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Professor Zhengxin Huo, China University of Political Science and Law, has provided an interesting note entitled “A Battle over the Chinese Culture Treasure Lost Overseas–to be decided by Private International Law?”. It comments on the forthcoming auction of “Tiger Ying”, an ancient water vessel, which is believed to have been taken during the looting of Beijing’s Old Summer Palace by the British and French forces in 1860, at the Canterbury Auction Galleries in Kent on 10 and 11 April, and the pending proceedings in Amsterdam and Sanming (China) brought by Chinese villagers against a Dutch collector for the return of a stolen 1,000-year-old Buddhist mummy, known as the statue of Zhanggong-zushi. The full text can be found by following A Battle over the Chinese Culture Treasure Lost Overseas.

Professor Huo is Professor of Law, Deputy Dean of International Law Faculty at China University of Political Science and Law; Associate Member of International Academy of Comparative Law; Observer of the UNESCO 1970 Convention. Email: zhengxinh@cupl.edu.cn.

For anyone interested in state immunities against execution, I have prepared a short report about a recent ruling of the Greek Supreme Court, which can be retrieved here

This year’s Forum Conveniens Annual Lecture at the University of Edinburgh will be held on Wednesday 2nd of May, 5.30 – 7 pm.
The speaker is Dr. Alex Mills, Reader in Public and Private International Law at University College London, on the topic: “Party Autonomy in Private International Law: The Privatisation of Global Governance?”
The venue is Raeburn Room, Old College, South Bridge, Edinburgh, EH8 9YL
The event is free but registration is required at https://forum_conveniens_2018.eventbrite.co.uk.

Thank you Klaus Oblin for flagging OGH 7 Ob 183/17p X SE v I SpA (yet again I am happy to grumble that there is really no need to keep B2B litigation anonymous) at the Austrian Supreme Court. At issue is the application of Article 25 Brussels I Recast: when can consent to choice of court be established.

The facts of the case reflect repeated business practice: offers are made and accepted; a business relationship ensues on the basis of which further offers and orders are made; somewhere along the lines reference is made to general terms and conditions – GTCs which include choice of court. Can defendant be considered to have consented?

The Supreme Court, justifiably, lays the burden of proof with the claimant /plaintiff: if the contract is concluded through different offer and acceptance documents, the offer need only reference the terms and conditions containing the agreement conferring jurisdiction only if the other party: can follow-up on this with reasonable diligence; and actually receives the terms and conditions.

I am happy to refer to Klaus’ excellent overview (which also discussed the absence of established business practice between parties: one of the alternatives for showing choice of court). Yet again, the first and foremost quality required of lawyers (here: in-house counsel) emerges: ensure proper filing and compliance with simple procedure. Here: a clear flag of the GTCs in correspondence, and simple follow-up would have sufficed.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.9.

Travail réglementation, rémunération - Egalité de traitement -
Différence de montant du complément poste

Travail règlementation, rémunération - Egalité de traitement -
Différence de montant du complément poste

Travail règlementation, rémunération - Egalité de traitement -
Différence de montant du complément poste

Béligh Elbalti, Associate Professor at Osaka University, Graduate School of Law and Politics, has kindly informed us that the forthcoming volume of the Japanese Yearbook of International Law (Vol. 60, 2017) will feature the following articles and case notes relating to private international law.

Articles

Uniform Law Treaties: Their Reception, Implementation, Success and Failure

Hirao Sano, Introductory Note (pp. 4-9)

Hirao Sano, Going Forward with Uniform Private Law Treaties: A Study in Japan’s Behavioral Pattern (pp. 10-58)

Tomotaka Fujita, When Does Japan Not Conclude Uniform Private Law Conventions? (pp. 59-85)

Souichirou Kozuka, The Selective Reception of Uniform Law in Asia (pp. 86-112)

Tetsuo Morishita, Successes and Failures of Harmonization of Commercial Laws (pp. 113-135)

Unilateralism and Multilateralism in Regulating Cross-border Business Transactions: Part Two

Yoshiaki Nomura, Fall of Extraterritoriality and Resurgence of Choice of Law in Global Securities Litigation (pp. 314-338)

Cases and Issues in Japanese Private International Law

Dai Yokomizo, Recognition of a Foreign Judgment on Children Born Through Surrogate Pregnancy (pp. 399-409)

As it has been the tradition since the creation of the Yearbook in 1959 (former The Japanese Annual of International Law), the forthcoming volume will also include English translations of a number of Japanese Court decisions relating to private international law.

Judicial Decisions in Japan

II. Private International Law

Supreme Court 1st Petty Bench), Judgment, March 10, 2016 (pp. 488-490)
International Adjudicatory jurisdiction over a Tort Claim – Special Circumstances- Defamation – Lis Pendens

Supreme Court 1st Petty Bench), Decision, June 2, 2016 (pp. 490-495)
Locus Standi – Civil Procedure Law – Party Authorized Charge of Litigation – Principle of Representation in Court by Attorney-at-law – Prohibition of Creating Trusts for Litigation

Tokyo High Court, Judgment, November 17, 2014 (pp. 495-498)
International Adjudicatory jurisdiction – Exclusive Choice of Court Agreement – Consumer Contracts – Redemption on Maturity – Alternative Claim for Damages Based on Tort- Article 3.4(1) of the Code of Civil Procedure- Public Policy

Intellectual Property High Court, Decision, March 25, 2015 (pp. 499-506)
Governing Law of Tort Claim – Defamation – International Adjudicatory jurisdiction for Tort Claim International Adjudicatory Jurisdiction Based on a Close Connection with an Anchor Claim

Tokyo District Court, Judgment, March 24, 2014 (pp. 506-509)
International Adjudicatory jurisdiction – Action to Oppose Enforcement of Arbitral Awards – Setoff

Tokyo District Court, Judgment, April 28, 2015 (pp. 509-512)
International Adjudicatory jurisdiction over a Tort Claim – Infringement of Intellectual Property Rights- Place of a Tort

Shizuoka District Court, Judgment, December 2, 2015 (pp. 512-517)
Applicable Law to Parental Authority – Parental Authority Under the Japanese Civil Code – Handing over a Child – Habitual Residence

Fukuoka District Court (Kokura Branch), Decision, December 4, 2015 (pp. 517-520)
Applicable Law to Maritime Lien – Applicable Law to Contractual Obligation Characteristic Performance – Vessel Auction

Kobe District Court, Decision, Janua1y 21, 2016 (pp. 520-522)
Applicable Law to Maritime Lien – Applicable Law to Contractual Obligation – Characteristic Pe1formance- Vessel Auction

Tokyo District Court, Interlocutory Judgment, February 15, 2016 (pp. 523-526)
International Adjudicatory jurisdiction over a Tort Claim – Validity of Exclusive Jurisdiction Clause-Anti-trust (Competition) Law

Tokyo District Court, Decision, September 26, 2016 (pp. 526-533)
Governing Law of Labor Contract – Application of Mandatory Provisions of the Law of the; Most Closely Connected Place to a Labor Contract – The Place Where the Work Should be Provided

More information on the Yearbook (former Annual) and the content of its past volumes is available at http://www.ilajapan.org/jyil/.

La Cour de justice se prononce sur la compatibilité entre le droit de l’Union et un accord sur la protection des investissements liant deux États membres et qui prévoit le recours à une instance arbitrale en cas de litige.

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The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

H.-P. Mansel/K. Thorn/R. Wagner: European conflict of laws 2017: The Dawning of Interstate Treaties

The article provides an overview of developments in Brussels in the field of judicial cooperation in civil and commercial matters from December 2016 until December 2017. It summarizes current projects and new instruments that are presently making their way through the EU legislative process. It also refers to the laws enacted at the national level in Germany as a result of new European instruments. Furthermore, the authors look at areas of law where the EU has made use of its external competence. They discuss both important decisions and pending cases before the ECJ as well as important decisions from German courts pertaining to the subject matter of the article. In addition, the article also looks at current projects and the latest developments at the Hague Conference on Private International Law.

S. Huber/S. Geier-Thieme: Jurisdiction for Tort Claims under the European Rules of Jurisdiction in the case of Purely Economic Loss

The preliminary ruling of the ECJ in the case Universal Music concerns a situation where a person entered into an unfavourable contract with a third party due to the negligent behaviour of the alleged tortfeasor. In this context, the ECJ has clarified that the bank account, which the injured party used in order to fulfil the disadvantageous commitment, is not the decisive factor for establishing jurisdiction for a tort claim. This part of the decision is convincing. Otherwise, the claimant would be able to influence the place of jurisdiction by the simple choice between different bank accounts. The Court, however, missed the opportunity to determine the place of jurisdiction in cases of purely economic loss at the place where the primary damage occurred. The ECJ refers to the place where the injured party concluded a settlement agreement with the third party. This settlement agreement, however, only diminished the damage that had already occurred when the injured party had entered into the unfavourable contract with the third person. As such, the obligations that resulted from this contract to the detriment of the injured party constitute the primary damage. Under the rules of international private law, these obligations are situated where the debtor, i.e. the injured party, resides. It is true, that this allows the injured party to bring a claim in the courts of his home country, but such a result seems appropriate in situations as in the present case. The opposite approach of the ECJ leads to legal uncertainty and time-intensive disputes about the question of jurisdiction.

H. Dörner: “One-shotter“ versus „repeat player“ – Elucidation of Art. 13 para. 2 and Art. 11 para. 1 lit. b of the Regulation (EU) No 1215/2012

In the opinion of the European Court of Justice, the European “Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters” grants the persons referred to in Art. 13 para. 2 and 11 para. 1 lit. b an additional place of jurisdiction at their own domicile, because this group of persons is in each case the “economically weaker and legally less experienced party”. Since the granting of such a plaintiff’s legal status implies an improvement in procedural law, the idea arises that this is also supposed to compensate for deficiencies in the procedure. The author proposes to describe the relationship of the litigants and the structural inferiority of the respective plaintiffs utilizing the distinction between “one-shotter” and “repeat player” introduced by Marc Galanter. A one-shotter is an “Einmalprozessierer” who only occasionally uses the help of the courts, while the repeat player, as a “Vielfachprozessierer”, repeatedly performs similar processes in a certain area. By adopting this pair of terms, the subject matter can firstly be presented without contradiction and, in particular, the ECJ decision to be discussed here can be classified appropriately. Secondly, the diffuse construct of the “weaker party”, which depends on various variables, is attributed to a single criterion that can be verified empirically and is thus accessible to evidence, namely the extent of the parties’ process activity.

F. Koechel: Art. 26 of the Brussels I Regulation: The relevant moment for the challenge to jurisdiction and the notion of entering of an appearance

It is settled case law of the Court of Justice of the European Union that under Art. 26 of the Brussels Ibis Regulation the defendant may not challenge the jurisdiction of the court seized after he has made the submission which under national law is considered to be his first defence. In response to a request for a preliminary ruling by the Corte di Cassazione, the CJEU has now specified that the defendant may bring the challenge to the jurisdiction of the court seized even simultaneously with his first defence and in the alternative to other objections of procedure. While the CJEU defines the relevant moment for the challenge to jurisdiction autonomously, it does not introduce an autonomous notion of entering of an appearance for the purposes of Art. 26 of the Brussels Ibis Regulation but refers to the “first defence” under the law of the forum State. Therefore, the actual stage in the national proceedings until which the defendant can raise the lack of jurisdiction depends on which procedural act of the defendant is considered to be the first defence by the lex fori. The case law of German civil and labour courts on the matter is inconsistent. While civil courts already consider the defendant’s submissions in writing prior to the oral hearing as a “first defence”, the Regional Court of Aachen recently followed a more restrictive interpretation applied by labour courts, which necessarily require a submission during the contentious oral hearing. As this article argues, both civil and labour courts should consider submissions prior to the oral hearing as possible “first defences” by the defendant. Much rather than the stage of the proceedings, it is the subject of the defendant’s submission, which is decisive for its qualification as an entering of an appearance within the meaning of Art. 26 of the Brussels Ibis Regulation. The defendant should be deemed to have entered an appearance if the plaintiff and the court seized are able to objectively ascertain from the content of the submissions that it is aimed at a contested decision by the court on any question different than jurisdiction or at an amicable settlement with the participation of the court.

M. Gebauer: Can a jurisdiction agreement prevent the right of a defendant to set-off before German courts?

The decision, rendered by the German Federal Supreme Court (BGH), illustrates some of the problems that arise when the BGH is confronted with a claim of a substantive right to set-off by a German based defendant. The case involved a Chinese plaintiff seeking the purchase price of X-ray equipment delivered to a German defendant. The German defendant alleged deficiencies in the equipment and sought damages in an amount exceeding the plaintiff’s initial claim. The contract contained a jurisdiction agreement in favour of the courts of their respective domiciles. The BGH declined jurisdiction with regards to the setoff claim, despite a close connection between the alleged claim and the alleged right to set-off. The author considers a line of German jurisprudence dating back over forty years, in terms of which the BGH has consistently worked on the basis that a jurisdiction agreement in favour of the courts of the parties’ respective domiciles prevents any right of a German domiciled defendant to claim substantive set-off, in so far as the contract does not explicitly and unambiguously allow such a right. The author specifically questions the decision of the BGH in this case, together with its long-standing jurisprudence on the matter, in light of the Brussels I Regulation and wider European Union law, suggesting that the time is ripe for the matter to be re-visited by the Court of Justice of the European Union in the form of a preliminary reference.

W.-H. Roth: Drittstaatliche Eingriffsnormen und Rom I-Verordnung

The application of overriding mandatory provisions of states other than the forum is one of the much-discussed topics in academia, whereas its practical relevance, as yet, seems to be rather limited In the negotiations on the Rome I-Regulation a compromise with the United Kingdom led to Art. 9 (3), allowing for the application of such overriding mandatory provisions only under the very restrictive conditions set forth therein. In its Nikiforidis judgment the Court of Justice of the European Union stresses the exceptional character of Art. 9 vis-à-vis party autonomy and its relevance for legal certainty. Art. 9 (3) is attributed exhaustive character which prevents Member States to take any way around. In contrast, Member States are not precluded to take overriding mandatory rules into account as a matter of fact if provided for by the substantive law applicable to the contract (according to the general rules of the Rome I- Regulation). The principle of sincere cooperation (Art. 4 (3) EUT) does not lead to a different conclusion. It does not authorise the Member States to circumvent the preconditions set forth by Art. 9 Rome I-Regulation. The judgment of the Court is criticised for dealing with this fundamental principle just in a rather formal manner.

M. Makowsky: Land registration of fractional ownership in cases of a foreign matrimonial property regime

Land acquisition by spouses with a foreign matrimonial property regime plays an increasing role in practice. Yet, the land registration often causes difficulties, if the spouses wish the registration of sole or fractional ownership although the matrimonial property regime (regularly) provides for joint property. In this context, the decision of the Higher Regional Court of Munich confirms that the land registry must obtain knowledge of the applicable foreign law ex officio. Contrary to the Court’s opinion, however, an interim order, which obliges the applicant to obtain a legal opinion, should not be regarded as generally inadmissible by law. According to the predominant view, the land registry may only refuse the registration of sole or fractional ownership, if it is convinced that this would make the land register inaccurate with regard to the matrimonial property regime. In case of mere doubts regarding the foreign law, the registration is nonetheless subject to prior clarification. The opposing view of the Court is not convincing. Furthermore, the Higher Regional Court correctly affirms that the acquisition of sole or fractional ownership is possible under the Polish statutory matrimonial property regime. Contrary to the view of the Court, however, the land registry does not have to register sole or fractional ownership only because, in the abstract, the law provides for such an acquisition.

Rechtbank Rotterdam held on 15 March last that 4 ships owned and operated by the Sea Trade concern had to be regarded as waste when they left the port at Rotterdam cq Hamburg (they were eventually beached in a variety of destinations). Not having been notified as waste, their shipment was considered illegal and the concern as well as some of its employees consequently convicted. (Illegal waste shipments being a criminal offense).

The court decided not to refer to the CJEU on the application of the waste definition to ships, as it considered the issue to be acte clair. The court’s review of the legal framework is included in Heading 4.3.4. As such, the analysis does not teach us much about the difficulty of applying the waste definition to international maritime logistics, in particular ship disposal. The court found at a factual level that the owners’ intention to dispose of the ships was clearly established when the ships left the EU, with, it suggested, the facts proving that the intention to dispose was at that moment of such an intensity as to trigger the waste definition.

The court does flag its appreciation for the difficulties. Not only is eventual disposal of hardware such as ships a possibility from the moment of their purchase. Such intention may also be withdrawn, reinstated, modified, at various moments of the ships’ life, fluctuating with market circumstances. Particularly given the criminal nature of the legal discipline here, I find that a very important driver to tread very cautiously and to look for firmer objective factors to establish intent.

Most probably to be continued on appeal.

Geert.

(Handbook of ) EU Waste law, 2nd ed. 2017, para 1.20 ff. Disclosure: I acted as court expert.

L’annulation du dessin communautaire représentant une chaussure de type sabot commercialisée par la société américaine Crocs a été confirmée par le Tribunal de l’Union européenne dans une décision du 14 mars 2018.

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An International Symposium on Parental Child Abduction and Mediation in a Globalized World will take place at Stanford Law School on 10 April 2018 (one day only – California, USA). One of the aims of the symposium is to discuss what is happening between the United States and Mexico, one of the busiest borders with respect to  child abduction cases (see the latest statistical survey published by the Hague Conference on Private International Law -HCCH-). Click here for more information on the event and to register.

The event is free and open to the public. Speakers will include Professor Nuria González Martín (UNAM), the former Secretary General of the HCCH Hans van Loon, academics, judges, and Central Authority officials. Click here for the full program.

Thank you Tobias Lutzi for alerting us to the ECtHR drawing the final curtain (legally speaking at least) over the tragic events surrounding the Krombach case. The case is a classic viz ordre public, recognition and enforcement issues. Current decision however relates to the criminal law aspects of the case and the ne bis in idem principle in particular.

The Court declared Krombach’s complaint inadmissible.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.16.1.4.

On March 15 the ECtHR, sitting as the Grand Chamber,decided on the Naït-Litman v. Switzerland case (application no. 51357/07), against the applicant. Independently on whether one agrees or not  with the final outcome, for PIL lawyers and amateurs the judgment is certainly worth reading.

The case concerned the refusal by the Swiss courts to examine Mr Naït-Liman’s civil claim for compensation for the non-pecuniary damage arising from acts of torture allegedly inflicted on him in Tunisia. According to the applicant, he was arrested in April 1992 by the police in Italy, and after being transferred to the Tunisian consulate in Genoa, he was taken to Tunis by Tunisian agents. Mr Naït-Liman alleges that, from 24 April to 1 June 1992, he was detained and tortured in Tunis in the premises of the Ministry of the Interior on the orders of A.K., the then Minister of the Interior. Following the alleged torture, Mr Naït-Liman fled Tunisia in 1993 for Switzerland, where he applied for political asylum; this was granted in 1995.

On 14 February 2001, having learnt that A.K. was being treated in a Swiss hospital, the applicant lodged a criminal complaint against him with the Principal Public Prosecutor for the Republic and the Canton of Geneva. He applied to join these proceedings as a civil party. The Prosecutor dropped the proceedings after finding out that A.K. had left the country some days earlier.

Several years later, on 8 July 2004, the applicant lodged a claim for damages with the Court of First Instance of the Republic and the Canton of Geneva against Tunisia and against A.K. The Court of First Instance declared the claim inadmissible on the ground that it lacked territorial jurisdiction and that the Swiss courts did not have jurisdiction under the forum of necessity in the case at hand, owing to the lack of a sufficient link between, on the one hand, the case and the facts, and, on the other, Switzerland. Mr Naït-Liman lodged an appeal with the Court of Justice of the Republic and the Canton of Geneva, which was rejected on the grounds of immunity from jurisdiction of the defendants. The Federal Supreme Court dismissed the second appeal in 2007, considering that the Swiss courts in any event lacked territorial jurisdiction.

The ECtHR considered that international law had not imposed an obligation on the Swiss authorities to open their courts with a view to ruling on the merits of Mr Naït-Liman’s compensation claim, on the basis of either universal civil jurisdiction in respect of acts of torture or a forum of necessity.

The case is without doubt of interest for CoL and beyond: the methodology employed by the Court is remarkable. A wide comparative legal analysis is conducted, which regarding universal civil jurisdiction encompasses the work of the Institute of International Law on the topic in 2015, and the report drafted by A. Bucher, and takes into account 39 member States of the Council of Europe (Albania, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, the Czech Republic, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Ireland, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Monaco, the Netherlands, Norway, Poland, Portugal, Romania, Russia, San Marino, Serbia, Slovakia, Slovenia, Spain, Turkey, Ukraine and the United Kingdom), as well as certain States which are not members of the Council of Europe. The forum necessitatis prong comprises: the works of both the IIL and the  International Law Association -The Sofia Resolution, 2012, of its former Committee on International Civil Litigation and the Interests of the Public-; eleven of European States (Austria, Belgium, Estonia, France, Germany, Luxembourg, the Netherlands, Norway, Poland, Portugal and Romania) which explicitly recognise either the forum of necessity or a principle bearing another name but entailing very similar if not identical consequences (as in the case of France); Switzerland; and Canada (Quebec) as a non-member States of the Council of Europe. Finally, reference is also made to the forum non conveniens provision in the EU maintenance, succession and matrimonial property regulations.

(Summary here).

Pourvoi c/ Cour d'appel de Douai, chambre 1 section 1, 14 septembre 2017

Non lieu à renvoi

Décision du Conseil constitutionnel n° 2017-682 QPC du 15 décembre 2017
http://www.conseil-constitutionnel....

Tribunal de grande instance de Pontoise, 12 mars 2018