Droit international général

Thanks to Emmanuel Guinchard for the tip-off.

The European Commission is not agreeing to the the accession by the United Kingdom to the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters of 2007. The Convention was applicable in the United Kingdom until 31 December 2020 due to the UK’s membership of the European Union. Since that date the UK is no longer Party to the Convention.

Accession to the Convention is limited: it is open to Members of the European Free Trade Association and EU Member States acting on behalf of certain overseas territories (Art. 70 and 71). If other States wish to accede, the unanimous acceptance by the Contracting States is required (Art. 70 and 72,3). As this is an exernal competence of the European Union (see the Lugano Opinion, 1/03 of 2006 by the European Court of Justice), the European Union should decide on the UK’s request for accession.

The European Commission’s refusal of the UK’s request is based on its assessment of the Lugano Convention’s nature as meant for States with a close regulatory integration with the EU and its view that the Hague Conventions should be used for relations between the EU and third States. Hopefully this means signature and ratification by the EU of the 2019 Hague Judgments Convention soon. Currently the Convention has only been signed by Israel, Ukraine and Uruguay and has not yet entered into force (see status).

The 2005 Hague Choice-of-Court Convention is already in force in the EU and in the UK, along with Mexico, Montenegro and Singapore. Besides these states, China, Israel, North Macedonia, Ukraine and the United States have signed but not yet ratified the convention (see status).

See the Commission’s communication.

I am late in reporting  Begum v Maran (UK) Ltd [2021] EWCA Civ 326, in which the Court of Appeal rejected an application for strike-out. I reported on the High Court judgment here and I should add I am instructed for claimant in the case. Oliver Holland, the lead Leigh Day solicitor in the case, discusses its implications together with Rachel Bonner (who was led by Richard Hermer) here.

Coulson LJ held that it is at least arguable (reminder: the specific action that was being discussed was an application for strike-out) that Maran does have a duty of care. His analysis essentially leans heavily on the fact that Maran availed itself of a disposal route, the consequences of which it was much aware of. It is clear that the well-known Bangladesh route to escape health, safety and environmental standards for the dismantling of ships, is questionable under the Basel Convention on Hazardous wastes and their disposal, and that shipowners have been using privity of contract in an attempt to shield themselves from any liability for consequences which are neither unexpected nor infrequent.

Others have written on the duty of care issue and I will focus on the A7 Rome II discussion: the lex specialis for environmental damage – on which I have a paper forthcoming (but to find more time!).  At 78 ff Coulson LJ firstly links the requirement of causality (the use of the flimsy ‘arising out of’) to the non-contractual obligation claimed (here: corporate duty of care), rather than the one immediately following the damage (here: negligence, recklessness causing death). That duty of care does not, it was held, ‘arise out of’ environmental damage. [82]: ‘In essence, it is the duty to take all reasonable steps to ensure that the sale of the vessel for demolition purposes did not endanger human life or health. That duty did not arise out of environmental damage; it had nothing to do with environmental damage at all. It arose out of the complete absence of workplace safety.’ And at 86: ‘even if the court had to consider whether the death (rather than the duty) arose out of environmental damage, the result would be the same…the death arose out of the absence of safe working practices and, in particular, the absence of a safety harness.’ Support is found in scholarly sources suggesting a narrow interpretation of A7; other sources are not discussed (despite having been submitted) and I continue to be convinced such limiting interpretation is not supported by the travaux. Males J, in his mostly concurring opinion, agrees that the last thing on A7 is far from said although he, too, holds that A7 is not engaged in casu.

Lord Justice Coulson obiter considers locus delicti commissi (which would be  the alternative lex causae under A7) and at 91 succinctly holds (pro memoria: obiter) that this would not have been England. There is authority I would suggest for the opposite finding and the judge’s interpretation of Arica Victims, I submit,  leaves room for discussion: at 91 he correctly refers to the Ovre Norrland Court of Appeal having pointed to ‘key decisions’ having been made in Sweden. These to me seem present in current case, too (and here: located in England).

At 110 ff the ordre public argument under A26 Rome II, which could displace the shorter statute of limitation of the Bangladeshi lex causae, for the longer English one, is succinctly dismissed as not meeting A26’s high hurdle. This leaves a narrower (and perhaps curiously indirect) ‘undue hardship’ argument under the E&W Foreign Limitation Periods Act 1984 to be discussed as a preliminary issue at the remanded trial in the High Court.

A most relevant case, also highlighting the many unresolved issues under A7 Rome II.

Geert.

EU Private International Law, 3rd ed. 2021, para 4.54 ff.

A joint publication of the Secretariats of UNCITRAL, UNIDROIT and the HCCH, titled Legal Guide to Uniform Instruments in the Area of International Commercial Contracts, with a Focus on Sales, has just been released.

As explained on the HCCH website, the Legal Guide “offers an overview of the principal legislative texts prepared by each organisation, such as the United Nations Convention on Contracts for the International Sale of Goods, the HCCH Principles on Choice of Law in International Commercial Contacts and the UNIDROIT Principles on International Commercial Contracts. It also illustrates how these texts interact to achieve the shared goals of predictability and flexibility. The Legal Guide will be a user-friendly resource for those interested in the adoption, application, and interpretation of uniform contract law.”

Following the UNIDROIT website, “it aims at creating a roadmap to the existing uniform law texts in the area of international sales law prepared by each organization […]. It is an effort to clarify the relationship among them, promoting uniformity, certainty and clarity in this area of the law”.

A significant contribution towards the preparation of the Legal Guide is due to Professors Neil Cohen (USA), Lauro da Gama e Souza Jr (Brazil), Hiroo Sono (Japan), Pilar Perales Viscasillas (Spain) and Stefan Vogenauer (Germany).

The Legal Guide is available in English and will soon be released in other United Nations languages (as it is the case of the previous joint publication of the three organisations on Security Interests, 2012).

More information on the Legal Guide here (video announcement) and here (recording of the International Conference on the forthcoming Tripartite Legal Guide, 22 September 2020).

On 26 April 2021, the European Parliament adopted a legislative resolution on the Council position at first reading in a view to the adoption of a regulation of the European Parliament and of the Council establishing the Justice Programme 2021-2027, repealing Regulation 1382/2013. After the parliamentary debate on 27 April, the final act was signed on 28 April.

The (future) regulation (see here the version of the outcome of the trilogue), based on Articles 81(1) and 82(1) TFEU, lays down the objectives of the Justice Programme for the period 2021-2027, the dedicated European budget, the forms of Union funding and the rules for providing such funding (see Article 1). It is part of the 2021-2027 Multiannual Financial Framework.

This regulation is of great interest for Private International Law (PIL) experts since it sketches the key-orientations of the European Justice policy – including its cross-border dimension – for the coming years. Therefore, it should be a source of inspiration for scholars drafting research projects in the field and applying for EU funding.

Background: The 2018 Proposal of the Commission

 In its interim evaluation of the implementation of the (previous) Justice Programme for the period 2014-2020 (published in June 2018 here), the European Commission stated that the Programme – and the funds invested – contributed “to upholding EU values (such as the rule of law, the independence of the judiciary and the effectiveness of the justice) and to supporting Member States to achieve more effective justice systems”. This observation clearly underpinned the proposalmade by the Commission in May 2018 for the regulation establishing the new Justice Programme. Indeed, as underlying by the European Parliamentary Research Service in a recent briefing, the promotion of the rule of law as one of the EU’s founding values pursuant to Article 2 TEU lies at the heart of the proposal. Other key-aspects of the future regulation are the promotion of (gender) equality and the protection of vulnerable individuals such as children.

Looking ahead, these are main avenues for PIL researchers to be explored.

Achievements: The 2020 Amended Regulation

The European Parliament proposed a number of amendments to the EC proposal aiming at strengthening social inclusion within the European Justice system (see the first reading version here). In that sense, the Parliament successfully drafted a “mainstreaming clause” laying down that “in the implementation of all of its actions, the Programme shall seek to promote gender equality, the rights of the child, inter alia by means of child-friendly justice, the protection of victims and the effective application of the principle of equal rights and non-discrimination based on any of the grounds listed in Article 21 of the Charter, in accordance with and within the limits set by Article 51 of the Charter”.

Best Interests of the child and PIL

The great attention drawn to the child within the European Justice system “in progress” is certainly to be read with recent developments of EU PIL, such as the recent recast of the Brussels II Regulation which refers, several times, to the best interests of the child regarding, for instance, the grounds of jurisdiction in matters of parental responsibility,  the hearing of the child or the decision on the placement of a child… But also with forthcoming legislation, such as the preparation of a proposal for a regulation on the recognition of parenthood between Member States.

As argued by the European Commission, “the goal of this initiative is to ensure that children will maintain their rights in cross-border situations, in particular where families travel or move within the Union” and the proposal “will be guided by the best interests of the child as its paramount consideration” (see the call for application for the selection of members of the expert group on the recognition of parenthood between member states). As reported in this blog (here), the Court of Justice is also dealing with this topical issue. The main target objective is that the rights derived by children from European Union law following Article 3, (3) 2 in fine TEU and article 24 of the Charter of Fundamental Rights ought to be safeguarded under domestic law – including PIL – within national Justice systems of the Member States.

LGB People and PIL

In addition, the Parliament successfully proposed to specifically refer to LGBTQI people, beside other vulnerable individuals within the Justice system, in the preamble of the regulation. Pursuant to recital 10, “[training] activities should also include training courses for judges, lawyers and prosecutors in relation to the challenges and obstacles experienced by people who frequently face discrimination or are in a vulnerable situation, such as women, children, minorities, LGBTIQ persons, persons with disabilities, and victims of gender-based violence, domestic violence or violence in intimate relationships, and other forms of interpersonal violence”.

Such an amendment echoes recent European legal developments with obvious PIL dimensions. First, the Commission adopted few month ago a communication titled LGBTIQ Equality Strategy 2020-2025. Among various issues to be addressed, the communication highlights the legal difficulties for trans, non-binary and intersex people to be “recognised in law or in practice […] including in cross border situations”, affecting both their private and family life (see point 3). Following a transnational analytical approach, links may be made with ongoing academic research on Gender and Private International Law (see the project conducted at the MPI for comparative and international private Law).

Second, the European Parliament’s Committee on Petitions requested, few months ago, a study in the broader context of free movement of LGB persons within the European Union, authored by Alina Tryfonidou (University of Reading) and Robert Wintemute (King’s College London). It states that “in many cases, when a border between EU Member States is crossed, the [rainbow] couple ceases to be legally a couple, becoming instead two unrelated individuals, and their child or children go from having two legal parents to only one legal parent or (in a few cases involving surrogacy) no legal parents” (page 9). One recommendation made by the authors is for the Commission to propose a legislation “requiring all Member States to recognise the adults listed in a child’s birth certificate as the legal parents of the child, regardless of the adults’ sexes or marital status” (page 98). As mentioned above, the Commission is following this path.

The Rule of Law and PIL

Finally, the Justice Programme aims at supporting “the further development of a Union area of justice based on the rule of law, the independence and impartiality of the judiciary, mutual recognition and mutual trust, access to justice and cross-border cooperation” (see Recital 2 and Article 3). In that sense, the amended regulation expressly refers to the newly adopted rule of law conditionality regulation (December 2020, reported here). In simple words, under this legal framework, payments from the EU budget can be interrupted, reduced, or suspended in case of breaches of the principles of the rule of law by an EU Member State. The conditionality regulation will be applicable in the implementation of the new Justice Programme (see Recital 30 of the future regulation).

Under a PIL perspective, respecting the rule of law in the Member States is crucial for ensuring mutual trust between national Justice systems and allowing mutual recognition of decisions in civil matters. Then, from a broader analytical view, one key-issue for PIL experts could certainly be the interrelation between PIL (i.e. its rules, methodology and objectives) and the rule of law, within the European judicial area and beyond. This reflection is in line with the recent caselaw of the Court of justice assessing the conformity with EU law of provisions of national law which are liable to affect the requirements of effective judicial protection, pursuant to Articles 2 and 19 TEU, combined with Article 47 of the Charter of Fundamental Rights (see the CJEU judgment in Repubblika reported here).

In this context, in case of serious doubts of domestic judicial independence in a given Member State, one could ask whether (and under which conditions) article 47 of the Charter, which enshrines the right to an effective remedy before a tribunal for every person whose rights guaranteed by EU law are infringed, may be duly invoked by a litigant to remove the application of a ground of jurisdiction laying down by EU PIL (see the CJUE judgements in PARKING and more recently in Obala i lučice and para. 129 of the opinion of Advocate General M. Bobek). Or to rely on the public policy exception in a cross-border enforcement proceedings (see already the CJUE judgement in Donnellan)?

New kinds of breach of effective judicial protection in cross-border litigation may also occur in the near future, notably in the “digitalised” judicial system promoted by the EU (as reported here).

Starting Thursday, 6 May, the ERC Building EU Civil Justice team at Erasmus School of Law will organize a bi-weekly seminar. The series will cover a variety of topics in the field of European civil justice and zoom in on the key topics the ERC group has been working on over the past years. These include the privatization and digitalization of civil justice, cross-border judicial co-operation, international business courts, and self-representation. Each session will bring together invited speakers and one of the ERC researchers. To join us for one or more of these sessions, please register here over Eventbrite.

Thursday, 6 May (15:00-17:00)

The Role of Out-of-Court Justice in the European Enforcement Regime

Friday, 21 May (10:00-12:00)

Modernising European Cross-Border Judicial Collaboration

Friday, 4 June (10:00-12:00)

Digital Constitutionalism and European Digital Policies

Friday, 18 June (10:00-12:00)

The Arbitralization of Justice

Friday, 2 July (10:00-12:00)

Civil Justice Without Lawyers: Moving Beyond an Adversarial System of Adjudication

Friday, 16 July (10:00-12:00)

European Civil Justice in Transition: Past, Present & Future

The first seminar (Thursday, 6 May 15:00-17:00) will deal with the role of out-of-court justice in the European enforcement landscape. Invited speaker Fabrizio Cafaggi (Italian Council of State) will talk about the role of Article 47 EUCHR in shaping the European enforcement triangle (administrative, judicial and ADR). Betül Kas (Erasmus University Rotterdam) will reflect on the role of collective ADR by example of the Volkswagen litigation.

The latest issue (21/1) of the Dutch journal Nederlands Internationaal Privaatrecht has been published. It includes the following articles.

Vriesendorp, W. van Kesteren, E. Vilarin-Seivane & S. Hinse, Automatic recognition of the Dutch undisclosed WHOA procedure in the European Union / p. 3-17

On 1 January 2021, the Act on Court Confirmation of Extrajudicial Restructuring Plans (‘WHOA’) was introduced into the Dutch legal framework. It allows for extrajudicial debt restructuring outside of insolvency proceedings, a novelty in the Netherlands. If certain requirements – mostly relating to due process and voting – are met, court confirmation of the restructuring plan can be requested. A court-confirmed restructuring plan is binding on all creditors and shareholders whose claims are part of that plan, regardless of their approval of the plan. WHOA is available in two distinct versions: one public and the other undisclosed. This article assesses on what basis a Dutch court may assume jurisdiction and if there is a basis for automatic recognition within the EU of a court order handed down in either a public or an undisclosed WHOA procedure.

Arons, Vaststelling van de internationale bevoegdheid en het toepasselijk recht in collectieve geschilbeslechting. In het bijzonder de ipr-aspecten van de Richtlijn representatieve vorderingen / p. 18-34

The application of international jurisdiction and applicable law rules in collective proceedings are topics of debate in legal literature and in case law. Collective proceedings distinguish in form between multiple individual claims brought in a single procedure and a collective claim instigated by a representative entity for the benefit of individual claimants. The ‘normal’ rules of private international law regarding jurisdiction (Brussel Ibis Regulation) and the applicable law (Rome I and Rome II Regulations) apply in collective proceedings. The recently adopted injunctions directive (2020/1828) does not affect this application.

 Nonetheless, the particularities of collective proceedings require an application that differs from its application in individual two-party adversarial proceedings. This article focuses on collective redress proceedings in which an entity seeks to enforce the rights to compensation of a group of individual claimants.

Collective proceedings have different models. In the assignment model the individual rights of the damaged parties are transferred to a single entity. Courts have to establish its jurisdiction and the applicable law in regard of each assigned right individually.

In the case of a collective claim brought by an entity (under Dutch law, claims based on Art. 3:305a BW) the courts cannot judge on the legal relationships of the individual parties whose rights are affected towards the defendant. The legal questions common to the group are central. This requires jurisdiction and the applicable law to be judged at an abstract level.

Bright, M.C. Marullo & F.J. Zamora Cabot, Private international law aspects of the Second Revised Draft of the legally binding instrument on business and human rights / p. 35-52

Claimants filing civil claims on the basis of alleged business-related human rights harms are often unable to access justice and remedy in a prompt, adequate and effective way, in accordance with the rule of law. In their current form, private international law rules on jurisdiction and applicable law often constitute significant barriers which prevent access to effective remedy in concrete cases. Against this backdrop, the Second Revised Draft of the legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises has adopted a number of provisions on private international law issues which seek to take into account the specificities of such claims and the need to redress the frequent imbalances of power between the parties. This article analyses the provisions on jurisdiction and applicable law and evaluate their potential to ensure effective access to remedy for the claimants.

Conference report

Touw, The Netherlands: a forum conveniens for collective redress? / p. 53-67

On the 5th of February 2021, the seminar ‘The Netherlands: a Forum Conveniens for Collective Redress?’ took place. The starting point of the seminar is a trend in which mass claims are finding their way into the Dutch judicial system. To what extent is the (changing) Dutch legal framework, i.e. the applicable European instruments on private international law and the adoption of the new Dutch law on collective redress, sufficiently equipped to handle these cases? And also, to what extent will the Dutch position change in light of international and European developments, i.e. the adoption of the European directive on collective redress for consumer matters, and Brexit? In the discussions that took place during the seminar, a consensus became apparent that the Netherlands will most likely remain a ‘soft power’ in collective redress, but that the developments do raise some thorny issues. Conclusive answers as to how the current situation will evolve are hard to provide, but a common ground to which the discussions seemed to return does shed light on the relevant considerations. When legal and policy decisions need to be made, only in the case of a fair balance, and a structural assessment thereof, between the prevention of abuse and sufficient access to justice, can the Netherlands indeed be a forum conveniens for collective redress.

 

Latest PhDs

Van Houtert, Jurisdiction in cross-border copyright infringement cases. Rethinking the approach of the Court of Justice of the European Union (dissertation, Maastricht University, 2020): A summary / p. 68-72

The dissertation demonstrates the need to rethink the CJEU’s approach to jurisdiction in cross-border copyright infringement cases. Considering the prevailing role of the EU courts as the ‘law finders’, chapter four argues that the CJEU’s interpretation must remain within the limits of the law. Based on common methods of interpretation, the dissertation therefore examines the leeway that the CJEU has regarding the interpretation of Article 7(2) Brussels Ibis in cross-border copyright infringement cases.

On 22 April 2021, Advocate General Campos Sánchez-Bordona presented his Opinion in the joined cases SC Gruber Logistics and Sindicatul Lucratorilor din Transporturi, C-152/20 and 218/20, in which he addresses in a pedagogical manner a number of issues of relevance to the choice of law to an individual employment contract under Article 8 of the Rome I Regulation as well as, indirectly, to the choice made in relation to a consumer contract under Article 6 of the Regulation.

Since numerous judgments and opinions were delivered at the Court of Justice at the end of April, we are only now reporting on the present cases, which are by no means less interesting than those previously covered.

 

Factual context

The factual contexts of the two requests for a preliminary ruling are somewhat similar. Both in the case C-152/20 and in the case C-218/20, the procedure pending before the national court (same for these two cases) concerns an action on payment of certain sums to the employees engaged as lorry drivers.

Notwithstanding the existence of some nuance discussed below, in both cases the employment contracts are said to contain a choice of law clause in favour of Romanian law.

In the former case, the employment contracts provided that the employees shall carry out their work in Romania and in “any location in the country and abroad as may be requested”. However, the employees argue that the place of performance lied within the territory of Italy and thus, according to Article 8 of the Rome I Regulation, it is the law of this Member State that governs at least their minimal wage.

In the latter case, the contract did not mention any specific place of performance. It is argued though that the employee carried out his work in Germany.

 

Preliminary questions and their assessment in the Opinion

It is in this context that the referring court decided to stay the main proceedings in these two cases and to refer to the Court nearly identical sets of three questions.

At the outset, AG notices that while the referring court is not asking for the interpretation of the Directive 96/71 (Posted Workers Directive 1996), it cannot be a priori excluded that the provisions thereof are of relevance in the context of the present cases. With respect to the terms and conditions of employment specified in its Article 3(1), the Directive would mandate the application of the law of the Member State where the work is carried out, rather than of the law applicable to the employment contract under the Rome I Regulation (points 29 to 33). However, in the absence of any clear information supporting the relevance of the Directive, AG deems it appropriate to follow the premise on which the national court relies: at present, it is the Rome I Regulation at stake (point 34).

In essence, the requests for a preliminary ruling raise three intertwined issues, namely: first, the interplay between the law chosen by the parties and the law that would be applicable in the lack of that choice, next, the qualification of the provisions on minimum wage as the “provisions that cannot be derogated from by agreement” within the meaning of Article 8(1) of the Regulation and finally, the admissibility of a compulsory (ex lege and de facto) choice of law clause in an individual employment contract.

 

1)    Interplay between the law chosen by the parties and the law that would be applicable in the lack of that choice

The first question as phrased by the referring court reads: “does the choice of law applicable to an individual employment contract exclude the application of the law of the country in which the employee has habitually carried out his or her work or does the fact that a choice of law has been made exclude the application of the second sentence of Article 8(1) of [the Rome I Regulation]?”

At first glance, the intention of the referring court may not seem perfectly clear. At least since the Rome Convention, the choice of law for the employment contract may not have the result of depriving the employee of the protection afforded to him (her) by provisions that cannot be derogated from by agreement under the law that would have been applicable in the absence of choice.

Indeed, as the referring court puts it in the requests for a preliminary ruling where it adopts a different perspective, by its first question it asks, in essence, whether Article 8(1) of the Rome I Regulation implies that a national court may override the parties’ choice of law where it appears from all the circumstances that the contract is more closely connected with a different country. It is not clear whether the reference to a ‘more closely connected’ country implies that the referring court is envisaging the application of Article 8(4) of the Regulation instead of Article 8(2) of the Regulation. This seems however to be irrelevant in the context of the issue at stake.

In his Opinion, mirroring the first question as phrased by the referring court, AG considers that the law chosen by the parties applies also with respect to “the protection afforded to [employee] by provisions that cannot be derogated from by agreement”, as long as the chosen law offers equal or higher standard of protection (point 107, first indent).

In actuality, AG seems to identify in a precise manner the point of hesitation that inspired the specific wording of the first question. For the referring court, the law applicable in the absence of choice seems to be starting point and the law chosen by the parties is seen as a subsequent intervening factor.

Regardless where such starting point is set, the law that would have been applicable in the absence of choice applies insofar as the law chosen by the parties is less protective towards the employee. This is arguably also the case under Article 6 of the Rome I Regulation.

 

2)    Qualification of the provisions on minimum wage as the “provisions that cannot be derogated from by agreement”

By its second question, the referring courts seeks to establish whether the provisions on minimum wage may be qualified as the “provisions that cannot be derogated from by agreement” within the meaning of Article 8(1) of the Rome I Regulation.

In this context, AG clarifies that the notion of “provisions that cannot be derogated from by agreement” is not equivalent to the notion of “overriding mandatory provisions” in the sense of Article 9 of the Regulation (points 64 to 68).

Answering the second question, he considers that the provisions on minimum wage of the country where the employee has habitually carried out his (her) work may in principle be qualified as “provisions that cannot be derogated from by agreement under the law that, in the absence of choice, would have been applicable”. This consideration is accompanied by a caveat. The prevalence of these provisions depends on their “configuration” in the national legal system in question, which it is for the referring court to verify (point 107, second indent).

 

3)    Admissibility of a compulsory (ex lege and de facto) choice of law clause in an individual employment contract

The third question contains some nuance. In essence, the referring courts is attempting to determine whether a compulsory (ex lege in the case C-152/20 and de facto in the case C-218/20) choice of law clause in an individual employment contract is admissible under Article 3 of the Rome I Regulation.

On the one hand, in the case C-152/20, the third questions reads: “[does] the specification, in an individual employment contract, of the provisions of the Romanian Labour Code does not equate to a choice of Romanian law, in so far as, in Romania, it is well-known that there is a legal obligation to include such a choice-of-law clause in individual employment contracts? In other words, is Article 3 of [of the Rome I Regulation] to be interpreted as precluding national rules and practices pursuant to which a clause specifying the choice of Romanian law must necessarily be included in individual employment contracts?”

On the other hand, in the case C-218/20, the third question is phrased as follows: “does the specification, in an individual employment contract, of the provisions of the Romanian Labour Code equate to a choice of Romanian law, in so far as, in Romania, it is well-known that the employer predetermines the content of the individual employment contract?”.

In his assessment of the third questions, AG distinguishes these two scenarios but evaluates them in the light of single core question: if a choice of law clause is compulsory, may one still consider that the parties have exercised their freedom of choice of the law applicable to their contract? (see, in that vein, points 98 and 104).

Ultimately, the proposed answer to the third question in the two cases is that Articles 3 and Article 8 of the Rome I Regulation are to be interpreted to the effect that a choice of the law applicable to an individual employment contract, explicit or implicit, “must be free for both parties” (“ha de ser libre para ambas partes”), which is not the case where a national provision requires a choice of law clause to be inserted in that contract. However, Articles 3 and 8 of the Regulation do not prevent such a clause from being drafted in the contract in advance by decision of the employer, to which the employee gives his consent (point 107, third indent).

The Opinion can be consulted here (the English version is not available).

Symeon C Symeonides recently published his regular piece with American Journal of Comparative Law  titled “Private International Law Bibliography 2020: U.S. and Foreign Sources in English.”

The European Commission published yesterday its assessment of the UK application to accede to the 2007 Lugano Convention (the document is only available in two EU official languages, as well as in English). Its conclusion:

“the Commission takes the view that the European Union should not give its consent to the accession of the United Kingdom to the 2007 Lugano Convention. For the European Union, the Lugano Convention is a flanking measure of the internal market and relates to the EU-EFTA/EEA context. In relation to all other third countries the consistent policy of the European Union is to promote cooperation within the framework of the multilateral Hague Conventions. The United Kingdom is a third country without a special link to the internal market. Therefore, there is no reason for the European Union to depart from its general approach in relation to the United Kingdom. Consequently, the Hague Conventions should provide the framework for future cooperation between the European Union and the United Kingdom in the field of civil judicial cooperation”.

Source: https://ec.europa.eu/info/files/communication-assessment-application-united-kingdom-great-britain-and-northern-ireland-accede-2007-lugano-convention_en

On May 4th, 2021, the European Commission issued a Communication offering its Assessment on the application of the United Kingdom of Great Britain and Northern Ireland to accede to the 2007 Lugano Convention.

The Communication offers the Commission’s analysis on the application and explains why it considers that the EU should not give its consent to the accession of the United Kingdom to the Lugano Convention.

Nature of the Lugano Convention

The Communication explains that the Lugano Convention represents an essential feature of a common area of justice and is a flanking measure for the EU’s economic relations with the EFTA/EEA countries.  Thus, the Lugano Convention supports the EU’s relationship with third countries which have a particularly close regulatory integration with the EU, including by aligning with (parts of) the EU acquis. Though the Convention is, in principle, open to accession of “any other State” upon invitation from the Depositary upon unanimous agreement of the Contracting Parties, it is not the appropriate general framework for judicial cooperation with any given third country. The Convention is based on a high level of mutual trust among the Contracting Parties and represents an essential feature of a common area of justice commensurate to the high degree of economic interconnection based on the applicability of the four freedoms.

International framework for the EU’s civil justice cooperation with third countries

As a consequence, the European Commission argues that the appropriate framework for cooperation with third countries in the field of civil judicial cooperation is provided by the multilateral Hague Conventions, i.e. the 2005 Hague Choice of Court Convention and the 2019 Hague Judgments Convention.

Conclusion

The Commission concludes:

In view of the above, the Commission takes the view that the European Union should not give its consent to the accession of the United Kingdom to the 2007 Lugano Convention. For the European Union, the Lugano Convention is a flanking measure of the internal market and relates to the EU-EFTA/EEA context. In relation to all other third countries the consistent policy of the European Union is to promote cooperation within the framework of the multilateral Hague Conventions. The United Kingdom is a third country without a special link to the internal market. Therefore, there is no reason for the European Union to depart from its general approach in relation to the United Kingdom. Consequently, the Hague Conventions should provide the framework for future cooperation between the European Union and the United Kingdom in the field of civil judicial cooperation.

The Commission then advises:

Stakeholders concerned, and in particular practitioners engaged in cross-border contractual matters involving the European Union, should take this into account when making a choice of international jurisdiction.

Arthur Poon recently published an article with International and Comparative Law Quarterly titled: “Determining the Place of Performance under Article 7(1) of the Brussels I Recast.”

The abstract reads as follows:

“This article calls for a reassessment of the methodology in determining the place of contractual performance under Article 7(1) of the Brussels I Regulation Recast. The first part of the article deals with Article 7(1)(a). It argues that in light of the adoption of autonomous linking factors under Article 7(1)(b), more types of contracts presently not covered within the ambits of Article 7(1)(b) should centralise jurisdiction at the places of performance of their characteristic obligations. The second part of the article considers the way Article 7(1) operates when there are multiple places of performance under the contract. The test devised by the Court of Justice of the European Union in this regard is not only difficult to apply, but the application of the test also often does not guarantee a close connection between the claim and the court taking jurisdiction. This article argues that when a claim is made in respect of a contractual obligation to be performed in more than one Member State, Article 4 should be applied instead of Article 7(1).”

The new issue of the AJ Contrat (12/2020) offers a series of articles (in French) compiled by Gustavo Cerqueira (University of Nîmes, France), concerning the CISG on the occasion of its 40th anniversary. 

The dossier contains the following articles:

The challenge of uniform interpretation, by Claude Witz (Saarland University) 

The CISG’s articulation with the European Union Law, by Cyril Nourissat (University of Lyon 3)

Back on the parties’ silence about the GISG’s application, by Gustavo Cerqueira (University of Nîmes) and Nicolas Nord (University of Strasbourg)

The Vienna Convention and the action directe: back on dangerous liaisons, by Etienne Farnoux (University of Strasbourg)

The links between the foreclosure period and the deadline prescription period (about CISG’s Article 39), by Marc Mignot (University of Strasbourg)

The issue of interest rates on arrears, by Franco Ferrari (New York University)

For a reinterpretation of the concept of impediment to perform, by Ludovic Pailler (University of Lyon 3)

The full table of contents is available here.

EFFORTS (Towards more EFfective enFORcemenT of claimS in civil and commercial matters within the EU) is an EU-funded Project conducted by the University of Milan (coord.), the Max Planck Institute Luxembourg for Procedural Law, the University of Heidelberg, the Free University of Brussels, the University of Zagreb, and the University of Vilnius.

The EFFORTS Project tackles, notably, the Brussels Ibis Regulation and the Regulations on the European Enforcement Order, the European Small Claims Procedure, the European Payment Order, and the European Account Preservation Order. By investigating the implementation of these Regulations in the national procedural law of, respectively, Belgium, Croatia, France, Germany, Italy, Lithuania, and Luxembourg, the Project aims at enhancing the enforcement of claims through more efficient procedures, case management, and cooperation in cross-border disputes.

The second EFFORTS Newsletter has just been released, giving access to up-to-date information about the Project, save-the-dates on forthcoming events, conferences and webinars, and news from the area of international and comparative civil procedural law.

Regular updates are also available via the Project’s LinkedIn and Facebook pages.

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

The European Group of Private International Law (EGPIL-GEDIP) has published the minutes (in French) of its 2020 Meeting.

The topics discussed during the meeting included a proposal for a regulation concerning the applicable law to in rem rights, the codification of the general part of EU private international law and the accession of the European Union to the Hague Judgments Convention.

The EGPIL has also published separately a draft proposal for a regulation on the law applicable to rights in rem in tangible assets and Observations on the possible accession of the European Union to the Hague Convention of 2 July 2019 on the Recognition of Foreign Judgments.

Coming up tomorrow – Book Launch: Choice of Law in International Commercial Contracts – 4 May 2021

 

The global PIL community is invited to celebrate the launch of the book “Choice of Law in International Commercial Contracts” (Oxford University Press, 2021). This study provides a definitive reference guide to the key choice of law principles on international contracts, including 60 national and regional reports written by experts from all parts of the world, and a dedicated commentary on the Hague Principles as applied to international commercial arbitration.

When: May 4, 2021 02:00 PM CEST

Where: Online (Zoom-Webinar)

Register here:

https://unilu.zoom.us/webinar/register/WN_ivzYmgFQQkSdUKZCEDRriQ

After registering, you will receive a confirmation email containing information about joining the webinar. The event will also be live streamed via YouTube; the link will be posted five minutes before the start time here.

 

The programme reads as follows:

 

14:00-14:10 – Welcome and acknowledgments | Daniel Girsberger

14:10-14:35 – Overview of the process | Daniel Girsberger and Marta Pertegás

14:35-15:00 – General Comparative Report, with a focus on Art. 3 | Thomas Kadner Graziano

15:00-15:10 – Further general matters | Jan L Neels

15:10-15:15 – Publisher’s address | Andrew Dickinson

15:15-15:20 – Regional perspective: Africa | Jan L Neels and Eesa A Fredericks

15:20-15:30 – Regional perspective: Asia | Yuko Nishitani and Béligh Elbalti

15:30-15:35 – Regional perspective: Australasia | Brooke Marshall

15:35-15:40 – Regional perspective: Europe | Thomas Kadner Graziano

15:40-15:50 – Regional perspective: Latin America | José A Moreno Rodríguez and Lauro Gama

15:50-15:55 – Regional perspective: North America | Geneviève Saumier

15:55-16:05 – HCCH, UNCITRAL and UNIDROIT perspectives | João Ribeiro-Bidaoui, Luca Castellani, and Anna Veneziano

16:05-16:15 – Future plans and concluding remarks | Agatha Brandão and Daniel Girsberger

16:15-16:45 – Q&A

 

More information about the book:

https://global.oup.com/academic/product/choice-of-law-in-international-commercial-contracts-9780198840107?cc=ch&lang=en&#

A 30% discount code will be available for all attendees.

 

In May 2021 the activity of the CJEU regarding PIL will focus on insolvency and civil and commercial matters.

The decision in C- 709/19, Vereniging van Effectenbezitters (first chamber: J.L. Bonichot, L. Bay Larsen, C. Toader, N. Jääskinen, and M. Safjan as reporting judge) will be delivered on May 12th. AG Campos Sánchez-Bordona’s Opinion was published last December. To the first question, once again on Article 7(2) Brussels Ibis Regulation and the Erfolgsort in a case of purely financial damage, he had proposed to drop the approach holding the location of an investment account as the place of the damage, and requiring particular circumstances to concur for jurisdiction to be established at that place. Moreover, he had provided a separate analysis of the fact that the claim had been filed by a Stichting under Article 3:305a Dutch civil code for merely declaratory purposes (the only possibility open at the time). NoA: A similar request for a preliminary judgment is currently pending before the Court, see C-498/20. Recent examples of claim-bundling strategy following the Dutch model, apt to raise (should they get to court) doubts relating to jurisdiction, can be found in the press: see, recently, FAZ.

A second PIL-related decision will be published on May 20. In Case C-913/19, CNP, the referring court asked several questions to the CJEU on section 3 of Chapter II of the Brussels Ibis Regulation and Articles 7(2) and 7(5) of said Regulation. AG Campos Sánchez-Bordona’s Opinion, delivered last January, follows closely the case law of the CJEU on Article 7(5); it additionally analyses its relationship to Articles 145 and 152 of the Directive 2009/138/EC, on the taking-up and pursuit of the business of insurance and reinsurance. The case has been allocated to the third chamber (S. Prechal, N. Wahl, F. Biltgen, J. Passer, L.S. Rossi as reporting judge).

On the same day, the Opinion of AG Campos’s in C-25/20, Alpine Bau, will also be published. Here, the Višje sodišče v Ljubljani (Slovenia) asks the CJEU whether Article 32(2) of Regulation 1346/2000 is to be interpreted as meaning that the rules on the time limits for lodging creditors’ claims, and the consequences of lodging claims out of time under the law of the State in which the secondary proceedings are being conducted, apply to the lodgement of claims in secondary proceedings by the liquidator in the main insolvency proceeding.

No other PIL-related decisions, conclusions or hearings are scheduled so far. Case C-124/20, Bank Melli Iran, might nevertheless be of interest, in that it relates to commercial policies and the protection against the effects of the extraterritorial application of a third State legislation. AG Hogan’s Opinion will be published on May 12th.

The official version of the different agreements concluded in December 2020 between the European Union and the United Kingdom has been published yesterday (30 April 2021) at the Official Journal of the European Union. This version replaces retroactively the one used until now. The official version is available in all official languages of the European Union as well as in English. Please find the English version attached (with the Trade and Cooperation Agreement starting page 12 of the pdf).

brexit-final-version-of-agreeements-and-related-documentsDownload

On 14 April, the Working Group on the Practical Handbook on the Operation of the 2000 Protection of Adults Convention met for the first time. Comprised of experts with experience in the operation or implementation of the 2000 Protection of Adults Convention, the Working Group will meet via videoconference every two weeks, between 14 April and 23 June, in order to continue the development of a draft Practical Handbook on the operation of the Convention. More information on the 2000 Protection of Adults Convention is available here.

On 20 April, the Permanent Bureau announced the launch of the Legal Guide to Uniform Instruments in the Area of International Commercial Contracts, with a Focus on Sales, a joint publication of the Secretariats of UNCITRAL, UNIDROIT and the HCCH. The Legal Guide offers an overview of the principal legislative texts prepared by each organisation and illustrates how these texts interact to achieve the shared goals of predictability and flexibility. It is intended as a user-friendly resource for those interested in the adoption, application, and interpretation of uniform contract law. More information is available here.

On 22 April, the HCCH participated in the online international seminar “The Practical Operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction“, organised by the German Foundation for International Legal Cooperation (IRZ) and the Ministry of Education and Science of the Republic of Kazakhstan. The seminar was attended by more than 100 participants from Germany, Kazakhstan and Turkey. This event was a follow-up to the seminar on the HCCH 1980 Child Abduction Convention held on 9 December 2020. The recording of the seminar is available here.

On 29 April, Professor William Duncan, former Deputy Secretary General of the HCCH, received an honorary doctorate from Trinity College Dublin, the highest form of recognition from the College. This honour follows his Presidential Distinguished Service Award for the Irish Abroad in November 2020 and is a further tribute to Professor Duncan’s life-long contribution to academic research, law reform, and children’s rights both in Ireland and abroad. On behalf of the HCCH, the Permanent Bureau congratulates Professor Duncan on being awarded this prestigious honour.

 

Vacancy: The HCCH is currently seeking a(n) (Assistant) Legal Officer. The deadline for the submission of applications is this Sunday, 2 May 2021 (00:00 CEST). More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

Professor Yeo Tiong Min, SC (honoris causa) will be delivering the Yong Pung How Professorship of Law Lecture 2021 on Thursday, 6 May 2021, 5:00 to 6:00 pm (Singapore time). The title of the talk is ‘The Changing Global Landscape for Foreign Judgments.’ The synopsis is as follows:

There have been significant advances in the global landscape for the recognition and enforcement of foreign judgments in recent years. The two most significant international developments have been the coming into force in 2015 of the 2005 Hague Convention on Choice of Court Agreements, and the completion in 2019 of the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters. Singapore has responded to the global environment, in bringing the former Convention into force under Singapore law in 2016, and in making extensive amendments to the Reciprocal Enforcement of Foreign Judgments Act in 2019. 2020 also saw the publication of the second edition of the Multilateral Memorandum on Enforcement of Commercial Judgments for Money by the Standing International Forum of Commercial Courts and the Asian Principles for the Recognition and Enforcement of Foreign Judgments by the Asian Business Law Institute. The lecture will review these and other developments and their implications for Singapore law.

The webinar is free of charge. Further details and the link for registration may be found here.

Monika Zalnieriute (University of New South Wales) has posted Data Transfers after Schrems II: The EU-US Disagreements Over Data Privacy and National Security on SSRN.

In the long-awaited Schrems II decision, the Court of Justice of the European Union (CJEU) took a radical, although not an unexpected, step in invalidating the Privacy Shield Agreement which facilitated the European Union – United States data transfers. Schrems II illuminates the long-lasting international disagreements between the EU and USA over data protection, national security, and the fundamental differences between the public and private approaches to protection of human rights in data-driven economy and modern state. This article approaches the decision via an interdisciplinary lens of international law and international relations and situates it in a broader historical context. In particular, I rely on the historical institutionalist approach which emphasizes the importance of time and timing (also called sequencing) as well as institutional preferences of different actors to demonstrate that Schrems II decision further solidifies and cements CJEU’s principled approach to data protection, rejecting data securitization and surveillance in the post-Snowden era. Schrems II aims to re-balance the terms of international cooperation in data-sharing across the Atlantic and beyond. It is the outcome that the US tech companies and the government feared. Yet, they are not the only actors displeased with the decision. An institutionalist emphasis enables us to see that the EU is not a monolithic block, and Schrems II outcome is also contrary to the strategy and preferences of the EU Commission. The invalidation of the Privacy Shield will now (again) require either a reorientation of EU policy and priorities, or accommodation of the institutional preferences of its powerful political ally – the USA. The CJEU decision goes against the European Data Strategy, and places a $7.1 trillion transatlantic economic relationship at risk. Historical institutional analysis suggests the structural changes in the US legal system to address the inadequacies in the Schrems II judgment are unlikely. Therefore, the EU Commission will act quick to create a solution – another quick contractual ‘fix’ – to accommodate US exceptionalism and gloss over the decades of disagreement between the EU and USA over data protection, national security and privacy. When two powerful actors are unwilling to change their institutional preferences, ‘contracting out’ the protection of human rights in international law is the most convenient option.

The paper is forthcoming in the Vanderbilt Journal of Transnational Law.