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2021 will be a milestone for the International Commission on Civil Status (ICCS). Driven by a powerful internationalisation movement, the new internal regulation of ICCS entered into force on 1 January 2021.

I have interviewed Nicolas Nord, the Secretary General of ICCS, on the Commission’s work, functioning and challenges.

— Can you remind us what the ICCS is and the scope of its activities?

The ICCS is an international organisation created in 1949. The seat is in Strasbourg, in France. Its objectives are to facilitate international co-operation in civil-status matters and to further the exchange of information between civil registrars. A practical approach has always been privileged. The idea is to deal with concrete issues that arise in the daily activity of national authorities.

To achieve the general aims, the ICCS draws up normative instruments. 34 international conventions and 11 recommendations have been adopted till today. Comparative law studies are also carried out. The goal is always the same: harmonizing the provisions in force in the member States on matters relating to the status and capacity of persons, to the family and to nationality and improving the operation of civil-status departments in those States.

It materializes in different ways and has given rise to the creation of original methods. This is the case with multilingual civil status forms which allow any State authority to understand an act issued in another State Party, without having to face the problem of translation. It is an essential tool that also makes life easier for individuals. This is why Convention n° 16 has been so successful. It is in force in 24 States. Uniform acts such as certificates of matrimonial capacity (convention n° 20) or of life (convention n° 27) have also been created. There are the same in all the States parties. Another aspect is cooperation between authorities. Different conventions allow a direct international communication between the civil registrars. This allows for simplified updating of civil status documents in the various States Parties (convention n°3, 23 and 26).

The ICCS also compiles and keeps up to date a documentation on legislation and case-law setting out the law of the member States on the matters falling within its field of competence and provides, on the basis of that documentation, information to the national authorities.

— The ICCS recently adopted a new internal regulation. Can you tell us more about it?

The will of the member States is to modernize the organisation, to adapt it to new challenges and to make it more attractive. Some essential reforms have thus been introduced. Three examples may be given. English becomes the second official language of the organisation, alongside French. Membership is no longer reserved for states but also open, from now on, to any international organisation, any regional economic integration organisation and any other international entity. Membership procedure has been simplified. An approval by the General Assembly is the only requirement.

— What’s in it for the European Private International Law community?

The birthplace of ICCS is in Europe. Most of our members are European. Our instruments are in force in many European countries, although there is of course no geographical limitation. Our desire by introducing a second official language is to allow non-French speaking countries, European or not, to join us in order to work together. We also want to allow the EU to join us.

We have been working with the European Commission for many years now. The cooperation agreement between our two institutions was concluded in 1983. The adoption of the “public documents” regulation, now in force, clearly reflects this cooperation since the methods invented by the ICCS, such as multilingual forms or the coding of civil status forms, have been used in it. However, the instruments of the EU and the ICCS now coexist in Europe. It is a source of complexity and is not always well understood by practitioners. That is why we would like to strengthen our links with the EU.

— Some scholars have recently expressed their worries about the future of the ICCS (here). What do you think?

We fully understand their concern. It is a reaction to the surprising withdrawal of France. There is a risk of disappearance of the organisation if all the States adopt the same attitude of course.This would be prejudicial for the States themselves and for the practitioners of civil status. The reform of the ICCS internal regulation is precisely a reaction to such concerns, in order to make the organisation more attractive and to ensure its sustainability. Our wish is to convince new member states, new international entities to join us and to allow a return of our former members. 

— What are the ICCS’ work forecasts and challenges ahead?

 In September 2021, we are organising a conference on our flagship convention, the convention n° 16. Our wish is to establish a kind of diagnosis and to see what works well, gives satisfaction to the practitioners but also to detect the problems which appeared since 1976, date of its adoption. This is an exciting prospect. Having such feedback will be very enriching, both for the States Parties, the civil registrars and the organisation itself.

In addition to working on the substance of the matter, we want to make our organisation known, highlight its instruments which have demonstrated their effectiveness in practice and convince new States and international organisations to join us, by becoming members or by adopting our instruments.

As a conclusion, I would like to thank Nicolas for the very interesting light he has shed on the ICCS central mission for States and regional organisations such as the European Union to pursue and perhaps even step up their work on the key-issue of civil status for mobile citizens. Let us wish that the ICCS’ makeover will lead to a greater European and international cooperation in the field of civil status in the near future!

Please note that Nicolas is available to answer any questions that fellow blog readers may have on the ICCS.

En cas de surpopulation carcérale, il importe de tenir compte de la surface personnelle du détenu, et de procéder à l’examen global d’un ensemble de facteurs afin d’apprécier le caractère indigne des conditions de détention.

en lire plus

Pourvoi c/ Cour d'appel de Nîmes, 23 octobre 2020

Pourvoi c/ Cour d'appel de Lyon, 26 mai 2020

Cour d'appel de Rennes, 5 janvier 2021

Pourvoi c/ Cour d'appel de Douai, 9 juillet 2020

Tribunal judiciaire de Versailles, 6 janvier 2021

Pourvoi c/ Cour d'appel de Lyon, 26 novembre 2020

Pourvoi c/ Cour d'appel de paris, 1er décembre 2020

Cour d'appel d'Angers, 12 janvier 2021

Instruction - Chambre de l'instruction

Digital teaching formats have been in discussion since they became technically possible. Nevertheless, in law and Private International Law, they never became the standard until spring 2020, when Covid-19 led to a general closure of university buildings in many countries. Thus, universities were forced to switch from in-class teaching to digital formats.

As in general teaching Private International Law already is a challenging task, the digital format does not make things easier. Private International Law faces the problem that it is a very abstract field. Therefore, for teachers it is even more paramount than in other fields to revise and ascertain that the content reaches the students in the correct ways and does not get lost in the communication process.

EAPIL takes this finding as an occasion to devote its Second Virtual Seminar to the digital teaching of Private International Law and it challenges in Corona times. The aim of the Seminar is twofold. First, it will discuss and present tools that may help to improve the digital teaching of our discipline, in particular, by making it more “present” and interactive. Second, it will compare problems and approaches from the perspective of both professors/lecturers and students.

The Seminar will be structured into two parts. The first part will focus on the perspective of professors/lecturers and the challenges of teaching Private International Law in digital formats. Speakers will be Morten Midtgaard Fogt (University of Aarhus) and Marion Ho-Dac (Polytechnic University of Hauts-de-France, Valenciennes). The second part will take the students’ perspective and discuss and present different digital teaching tools. Speakers will include Susanne Lilian Gössl (University of Kiel), María-Asunción Cebrián Salvat, Isabel Lorente Martínez and Javier Carrascosa González (all three University of Murcia).

The Seminar will take place on 27 January 2021 from 5 to 7 p.m. (MET) via Zoom.

If you wish to join, please register here by 25 January 2021 at noon. Registered participants will receive the details to join the Seminar on 26 January 2021.

The Seminar’s programme is as follows:

5:00 p.m.
Opening and Introduction
Susanne Gössl

— PART ONE

5:10 p.m.
Digital Teaching of Private International Law – The Danish Perspective
Morten Midtgaard Fogt

5:20 p.m.
Digital Teaching of Private International Law – The French Perspective
Marion Ho-Dac

5:35 p.m.
Discussion

— PART TWO

5:55 p.m.
Digital Teaching of Private International Law – the Students’ Perpective
Susanne Gössl

6:10 p.m.
Experiences with Certain Tools

“Presence” in Digital Teaching of Private International Law
María-Asunción Cebrián Salvat

Tools to Support Digital Teaching of Private International Law
Isabel Lorente Martínez

Good Things from a Bad Time: Open Experiences in Private International Law Digital Teaching
Javier Carrascosa González

6:35 p.m.
Discussion

7 p.m.
Conclusions

For more information, please write an e-mail to Susanne Gössl at sgoessl@law.uni-kiel.de.

Tribunal judiciaire de Bobigny, 15 décembre 2020

Wright v Granath [2021] EWCA Civ 28 is not the only litigation involving Mr Wright, defamation and bitcoin gossip: see my review of Wright v Ver [2020] EWCA Civ 672 (judgment to which Popplewell LJ refers for connections between Mr Wright and the UK) here. The judgment appealed here is Wright v Granath [2020] EWHC 51 (QB). Jurisdictional grounds evidently include the CJEU case-law right up to Bolagsupplysningen.

The title of this post is courtesy of Greg Callus, one of counsel for the claimant.

Defendant, Magnus Granath, is a citizen of Norway, resident in Oslo. He has tweeted on various technology issues, including cryptocurrencies, and has an interest in Bitcoin and its development. He believes that Dr Wright’s claim to be Satoshi Nakamoto (the developer of bitcoin) is false, a statement that was also tweeted at the since deleted @Hodlonaut account. By 15 May 2019 Dr Wright’s advisers thought they had identified Mr Granath as the owner of the @Hodlonaut account, and sent a further letter via Facebook and LinkedIn seeking confirmation. The letter was served by hand on Mr Granath on 20 May 2019. Meanwhile on the previous day, 19 May 2019, Mr Granath issued proceedings in the Oslo District Court seeking in effect a declaration of non-liability aka NDR: Negative Declaratory Relief: a classic (and as Popplewell LJ justifiably suggests, CJEU-blessed) flip side of the coin action to avoid jurisdiction of the English courts. 

It is common ground that the Norwegian court was first seised. Jurisdiction was accepted by the Norwegian courts right through to the Supreme Court (talk about speedy proceedings: within a year the jurisdictional issue was considered at first instance, appeal and SC) on the basis that the relief sought was “global” in the sense that it was not limited to any harm or loss suffered in Norway, and that A5(3) Lugano was applicable because the “harmful event” occurred in Norway, that being where Mr Granath lived and published the tweets (locus delicti commissi).

CJEU Gubish Machinenfabrik and The Tatry clarify for the English version of Brussels I hence also of Lugano (assuming the requirement of parrallel interpretation of the lis alibi pendens rule) what was already clearer in other language versions:  A27 Lugano requires three identities: identity of parties; identity of object or ‘ subject-matter ’; and identity of cause.

In the establishment of identity of cause of action, the ‘ cause of action’ comprises the facts and the rule of law relied on as the basis of the action (CJEU Gubbisch). 

Coming then to the decision, Popplewell J dissented, with Singh LJ and Moylan LJ allowing the appeal. At 41 ff Popplewell J discusses the cause of action criterion, with the core at 48-49: he identifies two core differences between the English and the Norwegian claims: 

there are two differences between the English and Norwegian Claims whose significance requires examination. The first is that the Norwegian Claim identifies negligence as a necessary ingredient of liability under Norwegian law, and asserts the absence of negligence on Mr Granath’s part. This gives rise to the possibility that Mr Granath could succeed in Norway on a basis that would not be inconsistent with liability to Dr Wright in England under English law: if the Norwegian Court were to hold that the tweet was untrue because Dr Wright is Satoshi Nakamoto, and there was no defence of lawfulness by way of public interest or freedom of expression, but that Mr Granath was entitled to his declaration on the grounds that although the tweet was wrong it was not negligently so, Dr Wright would have established all the ingredients of an English law defamation claim. However the consequence of the Court now declining jurisdiction under article 27 would be to preclude him from pursuing that English law claim or obtaining the relief it would provide.

The second difference between the claims is that were Mr Granath to fail in full in Norway, the relief available there to Dr Wright by way of counterclaim would not be co-extensive with that available in a successful English law claim. It would not include a s.12 statement; and it might not include an injunction. I say “might not” because it was in dispute as to whether that was so. Dr Wright sought to adduce expert evidence of Norwegian law before the Judge below, but permission was refused on the grounds that it came too late, with the result that there was no relevant evidence of Norwegian law or practice before the Court. Mr Tomlinson asserted that an injunction must be available in Norway as an effective remedy guaranteed by the EU Charter, but later confirmed that Norway was not a signatory to the Charter and not bound by it. He submitted in the alternative that such relief would be available as part of Dr Wright’s article 8 rights under the European Convention on Human Rights, but that is not self-evident to me and the point was not explored in argument. I shall assume for the purposes of my analysis that an injunction is not available in Norway because for the reasons explained below I do not regard any such unavailability as precluding the application of article 27.

At 51 ff, Popplewell J’s important take-aways from Gubisch, are that  when considering objet, the search is not for complete identity, but for identity on a question “which lies at the heart of” the two actions. Same does not mean same. The two claims need not be “entirely identical” (at 55). And at 56 that there can be the necessary identity of cause without complete identity of legal issues in the two sets of proceedings. Here too same does not mean same.

Further precedent is considered extensively (much of it discussed on the blog) leading to summary of the principles at 90 and application in fact at 93 ff: Popplewell J would have held that the claims have the same cause and the same objet and that A27 Lugano requires the EN claim to be dismissed.

At 99 ff he dismisses the argument,  which was encouraged (wrongly in my view, as readers know) by Vedanta and EuroEco, that the application of A27 to Mozaic claims as here, be an abuse of EU law. There is no authority to suggest that A27 is inapplicable to defamation claims, and no sound reason for restricting its applicability, and on this Singh LJ and Moylan LJ agree.

Of note is that Popplewell LJ is spot on at 101 where he says

in any tort claim in which article 5(3) confers a choice of jurisdiction on the claimant for a global claim, the choice is equally conferred on a defendant by way of an NDR claim; in each case the option is circumscribed by the simple and automatic mechanism (per Gantner paragraph 30) in article 27 of who starts first. That is not an abuse of the regime established by the Convention, but rather its implementation.

Singh LJ and Moylan LJ allowed the appeal, however: Moylan LJ for the majority summarises at 160 ff, largely on the basis of the same authority as that discussed by Popplewell (with The Alexandros at the core). At 168:

Although I agree with Popplewell LJ when he says, at paragraph 81, that irreconcilability may be a helpful tool in evaluating whether the article 27 test is met, the potential for conflicting decisions will not determine whether the causes of action are the same.

I should like to refer to the litmus test proposed by Adrian Briggs and applied eg in Awendale: whether a decision in one set of proceedings would have been a conclusive answer in the other. If it would, then there is identity of cause of action.

The appeal is allowed, the case may continue in E&W – clearly irreconcilability at the recognition stage might still be an issue.

Should the UK be successful in its Lugano accession attempt, this case will be crucial authority post The Alexandros. In the alternative, it will be among the last echoes of Lugano in the E&W courts.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.15.1.

Lis alibi pendens, Lugano, defamation claims
Held: A27 does not apply because the proceedings in Norway and the proceedings in England do not involve the same cause of action. https://t.co/1pijVLyvib

— Geert Van Calster (@GAVClaw) January 15, 2021

Burkhard Hess (Max Planck Institute, Luxembourg) has published the second edition of his treatise on European Civil Procedural Law (Europäisches Zivilprozessrecht).

The English abstract of the book reads:

The book explores the European law of civil procedure from a systematic and dogmatic perspective by comprehensively assessing and providing a detailed explanation of all the instruments adopted in this area of the law. Based on the case law of the Court of Justice of the European Union (CJEU), the book expounds on the legislative powers of the European Union (EU), the different regulatory levels of European procedural law, its underlying concepts and legislative techniques. Against this background, it addresses the interfaces of the European law of civil procedure with the civil procedures of the EU Member States and the judicial cooperation with third States. 

This treatise also focusses on latest developments such as the protection the independence of the judiciary and of the rule of law in the Member States of the EU. Moreover, it tackles alternative dispute resolution and arbitration, as well as the latest policy of the European Commission in the digitization of national justice systems. To further contextualize the development of the European law of civil procedure, it also provides the reader with a thorough understanding of preliminary reference procedures before the CJEU. In its final chapter, it addresses the current policy debate towards a European code of civil procedure.

This reference book is an essential reading for academics, regulators, and practitioners seeking reliable and comprehensive information about the European law of civil procedure. It also addresses trainee lawyers and students interested in cross-border litigation and dispute resolution, as well as those who wish to specialize in European business law.

More information is available here.