Droit international général

Those who combine my excitement of having professor McCorquodale contribute to the blog, with his enthusiasm at the end of his post, may find themselves in a perennial game of complimentary renvoi.

Robert, who represented interveners CORE in Okpabi v Shell (one-line summary in live tweeting here), signals the jurisdictional take-aways. The wider due diligence context of the case is considered by Ekaterina Aristova and Carlos Lopez here, Lucas Roorda signals ia the merits bar following the jurisdictional findings and Andrew Dickinson expressed his hope of an end to excessively lengthy jurisdictional proceedings here.

 

Okpabi v Shell: Judges’ Approach to Jurisdictional Issues is Crucial

In Okpabi v Shell [2021] UKSC 3, Nigerian farmers brought a claim against Shell’s parent company (RDS) and its Nigerian subsidiary (SPDC) for environmental and human rights impacts of oil pollution. The claim had been struck out at the initial state on the basis of lack of jurisdiction in relation to the actions of SPDC, and this decision had been upheld by the Court of Appeal.

The Supreme Court unanimously swept aside these decisions. It held that when considering issues of the court’s jurisdiction over such a claim, a court must start from the basis that the alleged facts of the claim are true and from there determine if the claim has a real prospect of success.  The defendant should not bring evidence of its own to dispute the alleged facts unless the facts are demonstrably untrue or unsupportable, as otherwise it risks showing that there is an issue to be tried.  If a judge engages with the evidence and makes findings on it in a summary judgment, the more likely it is that the decision to strike out will be overturned. Further, the Court considered that there was a danger of a court determining issues which arise in parent/subsidiary cases without sufficient disclosure of material documents in the hands of the defendants. Both courts below had acted incorrectly and conducted a “mini-trial”, and so the appeal by the claimants was successful.

The Court affirmed Vedanta that parent companies can have a duty of care towards those affected by a subsidiary’s actions, and that the Caparo test was inapplicable to these types of cases. The Court also clarified the scope of the duty of care by making clear that control is not determinative, it is the level of management involvement by the parent which is crucial. A parent company’s group-wide policies and standards were relevant in this respect. The Court, unfortunately, did not refer in its decision to any comparative law cases or international developments, even though these had been drawn to its attention.

This decision embeds the position that parent companies can have a duty of care towards those affected by a subsidiary’s actions, and that de facto management is a factor to consider. It examined the legal process by which courts consider these jurisdictional issues and made it much harder for a judge to strike out a case at the jurisdictional stage unless the facts on which the claim is based are demonstrably untrue or unsupportable. This could enable quicker proceedings towards the merits in these types of cases.

 

—Robert McCorquodale – it is my honour to contribute to this excellent blog.

 

By Jie (Jeanne) Huang, Associate Professor, University of Sydney Law School Australia

In 2013, the plaintiffs, ePayment Solutions Pty Ltd (EPS) and RCD Holdings Ltd (RCD) concluded a written contract with the defendant, LT Game International (Australia) Ltd (LT) about the development and installation of a computer betting game. LT is a company incorporated in the Virgin Islands and registered in Australia as a foreign company. The contract was signed in Australia. Its Clause 10 provides.

“10. Governing Law

Any dispute or issue arising hereunder, including any alleged breach by any party, shall be heard, determined and resolved by an action commenced in Macau. The English language will be used in all documents.”

When a dispute arose, the plaintiffs commenced the proceedings at the Supreme Court of Queensland in Australia ([2020] QSC 318). The defendant entered a conditional appearance and applied to strike out the claim, or alternatively, to have it stayed as being commenced in this court contrary to the contract. This case shed useful light on how an Australian court may address the impacts of COVID-19 on foreign jurisdiction clauses.

The parties did not dispute that Clause 10 was an exclusive jurisdiction clause choosing courts in Macau China. However, an exclusive foreign jurisdiction clause does not exclude Australian courts’ jurisdiction. The plaintiffs alleged that the Supreme Court of Queensland should not enforce the exclusive jurisdiction clause due to the COVID?19 pandemic for two reasons.

First, the pandemic currently prevents the plaintiffs from commencing proceedings in Macau. The court rejected this argument because no evidence suggested that representatives of the plaintiffs had to be present in Macau for lawyers retained by them to commence proceedings.

Second, plaintiffs also alleged that their witnesses could not travel from Australia to Macau because of the pandemic. The court also rejected this argument because of insufficient evidence. According to the court, the plaintiffs did not provide any evidence of the impact of COVID?19 in Macau, for example, what restrictions were being experienced now, what restrictions were likely to be experienced in the future and how long those restrictions may persist. There was also no evidence showing when a trial of proceedings commenced now in Macau might be heard. Although Australian witnesses might be called in the Macau proceedings, the plaintiffs did not identify any specific persons who would be called were residents in Australia. It was also unclear whether overseas witnesses might be called if the proceedings were conducted in Australia as Australia also imposed strict travel restrictions.

Finally, the court ruled for the defendant and dismissed the plaintiffs’ claim. Nevertheless, the court indicated that the plaintiffs could recommence the proceedings in Queensland if the circumstances of the COVID-19 pandemic changed materially in Macao in the future.

Comments:

It is well established that an exclusive foreign jurisdiction clause does not operate to exclude Australian courts’ jurisdiction; however, the courts will hold the parties to their bargain and grant a stay of proceedings, unless the party who seeks that the proceedings be heard in Australia can show that there are strong reasons against litigating in the foreign jurisdiction.[1] In exercising its discretion, the court should take into account all the circumstances of the particular case. However, doubts have been cast as to whether courts should consider financial or forensic inconvenience attaching to the nominated foreign jurisdiction, at least when these factors should have been known to the parties at the time the exclusive jurisdiction clause was agreed by them.[2]

In RCD, the court correctly held that Clause 10 should be interpreted as manifesting an intention that disputes would be determined in Macau by applying the law of Macau. Although the application of Macau law might bring financial benefits to the defendant because it is more difficult to prove liability for damages under the Macau law than the law in Australia. However, this is insufficient to convince the court to exercise jurisdiction because the potential financial benefits for the defendant are what the parties have bargained for.

Regarding the location of witnesses, the court is also correct that parties should expect that breaches may occur in Australia as the contract would be partially performed there, and consequently, witnesses in Australia may need to be called for proceedings in Macao. Therefore, the location and travel of witnesses are not a strong reason for Australian courts to exercise jurisdiction.

The outbreak of the COVID-19 pandemic is a factor that parties could not reasonably expect when they concluded their foreign jurisdiction clause. If a plaintiff wants to convince an Australian court to exercise jurisdiction in spite of an exclusive foreign jurisdiction clause, this plaintiff must provide solid evidence of the impacts of the COVID-19 pandemic on foreign proceedings. If the plaintiff can show that the pandemic developed so as to effectively prevent, or unduly frustrate the plaintiff in litigating in the foreign jurisdiction, then that might be a discretionary consideration, with any other relevant considerations, in favor of allowing the plaintiffs to litigate in Australia.

 

[1] High Court of Australia decisions such as Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418 at 445, Oceanic Sunline Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 259, Huddart Parker Ltd v The Ship Mill Hill (1950) 81 CLR 502 at 508-509.

Decisions of intermediate courts of appeal such as Global Partners Fund Ltd v Babcock & Brown Ltd (in liq) & Ors (2010) 79 ACSR 383 at 402-403, [88]-[89], Australian Health & Nutrition Association Ltd & Anor v Hive Marketing Group Pty Ltd & Anor (2019) 99 NSWLR 419 at 438, [78], Venter v Ilona MY Ltd [2012] NSWSC 1029.

[2] Incitec Ltd v Alkimos Shipping Corp (2004) 138 FCR 496 at 506 and Australian Health & Nutrition Association Ltd & Anor v Hive Marketing Group Pty Ltd & Anor (2019) 99 NSWLR 419.

Zacaroli J this morning held in Gategroup Guarantee Ltd, Re [2021] EWHC 304 (Ch) on whether ‘part 26A’ English restructuring ‘Plans’ (see my review of ia Deep Ocean) are within the scope of the Lugano Convention’s insolvency exception (Lugano rather than Brussels Ia was engaged).

He held they are, leading to neutralisation of an exclusive choice of court agreement in the relevant bonds, and making the courts of England and Wales have jurisdiction despite this choice of court.

Oddly Kaupthing was not referred to. Neither was Enasarco.

The judge relied unconvincingly in my view on the dovetail discussion (most recently discussed by me viz Alpine Bau) under the Brussels IA Recast and the EU Insolvency Regulation (‘EIA’)- neither of course applicable to the UK anymore, as indeed is the case for the Lugano Convention.

All in all this is a case in which the  reasoning has a potentially long term impact. The claim form in this case was issued on 30 December 2020. As such, by reason of Regulation 92(1), (2)(d) and (3) of the Civil Jurisdiction and Judgment (Amendment) (EU Exit) Regulations 2019, the Lugano Convention continues to apply.

The Plan Company was incorporated on 8 December 2020 as a wholly owned subsidiary of gategroup Holding AG (the ‘Parent’, a company incorporated in Switzerland. At [55] , if Lugano applies to applications under Part 26A, then the Plan Company accepts that by reason of A23(1) Lugano and the exclusive jurisdiction clause in favour of the courts of Zurich in the Bonds, this court has no jurisdiction. That acceptance is made notwithstanding that the Deed Poll contains a non-exclusive jurisdiction clause in favour of the courts of England. The Plan Company acknowledges that since the purpose of the Plan is to effect amendments to the terms of the Bonds, the exclusive jurisdiction clause in the Bonds is engaged.

The usual modus operandi of assuming application of Brussels Ia arguendo (see viz schemes of arrangement most recently KCA Deutag and viz Plans Deep Ocean and Virgin) did not fly here for as noted the Plan Company accepts that the exclusive jurisdiction clause in favour of the Zurich courts is a complete bar to this court assuming jurisdiction if the Lugano Convention applies (in the preceding cases the point need not be decided, since jurisdiction under BIa could be established arguendo as in none of them was there adversarial argument on the point).

At 70 Justice Zacaroli introduces effectively an amicus curiae by Kirkland & Ellis, opposing the view that the insolvency exception applies.

At 73 ff a first point is considered: Part 26A Plans have not been notified under the EIA Annex. This refers to the so-called dovetailing between Brussels Ia, Lugano and the EIR. The suggestion is that if a procedure is not listed in Annex A EIR, it is conclusively not an insolvency proceeding and “that is the end of the matter” because the dovetailing principle leads inexorably to the conclusion that it falls within the Recast (‘and thus within the Lugano Convention’  [73]). At 82 the judge incidentally is under the impression that the older, heavier procedure of amendment by (EP and Council) Regulation applies – which it no longer does since the EIR 2015.

I have since long submitted that there is no such dovetail. It is also clear that there cannot be identity of interpretation between the Lugano Convention’s insolvency exception and the Brussels regime given that non-EU Lugano States are not part of the EIR. The judge confirms as much at 81 and at 91 ff  and, in a first approach, revisits the principles of modified universalism and the origin of the insolvency exception in particular in the Jenard report. He holds at 103 that the ratio behind the insolvency exception in the Rapport Jenard is the same as the ratio behind Plans, hence that the exception applies.

In a second (presumably subsidiary) approach, the judge queries whether proceedings under Part 26A comply with the abstract requirements for an ‘insolvency’ procedure under of A1(1) EIR and finds at 133 that they do. I am really not convinced by the relevance of that analysis. He includes at 134 ff an argument that the Dutch ‘WHOA’ (Wet homologatie onderhands akkoord) proceedings are to be included in Annex A. Again I am not convinced that serves much purpose. Member States populate the Annex and a Member State proposal for inclusion is not checked against A1(1) EIR.

Conclusion on the jurisdictional issue at 137: ‘proceedings under Part 26A are within the bankruptcy exclusion in the Lugano Convention. This court accordingly has jurisdiction notwithstanding the exclusive jurisdiction clause in the Bonds.’

A most relevant judgment, on which the issues are not at all clear. Expect appeal lest the restructuring timing has made this nugatory – settling these issues would most certainly be welcome.

Geert.

EU private international law, 3rd ed. 2021, paras 2.73 ff (2.81 ff in particular) and 5.35 ff.

 

Important first instance decision on whether a restructuring plan is an insolvency proceeding for the purposes of the Lugano Convention.
Held that it is, with confusing analysis of the EU Insolvency Regulation.
Held Lugano does not apply, E&W courts have jurisdiction. https://t.co/XqZ0J6IIIH

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

Paul Lorenz Eichmüller (University of Vienna) has kindly provided the following post.

Austria is one of the few European countries that still retains the institution of fault divorce, which means that a court will have to examine the grounds for a separation. With an increasing number of States abolishing this type of divorce (England and Wales being one of the most recent examples), conflicts problems may arise due to the incompatibility between the different systems. This is well illustrated by a recent decision of the Austrian Supreme Court from 10 December 2020.

Facts

The parties of the underlying case were both Austrian citizens who got married in Austria and later moved to Belgium for professional reasons. Subsequently, they got divorced there under Belgian law in accordance with Article 8(a) of the Rome III Regulation. Belgium had abolished fault divorce in 2007. Thus, no statement on fault for the divorce was issued in the judgment.

After the divorce, the former wife moved back to Austria and brought an action for a supplementary pronouncement of fault in Austrian courts to improve her situation in subsequent maintenance proceedings under Austrian law. The former husband had in the meanwhile relocated to Guinea.

The Decision by the Austrian Supreme Court

After the court of first did not discuss the applicable law at all and the court of second instance ruled that pursuant to Article 8(c) of the Rome III Regulation, Austrian law was applicable to the issue of determining fault in a marriage, the Supreme Court of Austria decided that Austrian law was indeed applicable. According to the Supreme Court, the supplementary pronouncement of fault serves primarily for the purposes of maintenance, as it determines the amount of maintenance that a divorced spouse receives. As such, it is a preliminary question for the maintenance claim and hence governed by the maintenance statute, rather than the divorce statute. This would also be in line with the Rome III Regulation, which excludes matters of maintenance from its sphere of application in Article 1(2)(g). The Hague Protocol on the Law Applicable to Maintenance Obligations, which determines the maintenance statute in Austria (Article 15 of the Maintenance Regulation), stipulates in Article 3 that the applicable law is the law at the habitual residence of the creditor, which in this case was Austria. However, in order to give the former husband the opportunity to argue for the possible application of a law with a closer connection according to Article 5 of the Hague Protocol, the court referred the dispute back to the court of first instance.

Assessment

The decision of the Supreme Court is overall not very convincing, leaving many open questions that have not been dealt with in the reasoning of the judgment.

First of all, the decision is insofar remarkable as it unnecessarily brought confusion to an issue that had previously been settled in well-established case law. Given the unclear qualification of fault in a divorce in private international law, a referral of the case to the ECJ for a preliminary ruling would have thus been preferrable, as the scope of application of the Rome III and Maintenance Regulations is concerned. The previous rulings of the Austrian Supreme Court had always determined the supplementary pronouncement of fault according to the divorce statute (RS0077266; approving also in literature: Nademleinsky, EF-Z 2019, p. 139).

Apart from this procedural issue, the Supreme Court surprisingly broke with precedent (1 Ob 340/58) stating that it is not a preliminary question for the award of maintenance whether there was fault, but rather a mere question of fact, whether the divorce judgment contains a pronouncement of fault. That approach is also followed in literature (Zankl/Mondel in Schwimann/Kodek, ABGB4 § 69 EheG Rz 1). But even if it is classified as a preliminary question in the exception of international cases (as supported by Nademleinsky, EF-Z 2019, p. 139), the law applicable to preliminary questions nevertheless has to be determined separately in accordance with the applicable rules of private international law. Therefore, this would in itself not provide any additional value for the scope of application of the abovementioned regulations or for the applicable law.

Now, what actually is the applicable law determining fault in a divorce? At a first glance, the argumentation of the Supreme Court seems plausible: As the pronouncement of fault after a finalised divorce only serves the purpose of creating a better position for the maintenance creditor, it might be regarded as an issue of the Maintenance Regulation. However, a question is not automatically within the scope of the Maintenance Regulation, solely because its main relevance lies in maintenance law. In a fault divorce, the question who bears fault for the end of the marriage falls without the shadow of a doubt under the divorce statute. Yet, in maintenance proceedings following a no-fault divorce the exact same question would be determined by another statute, just because the law applicable to the divorce under Art 8 Rome III does not know a fault divorce. It is not convincing that the classification should depend on the type of proceedings initiated, as this undermines the aim of the European private international law regulations, namely to uniformly determine the applicable law.

Additionally, the rules of the Hague Protocol are designed in such a way that they protect the creditor by referring to the law at the creditor’s habitual place of residence. This is appropriate given that the creditor has to make a living at that place. However, the question whether there was fault in ending the marriage is not at all connected to the place of the creditor’s habitual residence. It is much more closely connected to the marriage and its dissolution. Thus, it should be determined according to the divorce statute.

Contrary to the Supreme Court’s ruling, Belgian law is thus relevant for fault in divorce in the present case. Does that, however, mean that the former wife necessarily receives a lower maintenance and the husband’s fault cannot be taken into account? Not necessarily. If there is no pronouncement of fault in the divorce judgment, the maintenance is determined according to equity (§ 69(3) EheG) rather than by a fixed percentage, as when there is a pronouncement of fault. Up to the present decision, this was also the case for any foreign judgment from a jurisdiction without fault divorce (RS0114475).

According to some opinions (Zankl/Mondel in Schwimann/Kodek ABGB4 § 69 EheG Rz 18; LGZ Wien 11.6.1984, 44 R 1049/84), the fault of a spouse can then be weighed in this equitable evaluation. Although the Supreme Court seems to disagree with this interpretation – for good reasons if both the divorce and the maintenance proceedings were held under Austrian law – this line of jurisprudence should not be followed in an international context, since a failure to consider fault would lead to a qualitative discrepancy of norms.

If the Supreme Court were to remain adamant in its position that the fault may in principle not be weighed in cases of § 69(3) EheG, the legal norms in the foreign divorce statute and the Austrian maintenance statute would be in qualitative discrepancy to each other, as the latter simply assumes that fault will be pronounced in the divorce judgment if there is any. Based on this assumption, it assigns lower maintenance to divorces where no fault is pronounced. However, this assessment does not have foreign judgments in mind where there is no possibility for a pronouncement of fault according to the divorce statute. While Austrian maintenance law requires the existence of this legal institute, its absence in many jurisdictions results in the connection of this question ending up nowhere. Hence, the incompatibility of the two legal systems has to be remedied by the means of adaptation.

While adaptation can be conducted both on the level of private international law (as Gitschthaler in Gitschthaler, IntFamR Art 11 HUP Rz 2 seems to suggest) and on the level of substantive law, the choice between the two should depend on which one is the less invasive.

As maintenance after divorces without the pronouncement of fault is under Austrian law determined on the basis of equity anyway, the adaptation on a substantive level – by allowing the weighing of fault – is relatively non-invasive compared to applying a different statute altogether. The application of Austrian law on the determination of fault can therefore not be considered the preferred option.

Thus, the Supreme Court should have dismissed the action for a supplementary pronouncement of fault, so that the maintenance court could weigh the fault in its equitable evaluation – if not by default, then at least by the means of adaptation. Also from a point of procedural economy, this would be a desirable outcome, as the additional supplementary proceedings could be avoided.

In preparation of the Conference on the HCCH 2019 Judgments Convention on 13/14 September 2021, planned to be taking place (if Covid-19 allows it) on campus of the University of Bonn, Germany, we are offering here a Repository of contributions to the HCCH 2019 Judgments Convention. Please email us if you miss something in it, and we will update …

Update of 16 February 2021: New entries are printed bold. Please also check the list of video recording of events on the Convention at the bottom, if you like.

Please also check the “official” bibliograghy of the HCCH for the instrument.

Explanatory Reports

Garcimartín Alférez, Francisco;
Saumier, Geneviève „Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters: Explanatory Report“, as approved by the HCCH on 22 September 2020 (available here) Garcimartín Alférez, Francisco;
Saumier, Geneviève “Judgments Convention: Revised Draft Explanatory Report”, HCCH Prel.-Doc. No. 1 of December 2018 (available here) Nygh, Peter;
Pocar, Fausto “Report of the Special Commission”, HCCH Prel.-Doc. No. 11 of August 2000 (available here), pp 19-128

 

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(Cooperative Constitutional State and the Codification of Private International Law: Notes on the “Judgment Project” of the Hague Conference on Private International Law) Brand, Ronald A. “The Circulation of Judgments Under the Draft Hague Judgments Convention”, University of Pittsburgh School of Law Legal Studies Research Paper Series No. 2019-02, pp 1-35 Brand, Ronald A. “Jurisdictional Developments and the New Hague Judgments Project”, “in HCCH (ed.), A Commitment to Private International Law – Essays in honour of Hans van Loon”, Cambridge 2013, pp 89-99 Brand, Ronald A. “New Challenges in Recognition and Enforcement of Judgments”, in Franco Ferrari, Diego P. Fernández Arroyo (eds.), Private International Law – Contemporary Challenges and Continuing Relevance, Cheltenham/Northampton 2019, pp 360-389 Brand, Ronald A. “Jurisdiction and Judgments Recognition at the Hague Conference: Choices Made, Treaties Completed, and the Path Ahead”, Netherlands International Law Review (NILR) 67 (2020), pp 3-17 Brand, Ronald A. “The Hague Judgments Convention in the United States: A ‘Game Changer’ or a New Path to the Old Game?“, University of Pittsburgh Law Review, forthcoming, (available here) Çaliskan, Yusuf;
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(The Hague Convention of 2 July 2019 on the Recognition of Foreign Judgments: A First Appraisal) Fuchs, Felix “Das Haager Übereinkommen vom 2. Juli 2019 über die Anerkennung und Vollstreckung ausländischer Urteile in Zivil- oder Handelssachen“, Gesellschafts- und Wirtschaftsrecht (GWR) 2019, pp 395-399 Garcimartín, Francisco “The Judgments Convention: Some Open Questions”, Netherlands International Law Review (NILR) 67 (2020), pp 19-31 Garnett, Richard “The Judgments Project: fulfilling Assers dream of free-flowing judgments”, in: Thomas John, Rishi Gulati, Ben Koehler (eds.), The Elgar Companion to the Hague Conference on Private International Law, Cheltenham/Northampton 2020, pp. 309-321 Goddard, David „The Judgments Convention – The Current State of Play”, Duke Journal of Comparative & International Law 29 (2019), pp 473-490 He, Qisheng “The HCCH Judgments Convention and the Recognition and Enforcement of Judgments pertaining to a State”, Global Law Review 3 (2020), pp 147-161 He, Qisheng “Unification and Division: Immovable Property Issues under the HCCH Judgement Convention”, Journal of International Law 1 (2020), pp 33-55 Jacobs, Holger “Der Zwischenstand zum geplanten Haager Anerkennungs- und Vollstreckungsübereinkommen – Der vorläufige Konventionsentwurf 2016“, Zeitschrift für Internationales Privatrecht & Rechtsvergleichung (ZfRV) 2017, pp 24-30 Jang, Junhyok “The Public Policy Exception Under the New 2019 HCCH Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 97-111 Jang, Junhyok “2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Korea Private International Law Journal 25 (2019), pp. 437-510. Jovanovic, Marko Thou Shall (Not) Pass – Grounds for Refusal of Recognition and

Enforcement under the 2019 Hague Judgments Convention, YbPIL 21 (2019/2020), pp. 309 – 332 Jueptner, Eva “The Hague Jurisdiction Project – what options for the Hague Conference?”, Journal of Private International Law 16 (2020), pp 247-274 Jueptner, Eva “A Hague Convention on Jurisdiction and Judgments: why did the Judgments Project (1992-2001) fail?”, (Doctoral Thesis, University of Dundee, 2020) Kasem, Rouzana “The Future of Choice of Court and Arbitration Agreements under the New York Convention, the Hague Choice of Court Convention, and the Draft Hague Judgments Convention”, Aberdeen Student Law Review 10 (2020), pp. 69-115 Kessedjian, Catherine “Comment on the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. Is the Hague Convention of 2 July 2019 a useful tool for companies who are conducting international activities?“, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 19-33 Khanderia, Saloni „The Hague judgments project: assessing its plausible benefits for the development of the Indian private international law”, Commonwealth Law Bulletin 44 (2018), pp 452-475 Khanderia, Saloni “The Hague Conference on Private International Law’s Proposed Draft Text on the Recognition and Enforcement of Foreign Judgments: Should South Africa Endorse it?”, Journal of African Law 63 (2019), pp 413-433 Mariottini, Cristina „Establishment of Treaty Relations under The 2019 Hague Judgments

Convention“, YbPIL 21 (2019/2020), pp. 365-380 Mariottini, Cristina “The Exclusion of Defamation and Privacy from the Scope of the Hague Draft Convention on Judgments, YbPIL 19 (2017/2018), pp 475-486. Martiny, Dieter “The Recognition and Enforcement of Court Decisions Between the EU and Third States”, in Alexander Trunk, Nikitas Hatzimihail (eds.), EU Civil Procedure Law and Third Countries – Which Way Forward?, Baden-Baden 2021, pp 127-146 Meier, Niklaus “Notification as a Ground for Refusal”, Netherlands International Law Review (NILR) 67 (2020), pp 81-95 Nielsen, Peter Arnt “The Hague 2019 Judgments Convention – from failure to success”, Journal of Private International Law 16 (2020), pp 205-246 North, Cara “The 2019 HCCH Judgments Convention: A Common Law Perspective”, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 202-210 North, Cara “The Exclusion of Privacy Matters from the Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 33-48 Oestreicher, Yoav “ ’We’re on a Road to Nowhere’ – Reasons for the Continuing Failure to Regulate Recognition and Enforcement of Foreign Judgments”, The International Lawyer 42 (2008), pp 59-86 Okorley, Solomon “The possible impact of the Hague Convention on the Recognition and Enforcement of foreign Judgments in Civil or Commercial Matters on Private International Law in Common Law West Africa”, (Master’s Dissertation, University of Johannesburg, 2019; available: here) Pasquot Polido, Fabrício B. “The Judgments Project of the Hague Conference on Private International Law: a way forward for a long-awaited solution”, in Verónica Ruiz Abou-Nigm, Maria Blanca Noodt Taquela (eds.), Diversity and integration in Private International Law, Edinburgh 2019, pp. 176-199 Pertegás Sender, Marta “The 2019 Hague Judgments Convention: Its Conclusion and the road ahead”, in Asian Academy of International Law (publ.), Sinergy and Security: the Keys to Sustainable Global Investment: Proceedings of the 2019 Colloquium on International Law, 2019 Hong Kong, pp 181-190 Pertegás, Marta “Brussels I Recast and the Hague Judgments Project”, in Geert Van Calster (ed.), European Private International Law at 50: Celebrating and Contemplating the 1968 Brussels Convention and its Successors, Cambridge 2018, pp 67-82 Pertegás, Marta “The 2019 Hague Judgments Convention: The Road Ahead”, in Proceedings of the 16th PIL Regional Conference (Tirana, 2019), forthcoming (available here) Qian, Zhenqiu “On the Common Courts Provision under the Draft Hague Convention on the Recognition and Enforcement of Foreign Judgments”, Wuhan University International Law Review
2019-01, pp. 59-74 Qian, Zhenqiu;
Yang, Yu “On the Interpretation and Application of the Cost of Proceedings Provision under the Hague Judgment Convention”, China Journal of Applied Jurisprudence 2020-04, pp. 96-108 Reyes, Anselmo „Implications of the 2019 Hague Convention on the Enforcement of Judgments of the Singapore International Commercial Court”, in Rolf A. Schütze, Thomas R. Klötzel, Martin Gebauer (eds.), Festschrift für Roderich C. Thümmel zum 65. Geburtstag, Berlin 2020, pp 695-709 Ribeiro-Bidaoui, João “The International Obligation of the Uniform and Autonomous Interpretation of Private Law Conventions: Consequences for Domestic Courts and International Organisations”, Netherlands International Law Review 67 (2020), pp 139 – 168 Rumenov, Ilija “Implications of the New 2019 Hague Convention on Recognition and Enforcement of Foreign Judgments on the National Legal Systems of Countries in South Eastern Europe”, EU and Comparative Law Issues and Challenges Series (ECLIC) 3 (2019), pp 385-4040 Sachs, Klaus;
Weiler, Marcus “A comparison of the recognition and enforcement of foreign decisions under the 1958 New York Convention and the 2019 Hague Judgments Convention”, in Rolf A. Schütze, Thomas R. Klötzel, Martin Gebauer (eds.), Festschrift für Roderich C. Thümmel zum 65. Geburtstag, Berlin 2020, pp 763-781 Saito, Akira “Advancing Recognition and Enforcement of Foreign Judgments: Developments of Inter-Court Diplomacy and New Hague Judgments Convention”, Kobe Law Journal 68(4), pp. 59-110 Saumier, Geneviève “Submission as a Jurisdictional Basis and the HCCH 2019 Judgments Convention”, Netherlands International Law Review (NILR) 67 (2020), pp 49-65 Schack, Haimo “Wiedergänger der Haager Konferenz für IPR: Neue Perspektiven eines weltweiten Anerkennungs- und Vollstreckungsübereinkommens?“, Zeitschrift für Europäisches Privatrecht (ZEUP) 2014, pp 824-842 Schack, Haimo „Das neue Haager Anerkennungs- und Vollstreckungsübereinkommen“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 1-96 Senicheva, Marina “The Relevance and Problems of the Hague Convention of July 2, 2019 on the Recognition and Enforcement of Foreign Judgments Ratification by the Russian Federation”, Advances in Law Studies 8 (2020), online (available: here) Shchukin, Andrey Igorevich “Indirect International Jurisdiction in the Hague Convention on the Recognition and Enforcement of Foreign Judgments of 2019 (Part 1)”, Journal of Russian Law No. 2020-7, pp. 170-186 Shchukin, Andrey Igorevich “Indirect International Jurisdiction in the Hague Convention on the Recognition and Enforcement of Foreign Judgments of 2019 (Part 2)”, Journal of Russian Law No. 2020-11, pp. 140-54 Shen, Juan “Further Discussion on the Drafts of the Hague Convention on Jurisdiction and Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters and Considerations from Chinese Perspective”, Chinese Review of International Law 2016-06, pp. 83-103 Silberman, Linda “Comparative Jurisdiction in the International Context: Will the Proposed Hague Judgments Convention be Stalled?”, DePaul Law Review 52 (2002), pp 319-349 Solomon, Dennis “Das Haager Anerkennungs- und Vollstreckungsübereinkommen von 2019 und die internationale Anerkennungszuständigkeit“, in Rolf A. Schütze, Thomas R. Klötzel, Martin Gebauer (eds.), Festschrift für Roderich C. Thümmel zum 65. Geburtstag, Berlin 2020, pp 873-893 Spitz, Lidia „Refusal of Recognition and Enforcement of Foreign Judgments on Public Policy Grounds in the Hague Judgments Convention – A Comparison with The 1958 New York Convention“, YbPIL 21 (2019/2020), pp 333-364 Stein, Andreas „Das Haager Anerkennungs- und Vollstreckungsübereinkommen 2019 – Was lange währt, wird endlich gut?“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2020, pp 197-202 Stewart, David P. „Current Developments: The Hague Conference adopts a New Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, American Journal of International Law (AJIL) 113 (2019), pp 772-783 Sun, Jin;
Wu, Qiong “The Hague Judgments Convention and how we negotiated it”, Chinese Journal of International Law 19 (2020) Sun, Xiaofei;
Wu, Qiong “Commentary and Outlook on the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Journal of International Law 2019-01, pp. 155-164+170 Taquela, María Blanca Noodt; Abou-Nigm, Verónica Ruiz “News From The Hague: The Draft Judgments Convention and Its Relationship with Other International Instruments”, Yearbook of Private International Law 19 (2017/2018), pp 449-474 Teitz, Louise Ellen “Another Hague Judgments Convention? – Bucking the Past to Provide for the Future”, Duke Journal of Comparative & International Law 29 (2019), pp 491-511 Tian, Xinyue;
Qian, Zhenqiu;
Wang, Shengzhe “The Hague Convention on the Recognition and Enforcement of Foreign Judgments (Draft) and China’s Countermeasure – A Summary on the Fourth Judicial Forum of Great Powers”, Chinese Yearbook of Private International Law and Comparative Law 2018-01, pp. 377-388 van der Grinten, Paulien;
ten Kate, Noura „Editorial: The 2019 Hague Judgments Convention”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 1-3 van Loon, Hans “Towards a global Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 4-18 van Loon, Hans “Towards a Global Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters”, Collection of Papers of the Faculty of Law, Niš 82 (2019), pp 15-35 van Loon, Hans “Le Brexit et les conventions de La Haye”, Revue Critique de Droit International Privé 2019, pp 353-366 Wagner, Rolf “Ein neuer Anlauf zu einem Haager Anerkennungs- und Vollstreckungsübereinkommen“, Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 2016, pp 97-102 Wang, Quian “On Intellectual Property Right Provisions in the Draft Hague Convention on the Recognition and Enforcement of Foreign Judgments”, China Legal Science 2018-01, pp. 118-142 Weidong, Zhu “The Recognition and Enforcement of Commercial Judgments Between China and South Africa: Comparison and Convergence”, China Legal Science 2019-06, pp 33-57 Weller, Matthias “The HCCH 2019 Judgments Convention: New Trends in Trust Management?”, in Christoph Benicke, Stefan Huber (eds.), Festschrift für Herbert Kronke zum 70. Geburtstag, Bielefeld 2020, pp 621-632 Weller, Matthias “The 2019 Hague Judgments Convention – The Jurisdictional Filters of the HCCH 2019 Judgments Convention”, Yearbook of Private International Law 21 (2019/2020), pp 279-308 Weller, Matthias “Das Haager Übereinkommen zur Anerkennung und Vollstreckung ausländischer Urteile”, in: Thomas Rauscher (ed.), Europäisches Zivilprozess- und Kollisionsrecht, Munich, 5th ed., forthcoming Weller, Matthias „Die Kontrolle der internationalen Zuständigkeit im Haager Anerkennungs- und Vollstreckungsübereinkommen 2019“, in Christoph Althammer/Christoph Schärtl (eds.), Festschrift für Herbert Roth, forthcoming. Wilderspin, Michael;
Vysoka, Lenka “The 2019 Hague Judgments Convention through European lenses”, Nederlands Internationaal Privaatrecht (NIPR) 2020, pp 34-49 Xu, Guojian “Comment on Key Issues Concerning Hague Judgment Convention in 2019 “, Journal of Shanghai University of Political Science and Law 35 (2020), pp 1-29 Xu, Guojian “To Establish an International Legal System for Global Circulation of Court Judgments”, Wuhan University International Law Review 5 (2017), pp 100-130 Xu, Guojian “Overview of the Mechanism of Recognition and Enforcement of Judgements Established by HCCH 2019 Judgments Convention”, China Journal of Applied Jurisprudence No. 2020-02, pp 65-77 Yeo, Terence “The Hague Judgments Convention – A View from Singapore”, Singapore Academy of Law Journal (e-First) 3rd August 2020 (available here) Zhang, Wenliang;
Tu, Guangjian “The 1971 and 2019 Hague Judgments Conventions: Compared and Whether China Would Change Its Attitude Towards The Hague”, Journal of International Dispute Settlement (JIDS), 2020, 00, pp. 1-24 Zhao, Ning “Completing a long-awaited puzzle in the landscape of cross-border recognition and enforcement of judgments: An overview of the HCCH 2019 Judgments Convention”, Swiss Review of International and European Law (SRIEL) 30 (2020), pp 345-368

 

Recordings of Events Related to the HCCH 2019 Judgments Convention

HCCH “22nd Diplomatic Session of the HCCH: The Adoption of the 2019 Judgments Convention”, 2 July 2020 (short documentary video available here) University of Bonn; HCCH “Pre-Conference Video Roundtable on the HCCH 2019 Judgments Convention: Prospects for Judicial Cooperation in Civil and Commercial Matters between the EU and Third Countries”, 29 October 2020 (full recording available here) JPRI; HCCH; UNIDROIT; UNCITRAL “2020 Judicial Policy Research Institute International Conference – International Commercial Litigation: Recent Developments and Future Challenges, Session 3: Recognition and Enforcement of Foreign Judgments”, 12 November 2020 (recording available here) ASADIP; HCCH “Conferencia Internacional: Convención HCCH 2019 sobre Reconocimiento y Ejecución de Sentencias Extranjeras”, 3 December 2020 (full recording available here and here)

 

Gustavo Moser and Michael McIlwrath  have just published “Negotating International Commercial Contracts” (with Eleven publishers). More information is available on the publisher’s website.

The authors have kindly provided us with the follow summary:

The choices of law and forum are seldom negotiated in great depth, despite presenting far reaching implications, often more than what negotiators would generally consider or predict. Poorly negotiated clauses of law and forum might (and often do!) result in unwelcome surprises and costly mistakes. Negotiating these clauses has always been, and is likely to become even more, pivotal to a contract’s ‘well-being’ going forward, particularly in light of Brexit and the pandemic

It is therefore a rather opportune time to consider a few key issues in the negotiation (prospective) and enforcement (actual) of choice of law and choice of jurisdiction clauses.

For example, what law applies to a defective choice of law clause or, in the absence of it, to the main contract, or, rather, to a (defective or otherwise) dispute resolution clause? In which court should I initiate legal proceedings and what are the main commercial risks and benefits of such choice.

 It is also pertinent to rethink prospective choices: what is the optimal law(s) to my contract based on a pre-selected set of variables and preferences (e.g. approach given to contract interpretation, contract performance, mandatory rules or gap-fillers)? Are there any other contractual arrangements which might be of particular interest?What are the main difficulties to bear in mind when considering choice of law and choice of dispute resolution clauses?

The above and many more questions are raised and discussed in our recently published book Negotiating International Commercial Contracts: Practical Exercices (Eleven 2020) The 80+ exercises, with inspiration from real-life scenarios, invite the readers to understand the importance of these clauses. The book further aims to provide guidance to anyone involved in contract negotiation as to how they may more effectively make informed and commercially sensible choices in their deals.

 

The public consultation on the EU initiative modernising judicial cooperation between EU countries – use of digital technology is open from 16 February 2021 until 11 May 2021 (midnight Brussels time), click here. We have previously reported on the EU feedback period of this initiative here (which is a previous step and is part of the roadmap).

The public consultation consists of a questionnaire with 15 questions (mainly multiple-choice). An interesting question is the following:

“9) In case it is decided to propose a new EU legal instrument, what aspects of digitalisation should it regulate (Multiple choice – one or several replies are possible): – The mandatory or optional nature of electronic communication with and between competent national authorities – The legal validity of electronic documents and evidence – The conditions for the use of electronic signatures/seals – The responsibilities for data protection obligations – The architecture of the IT system to be used – Other (Please elaborate in the box below).”

With regard to the purpose of this initiative, the EU website states the following:

“This consultation concerns cross-border judicial cooperation in the European Union. It refers to civil, commercial and criminal cases and involves, for various reasons, more than one EU Member State. The European Commission is planning a new initiative aiming at digitalising cross-border judicial cooperation procedures. The purpose is to make use of new digital tools for electronic communication between courts, other competent authorities of the Member States and also to give the possibility to individuals and businesses to start proceedings and to communicate with the courts and the other competent authorities in other EU countries electronically, to be able to submit electronic documents from the comfort of their homes and offices. Currently, the communication from individuals/businesses to judicial authorities and between the public authorities themselves is carried out mainly on paper, which causes delays, involves more costs and is susceptible to crises such as COVID-19 pandemic. The European Commission seeks the views and opinions of stakeholders and all persons who could be impacted by the future initiative in order to take them into consideration when deciding on the possible options and the way forward.”

Irit Mevorach (Professor of International Commercial Law at the University of Nottingham and Co-Director of the University of Nottingham Commercial Law Centre) has wriiten an interesting article on Overlapping International Instruments for Enforcement of Insolvency Judgments: Undermining or Strengthening Universalism?. that has been just published in the European Business Organization Law Review.

The abstract reads as follows:

In recent years modified universalism has emerged as the normative framework for governing international insolvency. Yet, divergences from the norm, specifically regarding the enforcement of insolvency judgments, have also been apparent when the main global instrument for cross-border insolvency has been interpreted too narrowly as not providing the grounds for enforcing judgments emanating from main insolvency proceedings. This drawback cannot be overcome using general private international law instruments as they exclude insolvency from their scope. Thus, a new instrument—a model law on insolvency judgments—has been developed. The article analyses the model law on insolvency judgments against the backdrop of the existing cross-border insolvency regime. Specifically, the article asks whether overlaps and inconsistencies between the international instruments can undermine universalism. The finding is mixed. It is shown that the model law on insolvency judgments does add vigour to the cross-border insolvency system where the requirement to enforce and the way to seek enforcement of insolvency judgments is explicit and clear. The instrument should, therefore, be adopted widely. At the same time, ambiguities concerning refusal grounds based on proper jurisdiction and inconsistencies with the wider regime could undermine the system. Consequently, the article considers different ways of implementing the model law and using it in future cases, with the aim of maximizing its potential, including in view of further developments concerning enterprise groups and choice of law.

In Benkel v East-West German Real Estate Holding & Anor [2021] EWHC 188 (Ch), Morgan J was asked to join a party on the basis of Article 8(1) Brussels Ia’s anchor defendant mechanism, and obliged. Mr Dikautschitsch (domiciled in either Spain or Germany) is to be one of a number of defendants. One of the existing defendants, East-West UK, is domiciled in England and Wales.

Casio Computer Co Ltd v Sayo & Ors [2001] EWCA Civ 661 was the authority mostly relied on, as was, via the link with Article 30, Sarrio SA v Kuwait Investment Authority. Expediency to add the second defendant to the proceedings was found to be present given the possibility of conflicting findings of fact [59]. Morgan J rejected [64] a rather novel argument that given the possibility of the E&W courts’ findings of fact clashing with potential future proceedings elsewhere, he should refrain from exercising his discretion to consolidate.

Geert.

European Private International Law, 3rd ed. 2021, Heading 2.2.13.1.

On 5 February 2021, the Universities of Amsterdam, Maastricht and Tilburg, in collaboration with the Open University, organized an online seminar on The Netherlands, a forum conveniens for collective redress?

A group of experts in the field addressed both procedural and private international law aspects of collective actions under the Dutch and European frameworks. The first panel of the seminar discussed whether the current private international law instruments need specific rules on collective actions and settlements. Burkhard Hess and Alexia Pato drafted some preliminary statements that sparked interesting discussions. The questions related to standing to sue under the Directive on representative actions (2020/1828), which where discussed in the third panel of the day, will also be published on the EAPIL blog. Finally, a brief account of the whole seminar will be published in the Dutch journal on PIL, NIPR.

 

Panel 1. Statement: The instruments of European private international law (Brussels I, Rome II) are in need of specific rules for collective action and collective settlements. 

AP: The proposed statement for the present panel is that EU instruments on Private International Law need specific rules on collective redress. I believe that this statement is true as far as the Brussels I bis Regulation is concerned.

BH:  First, I would like to thank the organizers of this webinar for the thorough preparation of today’s event. The explanation of the Dutch case law and the small films on the structural issues of jurisdiction, pendency and applicable law are very much appealing. I assume that the audience expects this panel to be a little bit controversial. In this respect, I would like to state that I am less optimistic regarding the enactment of a specific EU instrument on cross-border collective redress. However, we will come back to this issue in the course of our common reflections.

1. AP: Let us start with Article 4 of Regulation Brussels I bis, the general head for international jurisdiction. One might question whether litigation in the defendant’s domicile should be promoted in all cases. In that sense, it is interesting to note that the Directive on representative actions implements the mutual recognition of representative entities’ standing to sue, so that access to courts of other Member States is facilitated. Coupled with the fact that the Directive leaves Private International Law questions to the Regulations already in force, one cannot help but conclude that litigation in the domicile of the defendant should remain the general rule, according to the European legislator. Nevertheless, that forum might not be always accessible, especially where small-value claims are involved. In consumer law cases, for example, consumer associations have tried to use the alternative forum of Article 7(2) of Regulation Brussels I bis, which opens a forum on the market they are active in. This could be a mere strategic move or the evidence that cross-border litigation is uneasy. Either way, I believe that this question should be further examined.

BH: The basic principle of the Brussels I bis Regime is actor sequitur forum rei. It corresponds to the basic idea that a party should primarily defend against the lawsuit brought against her or him at home. There might be a home advantage, especially when a large enterprise is facing a high value lawsuit and the compensation sought may impact on employment. However, as collective redress usually empowers the plaintiff(s), at first sight there is no (compelling) need to further privilege collective redress with regard to jurisdiction. Article 79(2) GDPR is an example where the EU lawmaker enlarged the grounds of jurisdiction in favour of the plaintiffs. However, I have the impression that this provision shall strengthen the extraterritorial application of EU data protection law vis à vis third state defendants.

2. AP: Second, even though the Dutch case law on collective actions involving environmental harms recalls that the mandatory nature of Article 4 of Regulation Brussels I bis must be respected, this idea has been challenged before the English courts. In particular, in Vedanta, the UK Supreme Court seemed to admit that an exception to Article 4 of Regulation Brussels I bis is conceivable, when “the claimant has no genuine intention to seek a remedy against the anchor defendant”. Additionally, cases such as Trafigura and Petrobras pose the question whether party autonomy could supplant the application of Article 4 of Regulation Brussels I bis.

BH: This issue seems to me to be more related to Article 8(1) of Regulation Brussels I bis. This provision was generously interpreted when the CJEU in case C-352/13, CDC, permitted actions against co-defendants to move on. In this case, the plaintiff and the anchor defendant had settled the case even before the lawsuits against the co-defendants had been served. However, the CJEU held that a control of abuse might be possible in the realm of Article 8(1) of Regulation Brussels I bis.

3. AP: In cases such as Milieudefensie v. Shell, the Dutch courts had to assess whether jurisdiction could be asserted over the foreign subsidiary of a Dutch mother company, based on Article 7 of the Dutch Code of Civil Procedure, which corresponds to Article 8(1) of Regulation Brussels I bis at the EU level. This kind of scenario obliges us to determine whether jurisdiction should be exercised when the dispute involves foreign plaintiffs, a foreign co-defendant, a foreign harm, and the application of a foreign law. The tension between access to justice and the private international law principles, according to which jurisdiction is allocated where some relevant connecting factors link the court to the dispute is particularly visible in those kinds of cases. Having a look at the case law of other jurisdictions, such as the US, one observes that the tendency is to restrict the assertion of jurisdiction in foreign-cubed cases. In all cases, a redefinition of our policy objectives (e.g. avoid the risk of irreconcilable judgments, provide access to justice, etc.) might be necessary in order to better frame what the general rule on the attraction of co-defendants and its exception should be.

BH: Objectively, jurisdiction over co-defendants may amount to an exorbitant head of jurisdiction when the relationship between the main defendant and the co-defendant appears to be superficial and loose. However, when it comes to tortious behaviour, the decision-making in the board of a mother company related to the foreign subsidiary may amount to tortious conduct. Yet, these are facts easy to assert but very difficult to prove. In the context of Article 7(2) of Regulation Brussels I bis, the CJEU has been very reluctant with regard to co-perpetrators (cf. case C-228/11, Melzer).

4. AP: As regards the WCAM procedure, asserting international jurisdiction to declare collective settlement agreements binding has been controversial as well. In Shell and Converium, the Amsterdam Court of Appeal considered that the victims located in the Netherlands were the defendants and declared that it had jurisdiction according to Article 4 of Regulation Brussels I bis. Victims domiciled in other EU Member States were included within the collective settlement thanks to Article 8(1) of Regulation Brussels I bis. This means that the presence of one shareholder in the Netherlands allocates jurisdiction to Dutch courts. Of course, this has to be mitigated by the fact that both petitioners freely chose to submit to the jurisdictional power of those courts. However, would that situation be sustainable if all Member States had a WCAM mechanism and hence, the ability to declare EU-wide settlements binding? Put differently, the question is whether Private International Laws rules on jurisdiction should adapt (and if so, how?) or remain unchanged.

BH: The problem related to WCAM relates to the applicability of the Brussels I bis Regulation: Does the “homologation” of an out of court settlement really amount to a dispute litigated in courts? (here, I would like to add that the same concerns relate to schemes of arrangement). Just to put it differently: Are non-contentious proceedings in the material scope of the jurisdictional regime of Brussels I bis? The difficulties start with the determination of the role of the parties: who is the plaintiff, who is the defendant? To my opinion, jurisdiction in these cases should be based on articles 25 or 26 in case one agrees that the Brussels I bis Regulation applies to this constellation.

5. AP: As regards the application of the special and protective fora of Regulation Brussels I bis, it is commonly acknowledged that collective redress actions, which protect a general interest, such as the environment or the market as a whole, may be brought in the place where the damage occurred, as case C-167/00, Henkel, shows. When the collective redress action bundles many individual claims, the centralisation of those claims in a place other than the defendant’s domicile is trickier. As the CJEU ruled in C- 498/16, Schrems, multiple claims cannot be bundled in the forum of one consumer’s habitual residence (section IV of the Regulation Brussels Ibis). Even though such a result is bad news for access to justice, I believe that the current text of the Regulation would not have allowed the CJEU to come up with another solution. The centralisation of claims at the place where the damage occurred is difficult as well, as Article 7(2) of the Regulation Brussels I bis allocates not only international but also territorial jurisdiction, and the place of the damage will hardly ever be exactly the same for all victims. In the case C-709/19, VEB, the AG seems to open the door to the centralisation of claims for victims who are located within the same Member State. He says (I quote) ‘the problems of territorial fragmentation arising from a strict application of Article 7(2) Brussels I bis could be solved by arguments in support of a specialised court in a particular local jurisdiction’. However, I doubt that Article 7(2) of Regulation Brussels I bis actually allows domestic procedural law to modify the venue designated by the Regulation.

BH.: As far as consumer claims are concerned, Articles 16 and 17 of Regulation Brussels I bis only apply to contractual claims – but this may be the case when private shareholders sue the company. In his Opinion on case C-498/16 AG Bobek clearly and correctly stated that the introduction of a new head of jurisdiction for consumer collective claims is a matter for the EU lawmaker, the argument has been taken up by AG Campos Sánchez-Bordona in case C-709/19, VEB.

According to the case law of the CJEU as it stands today, the application of Article 7(2) requires more than a pure pecuniary loss to fix the locus damni. In this regard, the Opinion in case C-709/19, VEB, clearly (and correctly) indicate that neither the location of an investment account, nor the status as consumers of some of the investors establish a sufficient connection with the Netherlands. In the case of a declaratory action, followed by (individual) actions for damages, the place of the damage is difficult to assess when there is no clear indication of the place of the damage in the first phase of the proceedings.

On the other hand, I do not see a problem in setting up a specialised court in a Member State having particular jurisdiction for a specific type of claims. In case C-400/13, Huber and Sander, the CJEU has already decided that the concentration of venue in one court by the MS is not excluded by the specific heads of jurisdiction of the Maintenance Regulation which equally address both: international jurisdiction and venue. A good example could be follow-on actions related to cartel law violations; let’s see what is decided in the pending case C-30/20, Volvo.

6. AP: My last point concerns parallel litigation. The emergence of multiple proceedings in several states may give rise to potential ‘overlaps’ between actions. Those overlaps represent a waste of judicial resources and may generate inconsistent judgments, as well as overcompensation. At the same time, we have to accept that parallel litigation is a by-product of our jurisdictional system, which provides for alternative fora. To some degree, parallel litigation will therefore take place. Within the Brussels regime, the lis pendens rule of Article 29 of the Regulation Brussels Ibis should hardly ever apply in collective redress cases as the formal (or even material) identity of parties in parallel proceedings will usually not be met. As for Article 30 of the Regulation, on related actions, this provision could theoretically apply to parallel proceedings in collective actions. However, potential delays in the resolution of the dispute and possible disparities between the claims will more often than not militate against the stay of proceedings. Both the Steinhoff and Libor cases illustrate the difficulties that parallel ligation generates.

In all cases, a clear-cut rule on stay of proceedings does not seem to be an option, as collective redress mechanisms vary from state to state. As regards the difficulty to determine which court is seised first, one could imagine implementing a communication channel between courts in the manner of Article 29(2) of Regulation Brussels I bis or setting up an EU-wide register of collective redress actions, as the Commission’s Recommendations of 2013 suggest. These proposals are no panacea, but they might nevertheless bring more clarity to this complex legal landscape.

BH: As long as collective actions are based on opt in, the problems of pendency and relatedness are manageable. The moment, a person opts in a collective lawsuit should be the moment of pendency for this person as he or she becomes by registration a party to the (collective) proceedings. I am happy to see that the new Directive on Collective Redress for Consumers is based on the basic idea that in cross-border settings only opt in is possible, see Article 9(3) of Directive (EU) 2020/1828. However, the Directive addresses problems of cross-border litigation rather randomly and Article 3(7) provides for a strange definition of a cross-border representative action, whereby a cross-border situation is present ‘where a qualified entity in another EU Member State brings an action in another EU Member State than that in which the qualified entity was designated.’ This definition is not in line with the concept of the Brussels regime and demonstrates that the Directive primarily provides for the mutual (but limited) recognition of the standing of qualified entities in the courts of other EU Member States. I addressed these issues in my book on Europäisches Zivilprozessrecht (2nd ed., 2021) ch. 11, at paras 11.78 -11.87.

However, the Directive only intends to achieve procedural minimum harmonisation. Consequently, Member States may go further and expand collective redress mechanisms based on opt out also to cross-border settings. In these constellations only Article 30 of Regulation Brussels I bis applies to parallel proceedings. As Alexia has explained, this provision is based on judicial discretion and, therefore, is not suited to effectively coordinate overlapping opt out proceedings pending in several EU Member States. An additional weakness is that this provision only permits the first proceedings to move forward – this might not be an optimal solution in the case of competing, overlapping collective actions.

When it comes to the certification of the class, Article 32 of the Brussels I bis Regulation is difficult to apply. This is well explained in the video of Ianika Tzankova. To my opinion, the decisive moment should be either the filing of the lawsuit or the filing of the application to permit the collective case to proceed. This flexibility corresponds to the aims of Article 32 of Regulation Brussels I bis.

7. AP: To conclude, the application of Private International rules on jurisdiction to collective redress cases is uneasy and forces us to reconsider what kind of policy objectives should be promoted. On the one hand, we could encourage litigation at the defendant’s domicile, which would limit parallel litigation to a certain extent. However, we would probably have to think about creating extra-incentives for representative entities to be able to reach that forum. We would also have to think about potential exceptions to the application of this general rule in light of the case-law involving environmental matters. On the other hand, if a closer forum is to be offered and promoted, access to justice would be fostered, but parallel litigation would probably increase, and more coordination measures would be required. In all cases, recent mass harm situations have stretched the interpretative limits of the Brussels I bis provisions and we have been forced to create extravagant interpretations, so that the system could hold. I believe that now is a good time for a change and I support the enactment of a truly appropriate regulatory regime for cross-border collective redress.

BH: Should the EU lawmaker intervene? To my opinion, this would be a considerable political challenge, as there is currently a clear competition among Member States either to promote their judicial systems to attract collective litigation (as in the Netherlands) or to protect their industries from collective redress (as it is still the case in Germany). Against this background, the chances of a binding EU instrument on the coordination of the different cross-border collective redress instruments in the EU Member States appear to be limited. Member States might strongly oppose to such a zealous project. They already did it when the Recast of the Brussels I Regulation was negotiated.

When enacting Directive 2020/1828, the EU lawmaker intentionally avoided to set a clear framework for the different instruments on collective litigation in the Member States (cf. Article 1(2)). The Directive only requires that Member States provide for an instrument of collective redress corresponding to the main features of the Directive. However, it is worth noting that most of the mandatory provisions of the Directive apply to cross-border settings and require an opting in. Nevertheless, it remains to be seen whether the CJEU will interpret the Regulation Brussels I bis and the Directive in a systematic way. This might finally entail that only opt in instruments will be included into the Brussels regime.

Burkhard Hess, Europäisches Zivilprozessrecht, De Gruyter 2021.

Just over ten years after the first edition of Europäisches Zivilprozessrecht (European Civil Procedure) by Burkhard Hess (director Max Planck Institute for Procedural Law, Luxembourg) a second –  even more voluminous and impressive – edition was published early 2021. While updating this book after a decade that marks not only the further expansion  but perhaps also the coming of age of European Civil Procedure is an immense task in itself, this new addition also expands in breadth. Particularly noteworthy is the new part on the interaction between European law and national civil procedure, including out-of-court procedures.

A must-read or even must-have for German readers having an interest in European Civil Procedure!

 

The blurb on the publisher’s website reads:

This book explores the European law of civil procedure from a systematic and dogmatic perspective by comprehensively assessing and providing a detailed explanation of all the instruments adopted in this area of the law. Based on the case law of the Court of Justice of the European Union, it expounds on the legislative powers of the Union, the different regulatory levels of European procedural law, its underlying concepts and legislative techniques. Against this background, it addresses the interfaces of the European law of civil procedure with the civil procedures of the EU Member States and the judicial cooperation with third States. The 2nd edition of this treatise also focusses on latest developments such as the protection the independence of the judiciary and of the rule of law in the Member States of the European Union. Moreover, it tackles alternative dispute resolution and arbitration, as well as the latest policy of the EU Commission in the digitization of national justice systems. To further contextualize the development of the European law of civil procedure, it also provides the reader with a thorough understanding of preliminary reference procedures before the Court of Justice. In its final chapter, it addresses the current policy debate towards a European code of civil procedure.

This reference book is an essential reading for academics, regulators, and practitioners seeking reliable and comprehensive information about the European law of civil procedure. It also addresses trainee lawyers and students interested in cross-border litigation and dispute resolution, as well as those who wish to specialize in European business law.

The post below was provided by Catherine Shen, Project Manager at the Asian Business Law Institute.

Readers of the EAPIL blog are well aware that in Europe, harmonisation in the field of private international law has been enormously successful with efforts encompassing both the civil and commercial, as well as family, spheres. In relation to foreign judgments in civil and commercial matters, the Brussels I bis Regulation is a double convention comprising of rules on both jurisdiction and foreign judgments. Apart from harmonising the rules under which a court in one European Union (“EU”) Member State would assume jurisdiction, it enables the free circulation of judgments from one EU Member State within the EU.

In Asia, however, harmonisation efforts in this field have been relatively lacking. That was until recently. The Asian Business Law Institute (“ABLI”), set up in 2016 with the aim of promoting the convergence of business laws in Asia, identified among its first batch of projects an undertaking to advance the convergence of foreign judgments recognition and enforcement rules in Asia (“Foreign Judgments Project”).

ABLI released its first publication, Recognition and Enforcement of Foreign Judgments in Asia (“Judgments Compendium”) in the beginning of 2018. This compendium contains 15 short and concise country reports which provide lawyers and businesses with an overview of how foreign judgments in civil and commercial matters are recognised in different jurisdictions in Asia and the requirements which would need to be met for a foreign judgment to be enforced in those jurisdictions. The jurisdictions studied are all ten member states of the Association of Southeast Asian Nations or ASEAN (i.e., Brunei, Cambodia, Indonesia, Lao, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam) and their major trading partners, including Australia, China, India, Japan and South Korea.

In fact, the Judgments Compendium marks the first time when the rules of several ASEAN member states on the recognition and enforcement of foreign judgments are made available in the English language. Its release concluded the first phase of ABLI’s Foreign Judgments Project and set the stage for the second phase where both the similarities and the differences of the rules of these 15 jurisdictions are distilled to formulate a set of common principles.

That set of principles has now been released under the title of Asian Principles for the Recognition and Enforcement of Foreign Judgments (“Asian Principles”). This ambitious piece of work is a sequel to the Judgments Compendium and includes a total of 13 principles that among other things, cover the rules on international (or “indirect”) jurisdiction, reciprocity, the enforcement of non-monetary judgments, public policy, due process and inconsistent judgments. Each principle is accompanied by a commentary which fleshes out how the various countries apply that principle and also includes a way forward section, where applicable, to suggest the desired directions of law development.

A detailed write-up on the Asian Principles and the Foreign Judgments Project in general can be found at Adeline Chong, “Moving towards harmonisation in the recognition and enforcement of foreign judgment rules in Asia” (2020) 16 Journal of Private International Law 31-68. Associate Professor Chong is the general editor of both the Judgments Compendium and the Asian Principles.

ABLI is delighted to offer all members of EAPIL and all readers of this blog an exclusive discount to purchase both the Judgments Compendium and the Asian Principles. Interested members and readers can enjoy 10% off by following the steps listed at the end of this post.

Both the Judgments Compendium and the Asian Principles are available in PDF softcopies. Three hardcopies remain in stock for the Judgments Compendium. Please contact Catherine Shen, Project Manager of ABLI, for any query at catherine_shen@abli.asia.

How to enjoy your 10% discount as an EAPIL member or EAPIL blog reader (offer ends on 1 March 2021): (1) Go to https://payhip.com/b/e0md (for Judgments Compendium) or https://payhip.com/b/hACJ (for Asian Principles); (2) Click on the purple icon “buy now”; (3) After entering your name and email address, click on “Have a coupon code? Add coupon“ (right below the data protection terms) and enter promo code “EAPIL”, and then proceed to check out; (4) Once payment is processed by PayPal, an email will be sent to your indicated address for you to download the purchased copy instantly.

Please contact Catherine Shen if you wish to pay by credit card instead of PayPal.

A webinar event on “Corporate Due Diligence and Private International Law” organized by the NOVA Centre for Business, Human Rights and the Environment, will hold on February 25, 2021 at 15:00 – 17:30 CET. For more information on the event and how to register see here

by Professor Dr Eva-Maria Kieninger, Chair for German and European Private Law and Private International Law, University of Würzburg, Germany

The Supreme Court’s decision in Okpabi v Royal Dutch Shell (2021 UKSC 3) concerns the preliminary question whether English courts have jurisdiction over a joint claim brought by two Nigerian communities against Royal Dutch Shell (RSD), a UK parent company, as anchor defendant, and a Nigerian oil company (SPDC) in which RSD held 30 % of the shares. The jurisdictional decision depended (among other issues that still need to be resolved) on a question of substantive law: Was it “reasonably arguable” that RSD owed a common law duty of care to the Nigerian inhabitants whose health and property was damaged by the operations of the subsidiary in Nigeria?

In the lower instance, the Court of Appeal had not clearly differentiated between jurisdiction over the parent company and the Nigerian sub and had treated the “arguable case”-requirement as a prerequisite both for jurisdiction over the Nigerian sub (under English autonomous law) and for jurisdiction over RSD, although clearly, under Art. 4 (1) Brussels Ia Reg., there can be no such additional requirement pursuant to the CJEU’s jurisprudence in Owusu. In Vedanta, a case with large similarities to the present one, Lord Briggs, handing down the judgment for the Supreme Court,  had unhesitatingly acknowledged the unlimited jurisdiction of the courts at the domicile of the defendant company under the Brussels Regulation. In Okpabi, Lord Hamblen, with whom the other Justices concurred, did not come back to this issue. However, given that from a UK point of view, the Brussels model will soon become practically obsolete (unless the UK will still be able to join the Lugano Convention),  this may be a pardonable omission. It is to be expected that the English courts will return to the traditional common law restrictions on jurisdiction such as the “arguable case”-criterion and “forum non conveniens”.

Although the Supreme Court’s decision relates to jurisdiction, its importance lies in the potential consequences for a parent company’s liability on the level of substantive law: The Supreme Court affirms its previous considerations in Vedanta (2019) and rejects the majority opinion of the CoA which in 2018 still flatly ruled out the possibility of RDS owing a duty of care towards the Nigerian inhabitants. Following the appellants’ submissions, Lord Hamblen minutely sets out where the approach of the CoA deviated from Vedanta and therefore “erred in law”. The majority in the CoA started from the assumption that a duty of care can only arise where the parent company effectively “controls” the material operations of the sub, and furthermore, that the issuance of group wide policies or standards could never in itself give rise to a duty of care. These propositions have now been clearly rejected by the Supreme Court as not being a reliable limiting principle (para 145). In the present judgment, the SC affirms its view that “control” is not in itself a meaningful test, since in practice, it can take many different forms: Lord Hamblen cites with approval Lord Briggs’s statement in Vedanta, that “there is no limit to the models of management and control which may  be put in place within a multinational group of companies” (para 150). He equally approves of Lord Briggs’s considerations according to which “the parent  may incur the relevant responsibility to third parties if, in published materials, it holds itself out as exercising that degree of supervision and control of its subsidiaries, even if in fact it does not do so. In such circumstances its very omission may constitute the abdication of a responsibility which it has publicly undertaken” (para 148).

Whether or not the English courts will ultimately find a duty of care to have existed in either or both of the Vedanta and Okpabi sets of facts remains to be seen when the law suits have been moved to the trial of the substantive issues. Much will depend on the degree of influence that was either really exercised on the sub or publicly pretended to be exercised.

On the same day on which the SC’s judgment was given (12 February 2021), the German Federal Government publicly announced the key features of a future piece of legislation on corporate social resonsibility in supply chains (Sorgfaltspflichtengesetz) that is soon to be enacted. The government wants to pass legislation before the summer break and the general elections in September 2021, not the least because three years ago, it promised binding legislation if voluntary self-regulation according to the National Action Plan should fail. Yet, contrary to claims from civil society (see foremost the German “Initiative Lieferkettengesetz”) the government no longer plans to sanction infringements by tortious liability towards victims. Given the applicability of the law at the place where the damage occurred under Art. 4 (1) Rome II Regulation, and the fact that the UK Supreme Court in Vedanta and Okpabi held the law of Sambia and Nigeria to be identical with that of England, this could have the surprising effect that the German act, which the government proudly announced as being the strictest and most far-reaching supply chain legislation in Europe and the world (!!), would risk to fall behind the law in anglophone Africa or on the Indian sub-continent. This example demonstrates that an addition to the Rome II Regulation, as proposed by the European Parliament, which would give victims of human rights’ violations a choice between the law at the place of injury and that at the place of action, is in fact badly needed.

The judgment of the Court of Justice of the European Union (CJEU) in Supreme Site Services v. Shape (Case C‑186/19) did not only raise the issue of the impact of the immunity of enforcement of international organisations on the definition of civil and commercial matters in the meaning of the Brussels I bis Regulation. The main question asked to the CJEU was that of the jurisdiction to lift cross-border provisional attachments under the Brussels I bis Regulation.

Background

The case was concerned with a dispute relating to the supply of fuel by a group of private companies to the headquarters of NATO in Europe (the Supreme Headquarters Allied Powers Europe, or SHAPE), for the purpose of a mission in Afghanistan. SHAPE is established in Belgium, but it has a regional headquarter in the Netherlands, the Allied Joint Force Command Brunssum (‘JFCB’). In order to guarantee the payment of all the costs related to the supply contracts, JFCB and the private companies signed an escrow agreement, whereby funds were deposited in a bank in Brussels.

After a dispute arose between the parties, the private companies sued JFCB and SHAPE on the merits in a Dutch court in 2015.

In 2016, the plaintiffs applied ex parte to the same Dutch court for an authorisation to carry out a provisional attachment on the monies held by the bank in Brussels. The application was granted and, two days later, was carried out in Brussels by a Belgian enforcement officer (huissier de justice) on the basis of a certificate issued on the ground of Art 53 of the Brussels I bis Regulation. In other words, the Dutch order was directly enforced under the Brussels I bis Regulation.

Jurisdiction to Issue a Cross-Border Attachment

After SHAPE was notified, it challenged the order before the court of origin. Interestingly enough, it does not seem that JFCB was notified, and that it was a party to the interim proceedings. The debate essentially revolved around the immunities of NATO, but there was also an issue of jurisdiction. On which ground could a Dutch court authorise the attachment of monies in Belgium? When the Dutch court of appeal considered the issue, it referred to Article 35 of the Regulation. Is that because, in the absence of JFCB, it considered that it did not have jurisdiction on the merits? If so, its jurisdiction should have been restricted to Dutch territory (see Recital 33 of the Preamble to the Regulation).

Enforcement in Belgium

In addition to the jurisdictional issue, there was an obstacle for enforcing the Dutch order in Belgium. It had been issued ex parte. It was therefore not a decision in the meaning of Article 2 of the Regulation, and it could not benefit from the enforcement regime of the Regulation.

But after the abolition of exequatur, the enforcement of foreign judgments is only to be challenged ex post for grounds listed in Art 45. Violation of the scope of Art 35 is not one of them. Issuance of protective measures ex parte is not either. Was there a remedy for SHAPE in Belgium? Maybe Adrian Briggs is right when he writes that Art 45 should not be read literally, and that other grounds for opposing enforcement should be admissible.

It must be underscored that ex parte provisional measures may not benefit from the Brussels regime, but the Brussels I bis Regulation expressly recognises that national law might allow their enforcement. In this case, after Dutch courts lifted the authorisation on the ground that NATO benefited from an immunity, SHAPE sought a declaration of enforceability of the Dutch judgment on the ground of a 1925 bilateral treaty between Belgium and the Netherlands (that the Brussels instruments have replaced, but not terminated – rings a bell?), because the argument of SHAPE was that its immunity excluded the application of the entire regulation (the argument was rightly rejected by the CJEU).

Jurisdiction to Lift the Provisional Attachment

SHAPE applied to the Dutch court, and the Dutch court of appeal set aside the authorisation and lifted the attachment on the ground of the immunity of SHAPE. The creditors appealed, and, although the issue of jurisdiction was not raised, the Dutch supreme court wondered whether Belgian courts had exclusive jurisdiction to lift an attachment over assets situated in Belgium on the grounds of Article 24(5) (“enforcement of decisions”), and thus referred the case to the CJEU.

The question was framed narrowly, and the CJEU only answered that Article 24(5) did not apply, because the proceedings did “not concern per se the enforcement of judgements in the meaning of Article 24(5)”. The court had just insisted that the provision applies to “proceedings relating to recourse to force, constraint or distrain on movable or immovable property”, so it seems that it considered that an application to lift a provisional attachment could not be considered to relate to use of force.

One must also say that Article 24(5) applies to the enforcement “of decisions”, and that it is unclear which decision would have been enforced in this case, since the proceedings on the merits were pending.

Most unfortunately, the CJEU only answered the question as it had been framed and did not elaborate on the court which would have jurisdiction under the Regulation.

It is submitted that, for a number of reasons, it should be the court which issued the order in the first place. A first reason is that the process of lifting a provisional attachment requires to reconsider and, as the case may, set aside, a judicial order. Under the Regulation, it is hard to see how any other court than the court of origin could be entitled to do so. Another reason is that the court of origin will apply the same rules to decide whether the decision was rightly granted.

Luís de Lima Pinheiro, Professor of Law at the University of Lisbon, has given his so-called “Last Class” earlier this week, thus putting an end to his activity as a Professor at the graduate level in this Law School (while remaining active in post-graduate courses).

The online lecture, in Portuguese, is available here.

The University of Silesia in Katowice hosted in 2019 a conference on the the Application of the Succession Regulation in the EU Member States.

The papers presented at the conference have recently been published, under the editorship of Maciej Szpunar, in Problemy Prawa Prywatnego Międzynarodowego, a periodical specifically devoted to private international law.Below are the abstracts of (and the links to) the various contributions.

After the conference GEDIP held its meeting in Katowice and celebrated honorary doctorate awarded to Professor Paul Lagarde. The report from the conference is available here and from GEDIP’s meeting here.

Maciej Szpunar, Foreword

The current volume of “Problemy Prawa Prywatnego Międzynarodowego” — the leading Polish periodical in the field of private international law — is primarily devoted to the Regulation No 650/2012 of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (“the Succession Regulation”).

Paul Lagarde, La réserve héréditaire dans le règlement 650/2012 sur les successions

The article addresses the issues relating to the protection of forced heirs in international context with a particular focus on the provisions of the EU Succession Regulation pertaining thereto. It contrasts common law tradition with the solutions adopted in French law, whereby certain relatives are entitled to the hereditary reserve (la réserve héréditaire). The author discusses selected examples taken from a body of French case-law dealing with the issue in question. Amongst the cases touched upon by the author are those concerning the successions of Johnny Hallyday and Maurice Jarre, which were two cases widely discussed in the recent French jurisprudence.

Jürgen Basedow, “Member States” and “Third States” in the Succession Regulation

The author advocates a flexible approach with respect to the interpretation of the term “Member State” as employed in the Succession Regulation, allowing the differentiation between “participating” and “non-participating” States. It does not mean that the term “Member State” should always be interpreted in a wide sense including the three non-participating States: Denmark, the Republic of Ireland, and the United Kingdom. Whether a wide or a narrow interpretation is appropriate depends on the context and the purpose of the single provision. Most provisions contained in the chapter on jurisdiction refer to participating Member States only. But some articles such as the Article 13 of the Regulation, provide a counter-example. A uniform interpretation of the concept of Member State in all provisions of the Succession Regulation seems far too sweeping. It reminds of Begriffsjurisprudenz and does not take account of the purpose of the single provisions. In particular, it disregards the need for the cross-border protection of individual rights in a Union with open frontiers.

Christian Kohler, Application of the Succession Regulation by German courts — Selected Issues

The article concerns the notion of “court” in the Succession Regulation. This notion is used in the Brussels I and Brussels Ia Regulations, where it does not necessarily have the same scope. The author attempts to interpret the concept in the light of the recitals to the Succession Regulation (in particular Recital 20) and of the case law of the Court of Justice. The very general description of the concept contained in Article 3(2) of the Regulation might potentially embrace other authorities and legal professionals, where they exercise judicial functions by way of delegation of power from the court. In the author’s view, the European Court, especially in Oberle and WB v Notariusz Przemysława Bac correctly navigated its way through the Succession Regulation and ruled in a way which is both coherent as regards the operation of the Regulation and consistent with the intentions of the legislator. The above judgments are analysed also with regard to Poland’s omission to notify notaries as “courts” under Article 79 of the Succession Regulation. The European Court found that the criteria for determining whether an authority or a legal professional, in particular a notary public, constitutes a “court” are determined by Article 3(2) and not by Article 79. Consequently, Poland’s omission to notify was not conclusive, but was in any event correct in substance. The author expresses the opinion that the judgment is accurate on this point.

Michael Wilderspin, The Notion of “Court” under the Succession Regulation

The article concerns the notion of “court” in the Succession Regulation. This notion is used in the Brussels I and Brussels Ia Regulations, where it does not necessarily have the same scope. The author attempts to interpret the concept in the light of the recitals to the Succession Regulation (in particular Recital 20) and of the case law of the Court of Justice. The very general description of the concept contained in Article 3(2) of the Regulation might potentially embrace other authorities and legal professionals, where they exercise judicial functions by way of delegation of power from the court. In the author’s view, the European Court, especially in Oberle and WB v Notariusz Przemysława Bac correctly navigated its way through the Succession Regulation and ruled in a way which is both coherent as regards the operation of the Regulation and consistent with the intentions of the legislator. The above judgments are analysed also with regard to Poland’s omission to notify notaries as “courts” under Article 79 of the Succession Regulation. The European Court found that the criteria for determining whether an authority or a legal professional, in particular a notary public, constitutes a “court” are determined by Article 3(2) and not by Article 79. Consequently, Poland’s omission to notify was not conclusive, but was in any event correct in substance. The author expresses the opinion that the judgment is accurate on this point.

Stefania Bariatti, The Capacity and the Quality of Heir. Possible Interaction with Preliminary Questions

The article contains an overview of the rules relating to the scope of application of the EU private international law regulations. It addresses the treatment of the relevant preliminary questions, with special reference to the Succession Regulation. The issues are discussed in three steps. The first is connected with the way of interpreting the notions and concepts, such as marriage, adoption, legal capacity etc., where such matters as personal status, legal capacity or family relationship may come to the foreground as a preliminary question. The second is dealing with the law applicable to the preliminary question. The author compares pros and cons of the “independent reference” (lex fori) and the “dependent reference” (lex causae) solutions, considering the latter as less effective, producing more negative consequences. The third step embraces questions relating to the jurisdiction with respect to preliminary question.

Andrea Bonomi, The Regulation on Matrimonial Property and Its Operation in Succession Cases — Its Interaction with the Succession Regulation and Its Impact on Non-participating Member States

The Regulations on Matrimonial Property (No 2016/1103) and on the Property Consequences of Registered Partnerships (No 2016/1104) are new important pieces in the “puzzle” of European private international law. This article particularly focuses on the relationship between the Matrimonial Property Regulations and the Succession Regulation, two instruments which will often be applied in parallel because of the close connection between the two areas they govern. The author examines in particular the scope of those instruments as well as their interaction with respect to jurisdiction and applicable law. At the same time, an attempt is also made to assess the position of Poland and of those other Member States that are bound by the Succession Regulation, but not by the Matrimonial Property Regulation.

Piotr Rylski, The Influence of Bilateral Treaties with Third States on Jurisdiction and Recognition of Decisions in Matters on Succession — Polish Perspective

The aim of the study is to discuss the impact of bilateral international treaties concluded by EU Member States with third countries on jurisdiction and recognition of judgments in matters of succession from Polish perspective. The author discusses the main problems in the interpretation of Article 75 of Regulation 650/2012 and the possible conflict of this solution with the Treaty on the Functioning of the EU. The article indicates also practical problems related to the collision of bilateral treaties and Regulation No 650/2012 regarding, for example, the possibility of concluding choice-of-court agreements, recognition of foreign judgments in matters of succession and the possibility of issuing the European Certificates of Succession.

Krzysztof Pacuła, The Principle of a Single Estate and Its Role in Delimiting the Applicable Laws

This paper argues that the principle of unity of succession is one of the key concepts of the Succession Regulation. By operation of this principle on the jurisdictional level, the Regulation tends to favor a perspective of a single Member State when it comes to all issues related to succession. The principle of unity of succession does not of course eliminate the need to proceed to the characterization and to delimitate the scopes of conflict of laws rules at stake. However, this principle — aiming to promote a unitary vision of a single estate in all the Member States bound by the Regulation — sets a tone for some interpretative techniques that tend to favor succession-related characterization of the issues having some importance in the context of succession with cross-border implications. According to the Author, effet utile-driven characterization, on the one hand, and succession-friendly characterization of the issues falling within ‘gray areas’ created by the operation of Article 1(2) of the Succession Regulation, on the other hand, are among them.

Maksymilian Pazdan, Maciej Zachariasiewicz, Highlights and Pitfalls of the EU Succession Regulation

The EU Succession Regulation constitutes a remarkable achievement of unification of conflict of law rules at the European level. It has importantly changed the landscape for all those interested in succession law, in particular, the notaries and the estate planning practitioners. The present article takes up a number of selected issues that arise under the Regulation. The paper first identifies certain general difficulties that result either from the complex nature of the matters addressed or from a somewhat ambiguous wording of the rules adopted by the EU legislator. The attention is devoted to the exceptions to the principle of the unity of legis successionis, the dispositions upon death, and the intertemporal questions resulting from the change of the conflict of laws rules in the Member States which occurred on 17th August 2015 when the Regulation started to be applied. The paper then moves to some of the more specific issues arising under the Regulation. To that effect, it first looks at the Polish Act of 2018 governing the ”succession administration” of the enterprise, which forms part of the estate. The argument is made that the rules contained in the 2018 Act should be applied by virtue of Article 30 of the Succession Regulation because they constitute “special rules” in the meaning of this provision. Second, the notion of a “court” under Article 3(2) of the Regulation is discussed in light of the recent judgment of the CJEU in case C-658/17 WB, where the European Court found that a Polish notary issuing the deed of certification of succession is not a “court” for purposes of Article 3(2). The paper provides a critical account of the Court’s decision.

In a landmark decision in the case of Okpabi and others v Royal Dutch Shell Plc and Another, the United Kingdom Supreme Court (“UKSC”) ruled on a jurisdictional issue on whether the claimants/appellants have an arguable case that the defendants/respondents – Royal Dutch Shell (an English domiciled company) – owed them a common law duty of care so as properly to found jurisdiction against a foreign subsidiary company (Shell Petroleum Development Corporation Limited, domiciled in Nigeria) as a necessary and proper party to the proceedings. This jurisdictional aspect was concerned with whether there was a real issue to be tried against the anchor defendant – Royal Dutch Shell (an English domiciled company).

The facts of the case was that the claimants/appellants, who are Nigerian citizens alleged that as a result of the negligence of  Shell Petroleum Development Corporation Limited, numerous oil spills have occurred from oil pipelines and associated infrastructure operated in the vicinity of the claimants’/appellants’ communities. It is said that these oil spills have caused widespread environmental damage, including serious water and ground contamination, and have not been adequately cleaned up or remediated. It is also alleged that as a result of the spills, the natural water sources in the claimants’/appellants’ communities cannot safely be used for drinking, fishing, agricultural, washing or recreational purposes.

The High Court and Court of Appeal resolved this jurisdictional issue against the claimants/appellants, but the UKSC found merit in their appeal.

 

Brexit has dealt a major blow to judicial cooperation in Europe. With the end of the transition period, the Brussels I bis Regulation became inapplicable in the relation between the UK and the EU. Some authors, however, took the view that the Regulation’s predecessor, the Brussels Convention of 1968, would continue to apply (see e.g. here and here). The main argument was that the Brussels Convention is an international treaty and not an instrument of EU law. Moreover, and contrary to the Rome Convention on the law applicable to contractual obligations, the Brussels Convention had not been fully replaced by a regulation and continued to apply with regard to some overseas territories.

This debate seems now to come to a close. On 29 January 2021, the British government informed the European Council of its view that the Convention has ceased to apply to the UK and Gibraltar with the expiry of the transition period on 1 January 2021. The unofficial document was posted on Twitter by Steven (“Steve”) Peers from the University of Essex (thanks to Felix Krysa for sharing the tweet with me). It reads in relevant part:

The Government of the United Kingdom hereby notifies the Secretary-General of the Council of the European Union that it considers that the Brussels Convention 1968 and the 1971 Protocol, including subsequent amendments and accessions, ceased to apply to the United Kingdom and Gibraltar from 1 January 2021, as a consequence of the United Kingdom ceasing to be a Member State of the European Union and of the end of the Transition Period.

Does this finally close the argument? Not for sure. The communication merely reflects an opinion by the British government, which as such is of no legal consequence. The Vienna Convention on the Law of Treaties enumerates the cases in which an international convention is terminated. A unilateral denunciation is not among them. Absent an impossibility of performance, a fundamental change of circumstances or a breach by one party, an agreement by the parties is required to suspend the operation of a treaty.

Since the Brussels Convention bound the UK to no less than 14 EU Member States, it may take some time and effort to reach agreement that the Brussels Convention is all over. The mere information of the European Council by the British government is certainly not sufficient. Of course, the EU and the UK could also enter into a new treaty. The British government has lodged an application to join the Lugano Convention, but it is still awaiting an answer from the EU.