Droit international général

Join us on Friday, 8 October 2021 for the HCCH webinar “Birth of an International Treaty: The 2019 Judgments Convention”! 

In this lecture, the HCCH will take you behind the scenes of the negotiation of its newest treaty. Adopted in July 2019, the Judgments Convention establishes a common framework for the global circulation of judgments in civil or commercial matters, overcoming the complexities arising from differences in legal systems. Once it enters into force, it will increase legal certainty and predictability, essential elements for international trade and business. 

Join us to discover how the Judgments Convention was negotiated and adopted!  

More information, including the registration form, is available here.   

The new issue of the Revue Critique de Droit International Privé (3/2021) is out. It contains 2 articles and numerous case notes.

The editorial by Horatia Muir Watt (Sciences Po), Dominique Bureau (University of Paris II) and Sabine Corneloup (University of Paris II) will soon be available in English on the Dalloz website (Éclectisme et gai savoir).

In the first article, David Sindres (Professor, University of Angers) analyses the control implemented by the judge responsible for the enforcement of pecuniary condemnations pronounced by foreign courts (Le contrôle par le juge de l’exequatur des condamnations pécuniaires prononcées par un juge étranger).

The control exercised by the enforcement judge over the amount of pecuniary condemnations pronounced by foreign courts, which was highlighted in France by the famous Fountaine Pajot decision, has different faces: as witnessed by recent decisions handed out by the French Cour de cassation on this matter, this control may concern the amount of damages, as in the Fountaine Pajot case, as well as the interests of a loan or the amount of a procedural indemnity granted by a foreign court. Although the reason for this control, which aims at ensuring the conformity of the foreign decision with the forum’s international substantive public policy, is clear, this clarity does not however extend, in recent case law, either to the exact perimeter of the control or to the criteria upon which it shall be based.

This article therefore seeks to instill clarity in this realm, by insisting especially on a double necessity: on the one hand, avoiding that this control degenerates in a review as to the substance of the foreign decision, and on the other hand, resorting to criteria specific to each hypothesis and reflecting essential principles of the lex fori on the issue at stake.

In the second article, Georgette Salamé (PhD Paris 1 Panthéon-Sorbonne, Lecturer at Saint Joseph University, Beyrouth) and Guillaume Kessler (Associate Professor, University of Savoie) discuss French law on international relocation of children in the context of parental separation, in the light of comparative law models (Séparation parentale et déménagement international de l’enfant).

The increased mobility of individuals combined with the frequency of divorce/separation cases has made the relocation of children a recurrent issue both in France and abroad and one that often triggers litigation. French law does not provide for specific rules that are tailored to address this matter. Therefore, the courts have settled relocation disputes using the general rules that govern child custody. This paper considers French law in the light of comparative law models. Whilst all legal systems claim to achieve the child’s best interest, some have addressed relocation by setting a general presumption (in favor of or against the move) whereas others have opted for a case-by-case approach. French law comes within the second category, which appears to have been the preferred choice of many Western States.

Beyond underlining this general trend to favor a settlement sought in concreto, a comparative law analysis highlights the positive outcomes that certain more sophisticated mechanisms elected by foreign laws can achieve and suggests adjustments to the French relocation settlement mechanisms. It also emphasizes the increasing importance of the parent-child relationship in (re)defining the family and sheds light on mechanisms that can fine tune and improve its protection in the context of the child’s relocation.

On another note, the comparative law analysis calls for a reassessment of the legal means that purport to secure effective outcomes for relocation in the globalization era. The paper thus examines both preventive and deterrence policies as well as policies that rely on mediation to redefine the aftermath of separation. While French law is familiar with such approaches, comparative law suggests reshaping certain strategies by developing or eventually reconsidering their relevance in the context of the child’s international relocation.

 The full table of contents is available here.

A partial renewal of positions, both of AGs and of judges, will take place next October at the Court of Justice. The reasons vary from retirement to normal rotation (the latter being the case of the so-called “smaller countries” in as far as AGs are concerned).

As a consequence some opinions and judgments have been or will be delivered before scheduled. In PIL this will the case of C-296/20, Commerzbank, a request for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice, Germany) on the interpretation of Article 15 (1)(c) of the Lugano Convention 2007. The Opinion was delivered on September 9. AG Campos Sánchez-Bordona proposes that

‘Article 15(1)(c) of the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed at Lugano on 30 October 2007, the conclusion of which was approved on behalf of the European Community by Council Decision 2009/430/EC of 27 November 2008, must be interpreted as meaning that it is not applicable in the case where, at the time when the contract is concluded, the parties to that contract are domiciled (within the meaning of Articles 59 and 60 of the Convention) in the same State bound by the Convention and the foreign component of the legal relationship arises only subsequently, when the consumer has transferred his or her domicile to another State also bound by the Convention.

In the alternative, Article 15(1)(c) of the Convention would be applicable in the case where the parties’ domicile at the time when the contract is concluded is situated in a single State bound by the Convention and the consumer subsequently relocates to another State also bound by the Convention, provided that the economic operator pursues in the State of the consumer’s new domicile a trade or profession such as that which gave rise to the conclusion of the contract.’

Should one or the other strands of the Opinion be followed, the Court would be taking a stance in favor of predictability both for the consumer and the other party to the contract, in line with C-585/08 and C-144/09 (Pammer and  Hotel Alpenhof). The contrary view will be more comfortable for the consumer, but deterrent for potential contractual parties (I would add: as things stand. Business counter-party will certainly try to develop strategies to reduce the impact of a consumer moving cross-border. A easy one: indiscriminate increase of the price of goods and services).

Our colleague Geer Van Calster provides a short accurate summary of the Opinion’s reasoning here, based on the provisional English translation. I would like to complete it by highlighting the following points:

First of all, according to the Opinion the ratio legis of Section 4 of Title II of the Convention is  to ensure adequate protection for the consumer against a very specific risk, namely that of internationality. Indeed, a process abroad entails costs and challenges an average consumer will not not willing or able to assume.

Secondly, consumer protection in the field of international jurisdiction is not an absolute goal in the Convention. Some requirements have been set up by the lawmaker delineating the scope of the Section, tending to ensure that the economic operator will be able to foresee where he or she may sue and be sued when entering into a contract with a consumer. It should be borne in mind that under Article 16 of the Convention the consumer has the choice between filing a claim with the courts of his or her own domicile – forum actoris– or those of the defendant.

By contrast, the other party to the contract is deprived of any choice: he or she can only file a claim with the counts at the consumer’s domicile. Like in a B2B case, the relevant domicile in this regard is the one at the date on which the court action is brought (see C 98/20, mBank). There is no doubt this rule always carries uncertainty with it, for no one can predict whether a potential defendant domiciled in a contracting State at the time a contract is concluded will move cross-border afterwards. The insecurity is the same no matter the type of contract, i.e, B2B or B2C. There is an important difference, however, in a B2B setting: because a choice of court is possible without any limitation, and also Article 5(1) remains available, the parties can figure out jurisdiction from the very beginning.

The logical inference from those two points would be that, in case the consumer moves to another contracting State after the conclusion of a contract which, at that point in time, was purely domestic, it is for him or her to cope with the risks and costs of cross-border litigation. In other words: if the consumer is the one transforming a domestic situation into an international one, he or she should stand the consequences of internationality (in terms of jurisdiction).

Thirdly, it is true that at first sight, Article 17(3) of the Convention makes it difficult to claim than Section 4 of Title II does not apply to situations lacking an international element (more precisely: an international element resulting from the domicile of the parties) when the contract is entered into. As a matter of fact, the provision endorses the premise that balance is needed between protecting the consumer and offering predictability to the professional. The Opinion explains why it would be neither sound nor advisable to infer that Article 15(1)(c) applies to situations of supervening internationality on the basis of the mere existence of Article 17(3). It recalls in this regard, among other, the fact that the mechanism the latter rule relies on – choice of court clauses- may not be admissible under the law of the contracting States.

This notwithstanding, one cannot simply ignore Article 17(3). Therefore, the AG will try to offer an interpretation of Article 15(1)(c) apt to conciliate both the objective of protecting the consumer from the inconveniences deriving from internationality (including one which the consumer him- or herself creates), and the objective of providing the other party to the contract with foreseeability as to the courts having international jurisdiction. To this aim, Article 15(1)(c) of the Convention could be interpreted as encompassing any situation in which the professional pursues its economic activity in, or directs it towards, States other than that where he or she is domiciled, including the State where the consumer is domiciled at the time when  proceedings are instituted.

In the past, the Court has rendered decisions which could be read as supporting the opposite hypothesis, that is to say, Article 15(1)(c) applies in any event, independently of whether the international element is present when the contract is entering into or appears at a later stage due to a change of domicile of the weaker party, who moves to another contracting State . Just like the referring national court, the AG considers those Court’s judgments and orders not categorical. He claims instead that the “weighty consequences which applying the consumer protection rules brings to bear upon a professional surprised by a change of domicile by the consumer which it was not expecting or could not have foreseen call for an explicit examination of this issue.” Whether this “explicit examination” will end up with the endorsement of the Opinion remains to be seen: to be clear, judging from the jurisprudence of the Court of Justice in consumer matters, the odds are against. The Court has steadily shown a clear pro-consumer tendency and it is unlikely that it will give it up now: at least, not without a sign from the lawmaker, which has already been suggested in the literature, see for instance here (or maybe, by making litigation more costly for the business party to the contract, the Court is indirectly pushing in support of ADR mechanisms).

In the meantime, should the Court decide not to follow the Opinion, I would like to add that a clause in a domestic contract with the consumer whereby he or she must communicate the change of abode does not provide for predictability as a factor to decide whether to engage or not in deals with a specific consumer. It will prove useful for other purposes, though, such as service of process (if the consumer complies with the obligation).

 

On Thursday 7 and Friday 8 October 2021, the University of Strasbourg will host a symposium on mutual trust in the Area of freedom, security and justice. The purpose of the symposium is to explore the current crises affecting mutual trust between EU Member States, and to draw perspectives for the future of judicial cooperation in the EU. The full program is available here Registration is open at jnyobe@unistra.fr.

The event is organised by Emanuel Castellarin, Etienne Farnoux and Samuel Fulli-Lemaire, professors at the University of Strasbourg.

 

The call for abstracts for the ‘Transnational Dispute Resolution in an Increasingly Digitalized World’ conference is now open until 1 December 2021. This online conference will be hosted by the Center for the Future of Dispute Resolution at Ghent University on Thursday 24 March 2022.

The increased digitalization in the field dispute resolution, which received a boost from the Covid-19 pandemic, raises a number of important questions in terms of privacy, cybersecurity, data protection and artificial intelligence, going from rather practical concerns (how to protect the information exchanged, how to organize the taking of evidence, how to comply with the various obligations, etc.) to more fundamental inquiries (does it scare litigants off, does it foster or rather compromise efficiency, etc.).

The goal of the conference is to bring together academics, practitioners and policy makers with expertise in the field of dispute resolution (arbitration, transnational litigation, mediation, other ADR mechanisms) and technology law. That is why we are particularly (but not exclusively) interested in contributions that focus on

• Obligations of the actors of justice
• Challenges and opportunities of (partial) online proceedings
• Evidentiary issues related to cybersecurity and data protection
• The (ab)use of these instruments as a dispute resolution strategy

and discuss these forward-looking dispute resolution topics in light of the various privacy, data protection, cybersecurity and AI regulations.

Ph.D. candidates, senior researchers and legal practitioners are invited to submit an abstract (on one of the topics above or on a topic of their own choice relating to the general theme) by 1 December 2021 to Maud.Piers@ugent.be and Wannes.Vandenbussche@ugent.be. Abstracts should be no longer than 1000 words. Authors of selected abstracts will be notified by 10 January 2022.

All contributions should be in English. This online conference is intended to serve as a first opportunity to present and discuss the authors’ ideas. Publication venues for the final papers will also be explored.

Should you have any questions please do not hesitate to contact the two members of the organizing committee.

Maud Piers

Wannes Vandenbussche

The focus of this write-up is a brief case note on a recent decision of the Nigerian Court of Appeal on Mareva injunction.

The principal concern of a judgment creditor is that it should reap the fruits of the judgment. A judgment is useless or nugatory if the judgment debtor has no assets within the jurisdiction of the court and the judgment debtor is unwilling to comply with the court’s judgment. A prospective judgment debtor could frustrate the administration of justice and commercial effectiveness of a judgment by moving away all its assets from the Nigerian jurisdiction to another jurisdiction. The remedy of a Mareva injunction (or freezing injunction) was developed as a means of curtailing this form of bad litigation tactics by a judgment debtor. In reality, a Mareva injunction is similar to interlocutory and anticipatory injunctions. It is similar to an interlocutory injunction because it is granted pending the determination of the dispute between the parties. It is similar to an anticipatory injunction because it anticipates that there is a real likelihood that a prospective judgment debtor would take its assets out of the court’s jurisdiction in order to frustrate the effectiveness of a judgment.[1]

The Mareva injunction (as applied in Nigeria) was developed in the English case of Mareva Compania Naviera SA v International Bulkcarriers SA The Mareva (“The Mareva”).[2] It is also described as a “freezing injunction” on the basis that the order freezes the assets of a prospective judgment debtor, pending the determination of the case.[3]

Prior to the decision of the English Court of Appeal in The Mareva, it was uncertain[4] whether the English court had jurisdiction to protect a creditor before it obtained a judgment. The English Court of Appeal, in 1975,[5] had initially granted a “Mareva injunction” in the form of an interlocutory injunction, but the application of this concept in that case remained controversial.[6] The remedy of the Mareva injunction was later accepted by the then English House of Lords,[7] and is available in other Commonwealth jurisdictions.[8]

In the landmark case of Sotuminu v Ocean Steamship (Nig) Ltd(“Sotuminu”),[9] the Supreme Court of Nigeria legitimised the Mareva injunction, though on the facts of the case, the court did not think it was appropriate to grant a Mareva injunction.

Interestingly, although the decision of the Supreme Court was unanimous in dismissing the plaintiff-appellant’s case, Uwais JSC (as he then was), with whom two other Justices of the Supreme Court simply concurred, treated the plaintiff-appellant’s case as one involving an interlocutory injunction, and applied the principles relating to the grant of interlocutory injunction. It was Nnaemeka-Agu JSC and Omo JSC in their concurring judgments who qualified the plaintiff-appellant’s case as one involving a Mareva injunction.

Nnaemeka-Agu JSC made reference to Section 18(1) of the then High Court of Lagos Civil Procedure Rules, which provides that “[t]he High Court may grant an injunction by an interlocutory order in all cases in which it appears to the Court to be just and convenient to do so”; and Section 13 (of the then High Court of Lagos State Civil Procedure Rules), which provides that “subject to the express provisions of any enactment, in every civil cause or matter commenced in the High Court, law and equity shall be administered by the High Court concurrently and in the same manner as they are administered by the High Court of Justice in England.”  He was of the view that these provisions enabled a court in Nigeria to apply the principles of a Mareva injunction. The learned Justice provided the criteria to grant a Mareva injunction when he held that:

Now, all decided cases on the point show that the Courts are ever conscious of the fact that because of its very nature, Mareva injunctions could be open to abuses. So they have evolved some rules and principles which are designed to guard against such abuses. By these rules, before a Mareva injunction could be granted the applicant must show:-

“(i) that he has a cause of action against the defendant which is justiciable in Nigeria:[10] See – Siskina (Owners of Cargo lately laden on borad) v distas Compania S.A (1979) A.C 210;

(ii) that there is a real and imminent risk of the defendant removing his assets from jurisdiction and thereby rendering nugatory any judgment which the plaintiff may obtain: See – Barclay-Johnson v. Ynill(1980) 1 WLR 1259, at p.1264: also –Rahman (Prince Abdul) him Turki al Sudiary v Abu-Taha(1980) 1 WLR 1268, at p.1272;

(iii) that the applicant has made a full disclosure of all material facts relevant to the application: see – Negocios Del Mar SA v. Doric Shipping Corp. SA. (The Assios) (1979) 1 LI. Rep. 331;

(iv) that he has given full particulars of the assets within the jurisdiction;

(v) that the balance of convenience is on the side of the applicant; and

(vi) that he is prepared to give an undertaking as to damages.

If he fails to satisfy the Court in any of these preconditions for a grant of a Mareva injunction, it ought not to be granted.”[11]

Nnaemeka-Agu JSC’s concurring judgment in  Sotuminu has become the standard test for the application of Mareva injunction in Nigeria. However, it was not obvious whether this test provided by Nnaemeka Agu JSC was strict.

In the recent case of Haladu v Access Bank, (Haladu)[12] the Court of Appeal (Ojo JCA) interpreted the Supreme Court’s decision (Nnaemeka Agu JSC) in Sotuminu as follows:

“The apex court in the above case has stated clearly the conditions that must be met for the grant of a Mareva Injunction. In other words, they are pre-conditions that must be met. To my mind, the conditions are of strict liability. It follows therefore that an applicant who seeks an order of Mareva Injunction must place sufficient materials before the court upon which it can exercise its discretion.”[13]

In the instant case, the applicant’s case failed at the Court of Appeal because it failed to provide an undertaking as to damages in its application for Mareva injunction, and did not sufficiently prove that the defendant intends to remove its asset in Nigerian banks to a foreign country.[14]

The take away of Haladu is that an applicant that wants to obtain a Mareva injunction in Nigeria has to be thorough, hardworking, and diligent in its case. All the conditions for the grant of Mareva injunction as stated in Nnaemeka-Agu JSC’s concurring judgment in Sotuminu must be met. Indeed, this is not an easy task. As stated by Ojo JCA in Haladu, “solid evidence” must be provided to succeed in a prayer for Mareva injunction. It is submitted that there is justice in this approach because if a Mareva injunction is granted without the right justification, it would cause great hardship to the respondent. A balance is thus struck between ensuring that a claimant should be able to reap the fruits of its judgment, and on the other hand the defendant should not be subjected to great hardship by a wrongful grant of Mareva injunction. Haladu’s case demonstrates that Nigerian law tilts more towards the side of the defendant as a matter of evidence and procedure.

 

[1]See Omo JSC in Sotuminu v Ocean Steamship (Nig) Ltd (1992) LPELR-SC 55/1990 approving the English case of Z Ltd v AZ and AA-LL (1982) 2 QB 558, 584-6.

[2](1980) 1 All ER 213.

[3]See generally Dangabar v Federal Republic of Nigeria (2012) LPELR-19732 (CA).

[4]“I know of no case where, because it was highly improbable that if the action were brought to a hearing the plaintiff could establish that a debt was due to him from the defendant, the defendant has been ordered to give security until that has been established by the judgment or decree.” – Lister & Co v Stubbs (1886-90)] All ER Rep 797, 799 (Cotton LJ).

[5]Nippon Yusen Kaisha v Karageorgis (1975) 3 All ER 282.

[6]Cf. Sotuminu v Ocean Steamship (Nig) Ltd (1992) LPELR-SC 55/1990 (Nnaemeka-Agu JSC); Adeyemi Durojaiye v Continental Feeders (Nig) Limited (2001) LPELR-CA/L/445/99 (Aderemi JCA, as he then was).

[7]Owners of Cargo Lately Laden on Board the Siskina v Distos Compania Naveria SA (1979) AC 210.

[8] AJ Moran and AJ Kennedy, Commercial Litigation in Anglophone Africa (Cape Town, Juta and Company (Pty) Ltd, 2018) at 47–50, 87.

[9](1992) LPELR-SC 55/1990.

[10]The original judgment contains “in England”. We have substituted it with the phrase “in Nigeria” to appropriately suit the Nigerian context.

[11]Sotuminu v Ocean Steamship (Nig) Ltd (1992) LPELR-SC 55/1990. See also AIC LTD v. NNPC (2005) LPELR-6 (SC) 33-4 (Edozie JSC); Extraction System And Commodity Services Ltd. v. Nigbel Merchant Bank Ltd.(2005) 7 NWLR (Pt. 924) 215; R Benkay (Nig.) Ltd v Cadbury (Nig) Plc (2006) 6 NWLR (Pt. 976)338; International Finance Corporation v DSNL Offshore Ltd (2007) LPELR-5140(CA) 12-3 (Rhodes Vivour JCA (as he then was); Union Bank of Nig. Plc v. Pam (2016) 14 NWLR (Pt. 1533) 400; Haladu v Access Bank (2021) 13 NWLR (Pt. 1794) 434. The Nigerian Court of Appeal has granted Mareva injunction in some cases : Adeyemi Durojaiye v Continental Feeders (Nig) Ltd (2001) LPELR-CA/L/445/99; Compact Manifold and Energy Services Ltd v West Africa Supply Vessels Services Ltd (2017) LPELR-43537 (CA). See also AIC Ltd v Edo State Government (2016) LPELR-40132 (CA).

[12] (2021) 13 NWLR (Pt. 1794) 434.

 

[13] Haladu v Access Bank (2021) 13 NWLR (Pt. 1794) 434, 458.

[14] ibid.

The second issue of the Journal of Private International Law  for 2021 was just released and it features the following articles:

Lachlan Forrester, “Resulting Trusts in Conflict of Laws: An Australian Perspective”

The common law world continues to grapple with how to properly characterise equitable doctrines in private international law. There has been extensive criticism of the existing approach to characterisation and choice of law for equity which favours separately characterising equitable obligations and applying the lex fori. Within this broader discourse, a debate is beginning to emerge around issues involving both equitable obligations and immovable property. In this early debate, two schools of thought have developed with respect to the proper characterisation and choice of law for implied or resulting trusts over immovable property. The first approach, advanced primarily by the courts, characterises the trust as an equitable obligation governed by the lex fori. The second approach, primarily endorsed by commentators, characterises the trust as an issue of immovable property governed by the lex situs. This paper, upon evaluating the lex fori and the lex situs against the underlying objectives of choice of law, rejects both approaches as unfit for purpose. Instead, it advocates a new approach to the characterisation and choice of law for resulting trusts. This paper proposes that resulting trusts be governed by the proper law of the relationship. This conception would align with the approach taken to express trusts under the Hague Trusts Convention and most effectively provides for consistency and clarity while upholding the reasonable expectations of the parties.

 

María Mercedes Albornoz & Sebastián Paredes, “No turning back: information and communication technologies in international cooperation between authorities”

The usefulness of ICTs is on full display when it comes to international cooperation between authorities in civil and commercial litigation. The core international conventions on cross-border cooperation (currently in force) were drafted many decades ago, when the overwhelming growth of ICTs was unimaginable. Setting the focus on Latin America, where legal regional integration has not yet reached the level attained by the European Union, this article assesses whether the selected legal sources reject, tacitly accept, or encourage the use of ICTs in international cooperation. The analysis of international conventions, some soft law instruments and domestic PIL rules supports the argument that an adequate legal framework that accepts the use of ICTs in international cooperation is necessary. Indeed, there is no turning back from the use of technologies in this field, where modern and suitable regulation would strengthen legal certainty, of utmost importance for the parties involved in cross-border litigation.

 

Sirko Harder, “The territorial scope of Australia’s consumer guarantee provisions”

Australian Consumer Law provides for consumer guarantees, according to which the taking of a particular action (for example, the application of due care and skill) or the presence of a particular fact (for example, a particular quality) is deemed as guaranteed where goods or services are supplied to a consumer in certain circumstances. Remedies lie against the supplier or (where goods are supplied) against the manufacturer or both. Pursuant to its application provisions, Australian Consumer Law applies to conduct outside Australia if one of several alternative criteria is satisfied. One criterion is that the defendant carried on business within Australia. There is no express requirement that the defendant’s business activities in Australia include the transaction with the plaintiff. This article argues that comity requires an implied restriction on the territorial scope of the consumer guarantee provisions, and searches for the most appropriate criterion for that purpose.

 

Lance Ang, “Party autonomy, venue risk and jurisdiction agreements – the Singapore position reappraised”

Party autonomy is the defining principle of private international law today. Notwithstanding its broad acceptance, what does party autonomy mean in the context of jurisdiction agreements? The lack of commercial certainty in how the agreement to “submit” to the jurisdiction of the courts in the chosen forum will be interpreted and enforced by the courts defeats the very purpose of party autonomy itself, which is the management of venue risk by commercial parties in entering into cross-border transactions. In light of recent developments, the Singapore court has blurred the distinction between exclusive and non-exclusive jurisdiction agreements by holding that the same requirement of “strong cause” applies if a party reneges on its agreement to “submit”. This is premised on the same strict contractual analysis and enforcement of both types of agreements. It is against this background that the approach of the Singapore courts in determining the exercise of their own jurisdiction under the common law will be reappraised, along with a comparison with the practice of the English courts.

 

Marco Giacalone, Irene Abignente & Seyedeh Sajedeh Salehi, “Small in value, important in essence: lessons learnt from a decade of implementing the European Small Claims Procedure in Italy and Belgium”

This article examines the extent to which the European Small Claims Procedure (ESCP) has served the main purpose of the EU legislature to establish a legal framework to improve access to justice for creditors of cross-border small claims through a simplified, expedited and inexpensive redress mechanism. This article first analyses the implementation of the ESCP in Italy and Belgium. These two countries were chosen because of the authors’ research on the Small Claims Analysis Net (SCAN) Project (The SCAN Project was initiated in 2018 as a two-year project with the fundamental aim of evaluating the efficiency of the European Small Claims Procedure within several EU Member States (France, Belgium, Italy, Slovenia, and Lithuania), besides raising awareness of this procedure among consumers and other judicial stakeholders. For the conducted activities as part of the SCAN project, see http://www.scanproject.eu accessed on 24 February 2021). The second part of this article deals with the impact of this regulatory instrument on access to justice for citizens, in view of the principle of judicial efficiency. Finally, this article focuses on the possibility of using this instrument for collective redress, on the one hand, and linking this procedure to online dispute resolution, on the other.

 

Agne Limante, “Prorogation of jurisdiction and choice of law in EU family law: navigating through the labyrinth of rules”

This article focuses on the scope of party autonomy in EU family regulations, especially in cases of marriage dissolution with an international element. Through the lens of a case study, the author analyses whether provisions allowing party autonomy in EU family regulations are consistent and wide enough to enable parties to find a solution that best fits their interests. The paper concludes that the advantages of party autonomy in private international family law outweigh the associated risks which should be mitigated by safeguarding measures.

 

Jan L. Neels, “Characterisation and liberative prescription (the limitation of actions) in private international law – Canadian doctrine in the Eswatini courts (the phenomenon of dual cumulation)”

The via media technique of characterisation in private international law, as proposed by the Canadian author Falconbridge, was – over a period of three decades – gradually adopted by the courts in Lesotho, South Africa, Zimbabwe, and, more recently, Eswatini. In a particular dispute, which is used as angle of incidence for the discussion below, the High Court of Swaziland (now Eswatini) applied the rules of the lex fori pertaining to liberative prescription (the limitation of actions) against the background of the via media technique. The decision was overruled by the Supreme Court of Eswatini, which – using the same technique – applied the proper law of the contract in this regard. In this contribution, the Canadian doctrine and its application by the Eswatini and other Southern African courts is critically discussed. The scenario in the Eswatini cases provides an example of what the author calls the phenomenon of dual cumulation. He attempts to provide guidance for the development of Southern African private international law in this regard beyond the via media technique.

 

Richard Garnett,  “Internationalism in New Zealand conflict of laws”

Internationalism has long been regarded as an important goal of any national conflict of laws system. The three main branches of the subject – jurisdiction, choice of law and recognition and enforcement of foreign judgments – should be developed in a manner sympathetic to the needs of international trade and interaction and allow for recognition of foreign interests. In exceptional cases, however, local public policy should also be available to protect private rights. Internationalism is a major theme in the recent book, The Conflict of Laws in New Zealand. This article assesses the state of internationalism in New Zealand conflict of laws and the contribution of the book to the issue.

The latest issue of the Journal of Private International Law contains the following articles:

Lachlan Forrester, Resulting trusts in the conflict of laws: an Australian perspective

The common law world continues to grapple with how to properly characterise equitable doctrines in private international law. There has been extensive criticism of the existing approach to characterisation and choice of law for equity which favours separately characterising equitable obligations and applying the lex fori. Within this broader discourse, a debate is beginning to emerge around issues involving both equitable obligations and immovable property. In this early debate, two schools of thought have developed with respect to the proper characterisation and choice of law for implied or resulting trusts over immovable property. The first approach, advanced primarily by the courts, characterises the trust as an equitable obligation governed by the lex fori. The second approach, primarily endorsed by commentators, characterises the trust as an issue of immovable property governed by the lex situs. This paper, upon evaluating the lex fori and the lex situs against the underlying objectives of choice of law, rejects both approaches as unfit for purpose. Instead, it advocates a new approach to the characterisation and choice of law for resulting trusts. This paper proposes that resulting trusts be governed by the proper law of the relationship. This conception would align with the approach taken to express trusts under the Hague Trusts Convention and most effectively provides for consistency and clarity while upholding the reasonable expectations of the parties.

María Mercedes Albornoz and Sebastián Paredes, No turning back: information and communication technologies in international cooperation between authorities

The usefulness of ICTs is on full display when it comes to international cooperation between authorities in civil and commercial litigation. The core international conventions on cross-border cooperation (currently in force) were drafted many decades ago, when the overwhelming growth of ICTs was unimaginable. Setting the focus on Latin America, where legal regional integration has not yet reached the level attained by the European Union, this article assesses whether the selected legal sources reject, tacitly accept, or encourage the use of ICTs in international cooperation. The analysis of international conventions, some soft law instruments and domestic PIL rules supports the argument that an adequate legal framework that accepts the use of ICTs in international cooperation is necessary. Indeed, there is no turning back from the use of technologies in this field, where modern and suitable regulation would strengthen legal certainty, of utmost importance for the parties involved in cross-border litigation.

Sirko Harder, The territorial scope of Australia’s consumer guarantee provisions

Australian Consumer Law provides for consumer guarantees, according to which the taking of a particular action (for example, the application of due care and skill) or the presence of a particular fact (for example, a particular quality) is deemed as guaranteed where goods or services are supplied to a consumer in certain circumstances. Remedies lie against the supplier or (where goods are supplied) against the manufacturer or both. Pursuant to its application provisions, Australian Consumer Law applies to conduct outside Australia if one of several alternative criteria is satisfied. One criterion is that the defendant carried on business within Australia. There is no express requirement that the defendant’s business activities in Australia include the transaction with the plaintiff. This article argues that comity requires an implied restriction on the territorial scope of the consumer guarantee provisions, and searches for the most appropriate criterion for that purpose.

Lance Ang, Party autonomy, venue risk and jurisdiction agreements – the Singapore position reappraised

Party autonomy is the defining principle of private international law today. Notwithstanding its broad acceptance, what does party autonomy mean in the context of jurisdiction agreements? The lack of commercial certainty in how the agreement to “submit” to the jurisdiction of the courts in the chosen forum will be interpreted and enforced by the courts defeats the very purpose of party autonomy itself, which is the management of venue risk by commercial parties in entering into cross-border transactions. In light of recent developments, the Singapore court has blurred the distinction between exclusive and non-exclusive jurisdiction agreements by holding that the same requirement of “strong cause” applies if a party reneges on its agreement to “submit”. This is premised on the same strict contractual analysis and enforcement of both types of agreements. It is against this background that the approach of the Singapore courts in determining the exercise of their own jurisdiction under the common law will be reappraised, along with a comparison with the practice of the English courts.

Marco Giacalone, Irene Abignente and Seyedeh Sajedeh Salehi, Small in value, important in essence: lessons learnt from a decade of implementing the European Small Claims Procedure in Italy and Belgium

This article examines the extent to which the European Small Claims Procedure (ESCP) has served the main purpose of the EU legislature to establish a legal framework to improve access to justice for creditors of cross-border small claims through a simplified, expedited and inexpensive redress mechanism. This article first analyses the implementation of the ESCP in Italy and Belgium. These two countries were chosen because of the authors’ research on the Small Claims Analysis Net (SCAN) Project (The SCAN Project was initiated in 2018 as a two-year project with the fundamental aim of evaluating the efficiency of the European Small Claims Procedure within several EU Member States (France, Belgium, Italy, Slovenia, and Lithuania), besides raising awareness of this procedure among consumers and other judicial stakeholders. For the conducted activities as part of the SCAN project, see http://www.scanproject.eu accessed on 24 February 2021). The second part of this article deals with the impact of this regulatory instrument on access to justice for citizens, in view of the principle of judicial efficiency. Finally, this article focuses on the possibility of using this instrument for collective redress, on the one hand, and linking this procedure to online dispute resolution, on the other.

Agne Limante, Prorogation of jurisdiction and choice of law in EU family law: navigating through the labyrinth of rules

This article focuses on the scope of party autonomy in EU family regulations, especially in cases of marriage dissolution with an international element. Through the lens of a case study, the author analyses whether provisions allowing party autonomy in EU family regulations are consistent and wide enough to enable parties to find a solution that best fits their interests. The paper concludes that the advantages of party autonomy in private international family law outweigh the associated risks which should be mitigated by safeguarding measures.

Jan L. Neels, Characterisation and liberative prescription (the limitation of actions) in private international law – Canadian doctrine in the Eswatini courts (the phenomenon of dual cumulation)

The via media technique of characterisation in private international law, as proposed by the Canadian author Falconbridge, was – over a period of three decades – gradually adopted by the courts in Lesotho, South Africa, Zimbabwe, and, more recently, Eswatini. In a particular dispute, which is used as angle of incidence for the discussion below, the High Court of Swaziland (now Eswatini) applied the rules of the lex fori pertaining to liberative prescription (the limitation of actions) against the background of the via media technique. The decision was overruled by the Supreme Court of Eswatini, which – using the same technique – applied the proper law of the contract in this regard. In this contribution, the Canadian doctrine and its application by the Eswatini and other Southern African courts is critically discussed. The scenario in the Eswatini cases provides an example of what the author calls the phenomenon of dual cumulation. He attempts to provide guidance for the development of Southern African private international law in this regard beyond the via media technique.

 

The Organization of American States (OAS) is hosting a webinar entitled updated principles on privacy and the protection of personal data of the Inter-American Juridical Committee today at 10 am (DC time), 4 pm CEST time – in Spanish. More information is available here.

The Revista Electrónica de Estudios Internacionales (REEI), whose current editor-in-chief is Prof. de Miguel Asensio, a founding member of the EAPIL, is an open-access journal published by the Spanish Association of International Law and International Relations Professors (AEPDIRI). The journal exists since 2000; it is open to specialized research works on public international law, private international law and international relations. Those willing to submit a paper are invited to comply with the instructions available here.

The latest issue is number 41, of June 2021. The following contents are of direct interest for PIL:

José Ignacio Paredes Pérez, Contratos de suministro de contenidos y servicios digitales B2C: problemas de calificación y tribunales competentes (B2C contracts for the supply of digital content and digital services: problems of characterization and competent courts)

The purpose of this study is to analyse the characterization problems posed, for the purposes of the application of the European rules on international jurisdiction, by the legal actions available to the consumer in the new European regulation on improving consumer access to digital goods and services, and the possible fragmentation of litigation relating to the same infringing conduct under Directive (EU) 2019/770 and Regulation (EU) 2016/679. In the context of the Brussels I bis Regulation, the autonomous characterization of the legal actions available under the new regulation, and the way in which this is done, is decisive, depending on whether or not the contract falls within the scope of articles 17 to 19.

María del Carmen Chéliz Inglés, La Convención de Singapur y los acuerdos de mediación comercial internacional (The Singapore Convention and the international commercial mediation agreements)

The Singapore Convention on International Settlement Agreements resulting from mediation represents a milestone in the determined promotion of this dispute resolution mechanism and puts an end to the absence of a harmonized legal framework to regulate this issue. The most significant advance is that it gives a new legal status to the agreements resulting from international commercial mediation, which become directly enforceable in all the States that ratify the Convention. In this context, the objective of this work is to analyze the key issues of the Singapore Convention, highlighting its lights and shadows, and assess what repercussions the adherence to said normative instrument would have on the Spanish legal system.

Georgina Garriga Suau, Blockchain-based smart contracts and conflict rules for business-to-business operations (Blockchain-based smart contracts y normas de conflicto para operaciones entre profesionales)

In recent years, the irruption of blockchain technology has enhanced the impact of smart contracts in the international trade scenario, although not without raising some problems, particularly, in terms of Private International Law. This paper, thus, addresses such problems when it comes to determining the applicable law from a business-to-business perspective leaving aside the particular problems raised by the conflict-of-law rules oriented to protect the weaker party to a contract. The analysis, however, starts with a general approach to the two concepts which are the object of this paper: smart contracts and blockchain technology.

As usual, the journal contains as well a section commenting on selected relevant decisions on PIL delivered in the six months prior to its publication. Reviews on recent monographs or collective books follow.

The remaining contributions in this issue relate to public international law or international relations. Those (like me) with a specific interest in procedural law will surely find worth reading these two:

Laura Aragonés Molina, Unidad o fragmentación en el Derecho internacional procesal: la revisión de sentencias ante la Corte Internacional de Justicia y el Tribunal Europeo de Derechos Humanos (Unity or fragmentation in international procedural law: revision of judgments at the International Court of Justice and the European Court of Human Rights)

The increasing specialization of Public International Law and the diversity of international courts and tribunals with specific competences ratione materiae and personae in the multiple international normative sectors are still generating challenges for coherence, consistency and predictability of international jurisprudence. Procedural rules and principles may have a cohesive effect on judicial practice and foster a judicial dialogue and cross-fertilization at a procedural level. It may contribute to the unity of the international legal order through the formation of common rules of procedure. In this paper we explore this cohesive effect exhaustively, studying the interaction between the International Court of Justice and the European Court of Human Rights when they interpret and apply the revision provision.

Montserrat Abad Castelos, Rendición de cuentas por los crímenes cometidos durante el califato del Daesh: las pruebas como clave (Accountability for crimes committed during the ISIS caliphate: evidence as key)

This article seeks to determine if evidence can be a way to overcome the existing difficulties in the field of justice to hold Daesh members accountable for the atrocity crimes committed in Syria and Iraq during the armed conflicts that took place there. To get this, recent innovations are examined both the actors that collect and preserve evidence and the nature, characteristics and challenges that evidences pose. It will be concluded that the developments that are taking place are crucial and, consequently, have the capacity to trigger a paradigm shift that might be reflected in the outcome of pending prosecutions, in order to ensure the responsibility of the perpetrators of the crimes. Nevertheless, at the same time, it also shows how evidence is not the only key to take into account, since the problems related to the exercise of jurisdiction in domestic orders, which go far beyond the legal plane, will also be transcendental.

On 9 September 2021, the Court of Justice handed down its judgment in UM (C‑277/20), in which, for the first time, it sheds light on doubts concerning the applicability of the EU Succession Regulation to donations mortis causa. The preliminary questions originate from the Austrian Supreme Court (Oberster Gerichtshof). In the judgment, the Court of Justice shared the view presented earlier this year in the opinion delivered by Advocate General de la Tour. This post is a slightly modified version of an Op-Ed published on EU Law Life.

Facts of the Case

ZL, a German national, had entered into a contract with his son UM and UM’s wife XU in 1975. Under the contract, where Austrian law was chosen as applicable, it was provided inter alia that ZL undertakes to erect a house on his immovable property located in Austria which would transfer mortis causa to XU and UM in equal shares. The transfer would occur on the death of ZL, but not before the house has been completed. If UM and XU were to divorce, the transfer mortis causa would be construed as having been made to UM alone. ZL expressly declared that the immovable property was to be transferred as a donation mortis causa. ZL authorised the transfer of ownership to be recorded in the Austrian Land Register upon production of a death certificate and proof that the conditions listed in the contract were fulfilled. Prior to the death of ZL in 2018, UM and his wife had divorced, and she had subsequently died.

Succession proceedings were commenced in Germany, the place of ZL’s habitual residence. For the purposes of those proceedings, UM applied to the court in Austria to be registered as the owner of the immovable property in question. Before the case reached the Austrian Supreme Court, the courts of two instances took the view that Austrian law is applicable and, therefore, in the absence of proof of satisfaction of the conditions laid down in the contract, rejected UM’s application. The Austrian Supreme Court decided to submit a preliminary request to the Court of Justice to clarify whether the donation mortis causa might be classified as an agreement as to succession covered by the material scope of the Succession Regulation and, in the affirmative, whether the choice of Austrian law as applicable remains valid.

Donation Mortis Causa as an Agreement as to Succession

To understand the first question posed to the Court of Justice, it is important to recall that pursuant to Article 3(1)(a) of the Succession Regulation, “succession” is defined as “succession to the estate of a deceased person”. It covers “all forms of transfer of assets, rights and obligations by reason of death”. This transfer may be “through intestate succession” or “under a disposition of property upon death”. At the same time, a disposition of property upon death means, inter alia, an “agreement as to succession” (Article 3(1)(d)), which is “an agreement … which, with or without consideration, creates, modifies or terminates rights to the future estate or estates of one or more persons party to the agreement” (Article 3(1)(b)).

Having the above in mind, the Court of Justice noted that the notion of an agreement as to succession must be given an autonomous interpretation (para. 29) and that it “refers generally to any agreement which, inter alia, creates rights to the future” estate (para. 30). The Court of Justice further cited the definition of succession provided for in Article 3(1)(a) of the Succession Regulation to conclude that “a contract under which a person provides for the future transfer, on death, of ownership of immovable property belonging to him or her and which confers rights in his or her future estate on other parties to that contract, constitutes an “agreement as to succession” within the meaning of Article 3(1)(b)” of the Regulation (para. 32). Referring to its previous judgment in Oberle (C-20/17), the Court of Justice stated that its conclusion is supported by the principle of unity of the succession (para. 33).

The Court also recalled that Article 1(2)(g) of the Succession Regulation excludes from its scope assets transferred otherwise than by succession, for example gifts, but it noted that this exclusion should be interpreted strictly (para. 34). As a result, where “a disposition of property contained in an agreement relating to a succession consists (…) in a donation, but does not take effect until the death of the deceased”, it is covered by the scope of the Regulation (para. 35).

When it comes to the differentiation between donations inter vivos and mortis causa, the opinion is more elaborate than the judgement. It even refers to Article 1(2)(d) of the 1989 HCCH Succession Convention and its explanatory reportunderlying that even though the Convention never entered into force it inspired many provisions of the Regulations (para. 38 of the opinion). As a result, it plays an important role while interpreting the Regulation itself. The report states that the notion of “disposition of property upon death” excludes inter vivos dispositions having immediate proprietary effect. When it comes to disposition of property upon death “it is upon the death of the person so disposing, and not in any respect at any earlier time, that the disposition (or transfer) takes place” (para. 41 of the explanatory report).

The opinion indicates also that Article 1(2)(g) of the Succession Regulation should be read together with recital 14 thereof, which explains that the law applicable to the succession “determines whether gifts or other forms of dispositions inter vivos giving rise to a right in rem prior to death should be restored or accounted for the purposes of determining the shares of the beneficiaries” (para. 36 of the opinion). This suggests that donations excluded from the scope of the Regulation are only those that might be classified within a broader term of “dispositions inter vivos giving rise to a right in rem prior to death”. A contrario, dispositions giving rise to a right in rem after the death are not covered by the exclusion provided for in Article 1(2)(g) of the Succession Regulation. The Court of Justice seems to share this view but does not justify it in such detailed manner as the opinion.

Given the above, the Court of Justice concluded that “a contract under which a person provides for the future transfer, on death, of ownership of immovable property belonging to him or her to other parties to the contract is an agreement as to succession” within the meaning of the Succession Regulation. As a result, the agreement at hand should be covered by the material scope of the Succession Regulation.

Choice of the Applicable Law to the Donation Mortis Causa

Knowing that, the second question that the Court of Justice had to answer was whether it is possible to choose the law applicable to the succession of an asset indicated in the donation mortis causa, as in the contract at hand the Austrian law was chosen as applicable.

It must be noted that, in accordance with the Succession Regulation, the law applicable to succession is the law of the last habitual residence of the deceased (Article 21(1)), subject to the operation of the escape clause (Article 21(2)) unless the deceased has chosen the law applicable in the disposition of property upon death in accordance with Article 22. The Regulation contains also transitional provisions, as according to Article 84 thereof its rules apply from 17 August 2015 (Article 84) but only to the succession of persons who died from that date onwards.

Pursuant to Article 83(2) of the Regulation, where the deceased had chosen the law applicable to his succession prior to 17 August 2015, that choice remains valid if it meets the conditions laid down in the Regulation itself or in the rules of private international law which were in force, at the time the choice was made, in the state of either the “habitual residence” or (one of) “nationality” of the deceased.  That is the expression of favor validitatis principle, which aims to prevent the choice of applicable law to succession made in the past from becoming invalid due to the change in law, namely, replacement of domestic international succession rules by the Succession Regulation.

The doubt before the Court of Justice was whether Article 83(2) of the Succession Regulation may apply to the choice of the applicable law (namely, Austrian law) contained in the donation mortis causa contract signed in 1975. The answer was negative. The Court of Justice held that Article 83(2) concerns only “the validity of the choice of law applicable to the succession as a whole”, whereas (it seems that) “the choice of Austrian law concerned only the agreement as to succession concluded by the deceased in the main proceedings in respect of one of his assets and not the succession as a whole, with the result that the condition for applying Article 83(2) of that regulation cannot be considered satisfied in such circumstances (para. 39)”.

This seems a reasonable conclusion, provided that the Succession Regulation is built on the unitary principle, meaning that one single law governs succession. This principle applies functionally, meaning that one single law governs succession “from the opening of the succession to the transfer of ownership of the assets forming part of the estate to the beneficiaries” (recital 42 of the Regulation) and territorially, meaning that one single law governs succession “irrespective of the nature of the assets and regardless of whether the assets are located in another Member State or in a third State” (recital 37).

Additionally, it might be added that the choice of applicable law with respect to agreements as to succession (Article 25) relates only to the question of their admissibility, substantive validity, and their binding effects between the parties, including the conditions for their dissolution. This should not be equated with the choice of law applicable to succession as a whole (which governs succession in general, for example, the question of liability for debts – Article 23(2)(g)).

Conclusion

To conclude, it was rightly confirmed in the UM judgment that, in accordance with the Succession Regulation, a donation mortis causa giving rise to a right in rem after the death of the donor constitutes an agreement as to succession within the meaning of this regulation. Additionally, in general, in a succession case there might be more than one disposition of property upon death, including agreements as to succession providing for donations mortis causa of particular assets, but there can only be one single law applicable to succession as a whole, which governs “all civil-law aspects of succession to the estate of a deceased person” with respect to all the assets of the deceased.

Advocate General Rantos opined two weeks ago in C-581/20 Skarb Państwa Rzeczypospolitej Polskiej reprezentowany przez Generalnego Dyrektora Dróg Krajowych i Autostrad v TOTO SpA – Costruzioni Generali et al. – I propose we shorthand the case as ‘TOTO’.

Following public procurement, the Polish treasury granted the works for the construction of a stretch of motorway to an Italian consortium. In the contract, choice of court is made for Poland. The necessary guarantees eg for payment of fines in the event of late completion, were underwritten by a Bulgarian insurance company, whose guarantee is subject to Polish law. The consortium  to no avail sought negative declaratory relief (with a view to obtaining a finding that no fines are due under the contract) and injunctive relief (with a view to prohibiting the Polish authorities from exercising the guarantee) with the Polish court with substance matter jurisdiction. However it subsequently secured the injunctive relief from a Bulgarian court with Article 35 Brussels Ia provisional measures jurisdiction. This relief expressed itself inter alia in custodial attachment of the guarantees which the Polish authorities had sought to exercise with a European Order for Payment form. That Bulgarian relief is now before the Bulgarian Supreme Court.

The questions before the court are  whether the provisional measures can at all be ordered under the A35 gateway given that they might concern acta iure imperii and not civil and commercial matters; and if the matter is within the scope of BIa, whether the A35 court may still order such measures if the court with subject-matter jurisdiction has denied them. Finally, whether if the issue is within the scope of BIa, the ordinarily applicable Bulgarian rule that no such relief may be ordered against public authorities, must be set aside.

The Advocate-General suggests the Court settle the questions mainly by recourse to the lis pendens rule of A29 ff of the Regulation, rather than by the alternative of focusing on the ‘provisional’ nature of the measures imposed by the A35 court. A29 ff do not limit their application to substance matter proceedings hence if and when the lis pendens conditions are met, the court last seized must (identical cases) or may (related cases) relinquish its jurisdiction. The opposite is true, as well: if the A35 court has been seized first, the court with subject-matter jurisdiction has been gazumped at least for provisional measures.

The AG also (55 ff) suggests that choice of court must be read to include authority for the chosen court to issue provisional measures, but not (unless expressly agreed; an issue of contractual interpretation which must be left to the national judge to assess) the exclusion of other courts to exercise their A35 jurisdiction.

Finally if the court with subject-matter jurisdiction has taken a definitive decision viz the provisional measures, that decision travels under Title III BIa and A45 does not seem to offer room to object to recognition and enforcement. Should that decision not yet be definitive, the ordinary lis pendens rules must apply.

This is a case with rather important contractual drafting and civil procedure consequences.

Geert.

EU Private International law, 3rd ed 2021, 2.512ff, 2.550 ff, 5.584 ff.

 

Opinion Rantos AG this morning in C-581/20 TOTO: Brussels Ia, Jurisdiction.
Relationship (including lis pendens) between A35 provisional measures court, and court with substantive jurisdiction.https://t.co/ei9WcXeUGY pic.twitter.com/8q8IAVCbvD

— Geert Van Calster (@GAVClaw) September 9, 2021

I am delighted to announce the publication of the last edition of the Code de droit international privé luxembourgeois. The main purpose of the book is to gather all the norms applicable in Luxembourg in the field (international conventions, European regulations and national legislation).

A new feature of the book is to include references to case law. Now that Luxembourg courts have made many of their judgments publicly available, it was possible to identify many cases which have applied the most important of these norms and offered interesting interpretations. The book also identifies interesting cases in those fields where the law is entirerly judge made, such as choice of law in filiation or matrimonial matters (for anybody married before the entry into force of the Matrimonial Regulations).

The code is a perfect companion to my treatise on Luxembourg private international law. The first volume, which is dedicated to choice of law in the fields of obligations, property and corporations, was published a year ago (Droit international privé luxembourgeois, vol. 1 : Conflits de lois – Théorie générale, Obligations, Biens, Sociétés).

The next volume will be dedicated to international litigation and arbitration in Luxembourg, and will hopefully be published soon after the Luxembourg parliament will pass a new law on arbitration.

In its judgments delivered in the cases WB, C-658/17 and E.E., C-80/19, the Court of Justice already addressed the question whether a notary dealing with succession-related matters is a “court” for the purposes of the Succession Regulation. In these cases, however, the requests for a preliminary ruling originated from the proceedings pending before the national courts.

By contrast, in the case OKR, C-387/20, the request for a preliminary ruling is brought before the Court by a Polish notary [or, to be more specific, by a notarial clerk/assistant (fr. “clerc de notarie”, pl. “zast?pca notarialny”), yet this nuance does not seem to affect the outcome of the case at hand].

The case itself concerns a Ukrainian national living in Poland who is the joint owner of an estate situated in that Member State. A Polish notary is requested to draw up a notarial will which would contain a choice-of-law clause opting for Ukrainian law and modify the legal order of succession. The notary refuses to perform the notarial act on the ground that the choice of Ukrainian law in the will would be unlawful.

The refusal to perform the notarial act in question is challenged by an appeal brought by the interested party: under Polish law, such appeal is lodged through the refusing notary who may still perform the notarial act, if he or she deems the appeal justified. In the request for a preliminary ruling it is argued that within this framework the notary acts as an authority of first instance.

On its merits, the request for a preliminary ruling revolves around the choice of law under Article 22 of the Succession Regulation and a bilateral agreement with Third State that takes precedence over the Regulation and does not explicitly provide for choice of law in matters of succession.

However, as noted by Carlos Santaló Goris in his outline of the request for a preliminary ruling, the case provokes a no less intriguing question whether a Polish notary faced with an appeal is a “court” within a meaning of Article 267 TFEU and as such can submit a preliminary reference to the Court.

That question is addressed by the Court in its order delivered early this September. It receives a negative answer and, as a consequence, the request for a preliminary ruling lodged by a notary is considered to be inadmissible.

Even a cursory reading of the order reveals that, for the Court, a notary faced with an appeal against his or her refusal is not deciding a legal dispute and is not delivering a decision of judicial nature. Therefore, according to the Court, the notary is not engaged in exercise of a judicial function: he or she only confirms the refusal to perform a notarial act or performs the notarial act accordingly to the initial request of the interested party (paragraphs 25 and 28).

Those findings lead to the conclusions that, “for the purposes of the present reference for a preliminary ruling”, a notary (scil. a notarial clerk/assistant) cannot be classified as a “court” within the meaning of Article 267 TFEU (paragraph 34).

It is noteworthy that in this order the Court makes it clear that the notion of “court” in the meaning of Article 3(2) of the Succession Regulation is broader in scope than the notion of “court” in the sense of Article 267 TFEU (paragraph 31).

The order is available here (no English version yet).

Last week Costa Rica signed the HCCH Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (2019 HCCH Judgments Convention). The HCCH news item is available here.

It should be noted that in order to consent to be bound by the treaty, Costa Rica would need to deposit an instrument of ratification, acceptance or approval. In the meantime, a signatory State has the obligation not to defeat the object and purpose of a treaty prior to its entry into force (article 18 of the UN Vienna Convention on the Law of Treaties).

Costa Rica made the following declaration: “in accordance with article 14, paragraph 3, of the Convention, the Republic of Costa Rica declares that it shall not apply Article 14, paragraph 1, of the Convention.”

Article 14(1) of  the HCCH 2019 Judgments Convention states the following:  “No  security,  bond  or  deposit,  however  described,  shall  be  required  from  a  party  who  in  one Contracting State applies for enforcement of a judgment given by a court of another Contracting State on the sole ground that such party is a foreign national or is not domiciled or resident in the State in which enforcement is sought.” Article 14(3) of the HCCH 2019 Judgments Convention allows States to file a declaration stating that they will not apply Article 14(1).

In this regard, it should be noted that many HCCH Conventions contain a similar provision. This is particularly the case of the  HCCH 1980 Access to Justice Convention, whose objective is precisely, as its name suggests, to promote access to justice by ensuring that “the mere status as an alien or the absence of residence or domicile in a State are not grounds for discrimination with regard to access to justice in that State” (HCCH outline of this Convention).

The HCCH 1980 Access to Justice Convention strikes the right balance by eliminating such a requirement and at the same time allowing the enforceability of orders for costs (Chapter II, arts 14-17). The latter is somewhat similar to Article 14(2) of the HCCH 2019 Judgments Convention and undoubtedly was a source of inspiration during the negotiations.

The interesting fact is that Costa Rica is a party to the HCCH 1980 Access to Justice Convention. Thus, Costa Rica is not allowed to impose any security, bond or deposit on the basis of a person being a foreign national or of not having his or her domicile or residence in Costa Rica if the conditions of Article 14 of the HCCH 1980 Access to Justice Convention are met, at least in its relations with the Contracting States to the said Convention.

Nevertheless, the declaration of Costa Rica underlines the fact that some States continue to impose such a requirement (although admittedly this requirement is fading away in some regions of the world). And thus the promotion of the HCCH 1980 Access to Justice Convention and all other HCCH Conventions that promote the principle of non-discrimination continue to be all the more relevant.

***

The HCCH 2019 Judgments Convention is not yet in force. In accordance with its article 28: “This Convention shall enter into force on the first day of the month following the expiration of the period during which a notification may be made in accordance with Article 29(2) with respect to the second State that has deposited its instrument of ratification, acceptance, approval or accession referred to in Article 24.”

There are currently four signatory States: Costa Rica, Israel, Uruguay and Ukraine. The act of signing a treaty does not count towards the timeline specified in article 28 of the HCCH 2019 Judgments Convention as it is not an instrument of ratification, acceptance, approval or accession.

 

On 9 September 2021 the Court of Justice pronounced its judgment in the case RK (C-422/20) concerning the mechanism of the transfer of jurisdiction under the Succession Regulation. The judgement also gives an insight into transitional provisions of the regulation. The preliminary questions originate from the Higher Court in Cologne (Oberlandesgericht Köln). The opinion on the case was delivered earlier this year by Advocate General Szpunar. The case was already commented here by Matthias Weller.

Facts of the Case

A mutual will was drafted in 1990 in German language, in which CR and her husband (German national) designated each other as heirs. After the death of the husband, last habitually resident in Spain, CR applied to a German court for, inter alia, a European Succession Certificate. The jurisdiction of German courts was successfully contested by RK, the deceased’s brother. Hence, CR commenced proceeding in Spain. On CR’s request, the Spanish court decided not to hear the case noting that German courts are better placed to do so, due to practical circumstances, including CR’s residence and location of assets. CR filed another application to German court accompanying it with the decision of the Spanish court.

Transfer of Jurisdiction Mechanisms

It is worth reminding that pursuant to Article 4 of the Succession Regulation, the courts of the Member State of the last habitual residence of the deceased are competent in succession matters. Also, the law applicable is designated by this connecting factor (Article 21(1)), which allows for the coincidence of ius and forum so desired by the Regulation. It may happen however that the deceased has chosen (one of) national laws as applicable, which results in the distortion of the ius and forum principle. To avoid this (at least to certain extent), the Regulation, as explained by recital 27 “provides for a series of mechanisms”, which should restore the situation, in which the competent court applies its own succession law as applicable. These mechanisms are provided for in Articles 5 – 9 of the regulation and consist of the “transfer” of jurisdiction to the courts of the Member State the law of which was chosen as applicable by the deceased.

In accordance with one of the mechanisms, based on Article 6(a), the court seized pursuant to Article 4, may at the request of one of the parties, decline jurisdiction if a court of another Member State is “better placed to rule on the succession” given “practical circumstances of the succession, such as the habitual residence of the parties and the location of the assets”. In such case, pursuant to Article 7(a), the “national” courts “have jurisdiction to rule on the succession”, provided that “a court previously seised has declined jurisdiction in the same case” pursuant to Article 6.

Declining of Jurisdiction

In the RK case, the Oberlandesgericht Köln has doubts if it may assume that the Spanish court declined its jurisdiction pursuant to Article 6(a), given that this is not clearly stated in its decision. Answering this first question, the Court of Justice underlined that it is not crucial that the declining of jurisdiction is express, as long as refraining from hearing the case indicates that the court will not hear it, because another court was found to be better placed to do so (para. 37). This conclusion is justified by the aim of creating in the EU an area of freedom, security and justice based in the mutual trust between Member States (para. 37). The Court of Justice found that the regulation does not provide for the form, in which the declining of jurisdiction should be pronounced (para. 36). It also noticed that the Spanish court used the expression of the Spanish language version of the regulation, namely “to refrain from hearing” (abstenerse de conocer), instead of “to decline jurisdiction”, which is used in other language versions, including the German one. The difference in the wording in the language versions of the regulation and the resulting differences in the wording of decisions should not be relevant, when the intention of the declining court is clear enough.

Assuming jurisdiction after decline

The Oberlandesgericht Köln had also doubts if before assuming jurisdiction pursuant to Article 7(a) it may verify whether the prerequisites for declining jurisdiction pursuant to Article 6(a) were met. Namely whether a valid choice of applicable law was made, whether there was an application for “transfer” filed by one of the parties and whether it was examined if another court is in fact better placed to hear the case (para. 41).

Answering the second question, the Court of Justice underlined that no such verification may be exercised (para. 52). The Court of Justice classified the decision on declining jurisdiction as a “judgement” subject to automatic recognition in other Member States, without any possibility of reviewing it as to its substance (para. 45-47). Such conclusion is justified by the principle of mutual recognition of judgements and mutual trust (para. 48). It seems that as an effect of such recognition the court seized pursuant to Article 7(a) must assume jurisdiction (compare para. 58 in fine of the opinion).

The Court of Justice does not give clear response to the doubt that resonates in the opinion whether the decision on declining jurisdiction pursuant to Article 6(1) is binding the court seized pursuant to Article 7(1) as to the determination of law applicable, as declining jurisdiction assumes the exitance of a valid choice of applicable law made by the deceased. On one hand, the court of a Member State assuming jurisdiction pursuant to Article 7(1) should be able to assess independently, which law is applicable (para. 36 opinion). On the other hand, one should not differentiate between a choice of applicable law, which is valid for the purpose of declining jurisdiction and a choice, which is valid for the purpose of establishing applicable law (para. 46 of the opinion). The opinion seems to opt for the “stronger” effect of the judgement, including the determination as to applicable law (para. 46 in fine of the opinion).

Choice of Applicable Law Presumption

As already mentioned, the prerequisite for declining jurisdiction pursuant to Article 6(1) is that “the deceased had chosen as the law to govern his succession the law of a Member State of which he was a national (recital 27)”. In the case at hand, the mutual will of 1990 contained no such choice. As, pursuant to Article 84, the Succession Regulation applies from 17 August 2015 to the succession of persons who die starting from that day (Article 83(1)), it contains transitional provisions relating to dispositions of property upon death made before 17 August 2015 of a deceased person, whose succession is governed by the Succession Regulation.

Pursuant to Article 83(4), in case of a disposition of property upon death made prior to 17 August 2015, there is a presumption that the deceased has chosen as applicable the law, in accordance with which this disposition was made, provided that this law could be chosen pursuant to the regulation (namely, it is a national law of the deceased). For example, in the commented case, assuming that the mutual will was indeed made in accordance with German law (at least, as mentioned in the judgment, it was prepared in German language), German law is presumed to be chosen by the deceased, who was a German national at the moment of making the choice and/or at the moment of death. Unfortunately, the Court of Justice is silent on how to determine whether the disposition was made “in accordance with” a given succession law.

The answer to the third preliminary question posed by the Oberlandesgericht Köln concerns the above provision of Article 83(4). The Court of Justice stated that the choice of applicable law, which is the prerequisite for transfer mechanism of Article 6(1) may result from the operation of the above presumption (para. 61). However, as results from the answer to previous questions, the court assuming jurisdiction pursuant to Article 7(1) is not allowed to verify the existence of the prerequisite.

Conclusion

It seems that in RK the Court of Justice provides for practical solutions, considering specificities of procedural laws of Member States and understanding that declining jurisdiction may be pronounced in different forms. The conclusion that no control may be exercised over the decline decision pursuant to Article 6(1) also seems perfectly in line with mutual trust principle as implemented in the instruments on EU judicial cooperation in civil matters. It is not entirely clear however whether this decision has a binding effect on courts of other EU Member States also with respect to the determination of applicable law, as a valid choice made by the deceased is a prerequisite for such decision. Additionally, one may regret that the Court of Justice have not elaborated on what does it mean that a disposition of property upon death was made “in accordance with the law” of a given state for the purpose of Article 83(4).

Sanchez-Bordona AG Opined last week in C-296/20 Commerzbank AG v E.O, a case on the consumer section of the Lugano Convention however in essence on the international element required to trigger consumer protection in private international law. The distinguishing feature of this case lies in the fact that, at the time when the contract was concluded, both parties were domiciled in the same State (Germany), whereas, when recovery was sought through the courts, the customer was domiciled in Switzerland.

The international nature of the situation therefore came about subsequently rather than being present at the outset.

The Advocate General is absolutely right to point to the objective of the consumer section of Lugano, and indeed Brussels Ia, to protect the consumer as the economically weaker party; and in C-98/20 mBank, the Court held that the consumer’s domicile needs to be determined at the time of the instigation of the suit, not the conclusion of the contract (or a later date in the proceedings) even in those circumstances where the consumer failed to inform the professional party of the change of domicile.

The AG however also insists on the predictability of forum both as claimant and as defendant, for the economic operator.

His provisional conclusion therefore (73-74), following analysis of the travaux, is that the international element needs to be present at the outset. However then comes the oddity of A17(3) Lugano, which mirrors A19(3) Brussels Ia:

‘The provisions of this Section may be departed from only by an agreement [conferring jurisdiction]:… 3. which is entered into by the consumer and the other party to the contract, both of whom are at the time of conclusion of the contract domiciled or habitually resident in the same State bound by this Convention, and which confers jurisdiction on the courts of that State, provided that such an agreement is not contrary to the law of that State.’

[With respect to the last element of this Article, it is indeed by no means certain that national law allows for such agreement and the AG (87) notes same].

The Jenard Report viz the Brussels 1968 Convention explains that that rule was included for reasons of equity to benefit a seller or lender domiciled in the same State as the buyer or borrower in the case where the latter establish themselves abroad after the contract has been concluded. The AG opines that the purely domestic setting of A17(3) must not be extended to the remainder of the consumer section, instead keeping it confined to the particular circumstances of that subsection.

In subsidiary fashion, the AG proposes that if the CJEU does not follow him on the generally required international element at the outset, it limit the extensive  application of the consumer section to cases where the economic operator pursues in the State of the consumer’s new domicile a trade or profession such as that which gave rise to the conclusion of the contract.

Interesting.

Geert.

EU Private International Law, 3rd ed. 2021, 2.222 ff.

Opinion SÁnchez-Bordona this morning in C‑296/20 Commerzbank. Jurisdiction, #Lugano Convention. International element required to trigger consumer section.https://t.co/9wM8T3Po4m pic.twitter.com/WJvKsOuz4l

— Geert Van Calster (@GAVClaw) September 9, 2021

Marketa Trimble (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted The Public Policy Exception and International Intellectual Property Law on SSRN.

The abstract reads:

Public international law affects private international law (conflict of laws) in a myriad of ways. This article discusses potential effects of international intellectual property (“IP”) law on the application of the public policy exception, which is used as a limitation on the application of foreign law and on the recognition and enforcement of foreign judgments. The article describes the function of the exception and its treatment in existing academic projects on IP law issues in private international law. It provides examples of the uses of the exception in IP cases and contemplates the frequency of the use of the exception in such cases. The article reviews international IP treaties, including IP chapters of free trade agreements, as possible sources of relevant public policies and evaluates whether a foreign IP law compliance with international intellectual property treaties could serve as a factor in the public policy exception analysis. The article suggests that courts give some weight in the public policy exception analysis to a finding of a foreign IP law’s compliance with international IP treaties but recognizes that the proposed approach would need to be nuanced and account for diverse circumstances.

The article is forthcoming in the Annali Italiani del Diritto D’Autore, Della Cultura e Dello Spettacolo.

Aldricus – Salah satu kebutuhan yang diperlukan anak adalah mainan. Beberapa ayah bunda pasti pernah merasakan rewelnya anak saat tidak diberi mainan kan ? akan tetapi terkadang sebagai orang tua ayah bunda juga merasa khawatir, terhadap beberapa mainan anak yang bisa berbahaya dan tidak bermanfaat. Selain itu juga kebanyakan harganya hal. Eits tenang kami punya jawabanya, yaitu Lego selain manfaatnya yang mengedukasi. Bisa mendorong kreativitas dan imajinasi anak. Lego juga mudah didapatkan dan sangat terjangkau bagi dompet ayah bunda. Berikut kami rangkum daftar lego murah mulai dari harga 100 Ribuan :

1. LEGO Ninjago 70661 Spinjitzu Zane Blocks & Stacking Toys

Lego ini  diperuntukan untuk anak usia 7 tahun keatas dan didesain fun & playfun loh parents. Karena bentuknya yang didesain seperti ninja, membuat anak kalian semangat dalam memainkanya. Dan tentu saja bukan hanya diperuntukan untuk anak laki-laki, tapi juga untuk perempuan. Selain itu, lego ini memiliki 3 attachment untuk mode serangan, kecepatan, dan pertahanan. Membuat anak mampu menciptakan teknik tertentu, kemungkinan tidak terbatas, sehingga lebih mendorong kreativitas anak. Harganya cukup terjangkau dimulai dari 130.000rban aja lo parents.

2. Mainan Lego Block isi 714 Pcs Edukasi

Lego block merupakan mainan yang dapat disusun secara bebas, sehingga mampu melatih saraf motorik anak. Selain bentuk block dalam paketnya juga tersedia roda, sehingga anak bisa membuat mobil, kereta dan lainya. Harganya sangat murah loh parents dengan isi 714 Pcs di bandrol dengan harga 133.000.

3. MR Block 406 PCs

MR Block merupakan Lego Block yang banyak dijumpai di marketplace. Item yang dapat dijumpai dalam satu paket bermacam-macam. Mulai dari orang-orangan, dan ada juga block berbentuk mobil. Banyaknya variasi item yang ada di MR Block ini sudah tentu mendorong anak-anak untuk lebih kreatif dalam mengimajinasikan pikiranya. Selain itu MR Block juga mampu meningkatkan sosialisasi dengan teman-teman. Harga MR Block dengan isi 406 Pcs ini dibandrol dengan cukup terjangkau lo parents dimulai dengan 175.000.

Masih banyak lagi lego yang harganya sekitar seratus ribuan. Kita tinggal memilihnya di toko mainan terdekat.

The post Lego Murah Harga 100 Ribuan appeared first on Aldri Blog.

Further to CoL’s posts on recent case law of the ECJ last week, we allow ourselves to draw CoL readers’ attention to the judgment of the ECJ of 9 September 2021, C-422/20 – RK ./. CR, on the interpretation of jurisdictional provisions of the European Succession Regulation (ESR), upon reference by the Higher Regional Court (Oberlandesgericht) of Cologne, Germany. Neither the ECJ’s judgment, nor AG Maciej Szpunar’s Opinion of 8 July 2021 is yet available in English translation. The following summary draws on the original German texts.

The referring national court asked (1) whether it is required, for a declaration of lack of jurisdiction by the court previously seised as provided for in Article 7(a) ESR, that the latter court expressly declines jurisdiction, or whether an implicit declaration suffices if it is clear by interpretation that that court has in fact declined jurisdiction? The national court further asked (2) whether the court of a Member State whose jurisdiction is to emerge from a declaration of lack of jurisdiction by another Member State court is entitled to examine whether the conditions for such a declaration were in fact fulfilled. In particular, the referring court asked (a) whether the second court may examine whether the testator validly chose the applicable law in accordance with Article 22 ESR, whether (b) a request for a declaration of lack of jurisdiction, as required by Article 6(a) ESR has been brought by one of the parties in the first proceedings, and (c) whether the first court correctly assessed that the courts of the Member State of the chosen law are better placed to rule on the succession. In a last question, the referring court asked (3) whether Articles 6(a) and 7(a) ESR are applicable if the testator has not made an express or implied choice of law in a testamentary disposition before 17 August 2015 but the law applicable to the succession may be inferred from Article 83(4) ESR.

The ECJ held that (1) no express declaration of lack of jurisdiction is required under Article 6(a) ESR, as long as the first court’s intention can be clearly inferred from its decision, that (2) the second court has no competence to review the first court’s declaration of lack of jurisdiction and (3) that Articles 6(a) and 7(a) ESR remain applicable if the applicable law may only be inferred from Article 83(4) ESR.

As to the first question, the Court made clear that certain differences in the Spanish language version of the ESR in Article 6(a) – “abstenerse de conocer” (in translation something like: “abstain from assuming jurisdiction”) – on which the Spanish first court had relied – are of no relevance for the autonomous interpretation of the ESR, to be exercised acccording to general and well established principles in light of all of its language versions and its objectives (para. 30). These do not require any particular form for a declaration under Article 6(a), and requiring such a form would jeopardize the objective of the ESR as laid down in Recital 27 Sentence 1, i.e. “to ensure that the authority dealing with the succession will, in most situations, be applying its own law”.

In relation the second question, the Court made reference to AG Spzunar’s Opinion (para. 39) and confirmed the latter’s finding that no second review may take place of the first court’s decision under Article 6(a) ESR (paras. 40 et seq.), not least because such as decision is a “decision” in the sense of Article 3(1) (g) ESR that falls within the scope of Chapter IV of the ESR on the recognition of decisions of the courts of other Member States (para. 42). The Court concludes that the first court’s decision under Article 6(a) ESR is binding for the second court both in its result – declaration of lack of jurisdiction – as well as in relation to its underlying findings about the conditions that Article 6(a) ESR requires. In the latter respect the Court made expressly reference to its earlier judgment of 15 November 2012, C-456/11 – Gothaer Versicherung, which means that its notion of a European res iudicata developed there is to be extended to the type of conditions found fulfilled by the first court here: “Any other interpretation would jeopardize the principles of mutual recognition and mutual trust on which the system of the ESR grounds” (para. 45, translation is my one).

For answering the third question the Court explained that Article 83(4) ESR contains a presumption of a choice of law by the testator that is to be attributed the same effects as a choice of law directly undertaken under the ESR (para. 53).