Droit international général

Written by Alexander A. Kostin, Senior Research Fellow at the Private Law Research Centre (Moscow, Russia) and counsel atAvangard law firm

and Valeria Rzyanina, junior associate, Avangard Law Firm

The Decree of the Arbitrazh (Commercial) Court of the Volga District of December 23, 2019 N F06-55840 / 2019 docket numberN A12-20691 / 2019, addresses service of process on the Russian party by the Cypriot court by e-mail and thus the possibility of further recognition of a foreign judgment.

1. Factual background

1.1. Within the framework of the court proceedings, the Russian party (the defendant in the Cypriot proceedings) was notified by the Cypriot court by sending a writ of service of process to the known e-mail addresses of the defendant. In order to substantiate the manner of service, the Cypriot court referred to Art. 9 of Decree 5 of the Rules of Civil Procedure (Cyprus), according to which “In any case, when the court considers that, for any reason, the service provided for in Rule 2 of this Decree will not be timely or effective, the court may order a substitute for personal service, or other service, or substitute for a notice of service in any way that will be found to be fair and correct in accordance with the circumstances”.

1.2. After the default judgment of the Cypriot court was rendered, an application for its recognition was lodged with the Arbitrazh Court of the Volgograd Region. In addressing the issue of compliance with the notification rules, the Russian court referred to paragraph 2 of Art. 24 of the Treaty on Legal Assistance of the USSR-Cyprus 1984 on civil and family matters, according to which judgments are recognized and enforced if the party against whom the judgment was made, who did not appear and did not take part in the proceedings, was promptly and duly notified under the laws of the Contracting Party in the territory of which the judgment was made. The foreign judgment in question was recognized and enforced by the Russian court based on the fact that the proper manner of the notification was confirmed by the opinion of experts under Cypriot law. The Ruling of the Supreme Court of the Russian Federation of March 27, 2020 N 306-ES20-2957 in case N A12-20691 / 2019 left the acts of the lower courts unchanged.

2. Analysis of the Decree of the Arbitration Court of the Volga District of December 23, 2019 N F06-55840 / 2019 in the case N A12-20691 / 2019

2.1. At first glance the logic of the Supreme Court and lower courts appears to be flawless. Nevertheless we find it important to correlate the provisions of paragraph 2 of Art. 24 of the 1984 Legal Aid Treaty with the provisions of Art. 8 of the Treaty. Article 8 requires that: “the requested institution carries out the service of documents in accordance with the rules of service in force in its state, if the documents to be served are drawn up in its language or provided with a certified translation into this language. In cases where the documents are not drawn up in in the language of the requested Contracting Party and are not provided with a translation, they are handed over to the recipient if only he agrees to accept them. ”

2.2. In this regard, it should be taken into account that when using the wording “notified under the laws of a Contracting Party,” the Treaty States simultaneously tried to resolve the following situations:

1) where the parties were in the state of the court proceedings at the time of the consideration of the case. In this case, the national (“domestic”) law of the State in which the dispute was resolved shall apply;

2) where the parties were in different states at the time of the consideration of the case. In this case, the provisions of the relevant international treaty shall apply, since the judicial notice is [a] subject to service in a foreign state and, therefore, it affects its sovereignty.

2.3. In this regard, attention should be paid to the fact that under the doctrine and case law of the countries of continental law, the delivery of a judicial notice is considered as an interference with the sovereignty of the respective state. The following are excerpts from case law. Excerpts from legal literature are provided for reference purposes:

1. a) “The negotiating delegations in The Hague faced two major controversies: first, some civil law countries, including Germany, view the formal service of court documents as an official act of government; accordingly, they view any attempt by a foreign plaintiff to serve documents within their borders as an infringement on their sovereignty ” – Volkswagen Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988);
2. b) “The exclusive competence to carry out acts of state power on its own territory follows from the sovereignty of states. As a rule, a state cannot perform actions of this kind within the borders of another state without violating its sovereignty and, therefore, without violating international law. An act is compatible with this right only if it is permitted by a specific international regulation, for example, if it is agreed in a treaty concluded between the states concerned, or if it is unilaterally accepted by the state in which it is carried out. When the notification is given abroad without permission under international law, this notification is invalid under Swiss domestic law due to its supremacy – Decision of the Swiss Federal Court of 01.07.2008 in case No. BGer 4A_161 / 2008.
3. c) “According to the traditional German law approach, delivery is considered to be an act of sovereignty.”- Rasmussen-Bonne H-E., The pendulum swings back: the cooperative approach of German courts to international service of process P. 240;
4. d) “From prospective of the Japanese state, certain judicial acts of foreign courts, such as the service of court notices and the receipt of evidence, are considered as a manifestation of sovereignty.”- Keisuke Takeshita, “Sovereignty and National Civil Procedure: An Analysis of State Practice in Japan,” Journal of East Asia and International Law 9, no. 2 (Autumn 016): 361-378

2.4. In light of the above, the interpretation of the Treaty on Legal Assistance of the USSR-Cyprus 1984, according to which a party located in the territory of Russia is subject to notification in accordance with Art. 8 of the Treaty, seems to be preferable.

We welcome further discussion on this intricate matter.

Written by Alexander A. Kostin, Senior Research Fellow at the Private Law Research Centre (Moscow, Russia) and counsel atAvangard law firm

and Valeria Rzyanina, junior associate, Avangard Law Firm

(This is a synopsis of an article published  in the Herald of Civil Procedure Law Journal N 1/2021 in Russian)

 Issues concerning cross-border insolvency rarely arise in Russian case law. For this reason, the Decree of the Arbitrazh Court of the Moscow District dated 22.11.2018 docket number N A40-39791 / 2018 is of particular interest to both practitioners and academics.

1. The factual background of case No. ?40-39791 / 2018

A bankruptcy procedure had been introduced at a German court against the Russian individual having the status of an individual entrepreneur under German law. After the opening of this procedure in Germany, the Russian debtor donated an apartment in Moscow to her daughter.

As a consequence of the said acts the bankruptcy trustee of the Russian debtor brought an action before the Moscow Arbitrazh (Commercial) Court, requesting the following relief: 1) to recognize the judgment of the German court opening the bankruptcy proceedings; 2) to set aside the agreement for donation of the apartment; 3) to enforce the judgment of the German court by prohibiting the alienation of this immovable property upon the completion of the bankruptcy procedure in Germany; 4) to attach the said immovable property in Russia.

On 01.10.2018 the Moscow Arbitrazh (Commercial) Court (First instance) dismissed the claim relating to the setting aside of the agreement of donation on the ground that that application was not heard by the German court and consequently it could not be resolved within the framework of the procedure for recognition of the German  judgment. The court of First instance specifically held that the question relating to the validity of the agreement of donation should be resolved in separate proceedings to be brought before the Russian courts.

In further proceedings the Moscow Arbitrazh (Commercial) Court (First instance) recognized the judgment of the German court on the opening of the bankruptcy proceedings (decision of 07.12.2018). With reference to Art. 343 of the German Bankruptcy Ordinance and the Russian case Law (docket number No. A56-22667 / 2007), the Russian court acknowledged the existence of reciprocity in relation to the recognition of Russian court judgments in Germany as prescribed by the German Federal Law “On insolvency (bankruptcy)”. The Russian court made an express finding that the foreign court order did not violate the exclusive jurisdiction  over bankruptcy matters, because the debtor’s activities as an individual entrepreneur are regulated by the law of the Federal Republic of Germany (Article 1201 of the Civil Code of the Russian Federation – “The law applicable to determination of the ability an individual to engage in entrepreneurial activity”).

However, the Moscow Arbitrazh (Commercial) Court (1-st instance) rejected the part of the foreign insolvency judgment relating to the prohibition of the debtor to dispose of immovable property until the completion of the insolvency proceedings. In the court’s opinion, in this  respect the exclusive competence of the Russian courts and the public order of the Russian Federation had been violated (Article 248 of the Arbitrazh [Commercial] Procedure Code of the Russian Federation). At the same time, the court of first instance also noted that the bankruptcy trustee is entitled to institute separate bankruptcy proceedings against the debtor in order to set aside the agreement for donation of the apartment before the Russian courts.

2. Analysis of case ?40-39791 / 2018

The key question in this situation concerns the correct procedure for setting aside the transaction for the transfer of the immovable property as the restitution of the proper value is dependent on the said action. In turn  the success of the said action depends on the following issues: 1) procedural capacity of a bankruptcy trustee, including the issue whether the recognition of a foreign judgment is a prerequisite for granting procedural capacity to a foreign bankruptcy trustee; 2) the law applicable to avoidance of the donation agreement.

2.1.          Procedural capacity of a foreign bankruptcy trustee.

In view of the fact that the foreign bankruptcy trustee is regarded as the legal representative of the debtor, his/her powers (including the power to bring an action) are recognized if the corresponding limitation of the capacity of the debtor is recognized in its turn.

Under Art. 1197 of the Civil Code of the Russian Federation, the legal capacity of an individual is governed by his personal law (lex personalis).The personal law of an individual refers to the law of the country of his/her nationality (clause 1 of article 1195 of the Civil Code of the Russian Federation). Consequently, the personal law of a Russian national is the law of the Russian Federation.

In the present situation, the legal capacity of the Russian debtor had been limited by a foreign judgment. In this case, the legal effect of the  foreign judgment on limitation of capacity  did not fall within the scope of the applicable substantive law since the judgment was not rendered by the country of his/her nationality. For that reason, the bankruptcy trustee’s legal capacity (including procedural capacity) could not be recognized by virtue of the Russian national conflict of laws rule.

In its turn the possibility of recognition of the foreign judgment on the opening of bankruptcy proceedings is questionable for the following reasons. Although in the present matter the Moscow Arbitrazh (Commercial) Court argues that the capacity of the debtor shall be governed by the German law as the law of the country where the defendant was doing business (Art. 1201 of the Russian Civil Code) it needs to be noted that the capacity of the person to conduct business-related  activities  arises from  general civil legal capacity (Art. 1195-1197 of the Civil Code of the Russian Federation). Taking into account the above, the said judgment on the opening of the insolvency proceedings appears to be in  conflict with the Russian public order.

2.2.          Law applicable to avoidance of the donation agreement.

In order to establish that the agreement for donation of the apartment is void the bankruptcy trustee referred to the fact that the apartment forms an integral part of the bankruptcy estate pursuant to paragraph 1 of Art. 35 of the German Insolvency Ordinance, as well as under clause 1 of Art. 213.25 of the  Federal Law “On Insolvency (Bankruptcy)”. With reference to the fact that the agreement for donation of the apartment was concluded after the  commencement of  foreign bankruptcy proceedings against the Russian debtor, the trustee argued that the transaction should be deemed void under Art. 61.2. of The Federal Law “On Insolvency (Bankruptcy)” as  a “suspicious transaction”.

In our view application of Art. 61.2. of The Federal Law “On Insolvency (Bankruptcy)” to invalidate the debtor’s agreements within the framework of a foreign insolvency does not seem to be entirely justified due to the following. Due to the fact that the bankruptcy procedure against the Russian debtor had been opened by a German court, the legal consequences of this procedure should also be determined by German law. Another question is whether these legal consequences are recognized in the Russian Federation). In this case, the fact of initiation of bankruptcy proceedings against a Russian national at a foreign court does not provide grounds for the application of Russian bankruptcy law.

In our view the following ways to set aside the agreement within the framework of the foreign insolvency exist.

Primarily, it appears that the donation agreement entered into after the commencement of foreign insolvency proceedings may be regarded as a void transaction under the Russian law due to the fact that it was intended to defraud  creditors (Articles 10 and 168 of the Civil Code of the Russian Federation).

Secondly, it could be argued that the recognition of a foreign bankruptcy entails that the effects of that foreign bankruptcy also apply to all actions that took place in the territory of Russia, including the possibility to apply foreign bankruptcy grounds to avoid contracts. However, this line of argument may not be entirely in line with the provisions of the Russian Civil Code under which Russian law applies to contracts in relation to land plots, subsoil plots and other real estate located in the territory of the Russian Federation (paragraph 2 of Art. 1213 of the Civil Code of the Russian Federation).

Conclusion

The Decree of the Arbitrazh (Commercial) Court of the Moscow District dated 22.11.2018 docket number N A40-39791 / 2018 as well as other court findings represent an interesting interplay between the legal provisions relating to the recognition of foreign insolvency and the application of Russian law for avoidance of the debtor’s transactions. In the present matter the Russian court clearly ruled in favor territoriality of foreign insolvency proceedings. However, we remain hopeful that one day the approach will change and the Russian courts will uphold the principle of universality of foreign insolvency.

On Thursday 14 October 2021 an online M-EPLI roundtable will take place on private international law issues relating to the recognition and enforcement of foreign (mostly US) punitive damages judgments in countries outside of Europe.

The event is organised by Lotte Meurkens and Cedric Vanleenhove and the Maastricht European Private Law Institute.

It is not frequent that a request for a preliminary reference on matters concerning civil and commercial litigation is assigned to the Grand Chamber. It has happened though already several times in relation to Article 7 (2) Brussels I bis Regulation (or the corresponding provisions in the previous instruments). It will happen again in case C-251/20, where the French Cour de Cassation asks for help to determine the place where the damage occurred and, consequently, the competent court to adjudicate on an action for damages due to disparagement.

The opinion of AG Hogan has just been published. Long, but easy to follow in spite of the absence of subheadings, it provides a rich and accurate overview of the case law of the Court in relation to the infringement of rights -privacy, copyrights, intellectual property- on the internet in order to address (see at 42)

“whether, in view of the reasons given by the Court to justify the exclusive jurisdiction of certain courts in relation to the deletion or rectification of disputed content [published on the internet], it would be appropriate also to recognise the exclusive jurisdiction of those same courts in relation to compensation”,

a point which

“implicitly raises the question of whether, in the judgment of 17 October 2017, Bolagsupplysningen and Ilsjan (C‑194/16, EU:C:2017:766), rather than simply distinguishing earlier case-law in this manner, the Court further intended to effect a complete reversal of its case-law and thus abandon the mosaic approach with regard to claims for damages as well” .

Spoiler: he believes it did not; also, that it should not; at most, he would agree to have the mosaic solution combined with the “focalization” criterion that has been used in certain areas (reference is made, among other, to Football Dataco and Others, C‑173/11, EU:C:2012:642).

I see no point in summarizing here the many arguments put forward by AG Hogan, among which the “dialogue” with AG Bobek; an assessment of the mosaic solution in case of SLAPP; the same, in the light of the main objectives of the Brussels I bis Regulation, as dealt with in the case law of the Court on Article 7(2); all this, with support of scholars’ views, English or French. The original is in English, thus easily accessible – easier, in any event, for those not reading French.

It should be born in mind, in addition, that, in fact, according to the AG

“the present case is not the right one for the Court to take a position on whether or not the mosaic approach should be maintained, refined or even abandoned. Indeed, in the case in the main proceedings, the applicant is alleging not that the contents in question would constitute acts of defamation, but that those would instead violate French law relating to acts of dénigrement, which is a form of malicious falsehood”,

rather belonging to the domain of unfair competition rules (under French law). Eventually, the AG addresses the question referred as one related to the materialization of a damage of a strictly economic nature. He elaborates from this perspective in points 98 and ff, to conclude with this proposal to the Court:

“Article 7(2) of Regulation No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that a claimant who relies on an act of unfair competition consisting in the dissemination of disparaging statements on the internet and who seeks both the rectification of the data and the deletion of certain content and compensation for the non-material and economic damage resulting therefrom, may bring an action or claim before the courts of each Member State in the territory of which content published online is or was accessible, for compensation only for the damage caused in the territory of that Member State. In order, however, for those courts to have the requisite jurisdiction it is necessary that the claimant can demonstrate that it has an appreciable number of consumers in that jurisdiction who are likely to have access to and have understood the publication in question.”

Which of the contents of the opinion will be taken up by the Court is difficult to say. As we know it, the Court tends to remain cautious. In relation to a provision as slippery as Article 7(2) Brussels I bis Regulation, an interpretation focused strictly in the circumstance of the case at hand seems advisable, no matter how frustrating this may be for scholars and practitioners, and how much such approach endangers the consistency of the application of the rule itself. In any event, judging from experience there is little doubt that requests on the same provision will continue to be addressed to Court as long as its text remains unchanged.

The second issue of 2021 of the Dutch journal Nederlands Internationaal Privaatrecht is published. This includes the following articles:

K. Henckel on Rechtskeuze in het ipr-arbeidsrecht: enkele gedachten over het begunstigingsbeginsel (in English Choice of Law in PIL labour law: Some Thoughts on the Principle of Favourability). This article is available open access here.

This article discusses the preferential law approach that is enshrined in Article 8(1) Rome I Regulation. This provision limits the effects of a choice of law in the sense that the choice may not deprive the employee of the protection afforded to him by the mandatory provisions of the law that would have applied in the absence of a choice. It is generally accepted that the law that is most favourable to the employee merits application. The determination of this preferential law requires a comparison between the chosen law and the law that would have applied in the absence of such a choice. The article examines the method of comparison used throughout Dutch case law which shows that a preferential law approach is rarely applied. Instead, the majority of judgments apply the mandatory provisions of the objectively applicable, Dutch, law without further explanation. Since the application of the preferential law approach seems to be plagued by ambiguity, this article questions the desirability and practical feasibility of the comparison between the chosen law and the mandatory provisions of the law that would have applied in the absence of such a choice.

L.C.J. van Apeldoorn on Erkenning van internationale rechtspersonen in het Nederlandse privaatrecht (in English, Recognition of International Legal Persons in Dutch Private Law)

This article examines the grounds for the recognition of the legal personality of international legal persons in Dutch private law, focusing in particular on foreign states and international organizations. Based on an analysis of the decision of the Dutch Hoge Raad (Supreme Court) in UNRRA/Daan, it is argued that the legal personality of international organizations is recognised by means of the (analogous) application of a rule, codified in Article 10:119 of the Dutch Civil Code, according to which the legal personality of a corporation depends on its personal law. When considering the personal law of international organisations, which is public international law including the terms of the founding treaty, decisive is not whether the organisation is an international legal person, but whether it is granted, on the basis of public international law, legal personality in the legal orders of its member states. The rule governing the recognition of the legal personality of international organisations is not applicable to foreign states because public international law does not imply or require that states are afforded legal personality in municipal law. Rather, it is argued, the legal personality of foreign states is recognised on the basis of an unwritten rule of Dutch private international law, originating in international comity, that attributes legal personality to foreign states. The application of this rule coincides in practice with the application of another rule also originating in comity, requiring as a matter of public international law that foreign states are granted standing to be party to legal proceedings before municipal courts.

C. Okoli on An analysis of the Nigerian Court of Appeal’s decisions on Foreign Choice of Court Agreements in the year 2020

In Nigeria valid commercial contracts between parties are treated as sacrosanct and binding by Nigerian courts. It is however uncertain (unlike in the European Union) whether a valid foreign choice of court agreement, which is a term of the parties’ contract, will be enforced by Nigerian courts. In this connection, the decisions of Nigerian courts are not consistent. Nigerian courts have applied three approaches to the enforcement of foreign choice of court agreements – ouster clauses, the Brandon test, and the contractual approach. This article analyses the approach of Nigerian appellate courts to the enforcement of foreign choice of court agreements in light of three Court of Appeal decisions delivered in the year 2020.

Stuij on Iura novit curia en buitenlands recht. Een rechtsvergelijkend en Europees perspectief (in English Iura Novit Curia and Foreign Law. A Comparative and European Law Perspective) – PhD dissertation Erasmus University Rotterdam

The thesis was defended on 29 April 2021. The analysis is centred around the Latin legal maxim iura novit curia in relation to the application of foreign law in civil proceedings. The thesis is a result of a comparative research into Dutch, German, and English law, as well as European law. The European dimension focuses on the influence of the ECHR – in particular Article 6 – and Article 47 of the EU Charter of Fundamental Rights, as well as the influence that the EU law can have on national procedural law. The author analyses, evaluates and recommends several approaches to the problem of foreign law in civil litigation. From a supranational perspective, he concludes that parties should have the option to waive the applicability of foreign law, unless compelling interests are at stake. He also discusses the conditions under which the judges are authorized to require the parties to cooperate. Within this framework a proposal is made not to establishing a general duty to apply conflict of laws and foreign law ex officio at supra- or international level. If the application of the law has to be strengthened, the emphasis must be placed on knowledge of foreign law (novit). This means that strengthening access to foreign law should be prioritised, and preferably through an instrument that combines different ways of providing information, so as to be sufficiently effective. In this context attention can be given to the different phases of research into the content of foreign law and to the various actors that play a role in this.

More information about this NIPR issue can be found here.

This post was contributed by Fabienne Jault-Seseke, who is Professor at University Paris Saclay (UVSQ), and a member of GEDIP.

Decisions of the French Supreme Court on civil and criminal matters (Cour de cassation) on res judicata regarding foreign decisions are rare. The judgment in which, on 8 September 2021, its social Division (Chambre sociale) questions the Court of Justice of the European Union (ECJ) is all the more remarkable.

In this case, the plaintiff, who had been hired by French bank BNP to work in the London branch under a contract subject to English law, was posted in Singapore, and had entered into a contract subject to French law for that purpose. He was then posted to London and dismissed for misconduct during his secondment to Singapore.

The employee brought an action before the Employment Tribunal in London. The English tribunal found that the procedure followed by the employer was, under English law, unfair and ordered BNP to pay the sum of £81,175. BNP did not challenge the decision. Almost a year later, the employee brought various claims before the Conseil de prud’hommes (the court of first instance in matter of labour law) in Paris relating to the termination of his employment contract. The French court declared the claims relating to his dismissal inadmissible, because of the res judicata effect of the English judgment.

On appeal, the judgment was overturned: the Court of Appeal followed the employee’s argument, considering that the res judicata effect of the English decision relates only to the unfairness of the dismissal and that the various claims for compensation had not been examined by the English tribunal. BNP appealed to the Court of Cassation: in its view, the res judicata effect of the English decision prevents the French judge from hearing the claims relating to the dismissal of the person concerned.

Interesting questions were put to the Cour of Cassation, which took the opportunity to make a reference for a preliminary ruling to the ECJ.

As a starting point, the Cour de cassation asserted that that recognition in general and res judicata in particular are autonomous European concepts, citing ECJ, 15 November 2012, C-456/11, Gothaer Allgemeine Versicherung AG in support for that proposition. But the court then noted that a foreign judgment which has been recognised under Article 33 of Regulation No 44/2001 must in principle have the same effects in the State in which recognition is sought as it does in the State of origin (ECJ 4 February 1988, Hoffmann, C-145/86).

After a long analysis, the Cour de cassation asked the following questions (see below for French version).

Firstly, do Articles 33 and 36 of Regulation No 44/2001 lead to the conclusion that, where the law of the Member State of origin of the decision prevents the same parties from bringing a new action to rule on claims that could have been made in the initial proceedings (this would be the case in English law, pursuant to the Henderson v. Henderson case of 20 July 1843 of the Court of Chancery, which was referred to French courts by BNP), the court of another Member State, whose law provided for a similar obligation of concentration of claims (as is the case in French law, in particular in labour law with Article R. 1452-6 of the Labour Code, which has now been repealed, but which was applicable at the time before the French court) to rule on such claims?

In other words, does the obligation to concentrate claims provided for by the legal system of the State from which the decision emanates prevent the court of another Member State, in which a similar obligation exists, from hearing the action brought between the same parties in order to rule on claims that could have been formulated in the proceedings in the court of origin?

Should the answer be positive, other questions will inevitably arise. What would be the solution if only one of the two legal systems provides such an obligation to concentrate claims? Indeed, as Gilles Cuniberti noted on this blog, “the vast majority of scholars in Europe debate whether res judicata should be governed by the law of the State of origin or the law of the requested State”.

Secondly, and more classically, the Social Chamber questions the Court of Justice on the notions of cause and subject-matter. There are already a number of decisions of the Court of Justice on these issues but they concern lis pendens and not res judicata. It would however be consistent to retain the same requirements to define lis pendens and res judicata. In this case, the question is whether an action for unfair dismissal in the United Kingdom has the same cause of action and the same subject-matter as an action for dismissal without real and serious cause in French law or an action for payment of bonuses or premiums provided for in the employment contract since these actions are based on the same contractual relationship between the parties?  The French Supreme Court wonders whether a distinction should be made between damages for dismissal without real and serious cause, which could have the same cause and the same subject-matter as the compensatory award, and the redundancy and notice payments which, under French law, are due when the dismissal is based on a real and serious cause but are not due in the event of dismissal based on serious misconduct.

The answers that the Court of Justice will give to these questions will not only have consequences on the further integration of the European judicial area, but also on its tolerance toward certain procedural strategies.

—

In the French original, the questions of the Cour de cassation read:

1°/ Les articles 33 et 36 du règlement (CE) n° 44/2001 du Conseil, du 22 décembre 2000, concernant la compétence judiciaire, la reconnaissance et l’exécution des décisions en matière civile et commerciale doivent-ils être interprétés en ce sens que, lorsque la loi de l’État membre d’origine de la décision confère à cette dernière une autorité telle que celle-ci fait obstacle à ce qu’une nouvelle action soit engagée par les mêmes parties afin qu’il soit statué sur les demandes qui auraient pu être formulées dès l’instance initiale, les effets déployés par cette décision dans l’État membre requis s’opposent à ce qu’un juge de ce dernier État, dont la loi applicable ratione temporis prévoyait en droit du travail une obligation similaire de concentration des prétentions statue sur de telles demandes ?

2°/ En cas de réponse négative à cette première question, les articles 33 et 36 du règlement n° 44/2001 du Conseil doivent-ils être interprétés en ce sens qu’une action telle que celle en « unfair dismissal » au Royaume-Uni a la même cause et le même objet qu’une action telle que celle en licenciement sans cause réelle et sérieuse en droit français, de sorte que les demandes faites par le salarié de dommages-intérêts pour licenciement sans cause réelle et sérieuse, d’indemnité compensatrice de préavis et d’indemnité de licenciement devant le juge français, après que le salarié a obtenu au Royaume-Uni une décision déclarant l’ « unfair dismissal » et allouant des indemnités à ce titre (compensatory award), sont irrecevables ? Y a-t-il lieu à cet égard de distinguer entre les dommages-intérêts pour licenciement sans cause réelle et sérieuse qui pourraient avoir la même cause et le même objet que le « compensatory award », et les indemnités de licenciement et de préavis qui, en droit français, sont dues lorsque le licenciement est fondé sur une cause réelle et sérieuse mais ne sont pas dues en cas de licenciement fondé sur une faute grave ?

3°/ De même, les articles 33 et 36 du règlement n° 44/2001 du Conseil doivent-ils être interprétés en ce sens qu’ont la même cause et le même objet une action telle que celle en « unfair dismissal » au Royaume-Uni et une action en paiement de bonus ou de primes prévues au contrat de travail dès lors que ces actions se fondent sur le même rapport contractuel entre les parties ?

Saugmandsgaard Oe AG opined (no English version at the time of writing) last week in C‑242/20 HRVATSKE ŠUME on the classic conflict of laws issue of distinguishing contract from tort.. He, oddly perhaps, unless some technical reason for it escapes me, does not entertain the question on the scope of Article 24(5) Brussels Ia’s exclusive jurisdictional rule for ‘proceedings concerned with the enforcement of judgments’.

The Opinion is a Qualificationfest.

The case concerns actions for recovery of sums unduly paid, in other words, undue enrichment. This enrichment came about by a Croatian court having  earlier ordered Hrvatske Šume, debtor of  Futura, both of Croatia, to pay its debt to Futura directly to BP Europe SA, successor to Burmah Oil, both domiciled in Germany. Hrvatske appealed that order however that appeal did not halt the payment. Now that the appeal has turned out to be successful, Hrvatske want their money back yet so far Croatian courts have held that they do not have jurisdiction under Article 7(2) BIa (the case actually went under the the predecessor, Brussels I however there is no material difference).

As the referring court notes, there is no delicti commissi in the case of unjust enrichment: it is a non-contractual obligation in which no delict is committed. (This is the very reason Rome II includes a separate heading for unjust enrichment). One might suggest this would leave forum damni only under A7(2), however the AG correctly in my view re-emphasises the seminal statements in CJEU Kalfelis, that actions under A7(2) concern ‘all actions which seek to establish liability of a defendant  and which are not related to a ‘contract’ within the meaning of Article [7](1)’. Unjust enrichment not seeking to establish liability, A7(2) is not engaged. Along the way, note his discussion of linguistics and his seeking support in Rome II.

At 71 ff the AG distinguishes the wide interpretation of ‘establishing liability’ in CJEU Austro Mechana.

A clear implication of the Opinion is that it confirms a disjoint in BIa /Rome II: not all non-contractual obligations for which Rome II identifies a lex causae, are caught by A7(2) BIa’s forum delicti rule.

The AG also engages with the possibility of Croatia being forum contractus  (he kicks off his Opinion with this issue) and dismisses it, seeking support inter alia in CJEU Handte and also in Rome II specifically providing for an unjust enrichment heading. This part of the Opinion is more optimistically straightforward than one might have expected. Following flightright, Wikingerhof etc., A7(1) has been (unduly, in my view) stretched and it would be good to have the CJEU further clarifying same. (C-265/21, in which I have been instructed, might be just the case).

Geert.

EU Private International Law, 3rd ed. 2021, 2.419 ff.

Opinion Saugmandsgaard Oe this morning, C‑242/20 HRVATSKE ŠUME. Jurisdiction, Brussels Ia, concept of 'contract', delineation with A7(2) forum delicti. Actio pauliana. (In other words, a collection of old chestnuts).https://t.co/3R5qU9rvVn

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

The International Law Association will celebrate its 150th anniversary all along the year 2023 through a series of webinars and, hopefully, an event organised by the French branch of the ILA in Paris on 18 – 20 June 2023.

In order to prepare the scientific content of these events, a vast organization of working groups has already been launched, on the five continents, under the coordination of the Foresight Council, in order to feed back the ideas that will be developed during the webinars and during the June event. These working groups are primarily aimed at the younger generation (PhD students, PhDs, young professionals in all branches of international law). Companies, essential actors of the international society, will be full partners, as well as NGOs and public actors.

A series of thematic White Papers will be prepared on 24 themes, including Cities, Civil Status, Cultural Heritage, Dispute Resolution, Migration, Intellectual Property or Oceans, to name only a few.

Regular updates concerning the evolution of the work of the Working Groups and the preparation of the celebration will be given by a Newsletter. The first issue is available here.

On Friday, 24 September 2021, the Max Planck Institute Luxembourg for Procedural Law will host the EFFORTS National Exchange Seminar for France and Luxembourg (online).

This Seminar is organised in the framework of the EFFORTS project (Towards more effective enforcement of claims in civil and commercial matters within the EU), which tackles the Brussels I-bis Regulation and the Regulations on the European Enforcement Order, the European Small Claims Procedure, the European Payment Order, and the European Account Preservation Order. The Project investigates, in particular, the implementation of these Regulations in the national procedural law of Belgium, Croatia, France, Germany, Italy, Lithuania, and Luxembourg, and is conducted by a consortium comprising the Max Planck Institute Luxembourg, the Universities of Milan (coord.), Heidelberg, Zagreb, Vilnius, and the Free University of Brussels.

The programme of the Seminar is available here.

Participants are kindly requested to pre-register by sending an email including their full name, title and affiliation to secretariat-prof.hess@mpi.lu at the latest by Sunday, 19 September 2021.

More information on EFFORTS and its research outputs are available via the project website and in various newsletters previously posted here, here, and here.

On the EFFORTS German Exchange Seminar, see the previous announcement here.

This Project was funded by the European Union’s Justice Programme (2014-2020). The content of this study represents the views of the authors only and is their sole responsibility. The European Commission does not accept any responsibility for use that may be made of the information it contains.

Project JUST-JCOO-AG-2019-881802
With financial support from the Civil Justice Programme of the European Union

This post was written by Harshal Morwale, an India-qualified international arbitration lawyer working as an associate with a premier Indian law firm in New Delhi; LLM from the MIDS Geneva Program (2019-2020); alumnus of the Hague Academy of International Law. 

Recently, the issue of foreign sovereign immunity became a hot topic in India due to the new judgment of the Delhi High Court (“DHC”) in the case of (KLA Const Tech v. Afghanistan Embassy). The previous part of the blog post analyzed the decision of the DHC.  Further, the post focused on the relevance of the United Nations Convention on Jurisdictional Immunities of States and Their Property. The post also explored the interplay between state immunity and diplomatic immunity.

This part focuses on two further issues which emanate from the decision of the DHC. Firstly, the post deals with the impact of the consent to arbitrate on immunity from enforcement. Then, the post explores the issue of attachment of state’s property for satisfying the commercial arbitral award against a diplomatic mission.

Consent to Arbitrate: Waiver Of Immunity From Enforcement?

As highlighted in the last post, one of the main arguments of the KLA Const Technologies (“claimant”) was that the Embassy of the Islamic Republic of Afghanistan’s (“respondent”, “Embassy”) consent to arbitrate resulted in the waiver of the sovereign immunity. The DHC accepted the argument and ruled that a separate waiver of immunity is not necessary to enforce an arbitral award in India as long as there is consent to arbitrate. The DHC also stated that this position is in consonance with the growing International Law principle of restrictive immunity while referring to the landmark English case (Trendtex Trading Corp. v. Central Bank of Nigeria).

However, there’s more to the issue than what catches the eye. First of all, the Trendtex case was decided before the English Sovereign Immunity Act (“UKSIA”) came into effect. Therefore, the DHC could have examined the relevant provisions under UKSIA and the more recent cases to track the jurisprudential trend on sovereign immunity under English law. For example, Section 13(2) of the UKSIA recognizes the difference between jurisdictional immunity and immunity from enforcement and requires an express waiver of immunity from enforcement. Even the ICJ has noted the requirement of an express waiver of immunity from enforcement in the Jurisdictional Immunities case. (para 118).

Furthermore, there was an opportunity to undertake a more detailed cross-jurisdictional analysis on the issue.  In fact, the issue of arbitral consent as a waiver of immunity from enforcement was dealt with by the Hong Kong Courts in FG Hemisphere v. Democratic Republic Of The Congo. Reyes J, sitting in the Court of First Instance, ruled that consent of the state to arbitrate does not in itself imply the waiver of immunity from enforcement. The ruling on the issue was confirmed by the majority decision of the Court of Final Appeal. The position has also been confirmed by scholars.

However, this position is not the settled one. The DHC’s decision is in line with the approaches adopted in France (Creighton v. Qatar), Switzerland (United Arab Republic v. Mrs. X) that no separate waiver of immunity from enforcement would be required in the existence of an arbitration agreement.

However, the decision made no reference to the reasoning of the cases from these jurisdictions. Regardless of the conclusion, the DHC’s decision could have benefited from this comparative analysis, and there would have been a clearer answer as to the possible judicial approaches to the issue in India.

 Attachment of State’s Property for Satisfying an Award Against A Diplomatic Mission

In the current case, the DHC ordered the respondent to declare not only its assets and bank accounts in India but also all its commercial ventures, state-owned airlines, companies, and undertakings in India, as well as the commercial transactions entered into by the respondent and its state-owned entities with the Indian companies.

It is not entirely clear whether the Islamic Republic of Afghanistan’s (“Afghanistan”) properties and commercial debts owed by private Indian companies to the state-entities of Afghanistan would be amenable to the attachment for satisfying the award against the Embassy. To resolve the issue of attaching Afghanistan’s property to fulfill the liability of the Embassy, a critical question needs to be considered – while entering into the contract with the claimant, was the respondent (Embassy) acting in a commercial capacity or as an agent of the state of Afghanistan?

The contract between the claimant and the respondent was for the rehabilitation of the Afghanistan Embassy. The DHC found that the respondent was acting in a commercial capacity akin to a private individual. Additionally, there’s no indication through the facts elaborated in the judgment that the contract was ordered by, or was for the benefit of, or was being paid for by the state of Afghanistan. In line with these findings, it can be concluded that the contract would not be a sovereign act but a diplomatic yet purely commercial act, independent from the state of Afghanistan. Consequently, it is doubtful how the properties of state/state-entities of Afghanistan can be attached for fulfilling the award against the Embassy.

The attachment of the state’s property to fulfill the liability of the Embassy would break the privity of contract between the claimant and the respondent (Embassy). According to the privity of contract, a third party cannot be burdened with liability arising out of a contract between the two parties. Therefore, the liability of the Embassy cannot be imposed on the state/state-entities of Afghanistan because they would be strangers to the contract between the claimant and the respondent.

That said, there are a few well-known exceptions to the principle of privity of contract such as agency, third party beneficiary, and assignment. However, none of these exceptions apply to the case at hand. It is accepted that an embassy is the agent of a foreign state in a receiving state. However, in this case, the contract was entered into by the Embassy, in its commercial capacity, not on behalf of the state but in the exercise of its diplomatic yet commercial function. Afghanistan is also not a third-party beneficiary of the contract as the direct benefits of the contract for the rehabilitation of the Afghanistan Embassy are being reaped by the Embassy itself. Additionally, there is no indication from the facts of the case as to the assignment of a contract between the state of Afghanistan and the Embassy. Therefore, the privity of contract cannot be broken, and the liability of the Embassy will remain confined to its own commercial accounts and ventures.

In addition to the above, there also lacks guidance on the issues such as mixed accounts under Indian law. Regardless, the approach of the DHC remains to be seen when the claimant can identify attachable properties of the respondent. It also remains to be seen if the respondent appears before the DHC and mounts any sort of defence.

Conclusion

There remains room for growth for Indian jurisprudence in terms of dealing with issues such as immunity from the enforcement of arbitral awards. An excellent way to create a more conducive ecosystem for this would be to introduce stand-alone legislation on the topic as recommended by the Law Commission of India in its 176th report. Additionally, the issues such as the use of state’s properties to satisfy the commercial liability of diplomatic missions deserve attention not only under Indian law but also internationally.

(The views expressed by the author are personal and do not represent the views of the organizations he is affiliated with. The author is grateful to Dr. Silvana Çinari for her feedback on an earlier draft.)

The proceedings of the conferences held under the aegis of the French Committee of Private International Law for the period 2018-2020 have recently been published by Pedone.

The volume contains eleven contributions (in French) from experts of private international law, scholars or practitioners, complemented by the exchange of views which took place in the course of each session of the Committee.

• The UN Singapore Convention on the Efficiency of International Settlement Agreements Resulting from Mediation(La Convention de Singapour des Nations-Unies sur l’efficacité des accords en matière de médiation internationale), by Jean-Michel Jacquet

• The Matrimonial Property Regimes Regulation in the Perspective of a EU Private International Law Code (Le règlement Régimes matrimoniaux lu dans la perspective d’un code de droit international privé européen), by Marie-Christine De Lambertye-Autrand

• The Respective Roles of the Court and the Parties in Litigation Involving Foreign Nationals (L’office du juge judiciaire dans le contentieux des étrangers), by Stéphanie Gargoullaud

• The Care Relationship in Private International Law (La relation de soins en droit international privé), by François-Xavier Train

• The Principle of Effectiveness in the Case Law of the Court of Justice in the Field of Private International Law (L’effet utile dans la jurisprudence de la Cour de justice en matière de droit international privé), by Maciej Szpunar

• The Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters: What Can Be Expected? (La Convention de la Haye du 2 juillet 2019 sur la reconnaissance et l’exécution des jugements étrangers en matière civile ou commerciale : que peut-on en attendre ?), by Sandrine Clavel and Fabienne Jault-Seseke

• The Interplay between Duty of Care and Private International Law (Le devoir de vigilance et le droit international privé – Influences croisées), by Valérie Pironon

• Conflicting Standards in Investment Arbitration (Les conflits de normes en arbitrage d’investissement), by Isabelle Michou

• The Objective of Concentration of Litigation in EU Judicial Law (L’objectif de concentration du contentieux en droit judiciaire européen), by Olivera Boskovic

• Monegasque Private International Law (Le droit international privé monégasque), by Géraldine Gazo

• Panel Discussion on the Project of Codification of French Private International Law (Table ronde sur le projet de codification du droit international privé français), with Dominique Foussard, Jean-Pierre Ancel, Jean-Noël Acquaviva and Marie-Laure Niboyet

The table of contents of the book can be accessed here. More information is available here.

Originally posted today on NGPIL website

The Nigeria Group on Private International Law “(NGPIL”) invites submissions for next year’s NGPIL Conflict of Law’s Competition. The winner will be awarded for the best essay on any aspect of Nigerian conflict of laws. Entries will be accepted from the following: an undergraduate and/or postgraduate scholar studying in Nigeria, or any Nigerian lawyer five years call or below practicing and residing in Nigeria. The essay should be unpublished at the time of submission. Submitted essays should be in the English language. Submitted essays should also be within five to ten thousand words. Competitors may be citizens of any nation, age or gender but must be an undergraduate and/or postgraduate scholar studying in Nigeria, or any lawyer below five years post-call experience practicing and residing in Nigeria. They need not be Members, or on the Participant’s list of NGPIL.

The prize is 300 GBP, and the winner of the competition will be encouraged to publish the paper in any high-quality peer reviewed journal on private international law (conflict of laws). The prize is sponsored by and will be awarded by NGPIL based upon the assessment of NGPIL.

Submissions to the Prize Committee must be received no later than January 10, 2022. Entries should be submitted by email in Word or pdf format. The winner will be announced no later than 2 months after the deadline. Decisions of the NGPIL on the winning essay and on any conditions relating to this prize are final. Submissions and any queries should be addressed by email to ngpilaw@gmail.com. All submissions will be acknowledged by e-mail.

The second thematic volume in the series Studies in Private International Law – Asia looks into direct jurisdiction, that is, the situations in which the courts of 15 key Asian states (Mainland China, Hong Kong, Taiwan, Japan, South Korea, Malaysia, Singapore, Thailand, Vietnam, Cambodia, Myanmar, the Philippines, Indonesia, Sri Lanka, and India) are prepared to hear a case involving cross-border elements. For instance, where parties are habitually resident abroad and a dispute has only some, little or no connection with an Asian state, will the courts of that state accept jurisdiction and hear the case and (if so) on what conditions? More specifically, the book’s chapters explore the circumstances in which different Asian states assume or decline jurisdiction not just in commercial matters, but also in other types of action (such as family, consumer and employment disputes).

The Introduction defines terminology and identifies similarities in the approaches to direct jurisdiction taken by the 15 Asian states in civil and commercial litigation. Taking its cue from this, the Conclusion assesses whether there should be a multilateral convention or soft law instrument articulating principles of direct jurisdiction for Asia. The Conclusion also discusses possible trajectories that Asian states may be taking in respect of direct jurisdiction in light of the COVID-19 pandemic and the political tensions currently besetting the world. The book suggests that enacting suitable rules of direct jurisdiction requires an Asian state to strike a delicate balance between affording certainty and protecting its nationals. At heart, direct jurisdiction involves sometimes difficult policy considerations and is not just about drawing up lists of jurisdictional grounds and exceptions to them.

For further information please visit: https://www.bloomsbury.com/uk/direct-jurisdiction-9781509936427/

The University of Udine, in Italy, will host on 16 and 17 September an on-line conference under the title European Union and Third Countries: Issues on Jurisdiction and Recognition of Foreign Judgments.

Some of the presentations will be in English, others in Italian.

Speakers include Elisabetta Bergamini (University of Udine), Francesco Deana (University of Udine), Martin Gebauer (Eberhard Karls Universität Tübingen), Peter Kindler (LMU Munich), Fabrizio Marongiu Buonaiuti (Univ. of Macerata), Paolo Mengozzi (former Advocate General at the CJEU), Luca Penasa (University of Udine), Marcello Stella (University of Naples “Federico II”), Faidon Varesis (University of Oxford / Ethnikon kai Kapodistriakon Panepistimion Athinon) and Wolfgang Wurmnest (University of Augsburg).

The detailed programme and the registration form are available here.

This post was contributed by Vincent Richard, who practices with Wurth Kinsch Olinger in Luxembourg.

On 9 September 2021, the Court of Justice delivered its judgment in cases C-208/20 and C-256/20 Toplofikatsia Sofia e.a. on applying the Evidence and the Brussels I bis Regulations when the domicile of the defendant is unknown. Confronted once again with the recurring issue of defendants who moved away without leaving an address, the CJEU confirms that EU law is of no help at present.

The district court of Sofia submitted two preliminary rulings in May and June 2020 related to four separate but similar cases dealing with classic debt recovery procedures. The first one is a civil claim aimed at recovering debts from an energy supply contract. The three others are payment order procedures.

In all cases, the court were not able serve the judicial documents to the debtors because they were not residing at the addresses they had previously indicated on the Bulgarian population register. When officers of the court tried to serve the statement of claim or the payment orders, they were informed by neighbours, relatives or building managers that the debtors did not reside at the address any longer and lived in France or Germany.

Under national Bulgarian law, when defendants cannot be found, Bulgarian courts are obliged to conduct further research in population and employer registers. None of these registers allow a Bulgarian citizen to register a specific address abroad. Therefore, the court is unable to reach Bulgarian citizens who have exercised their right to free movement and compel them to appear before it. Moreover, Bulgarian law draws severe consequences from registration in the population register. The defendant is deemed domiciled at the registered address except if the court receives direct evidence that his habitual residence is abroad. Indirect evidence such as information provided by neighbours or relatives is insufficient to establish such a habitual residence. Consequently, the court is competent to issue an order for payment that may become res judicata in the absence of opposition as long as the order is served to any person having the addressee’s registered address.

In doubt regarding the compatibility of these harsh consequences with European law, the district court of Sofia asked several questions to the CJEU.

In its first question, the Bulgarian court essentially asks whether it should not be obliged under European law to conduct the same kind of investigation into the debtor’s actual residence as that which it is obliged to conduct if the debtor is domiciled in Bulgaria. The question is surprisingly based not only on the right to freedom of movement (Article 20(2) TFEU) read in conjunction with the right to a fair trial (Article 47 of the Charter), the principle of non-discrimination and the principle of equivalence but also on article 1 of the Evidence Regulation.

Regarding this last instrument, the answer of the court is quite logical. The CJEU declares that seeking the address of a person whom a judicial decision is to be served does not constitute taking evidence within the meaning of Article 1(1)(a) of the Evidence Regulation, which is therefore not applicable to the problem at hand.

However, the CJEU’s answer to the first part of the question is a rather puzzling. The court declares that “it is in no way apparent” from the order for reference that the disputes have any connecting factor with the aforementioned provisions. It declares the first question inadmissible. In other words, for the CJEU, the fact that a procedural rule applies differently to Bulgarian citizens habitually resident in Bulgaria and Bulgarian citizens habitually resident in another Member State, to the detriment of the latter, has no link with the freedom of movement, the right to a fair trial, the principle of non-discrimination or the principle of equivalence. One may admit that the question is not straightforward, but such an answer by the CJEU shows a lack of imagination and cooperation that is somewhat worrying.

The answer is all the more disappointing that it was given only a few months after the publication of the recast of the Service Regulation that will apply from 1 July 2022.  These cases constitute perfect examples of the kind of situation that the new Article 7 of Regulation 2020/1784 aims to address. It will oblige Member States to assist in determining the address of a person to be served with legal documents. The scope of application of the Regulation has been changed accordingly so that article 7 is applicable when the defendant’s address is unknown. In the present cases, article 7 would provide a clearly defined avenue for the Bulgarian court to ask the French and the German authorities about the defendants’ whereabouts.

The other questions of the Bulgarian court concerned Article 5(1) of the Brussels I bis Regulation, and they aimed to question the formalistic approach adopted by Bulgarian law regarding debtor’s domicile in payment order procedures. From the preliminary ruling, it seems that a defendant is deemed to be domiciled in Bulgaria if he is registered there except if there is clear and positive evidence that his habitual residence is situated abroad. This evidence may only be submitted by the claimant because the court may not investigate this point. The Bulgarian court was thus unsure that it might declare itself competent under the Brussels I bis Regulation based on this interpretation of the notion of domicile even though the concept of domicile is governed by national law according to article 62 of the Regulation.

The Court of Justice remains stoic and states that there is no need to answer the question because the Bulgarian court has already issued the payment orders. It had therefore necessarily recognised that it had jurisdiction before issuing them. Regarding the declaration of enforceability or the annulment of the payment orders, the CJEU considers that this also has no connection with Article 5(1) of Regulation 1215/2012, which does not deal with the conditions under which judicial decisions become enforceable. The fact that jurisdiction is only based on prima facie evidence or that the court could probably annul a payment order if it realises that it was not competent to issue it in the first place is never discussed. There is little doubt that the Bulgarian court was expecting a more constructive answer.

Flowers & Ors v Centro Medico Salus Baleares SL & Anor [2021] EWHC 2437 (QB) is a case packed with jurisdictional complication under Brussels Ia. In early February 2020, Mrs Yvonne Flowers, then 67 years of age, was admitted on an emergency basis to a private hospital facility in Benidorm, Spain, with significant back discomfort and pain arising from spinal disc herniation. Nine days later she died in the same hospital from multiple organ failure having contracted sepsis. T

The principal issues at stake concern the level of proof required for a jurisdictional challenge; determination of domicile; the existence of a consumer contract and who can all avail themselves of the consequential jurisdictional rules; and when a matter ‘relates to’ insurance’.

Starting with the latter, Wood J stayed judgment on much of the issues until the CJEU will have ruled in C-708/20 Betty Tattersall,  on which James Beeton reports here and which engages similar issues as CJEU Cole, settled before judgment, and Hutchinson. Betty Tattersall will be a crucial judgment.

The level of proof for jurisdictional challenges was discussed at an extraordinary length in Brownlie, and the SC’s ruling is applied here as detailed in the judgment.

The claimants’ domicile is not ordinarily relevant under BIa but it is for the consumer and insurance title and its determination is subject to national law. Seeing as the judge finds a good arguable case that domicile is indeed established in England, no consideration of Spanish domicile rules is necessary.

The ‘newer’ elements of the case are first of all the existence of a consumer contract. There are 3 issues [67]: (i) Was there a contract between the late Mrs Flowers and Centro Medico? (ii) If there was, was it a consumer contract within the meaning of section 4 BIa? (iii) Does the Claimant’s claim against Centro Medico fall outside the scope of the consumer contracts section because it has not been brought by the “consumer” within the meaning of the section?

Ia Committeri is relied on and the judge has little hesitation [115] to find the existence of a contract. (Much about that has been written in German scholarship in the specific area of medical services).

Surprisingly though, the question whether there is a contract which meets with the A17 requirements is brushed over when it comes to the question whether the hospital directs its activities to England and Wales, which the court established as the relevant  domicile. Particularly in the context of emergency care, this does not seem to be a given.

The judge does enquire as to whether the claim which can no longer be pursued because the contracting (and thus weaker) party is now deceased, can be picked up by heirs in the same jurisdictional gateway and pursued on the basis of the domicile of either the deceased or the heirs. Schrems and KABEG are discussed, however unlike the first instance judge in Bonnie Lackey, Justice Wood [126] adopts a much less wide approach. There must be scope for a lot more discussion on this, for the scenario in Bonnie Lackey, of which I was critical, is quite different from that of the heirs who step in the  litigation shoes of the deceased.

Geert.

EU Private international law, 3rd ed. 2021, big chunks of Chapter 2.

Flowers v CMS
Jurisdiction, BIa, 'domicile', consumer section (whether there was consumer contract, and who needs to bring the claim), matters 'relating to' insurance
Latter element stayed pending CJEU Betty Tattersall. Other gateways prima facie acceptedhttps://t.co/K3YmPtjYDY

— Geert Van Calster (@GAVClaw) September 3, 2021

On 23 and 24 September 2021, the GLaw Research Network (Maastricht University) will host an “hybrid” workshop on Article 47 of the EU Charter and effective judicial protection: The National Courts’ perspective.

This will be the second part of a broader research on effective judicial protection in the EU legal order. The first part focused on the Court of Justice’s perspective and led to an online workshop last April (reported here). The second workshop will adopt a comparative law approach within the national legal orders of the EU Member States.

The principle of effective judicial protection is one of the cornerstones of the EU legal order. Mentioned by the Court of Justice for the first time in the 1980s, and originally emanating from Articles 6 and 13 ECHR, this principle had a pivotal role in ensuring access to adequate remedies to protect the rights deriving from Union law. Since its inception, this principle was linked also to the protection of the rule of law, one of the founding values of the EU. Effective judicial protection is therefore one of the facets of the EU constitutional identity. Following the entry into force of Lisbon Treaty, this principle has been constitutionalised in Article 19 TEU and Article 47 of the EU Charter of Fundamental Rights, the latter laying down the right to an effective remedy and to a fair trial. Currently, Article 47 of the EU Charter is the most invoked EU Charter provision before national and EU courts.

The workshop will offer a comparative overview of the national case law applying Article 47 Charter and the principle of effective judicial protection. The speakers will collectively evaluate the systemic impact of Article 47, its interplay with other domestic and European provisions guaranteeing effective judicial protection, as well as the level of convergence (or divergence) in the national courts’ approaches.

The papers presented at the workshop will be included in the second volume of the book project ‘Article 47 of the EU Charter and effective judicial protection’ led by Mariolina Eliantonio, Giulia Gentile and Matteo Bonelli, all members of the GLaw-Net Research Network.

The full program is available here and registration is open here.

This Thursday, the Court of Justice delivered its judgment in the case UM, C-277/20, where it clarifies whether a donation mortis causa may fall within the scope of the notion of “agreement as to succession” in the sense of the Succession Regulation.

The request for a preliminary ruling in this case arises out of proceedings in Austria on the inscription in the land registry of the property right to real estate situated in that Member State. The requested inscription is supposed to be made on the basis of a contract of donation mortis causa in respect to that real estate, entered into between two German nationals habitually resident in Germany. Prior to the request for the inscription, the succession proceedings have been opened before a German court for the last place of residence of the donor.

Before the Austrian courts, the request for the inscription of the propriety right have been already rejected by two instances and ultimately the Oberster Gerichtshof referred to the Court the preliminary questions that read as follows:

Is Article 3(1)(b) of [the Succession Regulation] to be interpreted as meaning that a contract of donation mortis causa entered into between two German nationals habitually resident in Germany in respect of real estate located in Austria, granting the donee a right having the character of an obligation against the estate to registration of his title after the donor’s death pursuant to that contract and the donor’s death certificate, that is without the intervention of the probate court, is an agreement as to succession within the meaning of that provision?

If the answer to the above question is in the affirmative: Is Article 83(2) of [The Succession Regulation] to be interpreted as meaning that it also regulates the effect of a choice of applicable law made before 17 August 2015 for a contract of donation mortis causa that is to be qualified as an agreement as to succession within the meaning of Article 3(1)(b) of [the Succession Regulation]?

In his Opinion presented this July, AG Richard de la Tour considered that Article 3(1)(b) of the Succession Regulation must be interpreted to the effect that the notion of “agreement as to succession” includes donation contracts inter vivos, by which, in favor of the donee, the transfer of the ownership of one or several assets even only partially accounting for the hereditary estate of the donor does not take place until the death of the donor.

In its judgments, the Court also pronounces itself in favour of the interpretation according to which a contract of donation mortis causa is to be qualified as an “agreement as to succession”.

The reasoning of the Court commences with the juxtaposition of exclusion from the scope of the application of the Succession Regulation provided for in its Article 1(2)(g) [“shall be excluded (…) property rights (…) created or transferred otherwise than by succession, for instance by way of gifts”], on the one hand, and definition of the notion of “agreement as to succession” in the sense of Article 3(1)(b) of the Succession Regulation [“an agreement resulting from mutual wills, which, with or without consideration, creates, modifies or terminates rights to the future estate or estates (…)], on the other hand (paragraph 27).

The Court stresses then the importance of autonomous and uniform interpretation of the notions of the Succession Regulation (paragraph 29) and contends that the very wording of the definition of the notion of “agreement as to succession” indicates that this notion covers also transfers relating to future estates (paragraph 30).

By contrast, the second preliminary question is answered in the negative. For the Court, as nothing indicates that a choice of law applicable have been made to succession as a whole, Article 83(2) of the Succession Regulation is not applicable to the case at hand. As such, the choice made solely with regards to the agreement as to succession is not governed by Article 83(2) (paragraph 39).

The judgment can be found here (in German and French so far).

AG Saugmandsgaard Øe observes in his Opinion presented today in the case HRVATSKE ŠUME, C-242/20, the Court of Justice has already faced requests for a preliminary ruling where arose a question on qualification of an action for unjust enrichment for the purposes of the Brussels I Regulation. He notes that no conclusive finding has been made so far as to its qualification as a “matter relating to tort, delict or quasi-delict” in the sense of Article 5(3) of the Regulation (point 4). By contrast, the present case is supposed to create an opportunity to provide a definitive conclusion to the jurisprudential saga in question.

It is noteworthy that the case itself presents a nuance: the unjust enrichment is said to have occurred in enforcement proceedings which were carried out, although they should not have been, and now reimbursement of the amount which was unjustly levied in enforcement proceeding is being sought before the Croatian courts. The nuance is addressed in the second preliminary question.

At the request of the Court, the Opinion does, however, elaborate only on the first preliminary question that reads as follows:

Do actions for recovery of sums unduly paid by way of unjust enrichment fall within the basic jurisdiction established in the [Brussels I Regulation] in respect of “quasi-delicts” since Article 5(3) thereof provides inter alia: “A person domiciled in a Member State may, in another Member State, be sued … in matters relating to … quasi-delict, in the courts for the place where the harmful event occurred or may occur”?

In his Opinion, AG Saugmandsgaard Øe proposes to take a step back and view the preliminary question in a broader perspective. For him, it is necessary to determine, in the first place, whether an action for unjust enrichment falls within the scope of Article 5(1) of the Brussels I Regulation and, only in the negative, in the second place, whether it fall within the scope of Article 5(3) of the Regulation (point 26). He established therefore an order of preference when it comes to the contract/tort distinction under the Regulation.

Having adopted that approach, he concludes that an action for unjust enrichment is not a “matter relating to a contract” in the sense of Article 5(1) of the Brussels I Regulation, save where it is closely connected with a preexisting (or alleged to exist) contractual relationship (points 44-52). Nor it is a “matter relating to tort, delict or quasi-delict” within the meaning of Article 5(3) of the Regulation (point 79).

The Opinion contains an in-depth discussion on the parallels with the Rome I/Rome II Regulations and, in this regard, the outcome of the reasoning followed by AG Saugmandsgaard Øe may bring to mind the one that AG Bobek proposed in the context of actio pauliana in his Opinion delivered in the case Feniks, C-337/17.

The Opinion of AG Saugmandsgaard Øe is available here (no English version so far).

At least from the perspective of private international law, this Thursday can easily go down in history as one of the busiest days in the Court of Justice agenda. Its complete outline can be found here, due to courtesy of Marta Requejo Isidro. Stay tuned also for our next updates on the cases of this morning.

The present post concerns the Opinion presented by AG Rantos in the case TOTO, C-581/20. At the request of the Court, the analysis provided for in the Opinion is limited to the second preliminary question on the interpretation of Article 35 of the Brussels I bis Regulation. The second question reads as follows:

After the right to make an application for provisional/protective measures has been exercised and the court having jurisdiction as to the substance of the matter has already ruled on that application, is the court seised of an application for interim relief on the same basis and under Article 35 of [the Brussels I bis Regulation] to be regarded as not having jurisdiction from the point at which evidence is produced that the court having jurisdiction as to the substance of the matter has given a ruling on that application?

In essence, the question seeks to establish whether a Bulgarian court not having jurisdiction as to the substance of the matter is precluded from pronouncing provisional/protective measures under Article 35 of the Brussels I bis Regulation in a situation where a Polish court having jurisdiction as to the substance of the matter has already given a ruling on an application for identical provisional/protective measures and rejected the application.

In brief, AG Rantos argues that in a situation described in the preliminary question the court not having jurisdiction as to the substance of the matter should not pronounce the provisional/protective measures.

In general terms, the Opinion contends that the rules on litispendence provided for in Article 29 of the Brussels I bis Regulation do apply in the context of proceedings for provisional/protective measures. Such finding of a general nature seems to suggest that the court subsequently seized under Article 35 of the Regulation with an identical application for provisional/protective measures should not give a ruling on that application (point 50).

The Opinion then goes on to elaborate on the more specific elements of the case at hand which seemed to inspire the second preliminary question: firstly, the impact of the choice of court clause in favour of the Polish courts on the applicability of Article 35 of the Regulation (in other terms: whether the Polish courts have exclusive jurisdiction also as to the provisional/protective measures); secondly, the actual connection between the measures sought and the territory of Bulgaria (the question being left open for the referring court to asses, point 74); thirdly, the relevance, before the Bulgarian court, of the Polish court decision refusing the provisional/protective measures (point 54).

Concerning the last element, AG Rantos observes that it is not clear whether the ruling of a Polish court refusing to grant provisional/protective measures is final or not (point 76). Thus, he elaborates on these two different hypothesis. In essence, according to the Opinion, the court subsequently seized should not give ruling on the application for provisional/protective measures [either because in a mutual trust oriented manner it should refrain from doing so because such ruling would be irreconcilable with a previous definitive ruling handed down by a Polish court (point 79) or – in the absence of such definitive ruling – because the rules on litispendence require the court subsequently seized to decline jurisdiction in favour of court previously seized (point 88)].

The Opinion is available here (no English version so far).