Agrégateur de flux

The Second Postgraduate Law Conference of the Centre for Private International Law will be taking place on 6 May 2024, 09:00 – 17:00 GMT.  This is a virtual event bringing together early career scholars working in the private international law field or fields with an intersection to private international law such as EU Law, Human Rights Law and AI Law. See the Programme and Register to attend one of the panels on international family law, artificial intelligence, civil and commercial law or human rights.

With great sadness did we receive notice that Erik Jayme passed away on 1 May 2024, shortly before his 90th birthday on 8 June. Everyone in the CoL and PIL world is familiar with and is probably admiring his outstanding and often path-breaking work as a global scholar. Those who met him in person were certainly overwhelmed by his humour and humanity, by his talent to approach people and engage them into conversations about the law, art and culture. Anyone who had the privilege of attending lectures of his will remember his profound and often surprising and unconventional views, paths and turns through the subject matter, often combined with a subtle and entertaining irony.

Erik Jayme was born in Montréal, as the son of a German Huguenot of French origin and a Norwegian. The parents had married in Detroit before a protestant priest. What else if not a profound interest in cross-border relations, different cultures and languages as well as bridging cultural differences and, ultimately, Private International Law could have been the result? “There was no other way“, as he put it once. His father, Georg, born on 10 April 1899 in Ober-Modau in South Hesse of Germany, passed away on 1 January 1979 in Darmstadt, later became a professor of what today would probably be called chemical engineering, with great success, on cellulose production technologies at the University of Darmstadt. His passion for collecting Expressionist and 19th century art undoubtedly served as an inspiration for Erik to later devote himself to art, art history and finally art law. During his youth, as Erik mentioned once, he would use his exceptionally broad knowledge on art and any aspect of culture that crossed his mind to draw his tennis partners into sophisticated conversations on the court. Perhaps not least with a view to his father’s expectations, Erik decided to study law at the University of Munich, but added courses in art history to his curriculum. He liked to recall, how he approached the world-famous art historian, Hans Sedlmayr, to ask him whether he might be allowed to attend his seminars, despite being (“unfortunately“) a law student. Sedlmayr replied that Spinoza had been wise to be grinding optical lenses to earn a living, and in light of a similar wisdom that the applicant would show, he was accepted.

In 1961, at the age of 27, Erik Jayme delivered his doctoral thesis on „Spannungen bei der Anwendung italienischen Familienrechts durch deutsche Gerichte“ (“Tension in the application of Italian family law by German courts“).[1] While clerking at the court of Darmstadt, Erik Jayme published his first article in this field, inspired by a case in which he was involved. International family and succession law as well as questions of citizenship became a focus of his academic research and publications for decades, including his Habilitation in 1971 on „Die Familie im Recht der unerlaubten Handlungen” (“The Family in Tort Law“),[2] in particular with a view to relations connected with Italy. This may show early traces of what became more apparent later: More than others, Erik Jayme took the liberty to make use of law, legal research and academia to build his own way of life (that should definitely include Italy), inspired by seemingly singularities in a concrete case that would be seen as a sign for something greater and thus transformed into theories and concepts, enriched by a dialogue with concepts from other fields such as art history. Is this way of producing creativity also the source of what later rocked the private international law of South America: the « diálogo das fontes como método »?[3] His research on Pasquale Stanislao Mancini,[4] later combined with studies on Anton Mittermaier,[5] Giuseppe Pisanelli [6] and Emerico Amari [7] as well as on Antonio Canova [8] were received as leading works on conceptual developments in the fields of choice of law, international civil procedural law, comparative law as well as international art and cultural property law, and over time, Erik Jayme became one of the world leading and most influential scholars in the field. The substantial contribution Erik Jayme provided to the work of The Hague Academy of International law, was perfectly summarized in Teun Struycken’s « Hommage à Erik Jayme » delivered in 2016 on behalf of the Academy’s Curatorium:[9]

« Vous n’avez cessé de souligner que les systèmes de droit ne s’isolent pas de la société humaine, mais s‘y imbriquent. Ils sont même des expressions de la culture des sociétés. La culture s’exprime aussi et surtout dans les beaux arts. »

Speaking of art and cultural property law: It seems to be the year of 1990 when Erik Jayme published for the first time a piece in this field, namely a short conference report on what has now become an eternal question: „Internationaler Kulturgüterschutz: lex originis oder lex rei sitae“ (“Protection of international cultural property: lex originis or lex rei sitae“).[10] In 1991, his seminal work on „Kunstwerk und Nation: Zuordnungsprobleme im internationalen Kulturgüterschutz“ (“Artwork and nation: Problems of attribution in the international protection of cultural property“)[11] appeared as a report for the historical-philosophical branch of the Heidelberg Academy of Sciences where he traced back the notion of a “home“ (« une patrie » ) of an artwork to Antonio Canova‘s activities as the Vatican’s diplomate at the Congress of Vienna where Canova, a sculptural artist by the way, succeeded in bringing home the cultural treasures taken by Napoléon Bonaparte from Rome to Paris (into the newly built Louvre) back to Rome (into the newly built Museo Chiaramonti), despite the formal legalisation of this taking in the Treaty of Tolentino of 1797. “This is where the notion of a lex originis was born”. Still in 1991, the Institut de Droit International, concluded, in its Resolution of Basel « La vente internationale d’objets d’arts sous l’angle de la protection du patrimoine culturel »  in its Art. 2: « Le transfert de la propriété des objets d’art – appartenant au patrimoine culturel du pays d’origine du bien – est soumis à la loi de ce pays » . Much later, in 2005, when I had the privilege of travelling with him to the Vanderbilt Law School and the Harvard Law School for presentations of ours on „Global claims for art“, he further developed his vision of a work of art as quasi-persons who should be conceived as having their own cultural identity,[12] to be located at the place where the artwork is most intensely inspiring the public and thus is “living“. From there it was only a small step to calling for a guardian ad litem for an artwork, just as for a child, in legal proceedings. When Erik Jayme was introduced to the audiences in Vanderbilt and Harvard, the academic hosts would usually present him, in all honest admiration, as “a true Renaissance man“. I would believe that he felt more affiliated to the 19th century, but this might not necessarily exclude the perception of him as a “Renaissance man“ from a transatlantic perspective, all the more as there seems to be no suitable term in English for the German „Universalgelehrter“ (literally: “universal scholar”).

This is just a very small fraction of Erik Jayme’s amazingly wide-ranging, rich and influential scholarly life and of his extraordinarily inspiring personality. Many others may and should add their own perspectives, perhaps even on this blog. We will all miss him, but he will live on in our memories!

 

[1] Jayme, Spannungen bei der Anwendung italienischen Familienrechts durch deutsche Gerichte, Gieseking 1961 (LCCN 65048319).

[2] Jayme, Die Familie im Recht der unerlaubten Handlungen, Metzner 1971 (LCCN 72599373).

[3] Jayme, « Identité culturelle et intégration: le droit international privé postmoderne », Recueil des Cours 251 (1995), 259 (Recueil des cours en ligne).

[4] See e.g. Jayme, Pasquale Stanislao Mancini : internationales Privatrecht zwischen Risorgimento und praktischer Jurisprudenz, Gremer 1990 (LCCN 81116205).

[5] Jayme, „Italienische Zustände“, in: Moritz/Schroeder (eds.), Carl Joseph Anton Mittermaier (1787-1867) – Ein Heidelberger Professor zwischen nationaler Politik und globalem Rechtsdenken“, Regionalkultur 2009, pp. 29 et seq.

[6] See e.g. Jayme, « Giuseppe Pisanelli fondatore della scienza del diritto processuale civile internazionale », in: Cristina Vano (eds.), Giuseppe Pisanelli – Scienza del processo – cultura delle leggi e avvocatura tra periferiae nazione, Neapel 2005, pp. 111 e seguenti (LCCN 2006369541).

[7] See e.g. Jayme, « Emerico Amari: L’attualità del suo pensiero nel diritto comparato con particolare riguardo alla teoria del progresso », in: Fabrizio Simon (ed.), L’Identità culturale della Sicilia risorgimentale, Atti del convegno per il bicentenario della nascita di Emerico Amari e di Francesco Ferrara, in Storia e Politica – Rivista quadrimestrale III, N.°2/2011, pp. 60 e seguenti.

[8] See e.g. Jayme, Antonio Canova (1757-1822) als Künstler und Diplomat: Zur Rückkehr von Teilen der Bibliotheca Palantina nach Heidelberg in den Jahren 1815 und 1816, Heidelberg 1994 (LCCN 95207445).

[9] V.M. Struycken, « Hommage à Erik Jayme », Session du Curatorium du 15 janvier 2016 à Paris (disponible ici: https://www.hagueacademy.nl/2016/02/hommage-a-dr-erik-jayme/?lang=fr).

[10] Jayme, „Internationaler Kulturgüterschutz: lex originis oder lex rei sitae“, IPRax 1990, 347.

[11] Jayme, Kunstwerk und Nation: Zuordnungsprobleme im internationalen Kulturgüterschutz, C. Winter 1991.

[12] See e.g. Jayme, “Gobalization in Art Law: Clash of Interests and International Tendencies”, Vand. J. Int. L. 38 (2005), 927, 938 et seq.

A quick flag of the letter before action in Ali Hussein Julood v BP, a claim relating to gas flaring in Iraqi oil fields. BP is likely to contest jurisdiction under forum non conveniens (a reminder that such defence would be impossible under Lugano and very narrow under Brussels Ia). Information to date is vague however one imagines applicable law may be argued under Article 7 Rome II (and contested by BP as Maran did in Begum v Maran), giving claimants the choice between lex loci delicti commissi or lex locus damni, with for the former the discussion whether it is BP’s company policy with respect to flaring etc that is the real locus delicti.

Geert.

EU Private International Law, 4th ed. 2023, 4.56 ff.

A7 Rome II applicable law (and likely jurisdictional challenge) claxon
LBA Letter before action issued, flaring overseas https://t.co/SZzdbwHgte

— Geert Van Calster (@GAVClaw) April 23, 2024

I have a great interest in claim formulation as a means to forum shop as both my clients and my students know. Despite the post being way behind my signalling of the case on Twitter /X, I do want briefly to flag X v Horsedeals BV et al ECLI:NL:RBOVE:2023:3987 for it shows the limits to what one can do with creative claim formulation. Claimant claims to be the owner of various shipments of stud sperm and aims to obtain various injunctions for (re)sale etc of the shipments, as well as a block on the enforcement of a French judgment in which it was ordered to provide relevant information. All of this is related to allegations of fraud in the horse market. The judge holds that the claim for negative declaration in tort against a France-domiciled defendant is in reality a claim for ownership of the sperm at issue for which there is no A7(2) gateway in The Netherlands. Similarly the court holds that alleged future damage following the enforcement of a French judgment cannot ground an A7(2) claim to halt that enforcement in light of Title III Brussels Ia.

Geert.

Claim formulation: limits to engineering
Interesting first instance judgment rejecting jurisdiction, holding claim for negative declaration in tort in reality is claim for ownership
No A7(2) BIa gateway

X v Horsedeals BV et al (re https://t.co/RBvfubQLO8)https://t.co/U6nMW5egVs

— Geert Van Calster (@GAVClaw) October 12, 2023

On 6 May 2024, the Centre for Private International Law (CPIL) of the University of Aberdeen will host its Second Postgraduate Law Conference on-line. The conference consists of four panels dealing, respectively, with private international law aspects of international family law, AI and cross-border legal issues, international civil and commercial law, and private international law […]

Pour mettre en conformité le droit français avec plusieurs instruments européens, la loi du 22 avril 2024 modifie différentes dispositions du code de procédure pénale. Celles relatives à la transmission d’informations entre États membres ou au mandat d’arrêt européen ont été adoptées sans réelles contestations, tandis que celles relatives à la garde à vue ont provoqué de vifs débats. 

Sur la boutique Dalloz Droit et pratique des audiences correctionnelles et de police 2024/2025 Voir la boutique Dalloz

en lire plus

The editors of the blog of the European Association of Private International Law are sad to learn of the passing away of Erik Jayme. He would have turned 90 in a few weeks. Erik Jayme’s work, spanning over six decades, has had a distinctive influence on the renewal of private international law discourse. Among many […]

On 7 May 2024, Advocate General J. Richard de la Tour will deliver his Opinion in case C-4/23, Mirin. I reported on this case related to the recognition of changes on civil status of a European citizen with dual nationality on the occasion of the hearing last January. For the record, here are the questions […]

A new book titled Tort Litigation against Transnational Corporations has been published in the Oxford University Press Private International Law series. The author, Ekaterina Aristova, is Leverhulme Trust Early Career Fellow at the Bonavero Institute of Human Rights at the University of Oxford. The description of the book on the publisher’s website reads as follows: […]

Dans cet arrêt, la Cour de cassation rappelle que l’appréciation par la chambre de l’instruction de certains motifs de refus d’exécution, tant obligatoires que facultatifs, d’un mandat d’arrêt européen demeure souveraine.

Sur la boutique Dalloz Droit et pratique de l’instruction préparatoire 2022/23 Voir la boutique Dalloz

en lire plus

Meetings & Events

From 8 to 12 April 2024, the Working Group on Parentage / Surrogacy met for the second time. Pursuant to its mandate, the Working Group continued its consideration of draft provisions for one new instrument on legal parentage generally, including legal parentage resulting from an international surrogacy agreement. More information is available here.

 

Vacancies

Applications are now open for a Communications and Outreach Internship at the Permanent Bureau of the HCCH. The deadline for the submission of applications is 20 May 2024 (18:00 CEST). More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

Whether a third party remains bound by a forum selection clause after acquiring a bill of lading is a matter for the court handling the case, governed by its private international law. Therefore, the ‘new’ conflict-of-laws rule in Article 25 of the Brussels I bis Regulation, whereby the court of a Member State, chosen by […]

20e anniversaire de l’adhésion de 10 États à l’Union européenne

The CJEU held last week in Joined Cases C‑345/22 and C‑347/22 Maersk A/S v Allianz Seguros y Reaseguros SA and Case C‑346/22 Mapfre España Compañía de Seguros y Reaseguros SA v MACS Maritime Carrier Shipping GmbH & Co.

The case concerns enforceability of choice of court (in the cases at issue: pro a court in England) included in bills of lading against third party holders of the bills. Each case was brought prior to Brexit Implementation day and as a result of the UK-EU Withdrawal Agreement (A127(3)) fully subject to Brussels Ia. Mukkarum Ahmed had earlier signalled Collins AG’s Opinion in which his scholarship was justifiably cited.

Relevant Spanish law is not amongst those national laws which accept with relative ease that choice of court and law has binding effect on third party acquirers of the bill, seeing as it provides:

In Section XI( of the preamble to Ley 14/2014 de Navegación Marítima (Shipping Law 14/2014) of 24 July 2014 (BOE No 180 of 25 July 2014, p. 59193; ‘the LNM’) it states:

‘… [Chapter I of Title IX] contains the special rules of jurisdiction and competence and, proceeding on the basis of the preferential application in this matter of the rules in international agreements and the law of the European Union, seeks to prevent the abuses identified, by declaring void clauses which provide for submission to a foreign jurisdiction or to arbitration abroad, contained in contracts for the use of a ship or in ancillary shipping contracts, if those clauses have not been individually and separately negotiated. …’

 Under Article 251 of the LNM, headed ‘Effectiveness of transfer’:

‘Delivery of a bill of lading shall have the same effects as delivery of the goods represented by the bill, without prejudice to the criminal and civil actions open to a person who has been unlawfully dispossessed of those goods. The acquirer of the bill of lading shall acquire all the transferor’s rights and actions over the goods, with the exception of agreements on jurisdiction and arbitration, which shall require the consent of the acquirer in accordance with Chapter I of Title IX.’

The first paragraph of Article 468 of the LNM, entitled ‘Clauses on jurisdiction and arbitration’, which appears in Chapter I of Title IX of that law, provides:

‘Without prejudice to the provisions of the international agreements applicable in Spain and to the rules of EU law, clauses which provide for submission to a foreign jurisdiction or to arbitration abroad, contained in contracts for the use of a ship or in ancillary shipping contracts, shall be void and deemed not to exist if those clauses have not been individually and separately negotiated.

Relevant authority is of course CJEU C‑387/98 Coreck Maritime) where the Court held that a jurisdiction clause incorporated in a bill of lading may be relied on against a third party to that contract if that clause has been adjudged valid between the carrier and the shipper and provided that, by virtue of the relevant national law, the third party, on acquiring the bill of lading, succeeded to the shipper’s rights and obligations.

CJEU DelayFix as Collins AG put it (45) “appears to adopt the same approach when, citing paragraph 65 of the judgment in CDC Hydrogen Peroxide, which in turn refers to paragraph 30 of the judgment in Coreck, it refers to ‘national substantive law’”.

The CJEU in the cases at issue firstly [48] holds

.. although it is clear from [A25(1) BIa] that the substantive validity of a jurisdiction clause is to be assessed in the light of the law of the Member State of the court or courts designated by that clause, the fact remains that the enforceability of such a clause against a third party to the contract, such as a third-party holder of the bill of lading, is concerned not with the substantive validity of that clause, as the Advocate General observed in points 54 to 56 of his Opinion, but with its effects, the assessment of which necessarily comes after the assessment of its substantive validity, that latter assessment having to be carried out by reference to the relationship between the original parties to the contract.

[50] with reference to Case 71/83 Tilly Russ and C‑543/10 Refcomp (itself borrowing from Correck Maritime, see above), the Court also reminds us

a jurisdiction clause incorporated in a bill of lading may be relied on against a third party to the contract if that clause has been adjudged valid between the shipper and the carrier and provided that, by virtue of the relevant national law, the third party, on acquiring the bill of lading, succeeded to the shipper’s rights and obligations. In such a case, there is no need for the court seised of the matter to ascertain whether that third party agreed to that clause [emphasis added]

In other words in such case the important step of establishing factual consent, ordinarily always required for choice of court under A25, is no longer needed.

Further, [56], does A25 BIa preclude the Spanish legislation at issue “under which a third party to a contract for the carriage of goods concluded between a carrier and a shipper, who acquires the bill of lading evidencing that contract and thereby becomes a third-party holder of that bill of lading, is subrogated to all of the shipper’s rights and obligations, with the exception of those arising under a jurisdiction clause incorporated in the bill of lading, where that clause is enforceable against that third party only if the third party has negotiated it individually and separately”?

Here, the CJEU [58] repeats that if “third-party holders of bills of lading  [are]…subrogated [under the relevant applicable law] to all of the rights and obligations of the shippers concerned…there is no need to ascertain whether each of those third parties actually accepted those clauses.”

[59] The relevant Spanish law in essence has the effect that the acquirer of the bill of lading acquires all of the transferor’s rights and actions over the goods, with the exception of jurisdiction clauses, which under that Spanish law require the actual consent of the acquirer. The result of the Spanish law is that those clauses are to be void and deemed not to exist if they have not been individually and separately negotiated. This, the CJEU holds [60] circumvents A25 as interpreted in Coreck Maritime, Tilly Russ, Refcomp etc. and cannot be so allowed. The national court is instructed as a result of the primacy of EU law to interpret the Spanish law as much as possible in line with the Regulation (reference [63] ex multi to CJEU Bezirkshauptmannschaft Hartberg-Fürstenfeld) and if no such interpretation other than one contra legem is possible, [65] to disapply the national rule seeing as A25 BIa as a provision in a Regulation (cf. a Directive) is directly applicable.

In conclusion:

1.      Article 25(1) [BIa]

must be interpreted as meaning that the enforceability of a jurisdiction clause against the third-party holder of the bill of lading containing that clause is not governed by the law of the Member State of the court or courts designated by that clause. That clause is enforceable against that third party if, on acquiring that bill of lading, it is subrogated to all of the rights and obligations of one of the original parties to the contract, which must be assessed in accordance with national substantive law as established by applying the rules of private international law of the Member State of the court seised of the dispute.

2.      Article 25(1) [BIa]

must be interpreted as precluding national legislation under which a third party to a contract for the carriage of goods concluded between a carrier and a shipper, who acquires the bill of lading evidencing that contract and thereby becomes a third-party holder of that bill of lading, is subrogated to all of the shipper’s rights and obligations, with the exception of those arising under a jurisdiction clause incorporated in the bill of lading, where that clause is enforceable against that third party only if the third party has negotiated it individually and separately.

An important judgment for the transport sector specifically and for the meaning of ‘substantive validity’ in A25 BIa.

Geert.

EU private international law, 4th ed. 2024, 2.373 ff.

CJEU Maersk

‘substantive validity’ in A25(1) BI encompasses defect in consent in choice of court btw the original contracting parties but not its applicability or enforceability against third partieshttps://t.co/o1K6dPDF1z

for context @mukarrumahmed https://t.co/rlD4bOlUVk

— Geert Van Calster (@GAVClaw) April 25, 2024

FIFA
Espace de liberté, sécurité et justice
Avocat général Szpunar : certaines règles de la FIFA en matière de transfert de joueurs peuvent s’avérer contraires au droit de l’Union

M.N. (EncroChat)
Espace de liberté, sécurité et justice
EncroChat : la Cour de justice précise les conditions de la transmission et de l’utilisation de preuves dans les affaires pénales revêtant une dimension transfrontalière

Procura della Repubblica presso il Tribunale di Bolzano
Rapprochement des législations
Vie privée et poursuite d’infractions graves : le juge chargé d'autoriser l'accès à des relevés téléphoniques pour identifier les auteurs d'une infraction, pour la poursuite de laquelle la loi nationale prévoit un tel accès, doit être habilité à refuser ou à restreindre cet accès

La Quadrature du Net e.a. (Données personnelles et lutte contre la contrefaçon)
Rapprochement des législations
Lutte contre les infractions pénales et ingérence dans les droits fondamentaux : une autorité publique nationale chargée de la lutte contre les contrefaçons commises en ligne peut accéder à des données d’identification à partir d’une adresse IP

The International Hellenic University in Thessaloniki will host on 5 October 2024 a conference on The Energy Charter and Dispute Resolution Mechanisms, organised in cooperation with the University of Cyprus. The event aims to provide a platform for scholars, practitioners, policymakers, and industry experts to explore and discuss critical issues surrounding the Energy Charter and the […]

Après des semaines de feuilletons rythmées par de nombreux rebondissements, la directive sur la diligence raisonnable en matière de durabilité des entreprises (ci-après CSDDD), a été finalement adoptée par le Parlement européen le mercredi 24 avril 2024. Le texte avait suscité de nombreuses controverses entre les États européens, le Comité des représentants permanents de l’Union européenne (COREPER) n’étant parvenu à un accord que le 15 mars dernier après de multiples reports. La directive, dont les obligations ont été allégées au fil des négociations, s’inscrit plus largement dans un mouvement normatif de responsabilisation des entreprises européennes, poussé en ce sens par une pression accrue des parties prenantes. 

en lire plus