Droit international général

In Easygroup Ltd v Beauty Perfectionists Ltd & Ors [2021] EWHC 3385 (Ch) defendants argue that even though the proceedings were initiated prior to IP completion day (31 December 2020), the English courts no longer have jurisdiction to grant a pan-EU injunction or other remedies in respect of alleged infringement of EU trade marks (“EUTMs”).  The suggestion is that lack of such jurisdiction post 1 January 2021 is a consequence of the relevant statutory UK instrument, the Trade Marks Amendment etc (EU Exit) Regulations 2019.

The jurisdictional impact  of the EU Trademark Regulation 2017/1001 was previously considered i.a. in another Easygroup case which I discuss here. In current case, defendants argue that as a result of (potentially an omission in) the 2019 UK Statute, the High Court no longer is an ‘EU Trade Mark Court’ and, that EU Regulation 2017/1001 was not part of EU retained law under section 2(1) of the EU Withdrawal Act 2018. Their submission is based entirely on statutory construction, involving ia reading of the EU Withdrawal Agreement Act 2020 and its alleged impact on Withdrawal Agreement rights.

[48] ff Flaux C takes a much shorter approach to siding with claimants, holding [50] that the clear intention of Article 67 of the Withdrawal Agreement, which has full legal effect, is that the High Court should retain the same jurisdiction under EU Regulation 2017/1001 as it had before IP completion day. He finds support in a more common sense reading of the various Statutes in the context of Brexit with arrangements (as opposed to the potential of a no-deal Brexit).

The application for strike-out was therefore dismissed.

I do not know whether appeal has been sought. The case is a good illustration of the many layers of complexity provoked by the presence of the Withdrawal Agreement (with UK commitment to provide direct effect in the same circumstances as would apply under EU law), the Trade and Co-operation Agreement, and all the statutory provisions designed to cater for both a deal and a no-deal Brexit.

Geert.

 

Easygroup v Beauty Perfectionists [2021] EWHC 3385 (Ch) (17 December 2021)
Status of retained EU law post #Brexit
Held E&W courts continue to have jurisdiction to grant pan-EU injunction or other remedies viz alleged infringement of EU #trademark https://t.co/NmaoqaGfjC

— Geert Van Calster (@GAVClaw) December 17, 2021

The most recent issue of the German Journal of Comparative Law (Zeitschrift für Vergleichende Rechtswissenschaft) features the following articles on private international and comparative law:

 

Jürgen Samtleben: Internationales Privatrecht in Guatemala

Guatemala’s rules on private international law of Guatemala are found in the Law of Judicial Organization of 1989. But conflict-of-law questions are also regulated in other laws. All these legislative texts are based on older laws, since Guatemala has a rich legal tradition on this subject. It is only against the background of this tradition that one can understand the meaning of the laws actually in force. The article discusses the different aspects of Guatemalan private international law, which today is generally based on the principle of domicile. The law of 1989 introduces two innovations which are worth emphasizing: the application of foreign law ex officio and the principle of party autonomy for international contracts.

 

Christoph Wendelstein: Eigenes und Fremdes im Kollisionsrecht

The article sheds light on the relationship between the conflict of laws and the substantive laws (potentially) called upon to apply. In doing so, the question is addressed whether the substantive law influences the conflict of laws. The focus is on the question of characterisation, which traditionally represents a kind of crystallization point between conflict of laws and substantive law. If the conflict of laws rules apply to foreign substantive law, the question may arise as to whether this completely displaces the own domestic substantive law or whether it is still relevant in some way. This refers to the ordre public and the overriding mandatory provisions (Eingriffsnormen), which are also object of the study. The focus lies on their functioning.

 

Jean Mohamed: Die aktienrechtliche actio pro socio im globalen Kontext – Zur Abgrenzung von materiellem Recht und Verfahrensrecht im anglo-amerikanischen Rechtskreis am Beispiel der derivative action in New York

The German procedure for the admission of corporate claims (derivative claims), a special institution based on stock corporation law for the so-called actio pro socio, has taken a long journey all the way to New York at present. In keeping with the verse by Frank Sinatra: “If I can make it here, I’ll make it anywhere”, the subject is whether an international movement of the shareholder action – i. e. claims of the corporation asserted in the shareholder’s own name – may be imminent. In the New York proceeding Zahava Rosenfeld, derivatively as a shareholder of Deutsche Bank AG and on behalf of Deutsche Bank AG v. Paul Achleitner et al., the conflict of laws matches the German system known in § 148 of the German Stock Corporation Act with the New York’s (and the US) concept of the related derivative suit, also known as derivative action or derivative claim. Given the potential risks involved, it seems highly relevant from a legal, academic, and political point of view to discuss and model this quite complex but so far barely studied issue. In the following, the global procedural rules of derivative actions will therefore be discussed.

 

David B. Adler: Extraterritoriale US-Discovery für Schieds- und Gerichtsverfahren im Ausland

For decades, 28 U.S.C. § 1782(a) has offered a powerful tool for parties to obtain discovery through U.S. courts for use in foreign proceedings. Referring to the statute’s twin goals to provide “efficient assistance to participants in international litigation and encourag[e] foreign countries by example to provide similar assistance to our courts”, U.S. courts have time and again demonstrated that they are willing to readily grant respective discovery requests from foreign applicants. While the U.S. Supreme Court has answered various questions regarding the applicability and scope of § 1782(a) in its Intel Corp. v. Advanced Micro Devices, Inc. decision, two key issues remained undecided. The first issue U.S. courts have been grappling with, and which has been an ongoing topic of interest among international arbitration practitioners and scholars for several decades, is whether the statute allows parties of foreign private arbitration proceedings to seek discovery via § 1782(a), or if § 1782(a) is limited to parties that seek support for a foreign court or administrative proceedings. The second issue concerns the extraterritorial reach of § 1782(a). Courts have issued diverging rulings on whether Section 1782 allows an applicant to seek the production of documents that are located outside the U.S. and on whether § 1782(a) contains a per se bar to its extraterritorial application. This article analyzes the recent appellate decisions of the United States Court of Appeals for the Second, Fourth and Sixth Circuit – which are the first appellate rulings since Intel to weigh in on these issues in detail. This article further discusses whether there should be a per se bar to the extraterritorial application of Section 1782 and explains the broad implications that the recent appellate courts’ decisions on both issues have for foreign litigants and entities that are subject to the United States’ jurisdiction.

The author of this post is Zhen Chen, PhD researcher of Private International Law at the University of Groningen.

Consumer contracts are subject to protective choice of law rules both in China and in the EU.

Under Article 6(1) of the Rome I Regulation, such consumer protective rules apply under the condition that the business pursues commercial or professional activities in, or directs such activities to the consumer’s home country. The same targeting test is adopted in Article 17(1)(c) of the Brussels I bis Regulation on jurisdiction rules over consumer contracts.

By contrast, in Chinese private international law, there is no specific jurisdiction rule over consumer contracts, consumers are subject to general jurisdiction rules. However, consumers are protected with favorable choice of law rules in China. Under Article 42 of the Chinese Conflicts Act, the law of the consumer’s habitual residence applies unless the business operator does not engage in relevant commercial or soliciting activities in the consumer’s home country.

The European approach focuses on the positive criterion by examining what constitutes a targeting activity (targeting test), whereas the Chinese approach puts more weight on the negative criterion of not applying consumer choice of law rules by examining what does not constitute a targeting activity (dis-targeting test).

Criteria of Targeting and Dis-targeting Tests

The targeting test is crucial to determining whether a business is an active business, whilst the dis-targeting test allows to determine whether a business is a passive business. From the consumer’s perspective, the targeting test ensures that only passive consumers targeted by the active business is protected. By contrast, the dis-targeting test makes sure that active consumers not targeted by passive businesses are not protected by favorable consumer choice of law rule. The targeting and dis-targeting tests are two sides of a coin. Essentially, the targeting and dis-targeting tests are examined to decide whether a business’ commercial activities have a close connection with the consumer’s country of habitual residence. In the context of globalization and digitalization, it is insufficient to rely on merely targeting test or dis-targeting test in order to protect electronic consumers. Rather, the targeting test in Article 6(1) of the Rome I Regulation should be supplemented by dis-targeting test, while the dis-targeting test in Article 42 of the Chinese Conflicts Act should be complemented by the targeting test.

A non-exhaustive list of indicative factors that may be relevant to the targeting test and dis-targeting test is provided by the CJEU in Pammer and Hotel Alpenhof judgment (paras 83, 93). It does not mean that all criteria have to be fulfilled nor each factor is decisive or conditional. The absence of one factor can be substituted by another factor. A business should have expected to sue and being sued in a State it directs to unless it expressly declares that it will not conclude contracts with consumers domiciled in that State (Pammer and Hotel Alpenhof, EU:C:2010:273, opinion of advocate general, para. 25).

For instance, in Lokman Emrek v. Vlado Sabranovic (paras 10-12), a German consumer who was looking for a second-hand motor vehicle learned from his acquaintances, instead of the Internet site, of a French business and went to the business premises France. The German consumer concluded a written sale contract with the French business at the premises in France. Although the business claimed that the consumer was an active consumer and thus should be deprived of the protection of consumer jurisdiction rules, the CJEU held that the geological factor acts as a strong evidence to indicate that the French business has not taken measures to dis-target German consumers living near the borders. The risk of being sued in the courts of the neighbouring State does not seem to be an excessive burden which might act as a disincentive to the defendant’s commercial activity (para. 37). Rather, the trader or service provider must be fully aware that a significant proportion, or even the majority, of his clientele will have their domicile in the neighbouring State. Since the French trader did not take any measures to exclude consumers from Germany, the exercise of jurisdiction by German courts should be entirely foreseeable for the French trader. This means that even of the consumer is an active consumer, the business should be subject to consumer jurisdiction and choice of law rules if the business is an active business.

Given that an indicative factor may act as a facilitating or inhibiting factor in different circumstances, it is not accurate to state that ‘the language or currency which a website uses does not constitute a relevant factor’ in Recital 24 of the Rome I Regulation. For instance, the Washington-based American e-commerce company Amazon has a country-neutral domain name ‘amazon.com’ and many country-specific domain names, such as ‘amazon.nl’, ‘amazon.it’, ‘amazon.de’ and  ‘amazon.fr’. These domain names, together with the languages used on the website (Dutch, Italian, German, French), indicate that Amazon has directed its commercial activities to European countries such as the Netherlands, Italy, Germany and France. If an Italian consumer buys products via any of these websites, the targeting test is fulfilled. In this context, the commercial activities of Amazon have directed to several counties including the consumer’s home country, and it is not necessary that the website targets only or specifically to the consumer’s home country (GP Calliess and M Renner, Rome Regulations, Wolters Kluwer, 2020, 124, para.51). Therefore, the inaccurate statement in Recital 24 of the Rome I Regulation needs to be rephrased, since the language or currency may act as a relevant factor in certain circumstances.

Geo-location and Geo-blocking Technologies

Moreover, with the development of the geo-location and geo-blocking technologies, the weight has shifted partly from the targeting test to the dis-targeting test. Geolocation technologies allow the identification of the geographical location of a user accessing the Internet, whereas geo-blocking technologies disallow a user’s access to certain internet applications. Such technologies re-territorialize the internet by creating border lines in global internet applications such as websites, social media platforms, search engines and other applications(J Hörnle, Internet Jurisdiction Law and Practice, OUP, 2021, 448). Although these technologies represent a threat to the Internet’s borderlessness, it also means that it is possible for a business advertising via websites to restrict its products and services to consumers from particular countries. Nevertheless, if the consumer misrepresent himself or herself about the domicile deliberately, and the business is in good faith, jurisdiction and choice of law rules over consumer contracts in Articles 17-19 of the Brussels I bis Regulation and in Article 6 of the Rome I Regulation cannot be invoked to protect the consumer. It is noticeable that traveling in cyberspace, or cyber-travel, allows Internet users to view the Internet as if they were in a location other than where they are physically present. Many cyber-travel tools for the evasion of geo-location have become sufficiently user-friendly to allow even average Internet users to utilize them(M Trimble, ‘The Future of Cyber-travel: Legal Implications of the Evasion of Geolocation’, 22 Fordham Intellectual Property, Media and Entertainment Law Journal 2012, 569.). If a consumer domiciled in one country claims living in another country, and deliberately covers its whereabouts by using anti-geolocation tools, in particular VPNs, or by giving a false address, such proactive consumers should not be protected by the favorable jurisdiction and choice of law rules, as the protection of the businesses’ reasonable expectation should also be taken into consideration.     

To sum up, the dis-targeting test focuses on whether a business has taken active measures to dis-target consumers from a particular country and avoid concluding contracts with unsolicited or unintended consumers from that country. This means that instead of asking the difficult question of whether a business has targeted a particular jurisdiction, it may rather examine whether the business has taken steps to dis-target consumers (D Svantesson, ‘Time for the Law to Take Internet Geolocation Technologies Seriously’, 8 JPIL 2012, 485). The adoption of a combination of the targeting test and dis-targeting test may enhance legal certainty, while allowing space for legal flexibility to adapt to fast-changing technology and marketing strategies.

For a more elaborate discussion of the criteria employed in the framework of the targeting and dis-targeting tests, see ‘Internet, Consumer Contracts and Private International Law: What Constitutes Targeting Activity Test?’, by the author of this post, published on Information and Communications Technology Law, freely accessible here. 

Dr Johannes Ungerer (Lecturer, University of Oxford)

Cross-border disputes are particularly complex due to the challenges involved in understanding and deciding on the applicable law and international jurisdiction. Contrary to this reality, it is commonly assumed that all private parties are capable of rational choices in pursuit of efficiency, which however disregards the fact that humans are not always guided by rationality but can be affected by psychological biases. Acknowledging ‘bounded rationality’ in cross-border cases calls for reconsidering the way private international law determines which law shall apply and which court may hear the case. In particular, it requires analysing connecting factors from this new perspective, thus appreciating the significance of how bounded rationality affects private parties in choosing a law or court or abstaining from choice.

In an English paper published in RabelsZ volume 1/2022 of mine, such a new approach is pursued based on the insights of behavioural economics, which have been neglected in private international law to date. Looking at the existing EU instruments, the paper investigates how the connecting factors of the Rome and Brussels Regulations are designed to ‘nudge’ private parties towards a particular jurisdiction, both with regard to subjective and objective connecting factors. Special consideration is given to the requirements of nudging to justify its libertarian paternalism. Particularly illustrative is the application of behavioural insights to the paradigmatic area of consumer protection.

The paper finds that, amending the traditional economic analysis and its assumption of rational decision-making in pursuit of efficiency, behavioural economics contributes a more realistic understanding of private international law and its connecting factors. Objective connecting factors in the Rome and Brussels Regulations, such as the habitual residence or domicile of a particular party to the case in addition to more specific factors, are relied upon in the absence of a valid choice of law or court by the parties. These objective connecting factors can be understood as the lawmaker’s nudges towards a predetermined jurisdiction for the benefit of the parties, and not merely for the sake of individual efficiency. Behavioural economics appreciates that objective connecting factors are majoritarian default rules, but unlike the traditional economic understanding of this term and its hypothetical consensus explanation, the new perspective can openly acknowledge that default rules are set by the lawmaker, who is legitimised by the majority, as a form of libertarian paternalism. Yet, because of their characteristic as a safety net, which still allows the parties to make deviating arrangements, the objective connecting factors are defaults which serve as both choice-preserving and debiasing decisions without being coercive.

Subjective connecting factors, which enable and regulate party autonomy with regard to choice of law and court, are to be conceived as choice architecture from the perspective of behavioural economics. This understanding is to be preferred to previous explanations which draw on a naturalist or positivist reasoning in analogy to substantive private autonomy or which solely proclaim individualist freedom striving for efficiency. By ensuring a choice-preserving design which complements the default rules, the lawmaker can be understood to pursue nudging by providing for a suitable and legitimised choice architecture that steers the choice of law and court. From this perspective, the regulation and limitations of party autonomy are to be seen as measures of libertarian paternalism which intend to protect private parties from their own fallibility and from exploitation by others when making choices.

In response to existing criticism against nudging as a form of libertarian paternalism, the requirements of transparency and a choice-preserving design have proved particularly important. They are met by providing for specific and general defaults (sector-specific and residual objective connecting factors) alongside a choice architecture with clear validity

Carlos Santaló Goris, Research Fellow at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law and Ph.D. candidate at the University of Luxembourg, offers an analysis on the recently approved reform of the French Manual on Tax Procedures (“Livre des procédures fiscales”) influenced by Regulation No 655/2014, establishing a European Account Preservation Order (“EAPO Regulation”). The EAPO Regulation and other EU civil procedural instruments are the object of study in the ongoing EFFORTS project, with the financial support of the European Commission. 

FICOBA (“Fichier national des comptes bancaires et assimilés”) is the French national register containing information about all the bank accounts in France. French bailiffs (“huissiers”) can rely on FICOBA to to facilitate the enforcement of an enforceable title or upon a request for information in the context of an EAPO proceeding (Article L151 A of the French Manual on Tax Procedures). In January 2021, the Paris Court of Appeal found discriminatory the fact that creditors could obtain FICOBA information in the context of an EAPO proceeding but not in the context of the equivalent French domestic provisional attachment order, the “saisie conservatoire” (for a more extended analysis of the judgment, see here). While an enforceable title is not a necessary precondition to access FICOBA in the context of an EAPO, under French domestic law it is. Against this background, the French court found that creditors who could apply for an EAPO were in a more advantageous position than those who could not. Consequently, it decided to extend access to FICOBA to creditors without an enforceable title who apply for a saisie conservatoire.

In December 2021, the judgment rendered by the Paris Court of Appeals was transposed into French law. In fact, the French legislator introduced an amendment to the French Manual on Tax Procedures, allowing bailiffs to collect information about the debtors’ bank accounts from FICOBA based on a saisie conservatoire (Art. 58 LOI n° 2021-1729 du 22 décembre 2021 pour la confiance dans l’institution judiciaire).

In is nevertheless noteworthy that the judgment of the Paris Court of Appeal that inspired such reform is based on a misinterpretation of the EAPO Regulation. Access to the EAPO Regulation’s information mechanism is limited to creditors with a title (either enforceable or not enforceable). Creditors without a title are barred from accessing the EAPO’s information mechanism. From the reasoning of the Paris Court of Appeal, it appears that the Court interpreted the EAPO Regulation as granting access to the EAPO’s information mechanism to all creditors, even to those without a title. Such an interpretation would have been in accordance with the EAPO Commission Proposal, which gave all creditors access to the information mechanism regardless of whether they had a title or not. However, the Commission’s open approach was received with scepticism by the Council and some Member States. Notably, France was the most vocal advocate of limiting the possibilities of relying on the EAPO information mechanism. It considered that only creditors with an enforceable title should have access to it. In particular, the French delegation argued that, under French law, only creditors with an enforceable title could access such sensitive data about the debtor. Eventually the European legislator decided to adopt a mid-way solution between the French position and the EAPO Commission Proposal: namely, in accordance with the Regulation creditors are required to have a title, though this does not have to be enforceable.

The following is an interesting paradox. Whereas France tried to adjust the EAPO’s information mechanism to the standards of French law, it was ultimately French law that was amended due to the influence of the EAPO Regulation. An additional paradox is that the imbalance between creditors who can access the EAPO Regulation and those who cannot (as emphasized and criticised by the Paris Court of Appeal) will continue to exist but with the order reversed. Once the French reform enters into force, creditors without a title who apply for a French saisie conservatoire of a bank account will be given access to FICOBA. Conversely, creditors who apply for an EAPO will continue to be required to have a title in order to access FICOBA. Only an amendment of the EAPO Regulation can change this.

The moment for considering a reform of the EAPO Regulation is approaching. In accordance with Article 53 of the EAPO Regulation, the European Commission should have sent to the European Parliament and the European Economic and Social Committee “a report on the application of this Regulation” by 18 January 2022. These reports should serve as a foundation to decide whether amendments to the EAPO Regulation are desirable. Perhaps, as a result of the experience offered with the judgment of the Paris Court of Appeal, the European legislator may consider extending the EAPO’s information mechanism beyond creditors with a title.

 

The editors of the European Yearbook for International Economic Law (EYIEL) welcome abstracts from scholars and practitioners at all stages of their career for the focus section of the EYIEL 2022. This year’s focus will be on the impact of climate change on international economic law.

Abstracts may cover any topic relating to dispute settlement in the field of international economic law, though preference is given to topics focusing on the perspective from public and private international or EU law. Contributions addressing the following aspects are particularly welcome:

• Climate change in WTO and international trade law
• Impact of investment protection treaties on energy transformation
• Reform of the Energy Charter Treaty
• Financial and monetary law aspects of climate change
• Relationship between UNFCCC and Glasgow Climate Pact and international economic law
• Climate change litigation in domestic and international courts
• Liability for climate change in private (international) law

Abstracts should not exceed 500 words. They should be concise and clearly outline the significance of the proposed contribution. Abstracts may be submitted until 28 February 2022 via e-mail to eyiel@leuphana.de.

Successful applicants will be notified by 1 April 2022 that their proposal has been accepted. They are expected to send in their final contribution by 30 June 2021.

Final submissions will undergo peer review prior to publication. Given that submissions are to be developed on the basis of the proposal, that review will focus on the development of the paper’s central argument.

Submissions addressing particular regional and institutional developments should be analytical and not descriptive. Due to its character as a yearbook, EYIEL will not publish articles which will lose their relevance quickly. Submissions should not exceed 12,000 words (including footnotes and references), though preference may be given to shorter submissions. They should include an abstract and a biographical note. Submissions need to be in conformity with the EYIEL style guidelines.

The editors of the EYIEL welcome informal enquiries about any other relevant topic in the field of international and European economic law. In case you have an idea or proposal, please submit your enquiry via e-mail to eyiel@leuphana.de.

AG Szpunar delivered yesterday his opinion in case C‑617/20 (T. N., N.N. v E.G.), which is about the Succession Regulation. The opinion is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version).

« Les dispositions des articles 13 et 28 du règlement (UE) no 650/2012 […] doivent être interprétées en ce sens que l’exigence, prévue par la loi applicable à la succession, consistant à faire une déclaration concernant la renonciation au tribunal de la succession, c’est-à-dire à la juridiction du lieu de résidence habituelle du défunt au moment de son décès, est une condition de validité quant à la forme de cette déclaration. Partant, lorsque la validité quant à la forme de la déclaration faite est appréciée au regard de la loi visée à l’article 28, sous b), de ce règlement, le non‑respect de cette exigence n’entraîne pas l’invalidité de la déclaration faite devant la juridiction compétente en vertu de l’article 13 dudit règlement ».

Source : https://curia.europa.eu/juris/document/document.jsf?text=&docid=252466&pageIndex=0&doclang=FR&mode=req&dir=&occ=first&part=1&cid=351236

AG Collins delivered yesterday his opinion in Case C‑430/21 (RS), which is about the Rule of Law in Romania.

Suggested decision : « The principle of the independence of the judiciary, enshrined in the second subparagraph of Article 19(1) TEU, read in conjunction with Article 2 TEU and Article 47 of the Charter of Fundamental Rights of the European Union, precludes a provision or a practice of national law of a Member State according to which national courts have no jurisdiction to examine the conformity with EU law of a provision of national law that has been found to be constitutional by a decision of the constitutional court of that Member State. That same principle precludes the initiation of disciplinary proceedings and the application of disciplinary penalties in respect of a judge arising from such an examination ».

Source : https://curia.europa.eu/juris/document/document.jsf?docid=252467&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=350416

Khalifeh v Blom Bank SAL [2021] EWHC 3399 (QB) is the second High Court judgment in the space of a few weeks to involve Lebanese Banks and the application of the protective regime for consumers in EU private international law. (See earlier Bitar v Banque Libano-Francaise).

Foxton J explains why there is such activity: difficult financial conditions faced by Lebanese banks and their customers at the current time, and the practical impossibility of transferring foreign currency out of Lebanon, caused acute anguish for those with foreign currency accounts in Lebanese banks. Understandably they have explored every avenue open to them in an effort to access their hard-won savings.

Jurisdiction would seem not to be in dispute (presumably given the presence of non-exclusive choice of court in a general agreement), applicable law is. Even in consumer contracts, Article 6 Rome I allows parties to the contract to chose applicable law – except such choice must not deprive the consumer of the protection of the mandatory elements of the law that would apply had no choice been made: that ‘default law’, per Article 6(1) Rome I, is the law of the consumer’s habitual residence.

Whether choice of law has been made is to be determined in accordance with Article 3, which proscribes that choice of law must be  either nominatim, or ‘clearly demonstrated’ by the circumstances of the case. The latter is often referred to as ‘implicit’ choice of law although there is nothing truly implicit about it: choice of law cannot be made happenstance, it must have been made clearly (even if not in so many words). [47] ff the judge considers whether ‘implicit’ choice has been made, referring to Avonwick,  and holds [66] that there was, namely in favour of Lebanese law. He concludes this as a combined effect of

a jurisdiction clause in a related, general agreement which he found to be exclusive [63] in favour of Beirut; I have to say I do not think the judgment engages satisfactorily with the argument that this hybrid clause itself is questionable under the lex causae (including consumer law) that would have to apply to it;

the express reference to an agreement to comply with and facilitate the enforcement of identified provisions of Lebanese law; and

the express choice of Lebanese law in a closely related and interwoven contract.

Clearly some of this analysis is fact-specific and subjective however in my view the lex causae element of hybrid choice of court has more beef to the bone.

As for the issue of ‘activities directed at’ the UK, this is discussed [68] ff. First up is an interesting discussion on the relevant time at which the habitual residence of the consumer has to be considered. In light ia of CJEU Commerzbank, which presumably was not available at the time of the discussion, I would suggest the conclusion [73] that the temporal element needs to be fixed at the very beginning, to avoid see-sawing and dépeçage, may need revisiting.

In terms of the actual directing of activities, Pammer /Alpenhof of course is discussed as is Emrek. Having discussed the evidence, the conclusion [105] ff is that there was no direction of activities.

As a result, the remainder of the judgment deals with the substantive issues under Lebanese law.

I do not know whether permission to appeal has been sought. There are sections in the judgment that in my view would merit it.

Geert.

EU private international law, 3rd ed. 2021, Heading 2.2.9.2.7, 2.270 ff; Heading 3.2.4, Heading 3.2.5.

 

Khalifeh v Blom Bank SAL [2021] EWHC 3399 (QB) (17 December 2021)
'Implied' choice of (Lebanese) law under A3 Rome I, held no consumer contract under A6 Rome I (contrast with https://t.co/cCLpRV7EGphttps://t.co/3pGSujhBYQ

— Geert Van Calster (@GAVClaw) December 17, 2021

Many thanks Haco van der Houven van Oordt for flagging an (anonymised) judgment by the Den Bosch Court of Appeal, in which it refused to recognise the punitive damages element of a US (Tennessee) judgment. Damages had been awarded after a horse trainer based in The Netherlands, who had been tasked to look after and train the horse of the US based claimant, had subsequently been tasked to sell the horse and in doing so hid part of the sale price from the owner. Half a million dollar was awarded, of which exactly half in punitive damages.

The judge follows the Gazprom criteria for recognition and enforcement in The Netherlands and only objected to the punitive damages element. A bid by claimants (heirs of the meanwhile deceased owner) to argue recoverability of a chunk of the punitive damages slice, arguing that it was compensation for lawyers’ fees in the US proceedings, failed: the Dutch held that costs compensation are not ordinarily part of the punitive element of the damages and that transcripts of the US judgment and proceedings certainly did not reveal any trace of that argument.

Not an extraordinary judgment. But an instructional one.

Geert.

 

Yesterday, AG Maciej Szpunar delivered an Opinion (a French version is available, a German as well, not yet, however, an English one) that is of high relevance both to the practical application of the European Succession Regulation (ESR) as well as to issues  of European choice of law methodology in relation to substitution and characterisation.

The case emerged from a preliminary reference by the German Higher Regional Court (Oberlandesgericht) Bremen of 11 November 2020 and involved the following facts:

The deceased person, a Dutch national, died in Bremen (habitual residence) on 21 May 2018. He left behind his widow (E.G.) and two descendants (T.N. and N.N.) of his formerly deceased brother. His widow applied by notarial deed of 21 January 2019 for the issuance of a joint certificate of inheritance to the Local Court of Bremen, attributing to her ¾ of the estate and 1/8 to each of T.N. and N.N. The two descendants, however, having their habitual residence in the Netherlands, declared their waiver of succession before the Rechtbank Den Haag on 30 September 2019. In the proceedings before the Local Court of Bremen, T.N. and N.N. were heard, and by letter of 13 December 2019 in Dutch language they submitted copies of their declarations of waiver (as well in Dutch). The German court answered that it would not be able to take notice of these documents as long as it would not receive a translation into German. The two descendants thereupon declared in German to the court by letter of 15 January 2020 that they had waived, properly registered with the Dutch court, and that under European law there would be no need for translation. By decision of 27 February 2020, the Local issued the certificate as applied for by the applicant, i.e. certifying T.N. and N.N. as co-heirs. The latters appealed against this decision and, on 30 June 2020 submitted colour copies of the deeds they had used in the Netherlands as well as German translations, on 17 August 2020 they submitted the original deeds. The Local Court referred the case to the Higher Regional Court Bremen and stated that it considers the time limit for waiver under section 1944 (1) German Civil Code of six weeks after gaining knowledge about the inheritance elapsed, as a declaration of waiver would have required timely submission of the original deeds.

Thereupon, the Higher Regional Court of Bremen, in essence, referred the question to the ECJ whether a waiver in the Member State of habitual residence of the heir other than the Member State of habitual residence of the deceased would be capable of replacing the waiver required by the applicable succession law by way of substitution or whether additional requirements exist, such as that the waiving heir informs, with a view to Recital 32 Sentence 2, the competent court in the Member State of habitual residence of the deceased and if so whether the official language of that court must be used and whether the original deeds must be used in order to comply with time limits under the applicable law.

AG Maciej Szpunar reframed this question (para. 34): According to his subtle analysis, the question should be whether Articles 13 and 28 ESR are, of course autonomously (see para. 50), to be interpreted to the effect that the requirement to declare a waiver before the competent court („Nachlassgericht“) must be characterised as a question of form rather than substance which would lead to the application of the law of the Member State of the waiving heirs on this point of form under Article 28 lit. b ESR. Whereas only if this question were to be characterised as a matter of substance, the question of substitution could at all be posed. It will not come as a surprise that with this point made, the result of the – careful and comprehensive – analysis of this issue of characterisation (paras. 45 – 69), including considerations on the effet utile of the ESR (para. 64), was that indeed the point must be considered as one of form. The consequence is that since the local form was complied with in the Netherlands, the waiver must be held valid as of 30 September 2019 and as such still in time under the applicable succession law – a result that indeed facilitates cross-border succession cases in an important aspect as it is the overall objective of the ESR.

Remains the problem of how to ensure that the competent court takes notice of such a waiver (paras. 70 et seq.). This is the issue of Recital 32 Sentence 2: „Persons choosing to avail themselves of the possibility to make declarations in the Member State of their habitual residence should themselves inform the court or authority which is or will be dealing with the succession of the existence of such declarations within any time limit set by the law applicable to the succession.“ However, as in the concrete case at hand the court definitively had knowledge about the waiver, the question was not relevant and thus remained expressly left open (para. 77). As it was expressly left open as irrelevant in the concrete case we may at least conclude that any kind of gaining knowledge must suffice. Then the only remaining question is what happens if the court did not gain any knowledge. From a practical point of view a party interested in bringing its waiver to the attention of the competent court, it seems that a letter (or even an email) to that court should suffice.

One last question. Could we not say: either it is “substance”, then Article 13 refers to the lex causae (German law) or it is “form”, then Article 28 refers to the same law (German law) under lit. a and then substitution comes up, or, alternatively, under lit. b, to the law for formal issues (Dutch law). And when further proceeding sub lit. a of Article 28, could not substitution provide for the same result, at least in this concrete case, than applying lit. b? If so, we might be tempted to add that two parallel avenues to the same result indicate quite reliably that the result must be the right one. It might have been for reasons of simplifying things that AG Maciej Szpunar did not fully map out these two avenues, all the more because substitution is a technique that is little explored on the level of the EU’s PIL. However, if even the referring national court directly asks about substitution, the ECJ should take the opportunity to give us a bit more insights on this classical concept of the general part of any PIL from the perspective of the EU’s conflicts of law methodology.

Let’s hope that the ECJ takes up the ball and discusses the theoretical connotations of this case on methodical questions of characterisation and substitution as precisely and subtly as it was done in the Opinion. The CoL community will certainly await the judgment with excitement.

 

Relevant provisions of the ESR

Article 13: Acceptance or waiver of the succession, of a legacy or of a reserved share

In addition to the court having jurisdiction to rule on the succession pursuant to this Regulation, the courts of the Member State of the habitual residence of any person who, under the law applicable to the succession, may make, before a court, a declaration concerning the acceptance or waiver of the succession, of a legacy or of a reserved share, or a declaration designed to limit the liability of the person concerned in respect of the liabilities under the succession, shall have jurisdiction to receive such declarations where, under the law of that Member State, such declarations may be made before a court.

Article 28: Validity as to form of a declaration concerning acceptance or waiver

A declaration concerning the acceptance or waiver of the succession, of a legacy or of a reserved share, or a declaration designed to limit the liability of the person making the declaration, shall be valid as to form where it meets the requirements of: (a) the law applicable to the succession pursuant to Article 21 or Article 22; or (b) the law of the State in which the person making the declaration has his habitual residence.

Recital 32:

In order to simplify the lives of heirs and legatees habitually resident in a Member State other than that in which the succession is being or will be dealt with, this Regulation should allow any person entitled under the law applicable to the succession to make declarations concerning the acceptance or waiver of the succession, of a legacy or of a reserved share, or concerning the limitation of his liability for the debts under the succession, to make such declarations in the form provided for by the law of the Member State of his habitual residence before the courts of that Member State. This should not preclude such declarations being made before other authorities in that Member State which are competent to receive declarations under national law. Persons choosing to avail themselves of the possibility to make declarations in the Member State of their habitual residence should themselves inform the court or authority which is or will be dealing with the succession of the existence of such declarations within any time limit set by the law applicable to the succession

 

The Radboud University in the Netherlands is organising a two-day symposium on 9-10 June 2022 dedicated to The role of courts in the digital era and access to justice.

As underlined by the organisers:

Digitalisation is often viewed as a key condition to ensuring effective justice in the modern era, enhancing “resilience” of justice systems. It presumably helps tackle delays, enhance legal certainty, and make justice cheaper and more accessible for all. At the same time, challenges associated with digitalisation are highlighted, such as ensuring access for disadvantaged groups to digital technologies, the impact of digital technologies on fundamental rights and procedural justice, and ensuring security and privacy of digital solutions. The emergence of new technology brings with it the need for ongoing assessment of its impact.

For this reason the event seeks to provide a forum for researchers and practitioners to critically assess the process of digitalisation of justice systems and the evolving role of courts in the digital era in Europe and beyond.

A call for abstracts is ongoing until 1 February. The organisers are looking for submission of conference papers related to the following questions:

1. How does digitalisation of justice, and particularly, an increased use of remote justice and AI affect the role of courts as institutions upholding the rule of law?
2. To what extent do the different elements of ‘digital justice’, such as remote justice and AI, comply with fundamental rights and procedural justice values?
3. How and to what extent does digitalisation of justice affect individuals’ access to justice? How does it affect the role of the court as an institution providing a public service of ensuring access to justice (‘having a day in court’)?
4. How does digitalisation impact the legitimacy of the court and its symbolic role as an arena for public participation? What are the obstacles and opportunities created by the (different elements of) digitalisation of justice towards democratisation of justice and increased public participation in legal processes?
5. How does digitalisation affect the working processes and professional autonomy of judges and other court professionals?
6. Which judicial interpretation techniques are used when facing the phenomenon of digitalisation? For instance, do they also rely on soft law instruments in addition to hard law; do they use examples from international, European and foreign case-law; and how much do they rely on technical experts or amicus curiae?
7. How, if at all, does digitalisation affect the distribution of competences between the different courts and other (non-judicial) conflict-solving bodies within the judicial system? Does digitalization open new opportunities for non-judicial dispute resolution, or for enriching the toolbox available to prevent disputes from happening at all?
8. How, if at all, does digitalization facilitate (non-judicial) dispute resolution in a transnational context?
9. What is the current status of digitalisation of justice systems in practice in the various EU Member States, and how does it compare with the underlying goals and assumptions behind EU/national policies on the digitalisation of justice?
10. Do the priority areas for the digitalisation of EU justice systems identified by the European Commission in its Communication on Digitalisation of Justice in the EU, namely: digitalising public justice services; promoting the use of videoconferencing; facilitating the interconnection of national databases and registers; and promoting the use of secure digital transmission between authorities, reflect the actual priorities or needs for (further) digitalisation of justice systems?
11. What is the exact scope of challenges to the ‘digitalisation of justice’ in Europe identified by the Commission, namely: equal access to disadvantage groups; digital security concerns; ensuring respect for fundamental rights? Is the list of challenges identified by the Commission adequate and comprehensive?

Together with paper abstracts the organisers are interested to receive proposals for interactive panels or workshops on the above themes as well as proposals for pitches (‘Soapbox’) on relevant topics for the symposium.

More information on the submission and selection procedure is available here.

As many our readers know the first conference of the European Association of Private International Law (EAPIL), established in late 2019, had to be rescheduled (twice) due to the Corona pandemic. It will now (hopefully) take place from 2-4 June 2022 at the University of Aarhus (Denmark).

The conference will bring together academics and practitioners from all over Europe and provide a unique opportunity to talk and think about European Private International Law in a pan-European fashion. Topics to be discussed will include the effects and the challenges of digitalization, the problems of fragmentation as well as other challenges the discipline is currently facing. For more information please visit the conference website.

Registration is possible here. For questions, please get in touch with the local organizer, Morten M. Fogt (mmf@law.au.dk).

For more information about EAPIL (including about how to join and how to get involved) please visit the Association’s website at https://eapil.org.

The editors of the European Yearbook for International Economic Law (EYIEL) welcome abstracts from scholars and practitioners at all stages of their career for the focus section of the EYIEL 2022. This year’s focus will be on the impact of climate change on international economic law.

Abstracts may cover any topic relating to dispute settlement in the field of international economic law, though preference is given to topics focusing on the perspective from public and private international or EU law. We particularly welcome contributions addressing the following aspects:

• Climate change in WTO and international trade law
• Impact of investment protection treaties on energy transformation
• Reform of the Energy Charter Treaty
• Financial and monetary law aspects of climate change
• Relationship between UNFCCC and Glasgow Climate Pact and international economic law
• Climate change litigation in domestic and international courts
• Liability for climate change in private (international) law
• …

Abstracts should not exceed 500 words. They should be concise and clearly outline the significance of the proposed contribution. Abstracts may be submitted until 28 February 2022 via e-mail to eyiel@leuphana.de.

Successful applicants will be notified by 1 April 2022 that their proposal has been accepted. They are expected to send in their final contribution by 30 June 2021.

Final submissions will undergo peer review prior to publication. Given that submissions are to be developed on the basis of the proposal, that review will focus on the development of the paper’s central argument.

Submissions addressing particular regional and institutional developments should be analytical and not descriptive. Due to its character as a yearbook, EYIEL will not publish articles which will lose their relevance quickly. Submissions should not exceed 12,000 words (including footnotes and references), though preference may be given to shorter submissions. They should include an abstract and a biographical note. Submissions need to be in conformity with the EYIEL style guidelines.

The editors of the EYIEL welcome informal enquiries about any other relevant topic in the field of international and European economic law. In case you have an idea or proposal, please submit your enquiry via e-mail to eyiel@leuphana.de.

Issue 1/2022 of RabelsZ is out. It contains the following articles (including three open-access articles focusing on “Decolonial Comparative Law”):

Johannes Ungerer: Nudging in Private International Law. The Design of Connecting Factors in Light of Behavioural Economics, Volume 86 (2022) / Issue 1, pp. 1–31, DOI: 10.1628/rabelsz-2022-0002.

Amending the traditional economic analysis of law and its assumption of rationality, this paper suggests that behavioural economics can inform a more realistic understanding of private international law, which has been missing to date. Acknowledging the psychological biases which private parties are facing when dealing with complex cross-border cases, the paper introduces a new perspective on the design of connecting factors in EU private international law which are to be conceived as nudges that steer the applicable law and international jurisdiction to counteract bounded rationality. Objective connecting factors can be perceived as default rules, whereas the framework for exercising party autonomy can be construed as choice architecture of subjective connecting factors. Revealing the underlying libertarian paternalism of connecting factors requires addressing existing concerns about nudging, which is insightful for establishing the requirements of a transparent and choice-preserving design. Behavioural economics prove to be particularly suitable for explaining the restriction of choice and other connecting factor modifications for consumer protection in private international law.

 Johanna Croon-Gestefeld: Der Einfluss der Unionsbürgerschaft auf das Internationale Familienrecht, Volume 86 (2022) / Issue 1, pp. 32–64, DOI: 10.1628/rabelsz-2022-0003

The Influence of EU Citizenship on International Family Law. – European Union citizenship is a multifaceted concept. It vests a formal status in the citizens of member states and grants them individual rights. In addition, it symbolically affirms the ideal of integration. The different facets of EU citizenship are mirrored in the various ways in which the concept influences international family law. First, the rights connected to the status of EU citizenship shape the outcome of international family law cases. Second, art. 21 para. 2 TFEU bestows a competence on EU legislators to harmonize international family law. Third, EU citizenship is invoked to support the ideal of mobile citizens roaming freely within the EU, an ideal which for its part legitimizes habitual residence as a central connecting factor in EU international family law regulations.

 Jochen Hoffmann, Simon Horn: Die Neuordnung des internationalen Personengesellschaftsrechts, Volume 86 (2022) / Issue 1, pp. 65–90, DOI: 10.1628/rabelsz-2022-0004

Reshaping Germany’s Private International Law on Partnerships. – The recent German act on the modernization of partnership law (MoPeG) reforms not only the substantive law but also the determination of connecting factors for conflict-of-law purposes. A newly created provision introducing a “registered seat” in § 706 of the German Civil Code (BGB) is relevant to conflict-of-law considerations as it abandons the “real seat” as a connecting factor for registered partnerships. Since the law applicable to a partnership now depends on the partnership’s place of registration, substantive provisions such as the prohibition of voluntary deregistration (§ 707a BGB para. 4) will now have a considerable impact on questions of private international law. Conversely, those interpreting the substantive law must take conflict-of-law issues into account, especially to avoid unintentionally changing the law to which an entity will be subject. Moreover, the eligibility of the registered partnership (eGbR) for domestic conversions, mergers, and divisions considerably expands the range of possibilities for cross-border transactions of that kind.

Francesco Giglio: Roman dominium and the Common-Law Concept of Ownership, Volume 86 (2022) / Issue 1, pp. 91–118, DOI: 10.1628/rabelsz-2022-0005

On the basis of a comparison between common law and Roman law, it is argued in this paper that, despite the common-law focus on title, the common-law and civil-law concepts of ownership are not as far apart as often thought. Title and ownership right are not logically incompatible, and the common law has room for both: ownership is a substantive right; title is an operative, procedural tool that supplies the essential dynamism to the static right of ownership. Nor are relative and absolute ownership systemically incompatible in the civil law, as evidenced by Roman law. A study of the works of Blackstone, Austin and Honoré – three influential authors with expertise in Roman law – suggests that Roman law provides helpful elements for a comparison with the common law, but only if it is used to understand the common law, as opposed to forcing inadequate structures upon it. Austin’s and Honoré’s attempts to read common-law ownership through the lenses of Roman law offer two instances of the risks linked to such an approach.

 Jing Zhang: Functional Reform of the Chinese Law of Secured Transactions in Movables from a Comparative Perspective, Volume 86 (2022) / Issue 1, pp. 119–165, DOI: 10.1628/rabelsz-2022-0006

 The Chinese law of secured transactions concerning movables was reformed through a partial implementation of a functional approach. But by mixing formalism and functionalism, this functional reform, carried out first by the legislature through a codification and then by the Supreme People’s Court through a judicial interpretation, leads to a modular system with links between the various modules. Different modules are linked in the sense that the rules concerning property rights of security are extended to title-based security devices through the making of several “connection points”. After introducing the old law, this article focuses on issues of publicity, priority and enforcement under the new law. The functional reform establishes a unified notice-filing register for movables, which is accompanied by several specialist registers. Moreover, it provides a set of predictable priority rules that dispense with the factor of good faith in most circumstances. It also provides a flexible but complicated and somewhat uncertain system of enforcement and remedies for reservations of ownership and financial leases. In general, the new law is more modern and internationally oriented than the old law, but it still lacks systematic completeness and coherence and needs to be improved.

 

Focus: Decolonial Comparative Law

Lena Salaymeh, Ralf Michaels: Decolonial Comparative Law: A Conceptual Beginning, Volume 86 (2022) / Issue 1, pp. 166–188, DOI: 10.1628/rabelsz-2022-0007

 This article introduces the intellectual motivations behind the establishment of the Decolonial Comparative Law research project. Beginning with an overview of the discipline of comparative law, we identify several methodological impasses that have not been resolved by previous critical approaches. We then introduce decolonial theory, generally, and decolonial legal studies, specifically, and argue for a decolonial approach to comparative law. We explain that decoloniality’s emphasis on delinking from coloniality and on recognizing pluriversality can improve on some problematic and embedded assumptions in mainstream comparative law. We also provide an outline of a conceptual beginning for decolonial approaches to comparative law.

 Emile Zitzke: Decolonial Comparative Law: Thoughts from South Africa, Volume 86 (2022) / Issue 1, pp. 189–225, DOI: 10.1628/rabelsz-2022-0008

In this article, I problematise a popular approach to comparative law in South Africa that invariably seeks answers to legal problems in European law. This approach could potentially have neo-colonial effects. I propose that one version of a decolonial approach to comparative law could involve comparing South Africa’s European legal tradition (today called the South African common law) and its African legal tradition (today called the South African customary law). Utilising postcolonial, decolonial, and legal-pluralism theory, coupled with recent developments in the South African law of delict (torts), I suggest that the common/customary law interface ought to involve acts of both resistance and activism. There ought to be a resistance to the paradigms of “separatism”, “mimicry”, and “universality”. Simultaneously, there ought to be an embrace of “actively subversive hybridity”, “pluri-versality” and “delinking”. I contend that it is in this matrix of resistance and activism where at least one version of decolonial comparative law might be found.

Roger Merino: Constitution-Making in the Andes – A Decolonial Approach to Comparative Constitutional Change, Volume 86 (2022) / Issue 1, pp. 226–253, DOI: 10.1628/rabelsz-2022-0009

 How might the field of comparative constitutional change account for constitution- making processes and outcomes forged by historically subordinated and racialized social movements? Inspired by critical comparative approaches to constitutional change and engaging decolonial theory, this article explores how in the Andes of South America the “colonial question” shaped constitution-making struggles and was the rationale behind the enactment of the new plurinational constitutions of Bolivia (2009) and Ecuador (2008). This study focuses on the political aspirations of subaltern actors that have promoted constitutional changes in these settings and localizes their struggles and the historical and social context of continuous colonial grievances. Thus, the article provides a deeper understanding of the process of constitution-making in the Andes and reveals the colonial patterns that persist in current frameworks, such as the constitutional provisions that legitimate and perpetuate extractivism.

 

 

The Mexican Academy of Private International and Comparative Law (AMEDIP) has published issue No 46 of the Revista Mexicana de Derecho Internacional Privado y Comparado (Mexican Journal of Private International and Comparative Law).  It is available here.

Click here to access the Journal page.

A call for papers has been issued for the next number, whose theme will be “Matrimonio poliamoroso en el Derecho internacional privado”. Contributions must be sent before 25 February 2022 to the following email address: < graham@jamesgraham.legal >. For more information, see the last page of the current issue.

Below is the table of contents of No 46:

ÍNDICE

LA VOZ DEL COMITÉ EDITORIAL

DOCTRINA

LA EVOLUCIÓN DEL DERECHO INTERNACIONAL PRIVADO EN NICARAGUA / Jürgen Samtleben

BRIEF REMARKS ON THE INTERPRETATION OF DOMESTIC CRIMINAL LAW IN INVESTMENT ARBITRATION / Fausto Pocar     

LA CONTRATACIÓN INTERNACIONAL EN EL DIPR / Leonel Pereznieto Castro

AUTONOMÍA DE LA VOLUNTAD Y LEX IMPERATIVA / Symeon C. Symeonides – traducción al español / Spanish translation      

TRYING TO SQUARE THE CIRCLE: COMPARATIVE REMARKS ON THE RIGHTS OF THE SURVIVING SPOUSE ON INTESTACY / Jan Peter Schmidt

CHILE, PROPUESTAS DE CAMBIO EN SUS NORMAS EN DERECHO APLICABLE A LOS CONTRATOS INTERNACIONALES / Jaime Gallegos Zúñiga              

LA EXCEPCIÓN DE GRAVE RIESGO PARA LA SALUD POR COVID 19 EN LA SUSTRACCIÓN INTERNACIONAL DE MENORES / Ana Fernández Pérez

JURISPRUDENCIA

RECUSACIÓN DE UN ÁRBITRO

BIENVENIDO A DOS TESIS, UNA JURISPRUDENCIAL, SOBRE EL DERECHO INTERNACIONAL Y EL DERECHO INTERNO / Leonel Pereznieto Castro

EL RECONOCIMIENTO EN LOS TRIBUNALES DE LOS ESTADOS UNIDOS DE LAS SENTENCIAS DICTADAS POR LOS TRIBUNALES MEXICANOS / Richard B. Perrenot  – Traducción: Jorge Alberto Silva y José C. Suarez Arias

RESEÑAS

La convention d’arbitrage dans les nouvelles puissances économiques

(Bruselas, Bruylant, 2021, 890 pp.)

Texto y Contexto. Ley General de Derecho Internacional Privado N.º 19.920

(Uruguay, FCU, 2021, 280 pp.)

DOCUMENTOS  

CONTRATOS ENTRE COMERCIANTES CON PARTE CONTRACTUALMENTE DÉBIL (PROPUESTA AL COMITÉ JURÍDICO INTERAMERICANO)

(presentado por la doctora Cecilia Fresnedo de Aguirre)

 

The latest issue of the RabelsZ (Rabels Zeitschrift für ausländisches und internationales Privatrecht) has been published.

It contains a number of insightful articles and case comments, whose abstracts are provided below.

Johannes Ungerer, Nudging in Private International Law: The Design of Connecting Factors in Light of Behavioural Economics

Amending the traditional economic analysis of law and its assumption of rationality, this paper suggests that behavioural economics can inform a more realistic understanding of private international law, which has been missing to date. Acknowledging the psychological biases which private parties are facing when dealing with complex cross-border cases, the paper introduces a new perspective on the design of connecting factors in EU private international law which are to be conceived as nudges that steer the applicable law and international jurisdiction to counteract bounded rationality. Objective connecting factors can be perceived as default rules, whereas the framework for exercising party autonomy can be construed as choice architecture of subjective connecting factors. Revealing the underlying libertarian paternalism of connecting factors requires addressing existing concerns about nudging, which is insightful for establishing the requirements of a transparent and choice-preserving design. Behavioural economics prove to be particularly suitable for explaining the restriction of choice and other connecting factor modifications for consumer protection in private international law.

Johanna Croon-Gestefeld, Der Einfluss der Unionsbürgerschaft auf das Internationale Familienrecht (The Influence of EU Citizenship on International Family Law)

European Union citizenship is a multifaceted concept. It vests a formal status in the citizens of member states and grants them individual rights. In addition, it symbolically affirms the ideal of integration. The different facets of EU citizenship are mirrored in the various ways in which the concept influences international family law. First, the rights connected to the status of EU citizenship shape the outcome of international family law cases. Second, art. 21 para. 2 TFEU bestows a competence on EU legislators to harmonize international family law. Third, EU citizenship is invoked to support the ideal of mobile citizens roaming freely within the EU, an ideal which for its part legitimizes habitual residence as a central connecting factor in EU international family law regulations.

Jochen Hoffmann and Simon Horn, Die Neuordnung des internationalen Personengesellschaftsrechts (Reshaping Germany’s Private International Law on Partnerships)

The recent German act on the modernization of partnership law (MoPeG) reforms not only the substantive law but also the determination of connecting factors for conflict-of-law purposes. A newly created provision introducing a “registered seat” in § 706 of the German Civil Code (BGB) is relevant to conflict-of-law considerations as it abandons the “real seat” as a connecting factor for registered partnerships. Since the law applicable to a partnership now depends on the partnership’s place of registration, substantive provisions such as the prohibition of voluntary deregistration (§ 707a BGB para. 4) will now have a considerable impact on questions of private international law. Conversely, those interpreting the substantive law must take conflict-of-law issues into account, especially to avoid unintentionally changing the law to which an entity will be subject. Moreover, the eligibility of the registered partnership (eGbR) for domestic conversions, mergers, and divisions considerably expands the range of possibilities for cross-border transactions of that kind.

Francesco Giglio, Roman dominium and the Common-Law Concept of Ownership

On the basis of a comparison between common law and Roman law, it is argued in this paper that, despite the common-law focus on title, the common-law and civil-law concepts of ownership are not as far apart as often thought. Title and ownership right are not logically incompatible, and the common law has room for both: ownership is a substantive right; title is an operative, procedural tool that supplies the essential dynamism to the static right of ownership. Nor are relative and absolute ownership systemically incompatible in the civil law, as evidenced by Roman law. A study of the works of Blackstone, Austin and Honoré – three influential authors with expertise in Roman law – suggests that Roman law provides helpful elements for a comparison with the common law, but only if it is used to understand the common law, as opposed to forcing inadequate structures upon it. Austin’s and Honoré’s attempts to read common-law ownership through the lenses of Roman law offer two instances of the risks linked to such an approach.

Jing Zhang, Functional Reform of the Chinese Law of Secured Transactions in Movables from a Comparative Perspective

The Chinese law of secured transactions concerning movables was reformed through a partial implementation of a functional approach. But by mixing formalism and functionalism, this functional reform, carried out first by the legislature through a codification and then by the Supreme People’s Court through a judicial interpretation, leads to a modular system with links between the various modules. Different modules are linked in the sense that the rules concerning property rights of security are extended to title-based security devices through the making of several “connection points”. After introducing the old law, this article focuses on issues of publicity, priority and enforcement under the new law. The functional reform establishes a unified notice-filing register for movables, which is accompanied by several specialist registers. Moreover, it provides a set of predictable priority rules that dispense with the factor of good faith in most circumstances. It also provides a flexible but complicated and somewhat uncertain system of enforcement and remedies for reservations of ownership and financial leases. In general, the new law is more modern and internationally oriented than the old law, but it still lacks systematic completeness and coherence and needs to be improved.

Lena Salaymeh and Ralf Michaels, Decolonial Comparative Law: A Conceptual Beginning

This article introduces the intellectual motivations behind the establishment of the Decolonial Comparative Law research project. Beginning with an overview of the discipline of comparative law, we identify several methodological impasses that have not been resolved by previous critical approaches. We then introduce decolonial theory, generally, and decolonial legal studies, specifically, and argue for a decolonial approach to comparative law. We explain that decoloniality’s emphasis on delinking from coloniality and on recognizing pluriversality can improve on some problematic and embedded assumptions in mainstream comparative law. We also provide an outline of a conceptual beginning for decolonial approaches to comparative law.

Emile Zitzke, Decolonial Comparative Law: Thoughts from South Africa

In this article, I problematise a popular approach to comparative law in South Africa that invariably seeks answers to legal problems in European law. This approach could potentially have neo-colonial effects. I propose that one version of a decolonial approach to comparative law could involve comparing South Africa’s European legal tradition (today called the South African common law) and its African legal tradition (today called the South African customary law). Utilising postcolonial, decolonial, and legal-pluralism theory, coupled with recent developments in the South African law of delict (torts), I suggest that the common/customary law interface ought to involve acts of both resistance and activism. There ought to be a resistance to the paradigms of “separatism”, “mimicry”, and “universality”. Simultaneously, there ought to be an embrace of “actively subversive hybridity”, “pluri-versality” and “delinking”. I contend that it is in this matrix of resistance and activism where at least one version of decolonial comparative law might be found.

Roger Merino, Constitution-Making in the Andes – A Decolonial Approach to Comparative Constitutional Change

How might the field of comparative constitutional change account for constitution- making processes and outcomes forged by historically subordinated and racialized social movements? Inspired by critical comparative approaches to constitutional change and engaging decolonial theory, this article explores how in the Andes of South America the “colonial question” shaped constitution-making struggles and was the rationale behind the enactment of the new plurinational constitutions of Bolivia (2009) and Ecuador (2008). This study focuses on the political aspirations of subaltern actors that have promoted constitutional changes in these settings and localizes their struggles and the historical and social context of continuous colonial grievances. Thus, the article provides a deeper understanding of the process of constitution-making in the Andes and reveals the colonial patterns that persist in current frameworks, such as the constitutional provisions that legitimate and perpetuate extractivism.

The table of contents of the issue is available here.

On Tuesday, Feb 1, 2022, the Hamburg Max Planck Institute will host its  monthly virtual workshop Current Research in Private International Law at 11:00-12:30 (CET). Wolfgang Wurmnest (University Hamburg) will speak, in German, about the topic.

International Jurisdiction for Antitrust Violation Claims

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

The third issue of the Journal of Private International law for 2021 was released today. It features the following articles:

Jonannes Ungerer, “Explicit legislative characterisation of overriding mandatory provisions in EU Directives: Seeking for but struggling to achieve legal certainty”

Traditionally, the judiciary has been tasked with characterising a provision in EU secondary law as an overriding mandatory provision (“OMP”) in the sense of Art 9(1) Rome I Regulation. This paradigm has however shifted recently as the legislator has started setting out such OMP characterisation explicitly, which this paper addresses with regard to EU Directives. The analysis of two Directives on unfair trading practices in the food supply chain and on the resolution of financial institutions reveals that their explicit legislative characterisations of OMPs can benefit legal certainty if properly drafted by the EU and correctly transposed into national law by the Member States. These requirements have not yet been fully met as there are inconsistencies and confusion with only domestically mandatory provisions, which need to be resolved. More generally, the paper elucidates the tensions of competence between legislators and courts on both the EU and national levels due to the explicit legislative characterisation. It also considers the side effects on pre-existing and future provisions in Directives without explicit legislative characterisation. Finally, it acknowledges that the extraterritorial effect of OMPs is intensified and therefore requires the legislator to seek international alignment.

 

Patrick Ostendorf, “The choice of foreign law in (predominantly) domestic contracts and the controversial quest for a genuine international element: potential for future judicial conflicts between the UK and the EU?”

The valid choice of a (foreign) governing law in commercial contracts presupposes, pursuant to EU private international law, a genuine international element to the transaction in question. Given that the underlying rationale of this requirement stipulated in Article 3(3) of the Rome I Regulation has yet to be fully explored, the normative foundations as to the properties that a genuine international element must possess remain unsettled. The particularly low threshold applied by more recent English case law in favour of almost unfettered party autonomy in choice of law at first glance avoids legal uncertainty. However, such a liberal interpretation not only robs Article 3(3) Rome I Regulation almost entirely of its meaning but also appears to be rooted in a basic misunderstanding of both the function and rationale of Article 3(3) Rome I Regulation in the overall system of EU private international law. Consequently, legal tensions with courts based in EU member states maintaining a more restrictive approach may become inevitable in the future due to Brexit.

 

Darius Chan & Jim Yang Teo, “Re-formulating the test for ascertaining the proper law of an arbitration agreement: a comparative common law analysis”

Following two recent decisions from the apex courts in England and Singapore on the appropriate methodology to ascertain the proper law of an arbitration agreement, the positions in these two leading arbitration destinations have now converged in some respects. But other issues of conceptual and practical significance have not been fully addressed, including the extent to which the true nature of the inquiry into whether the parties had made a choice of law is in substance an exercise in contractual interpretation, the applicability of a validation principle, and the extent to which the choice of a neutral seat may affect the court’s determination of the proper law of the arbitration agreement. We propose a re-formulation of the common law’s traditional three-stage test for determining the proper law of an arbitration agreement that can be applied by courts and tribunals alike.

 

Amin Dawwas, “Dépeçage of contract in choice of law: Hague Principles and Arab laws compared”

This paper discusses the extent to which the parties may use their freedom to choose the law governing their contract under the Hague Principles on Choice of Law in International Commercial Contracts and Arab laws, namely whether they can make a partial or multiple choice of laws. While this question is straightforwardly answered in the affirmative by the Hague Principles, it is debatable under (most) Arab laws. After discussion of the definition of dépeçage of contract, this paper presents the provisions of dépeçage of contract under comparative and international law, including the Hague Principles, and then under Arab laws. It concludes that Arab conflict of laws rules concerning contract should be reformed according to the best practices embodied in this regard by the Hague Principles.

 

Jan Ciaptacz, “Actio pauliana under the Brussels Ia Regulation – a challenge for principles, objectives and policies of EU private international law”

The paper discusses international jurisdiction in cases based on actio pauliana under the Brussels Ia Regulation, especially with regard to the principles, objectives and policies of EU private international law. It concentrates on the assessment of various heads of jurisdiction that could possibly apply to actio pauliana. To that end, the CJEU case law was thoroughly analysed alongside international legal scholarship. As to the jurisdictional characterisation of actio pauliana, the primary role should be assigned to teleological and systematic considerations. Actio pauliana can neither be characterised as an issue relating to torts nor as a right in rem in immovable property. Contrary to the recent position adopted by the CJEU, it should also be deemed not to fall within matters relating to a contract. The characterisation of actio pauliana as a provisional measure or an enforcement mechanism for jurisdictional purposes is equally incorrect.

 

Harry Stratton, “Against renvoi in commercial law”

The doctrine of renvoi is rightly described as “a subject loved by academics, hated by students and ignored (when noticed) by practising lawyers (including judges)”. This article argues that the students have much the better of the argument. English commercial law has rightly rejected renvoi as a general rule, because it multiplies the expense and complexity of proceedings, while doing little to deter forum-shopping and enable enforcement. It should go even further to reject renvoi in questions of immovable property, because the special justification that this enables enforcement of English judgments against foreign land ignores the fact that title or possession of such land is generally not justiciable in English courts and such judgments will not be enforced irrespective of whether renvoi is applied.

 

Yun Zhao, “The Singapore mediation convention: A version of the New York convention for mediation?”

Settlement agreements have traditionally been enforced as binding contracts under national rules, a situation considered less than ideal for the promotion of mediation. Drawing on the experience of the 1958 New York Convention on international arbitration, the 2019 Singapore Mediation Convention provides for the enforcement of settlement agreements in international commercial disputes. Based on its provisions and the characteristics and procedures of mediation, this article discusses the impact of the Singapore Mediation Convention on the promotion of mediation and its acceptance by the international community. It is argued that the achievements of the New York Convention do not necessarily promise the same success for the Singapore Mediation Convention.

 

Jakub Pawliczak, “Reformed Polish court proceedings for the return of a child under the 1980 Hague Convention in the light of the Brussels IIb Regulation”

In recent years a significant increase in applications sent to Polish institutions to obtain the return of abducted children under the 1980 Hague Abduction Convention can be observed. Simultaneously, Poland has struggled with a problem of excessively long court proceedings in those cases and the lack of specialisation among family judges. Taking these difficulties into consideration, in 2018 the Polish Parliament introduced a reform aimed at improving the effectiveness of the court proceedings for the return of abducted children. The work on the amendment of the Polish legal regulations was carried out in parallel to the EU legislative process in the field of international child abduction. Although the Polish reform had been introduced before Council Regulation (EU) 2019/1111 of 25 June 2019 (Brussels IIb) was adopted, the 2016 proposal for this Regulation had been known to the national legislature. When discussing the amended Polish legal regulations, it should be considered whether they meet their goals and whether they are in line with the new EU law.

 

Elaine O’Callaghan, “Return travel and Covid-19 as a grave risk of harm in Hague Child Abduction Convention cases”

Since February, 2020, courts have been faced with many novel arguments concerning the Covid-19 pandemic in return proceedings under the “grave risk exception” provided in Article 13(1)(b) of the 1980 Hague Convention. This article presents an analysis of judgments delivered by courts internationally which concern arguments regarding the safety of international travel in return proceedings during the Covid-19 pandemic. While courts have largely taken a restrictive approach, important clarity has been provided regarding the risk of contracting Covid-19 as against the grave risk of harm, as well as other factors such as ensuring a prompt return despite practical impediments raised by Covid-19 and about quarantine requirements in the context of return orders. Given that the pandemic is ongoing, it is important to reflect on this case law and anticipate possible future issues.

 

Chukwudi Paschal Ojiegbe, “The overview of private international law in Nigeria” (Review Article)

The High Court of the Eastern Cape in Makhanda (Grahamstown), South Africa, on 28 December 2021 issued an interim interdict to stop Shell from commencing seismic activity off the south-eastern coast of South Africa. The full judgment is available on Saflii.

From a conflict-of-laws perspective, the interdict raises some points of interest.

First, it provides two examples of the application of non-State law.  In considering whether Shell has adequately informed the local communities of its plans, the judge took into account not only the South African legislation, but also of the local communities’ modes of communication and of seeking consensus. In this sense, even though Shell had published its intentions in newspapers, these have not reached the communities in which people were not necessarily able to read English and Afrikaans (the languages of the newspapers). The judge found that “the approach that was followed to consult was inconsistent with the communities’ custom of seeking consensus.” (para 25). The judgment implicitly recognise this custom as law. This approach is in line with the South African Constitution (sec. 211(3) states: The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.).

The next example of the application of non-State law is the Rio Declaration on Environment and Development (para 69 of the judgment) to find that where there are threats of serious or irreversible damage, the precautionary approach shall be taken, even in the absence of full scientific certainty (Principle 15 of the Declaration).

The second interesting point is that the judge allowed this civil action even though there was a public law remedy available to the applications, namely an application to the Minister to cancel or suspend the right to explore that was granted. The judge found that the time-consuming nature of that remedy and the unlikeliness of its success made it an unsatisfactory remedy (paras 74-77).