does not object’.

In practice, the above declaration implies that service on a Sammarinese defendant for the purposes of proceedings in Italy may not occur otherwise than in accordance with Article 3 to 6 of the Convention, i.e. by a request conforming to the model annexed to the Convention itself, forwarded to the Sammarinese Central authority.

The View of the Italian Supreme Court

In a judgment of 29 January 2019 (No. 2482), the Italian Supreme Court ruled that the above declaration could (and in fact ought to) be disregarded. It actually concluded that, in the circumstances of that case, service – made by post on a Sammarinese company – was in all respects valid and effective.

The Supreme Court noted that the Government of San Marino, when acceding to the Convention, issued two separate instruments – the instrument of accession itself, and the declarations accompanying it. But while the former was drawn up in the form of a law, the latter resulted from a mere executive act. The Supreme Court characterised the latter, on account of its form, as an act incapable of affecting the operation of the convention (‘un atto inidoneo a ridurre l’ambito di applicazione alla predetta Convenzione’).

Assessment

The ruling is unpersuasive for a number of reasons.

It is not for the courts of one State to scrutinise the appropriateness of the forms employed by another State’s authorities in their international relations.

This is all the more true for declarations issued by the latter State in respect of a multilateral international convention, such as the Hague Service Convention.

In fact, it is for the depositary of the convention concerned (here, the Ministry of Foreign Affairs of the Netherlands) to assess whether the declarations received are in such a form as to effectively serve their purpose.

It appears that the Ministry of Foreign Affairs of the Netherlands received the Sammarinese declaration, and recorded it as such. No objections and no remarks have been raised at a diplomatic level concerning that declaration.

According to Article 77(1)(d) and (e) of the Vienna Convention on the Law of Treaties, the tasks of the depositary include ‘examining whether the signature or any instrument, notification or communication relating to the treaty is in due and proper form and, if need be, bringing the matter to the attention of the State in question’, and ‘informing the parties and the States entitled to become parties to the treaty of acts, notifications and communications relating to the treaty’. If the declarations of a State were to be reviewed by the other Contracting States individually, this would likely frustrate the function of the depositary and undermine its practical advantages.

One would be tempted to label the Italian Supreme Court’s ruling as unfortunate, and to ignore it altogether.

But this is in fact the second such ruling by the Cassazione. The first one, given on 9 November 2011 (No. 23290), was criticised for the above reasons (including by the author of this post: ‘Sulla notifica degli atti giudiziari mediante la posta secondo la Convenzione dell’Aja del 1965’, Rivista di diritto internazionale privato e processuale (2012), 341-362). The fact is that the Court reiterated its views.

In fact, the stance staken by the Court appears to amount, now, to the official position of the Italian Supreme Court on the (not so firm) value of declarations issued in connection with the Service Convention (and, possibly, in connection with any other multilateral convention contemplating similar instruments).

The author of this post is not aware of any diplomatic protests by the Government of San Marino as regards the Italian Supreme Court’s rulings.

It is hoped that, for the sake of the proper functioning of the Hague Service Convention, the approach be reconsidered at the earliest occasion.

 

– Photo credit: Max_Ryazanov, Wikimedia Commons