Droit international général

The creation of Lex & Forum has coincided with a groundbreaking legal and political development within the European family: the secession of the United Kingdom from the European Union after about 50 years of membership. The disruption of the judicial cooperation in civil and commercial matters between the EU and the UK has caused a pressing need for the immediate scrutiny of the uncharted procedural environment, triggered by a hard Brexit in the field of civil litigation. For this reason, the first issue of Lex & Forum was devoted to the implications of Brexit in the area of judicial cooperation in civil and commercial matters.

Nonetheless, Brexit has not been the sole milestone which coincided with the creation of Lex & Forum.

On 1 January 1981 Greece became a member of the European Community. The launch of Lex & Forum witnessed the anniversary of 40 years since the accession of Greece in the EU and the application of EU Law in the country.

The second issue of Lex&Forum is dedicated to the 40th anniversary of the application of EU Law in Greece and its influence on Greek civil procedural law. The tone is set already on the preface, authored by one of the founders of International Procedural Law in Greece, Pelagia Yessiou-Faltsi. The anniversary is further elaborated with specific contributions revolving around two main axes: (i) the influence of existing EU Civil Procedural Law on native civil procedural rules; (ii) new developments in EU Civil Procedural Law.

In detail: the contributions of the first axis open with the analysis by P. Arvanitakis on the influence of “lex europensis” on lex fori and the old forum regit processum axiom, followed by an examination of the role of the national judge in the adoption of cross border interim measures, conducted by A. Alapantas, and an investigation into the importance of the case law of the CJEU on the interpretation of EU and national civil procedural rules by I. Valmantonis, and an analysis of the functioning of the European Judicial Network (EJN) by V. Sarigiannidis.

The contributions of the second axis begin with a presentation of the provisions of Regulation 2019/1111 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction by I. Delicostopoulos, followed by the analysis of Regulation 2020/1783 on the taking of evidence by L. Pipsou, and Regulation 2020/1784 on the service of documents by A. Anthimos. This part is concluded with a reflection on the future of common EU civil procedural acquis and its future by D. Titsias. The contributions aforementioned were presented during a digital conference on 26 May  2021.

The special focus of the issue is concluded with insights from law professionals (such as bailiffs) on the application of the upcoming EU civil procedural regulations.

The following section deals with case law. The crucial decision of the CJEU in Braathens (case C-30/19), a case where the Court examines the problem of the supremacy and effet utile of EU Law over national civil procedural provisions, is given priority. The CJEU declared that national courts shall go as far as to disapply a national procedural provision that precludes them from giving full effect to the fundamental right to a remedy under art. 47 of the EU Charter of Fundamental Rights, especially in cases where, in terms of the law of substance, an alleged discrimination has taken place.

Furthermore, the issue hosts an equally interesting decision of the British High Court [2021] EWHC 178 (QB) on the interplay between the rules on lis pendens and the protective jurisdictional rules for the insured. In this case, Master Davison has reluctantly accepted that lis pendens rules of the Brussels Ia Regulation bar him from giving priority to the action of the insured person, as he is obliged to respect the lis pendens created by a negative declaratory action brought by the insurer in his native forum. I. Revolidis opens an interesting dialogue with the approach of Master Davison, wondering whether indeed the lis pendens rules can and/or shall undermine the protective jurisdictional regimes of the Brussels Ia Regulation.

With respect to domestic case law, reference needs to be made to the decision of the Lamia Court of First Instance no. 12/2021, which deals with joined actions, where the different joined claims fall within different EU Regulations or different chapters of the same Regulation, regulated in both cases by different and contradicting rules of international jurisdiction.

In the section of special issues, Lex&Forum hosts a practically important contribution by G. Anagnostopoulos on international jurisdiction in cases of judicial applications for the rejection of inheritance disposed by a person domiciled in Greece to the benefit of an underaged person domiciled in a foreign country.

Finally, this issue marks the creation of a new column (“L&F Praxis”), which will present the basic problems that occur from the practical application of EU civil procedural rules. In this issue, the column explores practical issues referring to the application of the European Certificate of Succession. The problems have been identified and systematically classified by A. Vathrakokoilis, who has also prepared a Greek case law digest on issues, such as the issuing a European Certificate of Succession when a will (domestic or foreign) has nonetheless been drawn up, or when statutory succession takes place.

The Council Conclusions on the Protection of Vulnerable Adults across the European Union have been published this week at the OJEU (C 330I, 17.8.2021, p. 1).

Extract : « The Council invites the Commission to:

On civil law matters

— assess possible actions to encourage further Member States to ratify the 2000 Hague Convention as swiftly as possible;

— conduct a thorough study aimed at carefully reflecting on and assessing how the European Union could further strengthen the protection of vulnerable adults in cross-border situations;

— consider the possible need for a legal framework within the European Union to facilitate the free circulation of judicial and extrajudicial decisions on the protection of vulnerable adults in civil matters, which might also include powers of representation, and advance directives on medical treatment;

— present to the European Parliament, the Council and the European Economic and Social Committee a report on the results of the study, accompanied, if necessary, by legislative proposals ».

It is likely that the issue will become more and more pressing as time passes since no European country reaches the demographic survival rate (renewal of population : 2.1).

Witten by Orji A Uka (Senior Associate at ALP NG & Co) and Damilola Alabi (Associate at ALP NG & Co)

Introduction

The issuance and service of an originating process are fundamental issues that afford or rob a court of jurisdiction to adjudicate over a matter. This is because it is settled law that the proceedings and judgment of a court which lacks jurisdiction result in a nullity[1]. Yet, despite the necessity of ensuring that the issuance and service of an originating process comply with the various State High Court Civil Procedure Rules or Federal High Court Civil Procedure Rules (“the relevant court rules”) or the Sheriffs and Civil Process Act, legal practitioners and sometimes judges commonly conflate the issuance and service of court process on defendants outside jurisdiction with the concept of service of court process by substituted means on defendants within the jurisdiction[2]. This paper set outs the differences between both commonly confused principles with the aim of providing clarity to its readers and contributing to the body of knowledge on this fundamental aspect of the Nigerian adjectival law.

 

Territorial Jurisdiction of Courts in Nigeria

Historically, Nigerian courts have always exercised jurisdiction over a defined subject matter within a clearly specified territory as provided for under the Constitution of the Federal Republic of Nigeria 1999 (as amended) (the “Constitution”). As an illustrative example, a High Court of a State in Nigeria or that of the Federal Capital Territory, Abuja has jurisdiction over the subject matter of a simple contract. However, the jurisdiction of each High Court is, as a general rule, confined to persons within the territorial boundaries of the State or the Federal Capital Territory, as the case may be. As highlighted below, there are three established bases under which a High Court in Nigeria can validly exercise jurisdiction in an action in personam.[3]

Firstly, a court in Nigeria is donated with jurisdiction in an action in personam where the defendant is present or resides or carries on business within the territorial jurisdiction of the court and the defendant has been served with the originating process.[4]In the oft-cited case of British Bata Shoe Co. Ltd v. Melikan[5], the Federal Supreme Court held that the High Court of Lagos State, rightly exercised its jurisdiction in an action in personam for specific performance of a contract because the defendant resided in Lagos State even though the land in respect of which the subject matter of the dispute arose, was situated at Aba, outside the territorial jurisdiction of the court.

Thus, jurisdiction can be invoked either by residence[6] or simply by presence within jurisdiction.[7] Upon a finding that the defendant is present or resident within the jurisdiction of the court, and the originating process has been duly served on the defendant within jurisdiction, the court automatically assumes jurisdiction over such defendant, subject to the provisions of the Constitution or statutes that confer exclusive jurisdiction on other courts e.g. the Federal High Court or the National Industrial Court in respect of such subject matter.

Secondly, a court can validly exercise jurisdiction over a defendant in an action in personam where such defendant submits to the court’s jurisdiction or waives his right to raise a jurisdictional challenge. Submission may be express, where the defendant signed a jurisdiction agreement or forum selection clause agreeing to submit all disputes to the courts of a particular legal system for adjudication either or an exclusive or non-exclusive basis. Submission may also be implied where the defendant is served with a court process issued by a court other than where he resides or carries on business and the defendant enters an unconditional appearance and/or defends the case on the merit.[8]

A third basis for the valid exercise of the jurisdiction of a High Court in Nigeria is where the court grants leave for the issuance and service of the originating process on a defendant outside the court’s territorial boundaries. As noted above, historically, Nigerian courts could only validly exercise jurisdiction over a defined subject matter within its specified territory. With time, the powers of the court have now extended to the exercise of judicial power over a foreigner who owes no allegiance to the court’s territorial jurisdiction or who is resident or domiciled out of its jurisdiction but is called to appear before the court in the jurisdiction[9]. It is important to note that as an attribute of the concept of sovereignty, the exercise of jurisdiction by a court of one State over persons in another State is prima facie an infringement of the sovereignty of the other State. In Nwabueze v. Okoye,[10] the Supreme Court highlighted the fundamental rule of Nigerian conflict of laws on exercise of jurisdiction over a foreign defendant by stating as follows:

“Generally, courts exercise jurisdiction only over persons who are within the territorial limits of their jurisdiction … It should be noted that except where there is submission to the jurisdiction of the court it has no jurisdiction over a person who has not been served with the writ of summons. The court has no power to order service out of the area of its jurisdiction except where so authorised by statute or other rule having force of statute.”[11]

 

Thus, a court may only stretch its jurisdictional arm outside its territory in certain limited circumstances.[12]Where such circumstances apply, the claimant is not entitled as of right to have the originating process issued by the court for service on a defendant who is resident or present outside the jurisdiction and must seek and obtain leave to this effect.[13]

 

The Issuance and Service of Originating Process Outside Jurisdiction

The power of courts to exercise jurisdiction beyond their territorial boundaries has been variously described as “long-arm jurisdiction”, “assumed jurisdiction” or even “exorbitant jurisdiction”. However, the power is only activated using the instrumentality of the grant of leave for the issuance and service of such originating process outside jurisdiction. While applying for leave, the claimant must convince the court that there exists a special reason for it to exercise its long arm to reach a defendant outside its jurisdiction. The special reasons which must be established by a claimant are contained in the relevant rules of courts.[14] Where none of the conditions outlined in the Rules are met, the courts must refuse the application for leave. This is because – in the language commonly employed in private international law -there would be no real and substantial connection between the cause of action and the jurisdiction of Nigeria and therefore no special reason to justify the exercise of the court’s long arm jurisdiction. Further, even where it is established that the claimant’s case falls within one or more of those jurisdictional pathways contained in the Rules, the claimant is nevertheless not entitled as of right to be granted leave and the courts are not automatically bound to grant leave as a matter of course. The claimant must still demonstrate to the court that it is the forum conveniens to hear and determine the claim.[15] Unfortunately, in practice, apart from a few instances, which are exceptions rather than the general rule, Nigerian courts hardly give this serious consideration during the ex-parte hearing stage for the application for leave.

The failure of a claimant to seek leave to issue and serve an originating process on a defendant outside jurisdiction, is not a rule of mere technicality. As the learned authors of “Private International Law in Nigeria” brilliantly summarised,[16] there are at least three reasons for this conclusion. First, courts are wary of putting a defendant who is outside jurisdiction through the trouble and expense of answering a claim that can be more conveniently tried elsewhere. Two, a court has to satisfy itself before granting leave that the proceedings are not frivolous, vexatious, or oppressive to the defendant who is ordinarily resident outside jurisdiction. Three, Nigerian courts, on grounds of comity, are wary of exercising jurisdiction over a foreign defendant who is ordinarily subject to the judicial powers of a sovereign foreign state. These also explain why the grant of leave is a judicial act – that can only be done by a Judge in chambers or the court; but not by the Deputy Chief Registrar or other court official, even if such leave is subsequently ratified or endorsed by the court. Thus, there is a long line of authorities by appellate courts in Nigeria (including the Supreme Court)to the effect that where leave was not obtained before the Writ of summons was issued and served, such writ is void and must be aside.[17]

 

Substituted Service

Substituted service on the other hand is resorted to when personal service of an originating process on a defendant within jurisdiction is not possible due to reasons such as evasion of service by the defendant or the inability to locate the defendant. A claimant seeking to serve a defendant within jurisdiction by substituted means must seek and obtain an order of court to serve the defendant by a specific means as stated in the relevant court rules. For example, Order 9 Rule 5 of the Lagos State High Court Civil Procedure Rules provides that upon an application by a claimant, a judge may grant an order for substituted service as it may seem just. Some of the popular modes of effecting substituted service include by pasting the originating process at the last known address of the defendant, by newspaper publication, or especially more recently, by sending same to the defendant by email. Since the defendant is otherwise within the court’s territorial reach, and the court has jurisdiction over him, there is no need to comply with real and substantial connection test set out in Order 10 Rule 1 of the Lagos State High Court Civil Procedure Rules.

 

Leave to Issue and Serve Versus Substituted Service

As simple as these concepts are, legal practitioners repeatedly confuse an application for leave for the issuance and service of originating process outside Nigeria with an application for substituted service within Nigeria.

In Kida v. Ogunmola[18]the appellant commenced an action for specific performance against five defendants. The court bailiff however was not able to serve the respondent, who was resident outside the jurisdiction of Borno State. It was known to the appellant that the 2ndrespondent was resident in Ibadan. The appellant then applied for leave to serve the originating process on the 2ndrespondent out of jurisdiction. Curiously, the appellant also applied for leave to serve the originating process on the 2nd, 3rd& 4threspondentsby substituted means by pasting same at their last known address in Maiduguri, Borno State and the court granted same. When the respondent failed to file a defence, the High Court entered default judgment against him. When the appellant initiated enforcement proceedings against the respondent, the respondent brought an application to set aside the judgment on grounds that leave of court was not obtained to issue the originating process outside jurisdiction. The High Court refused the application but upon an appeal to the Court of Appeal, the appellate court overturned the trial court’s decision.  The Appellant ultimately appealed to the Supreme Court which upheld the decision of the Court of Appeal.

The Supreme Court reasoned that the respondent was outside the jurisdiction of the court at the material time and could not be served by substituted means, and that substituted service can only be employed in situations where a defendant is within jurisdiction but cannot be served personally. The Supreme Court further held per Musdapher JSC (as he then was), at page 411 as follows:

“For a defendant to be legally bound to respond to the order for him to appear in Court to answer a claim of the plaintiff, he must be resident within jurisdiction, see National Bank (Nig.) Ltd. v. John Akinkunmi Shoyoye and Anor. (1977) 5 SC 181. Substituted service can only be employed when for any reason, a defendant cannot be served personally with the processes within the jurisdiction of the Court for example when the defendant cannot be traced or when it is known that the defendant is evading service. Also, where at the time of the issuance of the writ, personal service could not in law be effected on a defendant, who is outside the jurisdiction of the Court, substituted service should not be ordered, see Fry vs. Moore (1889) 23 QBD 395. If the defendant is outside the jurisdiction of the Court at the time of the issue of the writ and consequently could not have been personally served in law, not being amenable to that writ, an order for substituted service cannot be made, see Wilding vs. Bean (1981) 2 QB 100.”

In the same vein the Court of Appeal stated as follows in Abacha v. Kurastic Nigeria Ltd[19]

“Courts exercise jurisdiction over persons who are within its territorial jurisdiction: Nwabueze vs. Obi-Okoye (1988) 10-11 SCNJ 60 at 73; Onyema vs. Oputa (1987) 18 NSCC (Pt. 2) 900; Ndaeyo vs. Ogunnaya (1977) 1 SC 11. Since the respondent was fully aware that before the issuance of the writ the appellant’s abode or residence for the past one year was no longer at No.189, Off R.B. Dikko Road, Asokoro, Abuja within jurisdiction, substituted service of the processes should not have been ordered by the learned trial Judge.”

The above cases emphasise that a writ issued in the ordinary form cannot be served by substituted means on a defendant who is not present or resident in the jurisdiction of the court, except the leave of court was sought and obtained in accordance with the relevant rules of court. As Okoli and Oppong lucidly put it, where a writ cannot be served on a person directly, it cannot be served indirectly by means of substituted service.[20]

One area of law where parties commonly make the mistake of conflating an application for leave to issue and serve out of jurisdiction with an application for substituted service is in maritime claims. This, in our experience, stems from a historically commonplace mischaracterisation of actions as actions in rem instead of actions in personam.[21] In Agip (Nig) Ltd v Agip Petroli International[22]the Supreme Court held where an action is not solely an action in rem but also an action in personam, the plaintiff is bound to comply with the procedural rules, such as obtaining leave of the court.

Further, there is a common practice – particularly in cases with multiple defendants, with one defendant residing within jurisdiction and another outside jurisdiction – where parties apply to the courts to serve the originating process on the party outside jurisdiction through substituted service on the party within jurisdiction. It is pertinent to state that the above practice does not cure the defect and that the only circumstance where it is acceptable is where the party within jurisdiction is the agent of the party outside jurisdiction, and that is not the end of the story. The position of the law is that where a foreign company carries on business through an agent or servant company resident within a court’s jurisdiction, the principal company is deemed to also be carrying on business within the same jurisdiction.[23] However, the courts have also held that where the agent company has no hand in the management of the company and receives only the customary agent’s commission, the agent’s place of business in Nigeria is not the company’s place of business. Thus, the company has no established place of business in Nigeria and is not resident in Nigeria,[24] therefore leave of court is still required for the issuance and service of the writ.

 

Conclusion

The power vested in an appellate court to set aside a judgment of a lower court on the grounds of improper issuance or service of the originating process which is for service out of jurisdiction is symbolic of the imperativeness for claimants and their legal practitioners to ensure that the issuance and service of the originating process are done in conformity with the law and relevant court rules. It is respectfully submitted that the confusion between the service of an originating process outside the jurisdiction of a court and the service of an originating process by substituted means is unnecessary. The principles are clear and distinct and should not be mixed up.

[1]See. Boko v. Nungwa (2019) 1 NWLR (Pt. 1654) 395. In CRUTECH v. Obeten (2011) 15 NWLR (Pt. 1271) 588 the Court of Appeal reemphasised the importance of jurisdiction when it stated that “the lack of jurisdiction is detrimental, disastrous, devastating and without leverage for salvaging the situation, regardless of desirability of such a course of action.”

[2] See Nwabueze v. Okoye (1988) 4 NWLR (Pt. 91) 644; Bimonure v. Erinosho (1966) 1 All NLR 250; Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535; and Khatoun v. Hans Mehr (Nigeria) and Anor. (1961) NRNLR 27.

[3] According to the 10th Edition of the Black Law Dictionary, an action is said to be in personam when its object is to determine the rights and obligation of the parties in the subject matter of the action, however, the action may arise, and the effect of the judgment may bind the other. A common example is a breach of contract claim.

[4]Ogunsola v. All Nigeria People’s Party (2003) 9 NWLR (Pt. 826) 462.

[5]British Bata Shoe Co. Ltd v Melikan (1956) 1 FSC 100.

[6]United Bank of Africa v. Odimayo (2005) 2 NWLR (Pt. 909) 21.

[7]Ayinule v. Abimbola (1957) LLR 41.

[8]See Barzani v Visinoni (1973) NCLR 383; Ezomo v Oyakhire (1985) 1 NWLR (Pt. 2) 195;Adegoke Motors Ltd v Adesanya (1989) 3 NWLR (Pt. 107) 250.

[9]Caribbean Trading & Fidelity v. Nigerian National Petroleum Corporation (2002) LPELR- 831 (SC).

[10](1988) 4 NWLR (Pt 91) 664.

[11]See also United Bank for Africa Plc v Odimayo (2005) 2 NWLR (Pt. 909) 21, 40

[12] Bamodu, G. (1995) ‘Jurisdiction and Applicable Law in Transnational Dispute Resolution before the Nigerian Courts’ 29 Int’l L 555 available at https://scholar.smu.edu/til/vol29/iss3/6.

[13] Broad Bank of Nigeria v. Olayiwola (2005) LPELR-806 (SC).

[14]For instance, Order 10 Rule 1 of the Lagos State High Court Civil Procedure Rules 2019 provides that a judge may allow its originating process to be served on a defendant outside Nigeria where, inter alia, the whole subject matter of the dispute is land which located within jurisdiction; the claim is for the administration of the personal estate of any deceased person who was domiciled within jurisdiction at the time of his death; the action is brought in respect of a contract that is made within the jurisdiction, made by an agent residing or carrying on business within jurisdiction, or governed by Lagos State laws; the claim is in respect of a contract breached within jurisdiction regardless of where it was executed; the claim is founded on a tort committed within the jurisdiction; etc.

[15]While it is beyond the purview of this paper to undertake a comprehensive exposition on the concept of forum conveniens, it is pertinent for the present purposes to note that another commonly mistaken belief among lawyers is to equate the rule of forum non conveniens with the convenience of the parties or their legal practitioners. The word, conveniens is a Latin word for convenient or appropriate. The rule simply means that that there is another forum in which the case may most suitably be tried in the interests of all the parties and the ends of justice.

[16]Okoli, C. S. A. and Oppong, R. (2020) Private International Law in Nigeria Hart Publishers p. 75.

[17] An illustrative example is the case of Owners of the MV Arabella v. Nigeria Agricultural Insurance Corporation (2008) LPELR- 2848 (SC).Some later authorities have however held that such writ is not void but voidable and is capable of being waived by the defendant if not timeously raised. Whether a writ which is issued without leave is void or voidable is not within the purview of this paper. Either way, such writ is capable of being set aside.

[18]Mohammed Kida v. A. D. Ogunmola (2006) All FWLR (Pt. 327) 402.

[19](2014) LPELR-22703(CA).

[20]Okoli, C. S. A. and Oppong, R. (2020) Private International Law in Nigeria Hart Publishers p. 59.

[21]For a detailed treatment of the distinction between actions in rem and actions in personam please see Okoli, C. S. A. and Oppong, R. n. (16) above.

[22](2010) 5 NWLR (Pt. 1187) 348, 416.

[23]Spiropoulos and Co Ltd v. Nigerian Rubber Co Ltd (1970) NCLR 94; Eimskip Ltd v. Exquisite Industries (Nig) Ltd (2003) 14 WRN 77.

[24]See In re Gresham Life Assurance Society (Nig) Ltd (1973) (1) ALR Comm 215, (1973) 1 All NLR (Pt. I) 617, (1973) NCLR 215.

 

The author of this post is Carlos Santaló Goris, research fellow at the MPI Luxembourg and Ph.D. candidate at the University of Luxembourg.

Regulation (EC) No 1896/2006 establishing the European Payment Order (‘EPO’) introduced the first EU uniform civil procedure. The EPO Regulation aimed at facilitating the cross-border recovery of debt within the EU.

According to statistics published by the Spanish General Council of the Judiciary, in 2017, Spanish courts issued a total 655 EPOs. In 2018, the number of EPOs increased 898,32%, up to 5.884 EPOs. In 2019, the number of EPOs continued increasing, skyrocketing to the gargantuan number of 29.120 EPOs. In 2020, though there was a decrease with respect to the previous year, Spanish courts still issued 21.636 EPOs.

Just for the sake of comparison: during the same period there were much fewer applications for EPOs. in Germany: 3.706 applications in 2018, 3.577 in 2019, and 3.582 in 2020.

What is the reason behind the abnormal increase in the number of EPOs issued by Spanish courts between 2017 and 2019? In my view, the answer is to be found in the difference between the EPO and the Spanish payment order regarding the courts’ possibility (obligation) to assess the fairness of contractual terms in consumer claims under Directive 93/13 on unfair terms in consumer contracts.

Under the Spanish payment order, a court receiving an application for a payment order involving a consumer party had to evaluate the fairness of the contractual terms of the relation between the creditor and the consumer. Mandatory review was the conequence of the ECJ judgment, C‑618/10, Banco Español de Crédito. According to the ECJ, “Directive 93/13 must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, which does not allow the court before which an application for an order for payment has been brought to assess of its own motion, in limine litis or at any other stage during the proceedings, even though it already has the legal and factual elements necessary for that task available to it, whether a term concerning interest on late payments contained in a contract concluded between a seller or supplier and a consumer is unfair, in the case where that consumer has not lodged an objection” (para. 57).

Unlike the Spanish payment order procedure, the EPO follows a non-documentary procedure. Creditors do not have to provide any documents – only the application standard form. In particular, they do not have to provide the contract on which the claim is based; they are only required to describe “the circumstances invoked as the basis of the claim” and a “description of evidence supporting the claim” (Article 7(2) EPO Regulation). The ECJ had made it clear “that Article 7 of Regulation No 1896/2006 governs the requirements exhaustively to be met by an application for a European order for payment can ensure that the objective of the regulation is attained” (C-215/11, Szyrocka, para. 32). Furthermore, according to the Spanish act implementing the EPO Regulation any documents other than the standard form would be inadmissible when applying for the EPO (23rd final provision of Spanish Code of Civil Procedure). Based on the information that creditors provide in the EPO application, Spanish courts could not examine the fairness of the contractual terms as they would in the national payment order. Aware of this, more creditors started to apply for EPOs, thus provoking the increased number of applications.

Since the EPO Regulation only applies to cross-border claims, many claims which initially had a purely domestic origin had to be “transformed” into cross-border ones. According to Article 3 of the EPO Regulation, the cross-border dimension of a claim is established when “at least one of the parties is domiciled or habitually resident in a Member State other than the Member State of the court seised.” To satisfy this prerequisite, domestic creditors assigned the debt to a new creditor in another Member State (often vulture funds or companies specialized in debt recovery).

The flood of EPO applications in consumer claims did not pass by unnoticed by Spanish judges. Three Spanish courts submitted requests for preliminary rulings to the ECJ asking whether judges could ask the EPO applicant for additional documents in order to conduct an ex officio review of the fairness of the contractual terms. Two of those preliminary references led to the ECJ judgment C‑453/18 and C‑494/18, Bondora. In this decision, the ECJ determined that “a ‘court’, within the meaning of that regulation, seised in the context of a European order for payment procedure, to request from the creditor additional information relating to the terms of the agreement relied on in support of the claim at issue, in order to carry out an ex officio review of the possible unfairness of those terms and, consequently, that they preclude national legislation which declares the additional documents provided for that purpose to be inadmissible” (para. 54).

Bondora opened the door the examination of the fairness of the contractual terms in the context of the EPO procedure. From the creditors’ perspective, this judgment put a virtual end to the comparative advantage that the EPO Regulation had over the Spanish payment order in claims against consumers.

But, has the Bondora decision already impacted the number of EPO applications? Difficult to say. The decision was published in December 2019. In 2020, there was a decrease of 7.515 EPOs rendered by Spanish courts as compared to 2019. However, the number of EPOs still remained highly superior to the average amount of yearly EPOs issued by Spanish courts before 2018. More likely, the COVID-19 pandemic explains the decline. It is only in the coming years where we might see whether Bondora has caused the EPO Regulation to lose its charm among Spanish creditors or not.

By Neerav Srivastava

 

The Rule in Antony Gibbs[1] (‘the Rule’) provides that if the proper law of a contract is Australian, then a discharge of the debt by a foreign jurisdiction will not be a discharge in Australia unless the creditor submitted to the foreign jurisdiction.[2] The Rule is much maligned, especially in insolvency circles, and has been described as “Victorian”.[3] In ‘Heritage and Vitality: Whether Antony Gibbs is a Presumption’[4] I seek to defend the Rule.

Presumption

The article begins by arguing that, in the modern context, that the Rule should be recognised as a Presumption as to party intentions.

Briefly, Gibbs was decided in the 1890s. At the time, the prevailing view was that the proper law of a contract was either the law of the place of the contract or its performance.[5] This approach was based on apportioning regulatory authority between sovereign States rather than party intentions. To apply a foreign proper law in a territory was regarded as contrary to territorial sovereignty. Freedom of contract and party intentions were becoming relevant to proper law but only to a limited extent.[6]

As for Gibbs, Lord Esher’s language is consistent with the ‘Regulatory Approach’:

It is clear that these were English contracts according to two rules of law; first, because they were made in England; secondly, because they were to be performed in England. The general rule as to the law which governs a contract is that the law of the country, either where the contract is made, or where it is to be so performed that it must be considered to be a contract of that country, is the law which governs such contract …[7]

Notice that the passage makes no reference to party intentions.

By the early 20th century, the position had evolved in that it was generally accepted that party intentions determined the proper law.[8] Even so, it was not until the late 1930s that the Privy Council stated that the position was “well-settled”.[9] Party intentions has evolved into being the test for proper law universally.[10]

Under the modern approach, party intentions as to proper law are a question of fact and not territorial. Parties are free to choose a proper law of a jurisdiction with which they have no connection.[11] As a question of fact, party intentions are better understood as a ‘Presumption’. Further, the Presumption might be displaced. The same conclusion can be reached via an implied term analysis.

The parties can also agree that there is more than one proper law for a contract. That, too, is consistent with party autonomy. Under depeçage, one law can govern a contract’s implementation and another its discharge.[12] Likewise, the Second Restatement in the US[13] and the International Hague Principles allow a contract to have multiple proper laws.[14]

Cross-border Insolvency

The second part of the article addresses criticisms of Gibbs by cross-border insolvency practitioners. In insolvency, issues are no longer merely between the two contracting parties. The body of creditors are competing for a share of a company’s remaining assets. Under pari passu all creditors are to be treated equally. If a company is in a foreign liquidation, and its discharge of Australian debt is not recognised by an Australian court, Gibbs appears inconsistent with pari passu. Specifically, it appears that the creditor can sue in Australia and secure a disproportionate return.

That is an incomplete picture. While the foreign insolvency does not discharge the debt in Australia, when it comes to enforcement comity applies. Comity is agitated by a universal distribution process in a foreign insolvency. Having regard to comity, the Australian court will treat local and international creditors equally.[15] If creditors are recovering 50% in a foreign insolvency, an Australian court will not allow an Australian creditor to recover more than 50% at the enforcement stage. Criticisms of the Presumption do not give due weight to enforcement.

Gibbs has been described as irreconcilable with the United Nations Commission on International Trade Law Model Law on Cross-Border Insolvency 1997 (the 1997 Model Law),[16] which is generally[17] regarded as embodying ‘modified universalism’. That, it is submitted, reflects a misunderstanding.

Historically, in a cross-border insolvency “territorialism” applied.[18] Each country collected assets in its territory and distributed them to creditors claiming in those insolvency proceedings. In the past 200 years, universalism has been applied.[19] Under ‘pure universalism’, there is only one process for collecting assets globally and distributing to all creditors. Modified universalism:

accepts the central premise of [pure] universalism, that assets should be collected and distributed on a worldwide basis, but reserves to local courts discretion to evaluate the fairness of the home-country procedures and to protect the interests of local creditors …[20]

Modified universalism can be understood as a structured form of comity.[21] It asks that all creditors be treated equally but is a tent in that it allows States to choose how to protect the interest of creditors. A State may choose to couple recognition of the foreign insolvency – and the collection of assets in its jurisdiction – with the discharge of creditors’ debts. However, the 1997 Model Law does not require a State to follow this mechanism.[22] Under the Anglo-Australian mechanism (a) a debt may not be discharged pursuant to Gibbs (b), but creditors are treated equally at the enforcement stage. It is a legitimate approach under the tent that is modified universalism.

 

[1] Antony Gibbs & Sons v Société Industrielle et Commerciale des Métaux (1890) 25 QBD 399.

[2] Albert Venn Dicey, A Digest of the Law of England With Reference To The Conflict of Laws (Stevens, 1896) rule 113.

[3] Varoon Sachdev, “Choice of Law in Insolvency Proceedings: How English Courts’ Continued Reliance on the Gibbs Principle Threatens Universalism” (2019) 93 American Bankruptcy Law Journal 343.

[4] (2021) 29 Insolvency Law Journal 61. Available at Westlaw Australia.

[5] Alex Mills, Party Autonomy in Private International Law (CUP, 2018) 53, citing Peninsular and Oriental Steam Navigation Co v Shand (1865) 16 ER 103.

[6] Alex Mills, The Confluence of Public and Private International Law (CUP, 2009), 53.

[7] Antony Gibbs & Sons v Société Industrielle et Commerciale des Métaux (1890) 25 QBD 399, 405 (Gibbs).

[8] Alex Mills, Party Autonomy in Private International Law (CUP, 2018) 56, Lord Collins et al, Dicey, Morris & Collins, The Conflict of Laws (Sweet & Maxwell, 15th ed, 2017), [32-004]–[32-005].

[9] Vita Food Products Inc v Unus Shipping Co Ltd [1939] AC 277.

[10] Martin Davis et al, Nygh’s Conflict of Laws in Australia (Lexis Nexis, 2019), [19.6]; Lord Collins et al, Dicey, Morris & Collins, The Conflict of Laws (Sweet & Maxwell, 15th ed, 2017), [32-004]–[32-005], [32-042]; and Principles on Choice of Law in International Commercial Contracts promulgated by the Hague Conference on Private International Law in 2015.

[11] Vita Food Products Inc v Unus Shipping Co Ltd [1939] AC 277, Martin Davis et al, Nygh’s Conflict of Laws in Australia (Lexis Nexis, 2019), [19.15].

[12] Club Mediterranee New Zealand v Wendell [1989] 1 NZLR 216, Olex Focas Pty Ltd v Skodaexport Co Ltd [1998] 3 VR 380.

[13] Restatement (Second) of Contracts § 188.

[14] Principles on Choice of Law in International Commercial Contracts promulgated by the Hague Conference on Private International Law in 2015.

[15] Galbraith v Grimshaw [1910] AC 508, Chapman v Travelstead (1998) 86 FCR 460, Re HIH Casualty & General Insurance Ltd (2005) 190 FLR 398.

[16] In Australia the 1997 Model Law was extended to Australia by the Cross-Border Insolvency Act 2008 (Cth).

[17] Adrian Walters, “Modified Universalisms & the Role of Local Legal Culture in the Making of Cross-border Insolvency Law” (2019) 93 American Bankruptcy Law Journal 47, 64.

[18] Although Rares J has pointed out, “centuries earlier, maritime lawyers had developed a sophisticated and generally harmonious system of dealing with cross-border insolvencies”: Steven Rares, “Consistency and Conflict – Cross-Border Insolvency” (Paper presented at the 32nd Annual Conference of the Banking & Financial Services Law Association, Brisbane, 4 September 2015).

[19] Re HIH Casualty & General Insurance Ltd [2008] 1 WLR 852, [30]; [2008] UKHL 21.

[20] Jay Lawrence Westbrook, “Choice of Avoidance Law in Global Insolvencies” (1991) 17 Brooklyn Journal of International Law 499, 517.

[21] UNCITRAL, Guide to Enactment and Interpretation of the UNCITRAL Model Law on Cross-border Insolvency (2014) [8].

[22] Akers v Deputy Commissioner of Taxation (2014) 223 FCR 8; [2014] FCAFC 57. See too Re Bakhshiyeva v Sberbank of Russia [2019] Bus LR 1130 (CA); [2018] EWCA 2802.

The author of this post is Christelle Chalas, who is an Associate Professor at the University of Lille. 

Background

The French law on the compliance with the Republican Principles (projet de loi confortant le respect des principes de la République) introduces a new paragraph in Article 913 of the French Civil Code aiming at re-establishing a right of ‘compensatory levy’ (droit de prélèvement compensatoire) on property situated in France for the benefit of children who would not benefit from a reserved share of inheritance.

Its scope is limited to cases where either the deceased or one of his or her children is a national of a Member State of the European Union or a person whose habitual residence is in such a State.

The new text reads:

Lorsque le défunt ou au moins l’un de ses enfants est, au moment du décès, ressortissant d’un État membre de l’Union européenne ou y réside habituellement et lorsque la loi étrangère applicable à la succession ne permet aucun mécanisme réservataire protecteur des enfants, chaque enfant ou ses héritiers ou ses ayants cause peuvent effectuer un prélèvement compensatoire sur les biens existants situés en France au jour du décès, de façon à être rétablis dans les droits réservataires que leur octroie la loi française, dans la limite de ceux-ci.

The law was eventually adopted by the National Assembly on 23 July 2021. The bill had been rejected twice by the Senate in April 2021 (see here) and then on 20 July 2021, but the National Assembly had voted twice in favour of its adoption (in February and July 2021, see here). Under the French legislative system, the Assembly’s deliberations ultimately prevail. The constitutionality of the bill was immediately challenged before the Constitutional Council (Conseil constitutionnel) (see below).

A compensatory levy was instituted in French inheritance law by the law of the 14 July 1819 but it was found to be unconstitutional by the Constitutional Council in 2011 (see here) on the ground that it disregarded the principle of equality by establishing an inequal treatment based on nationality between the heirs designated by the foreign inheritance law.

Although the new text avoids this obvious violation of the principle of equality by granting this right to all heirs whatever their nationality or residence, it raises several problems that threaten its validity.

These problems are interesting because they illustrate the small margin of freedom that national legislators still enjoy in particular with regard to European law. From a domestic perspective, issues of constitutionality also arose.

Is the New Provision Unconstitutional?

Regarding the conformity of Article 913 with the French Constitution, it is submitted that the main concern is the appropriateness of the “droit de prélèvement” with regard to the purpose of the law. It was said during the discussion in the Senate, and shown in French doctrine (Revue critique de DIP 2021, issue 2, announced here) that there is a high risk that the provision misses its target.

The purpose of Article 913 is to steer against the effects of an applicable foreign inheritance law that would discriminate between heirs according to their sex or religion. More specifically, the government did not hide that the provision aims at protecting female heirs from the inheritance laws of Muslim countries. But, since Article 913 does not limit its application to discriminatory foreign laws, but is concerned with foreign laws which “do not permit any reserved share mechanism”, the provision could reach situations that in no way threaten “Republican Principles” (here, equality) and, conversely, Article 913 could miss situations that do threaten these principles. Indeed, the laws of common law countries could be concerned as they do not provide for reserved shares, while, on the contrary, Article 913 could possibly not apply to Muslim laws since they might provide for a reserved share.

One can also be very critical about the weakness of the required connection with France: by rendering the mechanism available to all children heirs as long as only one of them, or the deceased, is a national of a Member State of the EU or is resident in one of theses states, it is very easy to imagine situations in which the protection of the French law will appear inappropriate, if not illegitimate. The real object of the law remains unclear and this raises concerns about the adequacy of the compensatory system set in place. This could be a reason for unconstitutionality.

Furthermore, if the only purpose of Article 913 is to fight against discriminatory foreign laws, the public policy exception should be efficient enough. The French Supreme Court for civil and criminal matters (Cour de cassation) could transpose its own jurisprudence on repudiation to the context of reserved share in inheritance law.

The other advantage of the public policy exception is that it allows a concrete and factual assessment of the result produced by the application of the foreign law.  For example, the family provisions of English law would be spared by the public policy exception while it is not sure that the new text would not receive application in this case.

Unfortunately, it does not seem that any of the parties who participated in the challenge of the constitutionality of the law raised any argument with respect to the new provision. On August, 13th, 2021, the Constitutional Council delivered its decision without addressing the issue.

A Risk of Euro-Incompatibility?

The conformity of Article 913 with the European Succession Regulation could also be questioned on several grounds.

Article 23 of the Regulation provides that “the law determined pursuant to Article 21 and Article 22 shall govern the succession as a whole. That law shall govern in particular, … the disposable part of the estate, the reserved shares and other restrictions on the disposal of property upon death as well as claims which persons close to the deceased may have against the estate or the heirs”. By putting in place a right of compensatory levy on property situated in France, Article 13 sets a new exemption on the applicable law designated by the Regulation.

The European Court of justice might not accept this type of circumvention of the applicable law, in particular when the deceased person has chosen its national law in accordance with Article 22. Recital 38 of the Preamble to the Regulation specifies that the choice of law is limited to the national law of the deceased precisely with the objective “to avoid a law being chosen with the intention of frustrating the legitimate expectations of persons entitled to a reserved share”. A limited and voluntary infringement to the reserved share is thus admitted by the Succession Regulation.

Article 913 would also possibly run against Recital 37 that states that the succession should be govern by a predictable law with which it is closely connected. Predictability and necessity of a close connection between the applicable law and the succession are clearly challenged by the French draft provision. Recital 37 also recommends that “for reasons of legal certainty and in order to avoid the frag­mentation of the succession, that law should govern the succession as a whole”. On the contrary, the compensatory levy instituted by French law results in the application of several inheritance laws.

The only solution would be to consider that the French compensatory levy right falls under the public policy exception set out in Article 35 of the Regulation. But neither here can there be certainty. As is well known, the Court of Justice supports a very restrictive application of the public policy exception, which is reinforced by the requirement in Article 35 that the application of a provision of the law specified by the Regulation should be “manifestly incompatible” with the public policy of the relevant State. Through its control, The European Court of Justice limits any misuse of the concept of public policy that would have the effect of impeding the effectiveness of European regulations.

In this respect, it seems that the nuanced jurisprudence of the French Supreme Court, which limits the exclusion of foreign law to cases where a child heir is in a situation of economic insecurity or need, is more in line with the requirement of Article 35.

The third issue of 2021 Lloyds’s Maritime and Commercial Law Quarterly was published today. It features one article and a book review on private international law.

M Teo,  “A Negotiation-Based Choice of Law Rule for Contractual Formation”

A Briggs, “Book Review – The Private International Law of Authentic Instruments”

 

The Faculty of Law, Brawijaya University, Indonesia is organizing a one-day international online seminar on Private International Law in Islamic Countries – Developments and Challenges. The main purpose of the seminar is to examine and discuss the current situation of private international law in Islamic countries especially from the point of view of the influence of religion (Sharia/Islamic law) on the regulation of private international relationships.

Participation is free but online registration (here)  is kindly requested to receive the link to the conference, which will be emailed shortly before the event.

After registering, attendees will receive a confirmation email containing information about joining the webinar. The event will also be live streamed via YouTube (here). E-certificate for attendance will also be issued for attendees to prove that they joined the online seminar.

Details about the forthcoming seminar are as follows:

Date: 24 August 2021

Time: 13:00 (Western Indonesia Time); 14:00 (Brunei & Hong Kong Time); 15:00 (Japan Time)

Program (details can be found here):

1. Admittance for Key-note Speaker, Invited Speakers, and Seminar
2. Opening Ceremony by the Dean of the Faculty of Law, Brawijaya
3. Keynote Speech by Professor Yun Zhao, Representative of the HCCH Regional Office for Asia and the Pacific
4. Seminar Presentation (Moderator: Cyndiarnis, SH. MKn)

• • a. Associate Professor Béligh Elbalti, Ph.D., Graduate School of Law and Politics, Osaka University (The Influence of Islamic Law Principles on the Treatment of International Private Relationships – Family Law as Example)
  • b. Nobumichi Teramura, Assistant Professor of the Institute of Asian Studies, and University of Brunei Darussalam (Shariah as the Law Applicable to an International Commercial Contract: Challenges and Opportunities in Australia and Brunei)
  • c. Afifah Kusumadara, SH. LL.M. SJD., Faculty of Law, Brawijaya University (The connecting factors to determine the applicable law and the court jurisdiction in Indonesia: The interference of religion)

5. Question and Answer
6. Photo Session and Closing
7. Announcement by the M.C. concerning:

• • Certificates of Participation
  • Seminar materials

Any enquiries should be directed to seminar_pil@ub.ac.id. The organisers are looking forward to having fruitful discussion with and exchange of ideas among all participants.

 

 

A foreign judgment that cannot be enforced is useless no matter how well it is/was written. The fact that a foreign judgment can be readily enforced aids the prompt settlement of disputes and makes international commercial transactions more effective.  The importance of the enforcement of foreign judgments cannot be over-emhpasised because international commercial parties are likely to lose confidence in a system that does not protect their interests in the form of recognising and enforcing a foreign judgment.

Today Hart published a new private international law monograph focused on the recognition and enforcement of foreign judgments. Its title is “The Hague Judgments Convention and Commonwealth Model Law: A Pragmatic Perspective.” The author of this monograph is Dr Abubakri Yekini of the Lagos State University. The monograph is based on his PhD thesis at the University of Aberdeen titled “A Critical Analysis of the Hague Judgments Convention and Commonwealth Model Law from a Pragmatic Perspective.”

The abstract of the book reads as follows:

“This book undertakes a systematic analysis of the 2019 Hague Judgments Convention, the 2005 Hague Choice of Court Convention 2005, and the 2017 Commonwealth Model Law on recognition and Enforcement of Foreign Judgments from a pragmatic perspective.

The book builds on the concept of pragmatism in private international law within the context of recognition and enforcement of judgments. It demonstrates the practical application of legal pragmatism by setting up a toolbox (pragmatic goals and methods) that will assist courts and policymakers in developing an effective and efficient judgments’ enforcement scheme at national, bilateral and multilateral levels.

Practitioners, national courts, policymakers, academics, students and litigants will benefit from the book’s comparative approach using case law from the United Kingdom and other leading Commonwealth States, the United States, and the Court of Justice of the European Union. The book also provides interesting findings from the empirical research on the refusal of recognition and enforcement in the UK and the Commonwealth statutory registration schemes respectively.”

I have had the benefit of reading this piece once and can confidently recommend it to anyone interested in the important topic of recognition and enforcement of foreign judgments. The pragmatic approach utilised in the book makes the work an interesting read. My prediction is that this book will endure for a long time, and will likely be utilised in adjudication.

Background

In the judgment in TeamBank dated 19 January 2019, the CJEU ruled that Article 14 of the Rome I Regulation does nothing to identify the law governing the effects of assignment in relation to third parties. The court referred, inter alia, to Article 27(2) of the Rome I Regulation, which tasked the Commission to report on this issue and propose an amendment to the Regulation. In the meantime, the question will be governed by national conflict-of-laws rules.

But by which one? This interesting point was subsequently decided in a judgment by the Court of Appeal (Oberlandesgericht) Saarbrücken (Germany), which had requested the preliminary ruling from the CJEU.

German Conflicts Rule on Third-party Effects of Assignment

The legal situation in Germany in this respect is somewhat unclear. Until 2009, the Introductory Act to the German Civil Code (EGBGB) featured a rule on the law applicable to assignment in its former Article 33. Although this provision did not explicitly address third-party effects, it was interpreted by the courts and most authors as submitting them to the law of the assigned claim. Yet Article 33 EGBGB was repealed in 2009 by the German legislator because it considered the rule as no longer necessary due to entry into force of the Rome I Regulation.

Thus, the important gap of the Rome I Regulation regarding third-party effects of assignment, which the CJEU had correctly identified in TeamBank, became all the more significant. To close it, the Court of Appeal Saarbrücken refers to the old EGBGB rule and its long-standing interpretation. In the eyes of the court, the repeal of the provision does not matter, given the advantages of applying the law of the assigned claim to third-party effects. Specifically, the court highlights the rule’s contribution to the goal of legal certainty, which could not be achieved by other connecting factors. Moreover, it explicitly rejects the habitual residence of the assignor in this context, as it would not allow the same degree of predictability in the case of sequential assignments.

The Decision

Applying this conflicts rule, the court determines the law of Luxembourg as governing the third-party effects in the present litigation. To recall: In the underlying case, a Luxembourgish civil servant habitually resident in Germany had twice assigned her salary claims against her employer, first to a bank in Germany and thereafter to a bank in Luxembourg, before becoming bankrupt. The debtor was only informed of the second assignment. Afterwards, the two banks had a dispute about the rights to the salary.

The Court of Appeal starts by considering the validity of the first assignment from the point of view of German substantive law, which governs the assignment under Art 14(2) Rome I Regulation. However, these considerations were ultimately futile. Only thereafter did the court address the real issue, i.e. the law applicable to the third-party effects of the assignment.

Since the claim assigned was governed by Luxembourgish law, the court held the same to be applicable to the dispute between the banks before it. Based on an expert opinion, the court considers only the second assignment, which had been notified to the debtor, as valid under Luxembourg law. The fact that the previous assignment is valid under German law without any notice to the debtor would not matter as Luxembourgish law governs the third-party effects of both assignments.

A Look at the Commission Proposal

The Court of Appeal does not fail to acknowledge that under the European Commission’s Proposal for a Regulation on the law applicable to the third-party effects of assignment of claims, the connecting factor will be different because the habitual residence of the assignor takes centre stage (see Article 4(1) of the Proposal). However, the court also points to the various exceptions to this rule in Article 4(2) and (3) of the Proposal. Moreover, it points to the rule for priority conflicts in Article 4(4) of the Proposal. The court takes the view that the latter rule would have yielded the same result it had reached in the present case, i.e. the applicability of the law of Luxembourg.

It is respectfully submitted that the court erred on this last point. Article 4(4) of the Proposal contains a rule for priority conflicts that may arise where two assignments are covered by Article 4(1) and Article 4(2) or (3) of the Proposal. It therefore presupposes the applicability of two diverging connecting factors – habitual residence on the one hand, and the law governing the claim on the other. This, however, was not the case in the situation faced by the Court of Appeal, in which the one and the same rule and connecting factor – that of the habitual residence under Article 4(1) of the Proposal – would have been applicable. Had the Proposal already been adopted, it would thus have resulted in the applicability of German law and, consequently, the validity of the first assignment.

Conclusion

The case offers two take-aways: First, there is still considerable support in national courts for the law of the assigned claim as the relevant connecting factor for third-party effects of assignment. The long-awaited Regulation of the Commission will thus have to entail significant changes in the attitudes.

Second, the case illustrates that the complex Commission’s Proposal lends itself to misunderstandings, even in its – easier – original form. One of the major challenges will be to educate lawyers about its meaning and secure its correct application by courts throughout the Union.

Many thanks to Verena Wodniansky-Wildenfeld and Amy Held for their contribution to this post.

Yesterday (10 August 2021), the Hague Conference issued a press release according to which, on 23 July 2021, New Zealand ratified the Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance, which will enter into force for it on 1 November 2021.

Source : https://www.hcch.net/en/news-archive/details/?varevent=814

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on 12 August 2021 at 5:00 pm (Mexico City time – CDT), 12:00 am (CEST time). The topic of the webinar is two thesis on private international law and will be presented by Professor Leonel Pereznieto Castro (in Spanish).

The details of the webinar are:

Link: https://us02web.zoom.us/j/84229739402?pwd=bXlib3IzQnkvUjlzS0VTbVQvcEpLQT09

Meeting ID: 842 2973 9402

Password: BMAAMEDIP

Participation is free of charge. This event will also be streamed live: https://www.facebook.com/AmedipMX

 

 

AMEDIP is also giving a series of lectures in a course addressed to judges and judicial officers, among others. This course consists of 100 hours of lectures on Private International Law and is being organized by the Federal Judicial School of Mexico. The program is available here.

As this course deals with a broad range of topics, it will have an impact on the better understanding of Private International Law in the Mexican judicial branch and may lead to better decision making in international cases. For more information, click here.

 

The Brazilian Association of Internationalist Lawyers (ABRINTER) will hold on August 11 and 12 its 1st Cycle of Lectures with the theme “Perspectives and Challenges of the New Borderless Law Practice” (in Portuguese).

 

The event brings 27 lectures on various topics involving law and international private law practice, and celebrates the cooperation protocols signed by the Brazilian association and the Federation of Young Lawyers from Mexico (Mexico) and the Algarve Law Association (Portugal).

 

Registration is free of charge. To register access the ABRINTER’s website: https://www.abrinter.adv.br/

Online Event on 11 and 12 August

The Brazilian Association of Internationalist Lawyers (ABRINTER) will hold on August 11 and 12 its 1st Cycle of Lectures with the theme “Perspectives and Challenges of the New Borderless Law Practice” (in Portuguese).

The event brings 27 lectures on various topics involving law and international private law practice, and celebrates the cooperation protocols signed by the Brazilian association and the Federation of Young Lawyers from Mexico (Mexico) and the Algarve Law Association (Portugal). This online event involves lawyers from Brazil, Mexico, and Portugal.

Registration is free of charge. To register access the ABRINTER’s website: https://www.abrinter.adv.br/“

The Brazilian Association of Internationalist Lawyers (ABRINTER) will hold on August 11 and 12 its 1st Cycle of Lectures with the theme “Perspectives and Challenges of the New Borderless Law Practice” (in Portuguese).

 

The event brings 27 lectures on various topics involving law and international private law practice, and celebrates the cooperation protocols signed by the Brazilian association and the Federation of Young Lawyers from Mexico (Mexico) and the Algarve Law Association (Portugal).

 

Registration is free of charge. To register access the ABRINTER’s website: https://www.abrinter.adv.br/

Tort Choice of Law Rules in Cross-border Multi-party Litigation under European and Chinese Private International Law

By Zhen Chen, PhD Researcher, University of Groningen

This blog post is part of the article ‘Tort Conflicts Rules in Cross-border Multi-party Litigation: Which Law Has a Closer or the Closest Connection?’ published by the Maastricht Journal of European and Comparative Law with open access, available at https://doi.org/10.1177/1023263X211034103. A related previous post is ‘Personal Injury and Article 4(3) of Rome II Regulation’, available here https://conflictoflaws.net/2021/personal-injury-and-article-43-of-rome-ii-regulation/

This article compares Owen v. Galgey under Article 4 Rome II Regulation and YANG Shuying v. British Carnival Cruise under Article 44 Chinese Conflicts Act in the context of cross-border multi-party litigation on tort liability. As to the interpretation of tort conflicts rules, such as lex loci delicti, the notion of ‘damage’, lex domicilii communis and the closer/closest connection test, these two cases demonstrate different approaches adopted in European and Chinese private international law. This article does not intend to reach a conclusion which law is better between Rome II Regulation and Chinese Conflicts Act, but rather highlights on a common challenge faced by both Chinese courts and English courts in international tort litigation and how to tackle such challenge in an efficient way.

I. Tort conflicts rules in China and the EU
It is widely accepted rule that lex loci delicti will be the applicable law for cross-border tort liability in private international law. This is also the case in China and the EU. The application of lex loci delicti, as a general rule, is stipulated in Article 44 Chinese Conflicts Act and Article 4(1) Rome II Regulation. However, Article 4(1) Rome II Regulation explicitly refers to the place of damage, namely ‘the law of the country in which the damage occurs’ (lex loci damni), and expressly excludes the place of wrong (‘the country in which the event giving rise to the damage occurred’) and the place of consequential loss (‘the country or countries in which the indirect consequences of that event occur’). By contrast, it remains unclear whether lex loci delicti in Article 44 Chinese Conflicts Act merely refers to lex loci damni, as such provision does not expressly state so.

The application of lex loci delicti in China and the EU is subject to several exceptions. Specifically, lex loci delicti is superseded by the law chosen by the parties under Article 44 Chinese Conflicts Act and Article 14 Rome II Regulation, while lex domicilii communis takes precedence over lex loci delicti under Article 44 Chinese Conflicts Act and Article 4(2) Rome II Regulation. Moreover, the escape clause enshrined in Article 4(3) Rome II Regulation gives priority to the law of the country which has a ‘manifestly closer connection’ with the tort/delict, of which the pre-existing relationship between the parties might be a contract. By contrast, Article 44 Chinese Conflicts Act does not provide an escape clause, but the closest connection principle, which is comparable to the closer connection test in Article 4(3) Rome II, is stipulated in several other provisions.

The questions raised in YANG Shuying v. British Carnival Cruise and Owen v. Galgey were how to determine the applicable law to tort liability in multiparty litigation under Article 44 Chinese Conflicts Act and Article 4 Rome II Regulation and what are the criteria for the closer/closest connection test.

II. Owen v. Galgey under Article 4 Rome II Regulation
In case Owen v. Galgey , a British citizen Gary Owen domiciled in England, fell into an empty swimming pool which was undergoing renovation works at a villa in France owned by the Galgey Couple, domiciled in England, as a holiday home. The British victim sued the British couple, their French public liability insurer, the French contractor carrying out renovation works on the swimming pool and its French public liability insurer for personal injury compensation. As regards which law is applicable, the British victim contended that French law should be applied by virtue of Article 4(3) Rome II Regulation, since the tort was manifestly more closely connected with France than it was with England. The British defendants held that English law should be applicable law under Article 4(2) Rome II Regulation, because the claimant and the defendants were habitually resident in England. The English High Court held the case was manifestly more closely connected with France, because France was the country where the centre of gravity of the situation was located.

III. YANG Shuying v. British Carnival Cruise under Article 44 Chinese Conflicts Act

In case YANG Shuying v. British Carnival Cruise, a Chinese tourist domiciled in China, sued the British Carnival Cruise Company, incorporated in the UK, for personal injury sustained in a swimming pool accident happened in the cruise when it was located on the high seas. The plaintiff signed an outbound travel contract with Zhejiang China Travel Agency for such cruise tour. The plaintiff held that English law, as the lex loci delicti, should be applicable since the parties did not share common habitual residence in China and the accident occurred on the cruise, which can be regarded as the territory of the UK according to the floating territory theory. The place of wrong and the place of damage were both on the cruise under Article 44 Chinese Conflicts Act. The defendant and the third party argued that Chinese law should be applied since the parties had common habitual residence in China, the floating territory theory was inapplicable and the (indirect) damage of the tort took place in China.

The Shanghai Maritime Court adopted a strict interpretation of the term ‘the parties’ by excluding the third party and denied the application of floating territory theory in this case. The court held that the application of the lex loci delicti leads to neither English law nor Chinese law. Instead, it is advisable to apply the closest connection principle to determine the applicable law. Based on a quantitative and qualitative analysis ofTort Choice of Law Rules in Cross-border Multi-party Litigation under European and Chinese Private International Law

Zhen Chen

This blog post is part of the article ‘Tort Conflicts Rules in Cross-border Multi-party Litigation: Which Law Has a Closer or the Closest Connection?’ published by the Maastricht Journal of European and Comparative Law with open access, available at https://doi.org/10.1177/1023263X211034103. A related previous post is ‘Personal Injury and Article 4(3) of Rome II Regulation’, available here https://conflictoflaws.net/2021/personal-injury-and-article-43-of-rome-ii-regulation/

This article compares Owen v. Galgey under Article 4 Rome II Regulation and YANG Shuying v. British Carnival Cruise under Article 44 Chinese Conflicts Act in the context of cross-border multi-party litigation on tort liability. As to the interpretation of tort conflicts rules, such as lex loci delicti, the notion of ‘damage’, lex domicilii communis and the closer/closest connection test, these two cases demonstrate different approaches adopted in European and Chinese private international law. This article does not intend to reach a conclusion which law is better between Rome II Regulation and Chinese Conflicts Act, but rather highlights on a common challenge faced by both Chinese courts and English courts in international tort litigation and how to tackle such challenge in an efficient way.

I. Tort conflicts rules in China and the EU
It is widely accepted rule that lex loci delicti will be the applicable law for cross-border tort liability in private international law. This is also the case in China and the EU. The application of lex loci delicti, as a general rule, is stipulated in Article 44 Chinese Conflicts Act and Article 4(1) Rome II Regulation. However, Article 4(1) Rome II Regulation explicitly refers to the place of damage, namely ‘the law of the country in which the damage occurs’ (lex loci damni), and expressly excludes the place of wrong (‘the country in which the event giving rise to the damage occurred’) and the place of consequential loss (‘the country or countries in which the indirect consequences of that event occur’). By contrast, it remains unclear whether lex loci delicti in Article 44 Chinese Conflicts Act merely refers to lex loci damni, as such provision does not expressly state so.

The application of lex loci delicti in China and the EU is subject to several exceptions. Specifically, lex loci delicti is superseded by the law chosen by the parties under Article 44 Chinese Conflicts Act and Article 14 Rome II Regulation, while lex domicilii communis takes precedence over lex loci delicti under Article 44 Chinese Conflicts Act and Article 4(2) Rome II Regulation. Moreover, the escape clause enshrined in Article 4(3) Rome II Regulation gives priority to the law of the country which has a ‘manifestly closer connection’ with the tort/delict, of which the pre-existing relationship between the parties might be a contract. By contrast, Article 44 Chinese Conflicts Act does not provide an escape clause, but the closest connection principle, which is comparable to the closer connection test in Article 4(3) Rome II, is stipulated in several other provisions.

The questions raised in YANG Shuying v. British Carnival Cruise and Owen v. Galgey were how to determine the applicable law to tort liability in multiparty litigation under Article 44 Chinese Conflicts Act and Article 4 Rome II Regulation and what are the criteria for the closer/closest connection test.

II. Owen v. Galgey under Article 4 Rome II Regulation
In case Owen v. Galgey , a British citizen Gary Owen domiciled in England, fell into an empty swimming pool which was undergoing renovation works at a villa in France owned by the Galgey Couple, domiciled in England, as a holiday home. The British victim sued the British couple, their French public liability insurer, the French contractor carrying out renovation works on the swimming pool and its French public liability insurer for personal injury compensation. As regards which law is applicable, the British victim contended that French law should be applied by virtue of Article 4(3) Rome II Regulation, since the tort was manifestly more closely connected with France than it was with England. The British defendants held that English law should be applicable law under Article 4(2) Rome II Regulation, because the claimant and the defendants were habitually resident in England. The English High Court held the case was manifestly more closely connected with France, because France was the country where the centre of gravity of the situation was located.

III. YANG Shuying v. British Carnival Cruise under Article 44 Chinese Conflicts Act

In case YANG Shuying v. British Carnival Cruise, a Chinese tourist domiciled in China, sued the British Carnival Cruise Company, incorporated in the UK, for personal injury sustained in a swimming pool accident happened in the cruise when it was located on the high seas. The plaintiff signed an outbound travel contract with Zhejiang China Travel Agency for such cruise tour. The plaintiff held that English law, as the lex loci delicti, should be applicable since the parties did not share common habitual residence in China and the accident occurred on the cruise, which can be regarded as the territory of the UK according to the floating territory theory. The place of wrong and the place of damage were both on the cruise under Article 44 Chinese Conflicts Act. The defendant and the third party argued that Chinese law should be applied since the parties had common habitual residence in China, the floating territory theory was inapplicable and the (indirect) damage of the tort took place in China.

The Shanghai Maritime Court adopted a strict interpretation of the term ‘the parties’ by excluding the third party and denied the application of floating territory theory in this case. The court held that the application of the lex loci delicti leads to neither English law nor Chinese law. Instead, it is advisable to apply the closest connection principle to determine the applicable law. Based on a quantitative and qualitative analysis of all connecting factors, the court concluded that China had the closest connection with the case and Chinese law applied accordingly.

IV. Comments

Both Article 44 Chinese Conflicts Act and Article 4 Rome II Regulation apply to multi-party litigation on tort liability. Article 4(1) Rome II merely refers to lex loci damni and limits the concept ‘damage’ to direct damage, whilst Article 44 Chinese Conflicts Act can be interpreted broadly to cover the law of the place of wrong and the term ‘damage’ include both direct damage and indirect damage or consequential loss. As to lex domicilii communis, the law of the country of the common habitual residence of some of the parties, instead of all parties, should not be applicable in accordance with Article 4(2) Rome II and Article 44 Chinese Conflicts Act. The exercise of the closest connection principle or the manifestly closer connection test under 44 Chinese Conflicts Act and Article 4(3) Rome II Regulation requires the the consideration of all relevant factors or all the circumstances in the case. When conducting a balancing test, the factor of the place of direct damage should not be given too much weight to the extent that all other relevant factors are disregarded. A quantitive and qualitative analysis should be conducted to elaborate the relevance or weight of each factor to determine the centre of gravity of a legal relationship.
all connecting factors, the court concluded that China had the closest connection with the case and Chinese law applied accordingly.

IV. Comments

Both Article 44 Chinese Conflicts Act and Article 4 Rome II Regulation apply to multi-party litigation on tort liability. Article 4(1) Rome II merely refers to lex loci damni and limits the concept ‘damage’ to direct damage, whilst Article 44 Chinese Conflicts Act can be interpreted broadly to cover the law of the place of wrong and the term ‘damage’ include both direct damage and indirect damage or consequential loss. As to lex domicilii communis, the law of the country of the common habitual residence of some of the parties, instead of all parties, should not be applicable in accordance with Article 4(2) Rome II and Article 44 Chinese Conflicts Act. The exercise of the closest connection principle or the manifestly closer connection test under 44 Chinese Conflicts Act and Article 4(3) Rome II Regulation requires the the consideration of all relevant factors or all the circumstances in the case. When conducting a balancing test, the factor of the place of direct damage should not be given too much weight to the extent that all other relevant factors are disregarded. A quantitive and qualitative analysis should be conducted to elaborate the relevance or weight of each factor to determine the centre of gravity of a legal relationship.

The Jean Monnet Network – BRIDGE project, cofunded by EU Erasmus+ Programme, and the Latin American Center of European Studies invite the academic community to submit scientific papers to the Workshop event of the II Jean Monnet Network Seminar on “Migration and Citizenship in the European Union and Latin America”, which will be held virtually on the 9 November 2021, hosted by the Federal University of Santa Catarina (Brazil).

The selected articles will be invited to publish in the Latin American Journal of European Studies or in the Collection of the Workshop.  The top two articles will also receive an award of EUR 250 each.

Those who are interested must submit the article by 15 October 2021 to the email: network@eurolatinstudies.com.

Call for papers – English

Call for papers – Spanish

Call for Paper – Portuguese

More information here.

The first issue of the Latin American Journal of European Studies (ISSN 2763-8685) has just been published. It is an open access publication of the Latin American Center of European Studies, created by the BRIDGE Project of Jean Monnet Network with funding from the Erasmus + Program of the European Commission.

The main purpose of the Journal is to publish research related to the European Union Law and Policies and International Relations of the European Union with third countries and Latin America to create new knowledge, build bridges of dialogue, as well exchange good practices between these regions.

The second issue of the Journal is open to submission until November 1st, 2021 and contains a thematic dossier on Migration and Citizenship in the EU and Latin America.

The 2021-1 edition includes the following articles:

 

Dossier: EU-Latin America trade and investment relations

Las relaciones Eurolatinoamericanas en el marco de la nueva política comercial de la Unión Europea, p. 14-37

Carlos Francisco Molina del Pozo

 

Environmental conditionality in Eu-Latin America trade relations, p. 38-63

Giulia D’Agnone

 

El derecho de los tratados en el arbitraje de inversión intra-Unión Europea, p. 64-108

Rafael Tamayo-Álvarez

 

Sistema de solución de controversias en materia de inversiones en los tratados negociados por la Unión Europea con México y el Mercosur (2019/2020): Un estúdio comparativo, p. 109-138

Gabriela Teresita Mastaglia

 

Uma década de política europeia de investimento estrangeiro: balanço e perspectivas futuras, p. 139-156

Maria João Palma

 

Unión Europea-América Latina y el Caribe: comercio e inversión y el acuerdo de asociación Unión Europea-Mercosur en su pilar comercial y sus potenciales efectos em el sector agroindustrial, p. 157-199

Silvia Simonit

 

La integración Centroamericana y el acuerdo de asociación entre esa región y la Unión Europea, p. 200-230

Nancy Eunice Alas Moreno

 

A cooperação jurídica dentro da União Europeia e do Mercosul: a agilização do processo civil internacional no âmbito da regionalização, p. 231-253

Marcel Zernikow

 

A abertura ao comércio internacional da contratação pública no Brasil: entre o Acordo sobre Compras Governamentais (GPA) e o acordo EU/Mercosul, p. 254-296

Nuno Cunha Rodrigues

 

Articles

Data protection implications through an inner-connected world: European Union’s contributions towards the brazilian legislative scenario, p. 297-318

Beatriz Graziano Chow; Clarisse Laupman Ferraz Lima

 

A União Europeia e a questão Turco-Cipriota: aspectos normativos, geopolíticos e migratórios, p. 319-354

Clarice Rangel Schreiner; Eveline Vieira Brigido; Roberto Rodolfo Georg Uebel

 

Interview

Por uma aliança estratégica Mercosul e União Europeia: O papel da Europa para o fortalecimento da Sustentabilidade – Entrevista com Ignacio Ybañez, Embaixador da União Europeia no Brasil

Jamile Bergamaschine Mata Diz

 

The full edition is available here.

 

 

As reported by Fabienne Jault-Seseke on this blog, the French supreme court for civil and criminal matters (Cour de cassation) ruled in a judgment of 26 May 2021 that “the principles of primacy and effectiveness of European Union law” require that French courts apply ex officio certain choice of law rules contained in EU Regulations.

This is a significant evolution from the doctrine that the court had adopted 20 years ago. This doctrine was the result of decades of academic debates and changes in the case law of the court. Interestingly enough, at the end of the 1980s, the court had ruled that choice of law rules contained in international conventions (essentially the conventions negotiated under the aegis of the Hague Conference of Private International Law) deserved a different status and should be applied ex officio, but the court dropped this exception a few years later.

Background: The Peculiar Consequence of Applying Choice of Law Rules

As most civil law jurisdictions, France recognises the principle jura novit curia. Article 12 of the French Code of Civil Procedure provides that courts must decides disputes in accordance with the legal rules which are applicable and that they should do so ex officio if necessary.

The extension of these principles to choice of law rules was always debated, however. One likely explanation is that the operation of choice of law rules may result in the designation of foreign law. The content of foreign law needs then to be determined, and this process typically involves private experts who must be remunerated (remarkably, French courts virtually never appoint judicial experts for that purpose, although they routinely do so for establishing complex facts). It is understandable, therefore, that the parties would not always want to engage the resources for establishing the content of foreign law, in particular for cases with limited financial stakes, or involving impecunious parties. The obligation to apply systematically choice of law rules may thus have appeared as generating severe practical difficulties, and it took the Cour de cassation decades to craft a doctrine which would weigh the competing interests in a satisfactory manner.

Why Impose Ex Officio Application when the Parties Could Settle?

The current doctrine of the court was adopted in two judgments of 26 May 1999. The obligation of French courts to apply ex officio choice of law rules has since then been based on a major distinction. In matters where the parties may not dispose of their rights (e.g. parenthood, as in the first 1999 judgment), French courts ought to apply choice of law rules ex officio. In contrast, in matters where the parties may dispose of their rights (e.g. an international sale of goods, as in the second 1999 judgment), French courts have no obligation to apply choice of law rules if none of the parties raised their application or the application of foreign law. The system is mixed: some choice of law rules must be applied ex officio, others need not.

The distinction is between rights that the parties may dispose of, and rights that parties may not dispose of. The origin of the distinction is to be found in the writings of the most influential scholar in French private international law in the last decades, Pierre Mayer. Mayer argued that, while in principle foreign law should be considered as law and thus applied ex officio, an exception should be made for those rights which the parties could modify, and indeed waive. This is because they could decide to settle their dispute at any time, under any terms. Thus, a pragmatic solution should be to allow them to argue their case under the (French) law of the forum if they so wish. Just as they could have ignored the content of the applicable law to reach a settlement, they should be allowed to implicitly designate another law.

The Scope of the New Obligation to Apply EU Choice of Law Rules Ex Officio

The new rule laid down by the court in the judgment of 26 May 2021 establishes a distinction between two categories of EU choice of law rules. The Cour de cassation rules that the obligation to apply them ex officio is limited to mandatory choice of law rules, and that mandatory choice of law rules are rules that cannot be derogated from. This is a clear reference to party autonomy, that many EU regulations of private international law recognise. The meaning of the ruling is thus that the obligation is limited to the application of choice of law rules for which the European lawmaker did not grant freedom of choice to the parties.

The particular case was concerned with a tort action for unfair competition. The applicable choice of law rule is contained in Article 6 of the Rome II Regulation, and it expressly excludes the power of the parties to choose the applicable law (Art. 6(4)). The rule in Article 6 is thus to be considered as an EU mandatory choice of law rule, and French courts must now apply it ex officio.

In contrast, the general choice of law rule in Article 4 of the Rome II Regulation (application of the law of the place of damage in tort actions) is a default choice of law rule. It only applies in the absence of a choice of the applicable law made by the parties pursuant to Article 14 of the Rome II Regulation. Likewise, in contractual matters, the parties may choose the law governing their contract in most cases (under Article 3), which means than most choice of law rules contained in the Rome I Regulation are defaults.

Although the Court does not say so, it seems clear that the distinction that it has introduced is inspired from its 20 year old doctrine distinguishing between rights that the parties may dispose of, and rights that parties may not dispose of. But it is not absolutely identical. In this case, the action was concerned with an act of unfair competition which affected exclusively the interests of a single competitor (Rome II Regulation, Art. 6(2)). It was governed by general fault based tort liability. The interests involved were purely private, and it is likely that the parties could freely settle the action. Under the old doctrine, it seems that a French court would not have had the obligation to apply the choice of law rule ex officio. Under the new doctrine, it should have, because the parties may not freely choose the applicable law (although they may still freely settle).

Primacy and Effectiveness of EU Law?

Would it be a problem for the effectiveness of EU law if the parties were allowed to argue a case of unfair competition under the law of the forum instead of the law designated by the applicable EU choice of law rule? The Brussels Ibis Regulation grants jurisdiction to a number of courts in the EU, and other courts might apply all choice of law rules ex officio. In most Member States, however, the idea that courts, after ruling that foreign law applies, might then go on and establish the content of foreign law without the cooperation of the parties is, at best, unrealistic. And in most Member States, if foreign law cannot be established, courts will apply the law of the forum. You can lead a horse to water, but you can’t make him drink.

So the crucial question is that of the establishment of the content of foreign law. At the present time, the courts of most Member States do not have the possibility to ascertain the content of foreign law without the assistance of the parties. For this to change, considerable resources would need to be invested, to establish either centre(s) of comparative law which could provide expert opinions, or a network of courts which would be required to cooperate for that purpose. As long as these resources are not invested, the issue of the ex officio application of choice of law rules cannot be addressed without taking into account the interests of the parties.

Crossposted at EULawLive.

The Court delivered earlier this week (2 August 2021) its decision in case C‑262/21 PPU (A v B), which is about the impact of a transfer decision under Regulation no 604/2013 on the terms “wrongful removal or retention” under Article 2 Brussels II bis (adoption of the transfer decision followed by its annulment without the tranferred persons being authorised to return). The judgment is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version):

« L’article 2, point 11, du règlement (CE) no 2201/2003 […] doit être interprété en ce sens que ne peut constituer un déplacement illicite ou un non-retour illicite, au sens de cette disposition, la situation dans laquelle l’un des parents, sans l’accord de l’autre parent, est conduit à emmener son enfant de son État de résidence habituelle vers un autre État membre en exécution d’une décision de transfert prise par le premier État membre, sur le fondement du règlement (UE) no 604/2013 du Parlement européen et du Conseil, du 26 juin 2013, établissant les critères et mécanismes de détermination de l’État membre responsable de l’examen d’une demande de protection internationale introduite dans l’un des États membres par un ressortissant de pays tiers ou un apatride, puis à demeurer dans le second État membre après que cette décision de transfert a été annulée sans pour autant que les autorités du premier État membre aient décidé de reprendre en charge les personnes transférées ou d’autoriser celles-ci au séjour ».

Source : https://curia.europa.eu/juris/document/document.jsf;jsessionid=F6B1AEDDB2F275B0B192DEE518C60676?text=&docid=244847&pageIndex=0&doclang=FR&mode=req&dir=&occ=first&part=1&cid=4913022