Droit international général

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

 

R. Wagner: Judicial cooperation in civil and commercial matters after Brexit

Brexit has become a reality. When the UK left the EU on 31 January 2020 at midnight, it entered the transition period stipulated in the UK-EU Withdrawal Agreement. During this period, EU law in the field of judicial cooperation in civil and commercial matters applied to and in the United Kingdom. The transition period ended on 31 December 2020. The following article primarily describes the legal situation in the judicial cooperation in civil and commercial matters from 1 January 2021.

Addendum: At the time when this contribution was written, the conclusion of a Trade and Cooperation Agreement between the EU and United Kingdom still was uncertain. Meanwhile, the Agreement of 24 December 2020 has come into existence. It is applicable provisionally since 1 January 2021 for a limited period and will be permanently applicable when after ratification it has formally come into force. The Agreement does not envisage any additional provisions on judicial cooperation in civil and commercial matters between the United Kingdom and the EU. Therefore, it has to be concluded that the present article reflects the current state of law as established by the Trade and Cooperation Agreement (Rolf Wagner).

 

K. Thorn/K. Varón Romero: Conflict of laws in the “Twilight Zone” – On the reform of German private international law on welfare relationships

With the government draft of 25 September 2020, a comprehensive reform of guardianship and care law is approaching which will fundamentally modernize these areas. This reform also includes an amendment to the autonomous conflict-of-law rules in that area. The most important changes within this amendment concern the provisions of the Introductory Act to the German Civil Code (EGBGB). On the one hand, it includes a methodological change to the relevant Article 24 EGBGB which takes greater account of its role as a merely supplementary provision to prior international treaties and Union law. The authors welcome the changes that this will entail but point out that some clarifications are still needed before the reform is completed, particularly in cases of a change in the applicable law. On the other hand, a new Article 15 EGBGB is intended to create a special conflict-of-law rule for the mutual representation of spouses which is based on the also new substantive rule of Section 1358 of the German Civil Code (BGB) and is designed as a unilateral conflict-of-law rule in favour of domestic substantive law. The authors basically agree with the reasoning for this approach and in addition address questions which remain unresolved even after reading the reasoning, in particular the relationship between Article 15 of the Introductory Act to the Civil Code and the conflict-of-law rules of Union law.

 

 D. Coester-Waltjen: Conflict rules on formation of marriage – Some reflections on a necessary reform

The conflict rule on formation of marriages (Article 13 Introductory Law to the Civil Code) underwent several changes during the last years. In addition, societal conditions and circumstances changed considerably. It seems at least questionable whether the cumulative application of the national law of both prospective spouses in case of a heterosexual marriage and the law of the place of registration in case of a homosexual marriage provides a reasonable solution. The article deals with a possible reform of the conflict rule on formation of marriage and envisages whether a comparable solution might be found for other (registered or factual) relationships.

 

U.P. Gruber: Reflections on the reform of the conflict of laws of the registered life partnerships and other partnerships

Under the current law, the formation of a registered life partnership, its general effects and its dissolution are governed by the substantive provisions of the country in which the life partnership is registered. The article deals with a possible reform of this rule. In particular, it addresses the question whether there can be a convergence of the private international law for marriage and registered partnership. Moreover, the article discusses a conflict-of-law rule for de facto relationships.

 

F. Temming: Payment of wage supplements in respect of annual leave constitute a civil and commercial matter within the scope of Art. 1 Brussels Regulation

In its judgement the CJEU holds that an action for payment of wage supplements in respect of annual leave pay brought by a body competent to organize the annual leave of workers in the construction sector against an employer, in connection – among others – with the posting of workers to a Member State where they do not have their habitual place of work, can be qualified as a “civil and commercial matter” for the purpose of the Brussels Ibis Regulation and, thus, falls within the scope of its Article 1. This can even be the case if the competent body is governed by public law, such as the Construction Workers’ Leave and Severance Pay Fund of Austria (hereinafter “BUAK”), provided that it does not act under a public law prerogative of its own conferred by law. This case note argues that the contested section 33h (2b) of the BUAG does not constitute such a prerogative but rather can be construed according to EU law in such a manner that an Austrian court can fully review the accuracy of a claim relied on by BUAK. The importance of the Korana judgement of the CJEU lies in the fact that it ensures the recognition and enforcement of judgments according to Art. 36 ff. of the Brussels I Regulation in favour of these above mentioned bodies. In so doing the CJEU strengthens the regulatory framework set up by the revised Posting of Workers Directive 96/71/EC. It marks the procedural keystone of a long-standing CJEU jurisprudence enabling a special, however adequate and institutionalised system of granting annual leave in the building sector. At the same time, it sends a clear signal towards the Swiss Federal Court that took a contrary view with respect to Art. 1 of the Lugano Convention 2007.

 

 F. Maultzsch: International Jurisdiction for Liability and Recourse Claims in the Wake of Cum-Ex Transactions

The Higher Regional Court of Frankfurt (OLG Frankfurt a.M.) had to deal with issues of international jurisdiction for liability and recourse actions resulting from so-called cum-ex transactions that failed on a tax-based level. In doing so, the court took position on diverse jurisdictional issues under the Brussels Ibis Regulation. These issues covered the requirements of a sufficient contest of jurisdiction by the defendant in appellate proceedings, a possible jurisdiction under Art. 7 No. 5 Brussels Ibis Regulation for disputes arising out of the operations of a branch, aspects of characterization regarding the forum of the contract (Art. 7 No. 1 Brussels Ibis Regulation), as well as the standards of international jurisdiction for a recourse claim from joint and several liability for tax payments. The following article analyses the findings of the court and discusses, inter alia, the application of Art. 26 Brussels Ibis Regulation in cases of a modification of the matter in dispute.

 

J. Schulte: A reinforced EU trademark through a strengthened alternative forum

The EU trademark has been strengthened when it comes to infringements via internet by the recent ECJ decision in AMS Neve, reviving the alternative forum of the place where an act of infringement has been committed or threatened. The Court ruled out an interpretation not congruent with that in Art. 8 (2) Rome II (applicable law) or Art. 7 no. 2 Brussels Ia (international jurisdiction for national trademarks). Instead, it transferred the EU Trademark Regulation’s substantive law understanding, thus guaranteeing a uniform interpretation of the regulation. Competent are the courts of the Member State where the consumers or traders are located to whom an allegedly infringing advertising or offers for sale are directed. This reverses the unfortunate “Parfummarken”-doctrine of the German Bundesgerichtshof and gives plaintiffs more leeway for choosing a forum and the possibility of bringing actions for infringements of EU and national trademarks simultaneously at the same court.

 

H. Schack: Does Art. 27 Lugano Convention permit requiring a special legitimate interest in actions for negative declaratory relief?

In an antitrust dispute between a Swiss watch manufacturer and a British wholesaler the Swiss Federal Court gives up its former holding (BGE 136 III 523) that a Swiss action for negative declaratory relief required a special legitimate interest. Today, at least in international cases, the plaintiff’s mere interest in fixing the forum is sufficient. That strengthens the attractiveness of Swiss courts in transborder cases.

Eduardo Álvarez-Armas is Lecturer in Law at Brunel University London and Affiliated Researcher at the Université Catholique de Louvain. He has kindly provided us with his thoughts on recent proposals for amending the Rome II Regulation. This is the second part of his contribution; a first one on the law applicable to strategic lawsuits against public participation can be found here.

Over the last few months, the European Parliament´s draft report on corporate due diligence and corporate accountability (2020/2129(INL)) and the proposal for an EU Directive contained therein have gathered a substantial amount of attention (see, amongst others, blog entries by Geert Van Calster, Giesela Rühl, Jan von Hein, Bastian Brunk and Chris Thomale). As the debate is far from being exhausted, I would like to contribute my two cents thereto with some further (non-exhaustive and brief) considerations which will be limited to three selected aspects of the proposal´s choice-of-law dimension.

1. A welcome but not unique initiative (Comparison with the UN draft Treaty)

Neither Article 6a of Rome II nor the proposal for an EU Directive are isolated initiatives. A so-called draft Treaty on Business and Human Rights (“Legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises”) is currently being prepared by an Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, established in 2014 by the United Nation´s Human Rights Council. Just like it is the case with the EP´s proposal, the 2nd revised UN draft Treaty (dated 6th August 2020) (for comments on the applicable law aspects of the 1st revised draft, see Claire Bright´s note for the BIICL here) contains provisions on international jurisdiction (Article 9, “Adjudicative Jurisdiction”) and choice of law (Article 11, “Applicable law”).

Paragraph 1 of the latter establishes the lex fori as applicable for “all matters of substance […] not specifically regulated” by the instrument (as well as, quite naturally, for procedural issues). Then paragraph 2 establishes that “all matters of substance regarding human rights law relevant to claims before the competent court may, upon the request of the victim of a business-related human rights abuse or its representatives, be governed by the law of another State where: a) the acts or omissions that result in violations of human rights covered under this (Legally Binding Instrument) have occurred; or b) the natural or legal person alleged to have committed the acts or omissions that result in violations of human rights covered under this (Legally Binding Instrument) is domiciled”.

In turn, the proposed Article 6a of Rome II establishes that: “[…] the law applicable to a non-contractual obligation arising out of the damage sustained shall be the law determined pursuant to Article 4(1), unless the person seeking compensation for damage chooses to base his or her claim on the law of the country in which the event giving rise to the damage occurred or on the law of the country in which the parent company has its domicile or, where it does not have a domicile in a Member State, the law of the country where it operates.” (The proposed text follows the suggestions made in pp. 112 ff of the 2019 Study requested by the DROI committee (European Parliament) on Access to Legal Remedies for Victims of Corporate Human Rights Abuses in Third Countries.)

Putting aside the fact that the material scopes of the EP’s and the UN’s draft instruments bear differences, the EP´s proposal features a more ambitious choice-of-law approach, which likely reflects the EU´s condition as a “Regional integration organization”, and the (likely) bigger degree of private-international-law convergence possible within such framework. Whichever the reasons, the EP´s approach is to be welcomed in at least two senses.

The first sense regards the clarity of victim choice-of-law empowerment. While in the UN proposal the victim is allowed to “request” that a given law governs “all matters of substance regarding human rights law relevant to claims before the competent court”, in the EP´s proposal the choice of the applicable law unequivocally and explicitly belongs to the victim (the “person seeking compensation for damage”). A cynical reading of the UN proposal could lead to considering that the prerogative of establishing the applicable law remains with the relevant court, as the fact that the victim may request something does not necessarily mean that the request ought to be granted (Note that paragraph 1 uses “shall” while paragraph 2 uses “may”). Furthermore, the UN proposal contains a dangerous opening to renvoi, which would undermine the victim´s empowerment (and, to a certain degree, foreseeability). Therefore, if the goal of the UN´s provision is to provide for favor laesi, a much more explicit language in the sense of conferring the choice-of-law prerogative to the victim would be welcomed.

2. A more ambitious initiative (The “domicile of the parent” connection, and larger victim choice)

A second sense in which the EP´s choice-of-law approach is to be welcomed is its bold stance in trying to overcome some classic “business & human rights” conundrums by including an ambitious connecting factor, the domicile of the parent company, amongst the possibilities the victim can choose from. Indeed, I personally find this insertion in suggested Art. 6a Rome II very satisfying from a substantive justice (favor laesi) point of view: inserting that very connecting factor in Art. 7 Rome II (environmental torts) is one of the main de lege ferenda suggestions I considered in my PhD dissertation (Private International Environmental Litigation before EU Courts: Choice of Law as a Tool of Environmental Global Governance, Université Catholique de Louvain & Universidad de Granada, 2017. An edited and updated version will be published in 2021 in Hart´s “Studies in Private International Law”), in order to correct some of the shortcomings of the latter. While not being the ultimate solution for all the various hurdles victims may face in transnational human-rights or environmental litigation, in terms of content-orientedness this connecting factor is a great addition that addresses the core of the policy debate on “business & human rights”. Consequently, I politely dissent with Chris Thomale´s assertion that this connecting factor “has no convincing rationale”. Moreover, I equally dissent from the contention that a choice between the lex loci damni and the lex loci delicti commissi is already possible via “a purposive reading of Art. 4 para 1 and 3 Rome II”. For reasons I have explained elsewhere, I do not share this optimistic reading of Art. 4 as being capable of filling the transnational human-rights gap in Rome II. And even supposing that such interpretation was correct, as draft Art. 6a would make explicit what is contended that can be read into Art. 4, it would significantly increase legal certainty for victims and tortfeasors alike (as otherwise some courts could potentially interpret the latter Article as suggested, while others would not).

Precisely, avoiding a decrease in applicable-law foreseeability seems to be (amongst other concerns) one of the reasons behind Jan von Hein´s suggestion in this very blog that Art. 6a´s opening of victim´s choice to four different legal systems is excessive, and that not only it should be reduced to two, but that the domicile of the parent should be replaced by its “habitual residence”. Possibly the latter is contended not only to respond to systemic coherence with the remainder of Rome II, but also to narrow down options: in Rome II the “habitual residence” of a legal person corresponds only with its “place of central administration”; in Brussels I bis its “domicile” corresponds with either “statutory seat”, “central administration” or “principal place of business” at the claimant´s choice. Notwithstanding the merits in system-alignment terms of this proposal, arguably, substantive policy rationales (favor laesi) ought to take precedence over pure systemic private-international-law considerations. This makes all the more sense if one transposes, mutatis mutandis, a classic opinion by P.A. Nielsen on the three domiciles of a corporation under the “Brussels” regime to the choice-of-law realm: “shopping possibilities are only available because the defendant has decided to organise its business in this way. It therefore seems reasonable to let that organisational structure have […] consequences” (P. A. NIELSEN, “Behind and beyond Brussels I – An Insider´s View”, in P. DEMARET, I. GOVAERE & D. HANF [eds.], 30 years of European Legal Studies at the College of Europe [Liber Professorum 1973-74 – 2003-04], Cahiers du Collège d´Europe Nº2, Brussels, P.I.E.-Peter Lang, 2005, pp. 241-243).

And even beyond this, at the risk of being overly simplistic, in many instances, complying with four different potentially applicable laws is, actually, in alleged overregulation terms, a “false conflict”: it simply entails complying only with the most stringent/restrictive one amongst the four of them (compliance with X+30 entails compliance with X+20, X+10 and X). Without entering into further details, suffice it to say that, while ascertaining these questions ex post facto may be difficult for victim´s counsel, it should be less difficult ex ante for corporate counsel, leading to prevention.

3. A perfectible initiative (tension with Article 7 Rome II)

Personally, the first point that immediately got my attention as soon as I heard about the content of the EP report´s (even before reading it) was the Article 6a versus Article 7 Rome II scope-delimitation problem already sketched by Geert Van Calster: when is an environmental tort a human-rights violation too, and when is it not? Should the insertion of Art. 6a crystallize, and Art. 7 remain unchanged, this question is likely to become very contentious, if anything due to the wider range of choices given by the draft Art. 6a, and could potentially end before the CJEU.

What distinguishes say Mines de Potasse (which would generally be thought of as “common” environmental-tort situation) from say Milieudefensie v. Shell 2008 (which would typically fall within the “Business & Human Rights” realm and not to be confused with the 2019 Milieudefensie v. Shell climate-change litigation) or Lluiya v. RWE (as climate-change litigation finds itself increasingly connected to human-rights considerations)? Is it the geographical location of tortious result either inside or outside the EU? (When environmental torts arise outside the EU from the actions of EU corporations there tends to be little hesitation to assert that we are facing a human-rights tort). Or should we split apart situations involving environmental damage stricto sensu (pure ecological damage) from those involving environmental damage lato sensu (damage to human life, health and property), considering only the former as coming within Art. 7 and only the latter as coming within Art. 6a? Should we, alternatively, introduce a ratione personae distinction, considering that environmental torts caused by corporations of a certain size or operating over a certain geographical scope come within Art. 6a, while environmental torts caused by legal persons falling below the said threshold (or, rarely, by individuals) come within Art. 7?

Overall, how should we draw the boundaries between an environmental occurrence that qualifies as a human-rights violation and one that does not in order to distinguish Art. 6a situations from Art. 7 situations? The answer is simple: we should not. We should consider every single instance of environmental tort a human-rights-relevant scenario and amend Rome II accordingly.

While the discussion is too broad and complex to be treated in depth here, and certainly overflows the realm of private international law, suffice it to say that (putting aside the limited environmental relevance of the Charter of Fundamental Rights of the EU) outside the system of the European Convention of Human Rights (ECHR) there are clear developments towards the recognition of a human right to a healthy or “satisfactory” environment. This is already the case within the systems of the American Convention on Human Rights (Art. 11 of the Additional Protocol to the Convention in the area of Economic, Social and Cultural Rights) and the African Charter on Human and People´s Rights (Art. 24). It is equally the case as well in certain countries, where the recognition of a fundamental/constitutional right at a domestic level along the same lines is also present. And, moreover, even within the ECHR system, while no human right to a healthy environment exists as such, the case-law of the European Court of Human Rights has recognized environmental dimensions to other rights (Arts. 2 and 8 ECHR, notably). It may therefore be argued that, even under the current legal context, all environmental torts are, to a bigger or lesser extent, human-rights relevant and (save those rare instances where they may be caused by an individual) “business-related”.

Ultimately, if any objection could exist nowadays, if/when the ECHR system does evolve towards a broader recognition of a right to a healthy environment, there would be absolutely no reason to maintain an Art. 6a versus Art. 7 distinction. Thus, in order to avoid opening a characterization can of worms, it would be appropriate to get “ahead of the curve” in legislative terms and, accordingly, use the proposed Art. 6a text as an all-encompassing new Art. 7.

There may be ways to try to (artificially) delineate the scopes of Articles 7 and 6a in order to preserve a certain effet utile to the current Art. 7, such as those suggested above (geographical location of the tortious result, size or nature of the tortfeasor, type of environmental damage involved), or even on the basis of whether situations at stake “trigger” any of the environmental dimensions of ECHR-enshrined rights. But, all in all, I would argue towards using the proposed text as a new Art. 7 which would comprise both non-environmentally-related human-rights torts and, comprehensively, all environmental torts.

Art. 7 is dead, long live Article 7.

 

 

In February 2019, Michael G. Faure (Maastricht University and Erasmus Law School Rotterdam) and Kévine Kindji (Maastricht University) presented to the European Parliament a Study on Cross-border nuclear safety, liability and cooperation in the European Union.

The abstract reads:

This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the PETI Committee, aims at gaining deeper insights into the legal aspects of cross border nuclear safety and cooperation in the European Union. It analyses the legal framework of nuclear safety as well as the liability and insurance schemes for nuclear accidents. The study examines the current liability and insurance framework and formulates possibilities for a further involvement of the EU in the liability regime. Specific attention is paid to citizen and NGO involvement in decision-making concerning nuclear power plants. The study analyses the case law in that respect and formulates various recommendations to improve the regime concerning cross-border nuclear safety, liability and corporation in the EU.

The study can be freely downloaded here.

written by Cristina González Beilfuss and Marta Pertegás Sender

It is with deep sadness that we write these lines to honour the memory of our dear mentor Alegría Borrás. Alegría unexpectedly passed away at the end of last year and, although she had been battling cancer for a while, she continued working as always. For Alegría was a hardworking fighter who sought and found her notorious place in life with determination, courage and borderless efforts. We believe we speak here for so many of Alegría’s alumni who miss her deeply and are determined to pay tribute to her memory with our work and memories.

We both had the great privilege of Alegría’s support for years and decades, from the moment she taught us at the “barracones” of the Law Faculty of the University of Barcelona until the very last day of Alegría’s life. Her death surprised us all on one of those typical “Alegría’s days” of frantic activity and unconditional support to the projects and institutions she believed in.

With this homage, we by no means pretend to recap all her merits and achievements. We are thankful that, while still alive, Alegría received many distinctions and exceptional prizes for all she meant to the (international legal) community.

All those who once met Alegría may inevitably think of her characteristic high voice and strong presence while remembering her. To us, it is her unique insight, tireless professionalism and devoted expertise that made Alegría the exceptional mentor she was.

In every assignment Alegría carried out – regardless the size of the task or its specific context -, Alegría showed profound dedication and daily perseverance. Behind a  joie de vivre  – how can one by the name of Alegría otherwise come across? – there was an exemplary academic rigor and uncountable hours of day and night work.

Alegría will always be remembered as someone who transformed our discipline in recent years. She did so, from her Chair in Barcelona, where many of us first discovered private international law thanks to her teaching. Her classes were enriched by the many anecdotes of places (Brussels, The Hague…) and instances (the GEDIP, l’Institut, the Academy, …) that, back then, sounded like remote laboratories of private international law. Little did we know that we would marvel around the privilege of sharing missions and tasks with Alegría in such venues in the years to follow.

We have indeed witnessed how Alegría contributed, to the approximation of Spain to such poles of uniform private international law. For decades, Alegría wisely brought Spain to any negotiation table on private international law, and she proudly brought the results of such international work back home. We think it is fair to say that, without Alegría, international and European private international law might not have the right channels to permeate into the Spanish legal system. This is not a sporadic success; it requires titanic efforts and perseverance for decades. Actually, for Alegría, her international work was much more than the daily sessions at the Peace Palace or at the Council, the overnight work in committees and working groups or the taxi rides from and to the airport in rainy and grey weather. There was so much more… She made time for beautifully written and detailed reports to the relevant Ministries, for influential contacts with diplomatic posts and, not to forget, for raising awareness among the academic community. Her regular contributions to the Revista Jurídica de Catalunya , to the Revista Española de derecho internacional or to the Anuario español de Derecho internacional privado guided  Spanish lawyers eager to keep track on “what was going on in Brussels or The Hague”. Alegría knew how the machinery of international relations works and used these insights brilliantly to connect Spain to the international legal community, and vice versa.

The readers of Conflictsoflaws.net may associate the name of Alegría Borrás with significant milestones in the development of private international law over the past decades: Alegría was a key delegate of the Hague’s Children Conventions, the Co-Rapporteur of the Child Support Convention, the Rapporteur of the Brussels II Convention, the author of influential work on conflicts of instruments (perhaps we should refer to the “Borrás clause” as shortcut for the “clauses de déconnection”). We are also aware that there is so much more, because, no matter how important her international projects were, Alegría remained truly anchored at home, in her city and her University as a member of the Acadèmia de Legislació i Jurisprudència de Catalunya for example, where she joined efforts with her very good friend Encarna Roca Trias.

Home, for Alegría, was Barcelona,  no matter how often her international work took her away from them. Her family was her greatest pride and her unconditional top priority. A loving wife, mother and grandmother and an example to so many of us who juggle balls in all these roles…

And the University of Barcelona was not only her academic home but also our meeting point. The private international community has lost a great scholar and a formidable person. Alegría, we thoroughly miss you and thank you so much for all you did for us and so many other alumni of yours. Together, we will persevere in our efforts the way you taught us. Rest in peace.

 

 

 

 

 

An e-mail has been sent to those who registered for the second EAPIL Virtual Seminar, on Digital Teaching and Private International Law, scheduled to take place on 27 January 2021 from 5 to 7 p.m. (MET), with the details to join the seminar, via Zoom.

If you have registered, and don’t see our e-mail in your inbox, please check the spam folder.

For further queries, please refer to Susanne Gössl at sgoessl@law.uni-kiel.de.

On Tuesday, February 2, 2021, the Hamburg Max Planck Institute will host its eight monthly virtual workshop in private international law at 11:00-12:30. Since January of this year, we are alternating between English and German language. Dagmar Coester-Waltjen will speak, in German, about the topic “Von der Staatsangehörigkeits-Anknüpfung zur Berufung der lex loci celebrationis im internationalen Eheschließungs- und Partnerschaftsrecht?” (“From Nationality to Lex Loci in Private International Law of Marriage and Civil Union?” The presentation will be followed by open discussion. All are welcome. More information and sign-up here. This is the eight such lecture in the series, after those by Mathias Lehmann in June, Eva-Maria Kieninger in July, Giesela Rühl in September, Anatol Dutta in October, Susanne Gössl in November, Marc-Philippe Weller in December, and Macjiej Szpunar in January. In February, we will again have an English language event – stay tuned! If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de

For the first time since the entry into force of the 1968 Brussels Convention and the EU Regulations in the field of judicial cooperation in civil matters, the Greek Supreme Court was called recently to examine an application for recognition and enforcement of an English order awarding alimony to a wife, while at the same time regulating property issues between the spouses.

On 12 June 2020, the Supreme Court [Nr. 662/2020] ordered the reversal of the appellate judgment [Athens Court of Appeal 4789/2018, unreported], which in turn had rejected the husband’s appeal against the first instance decision granting the recognition and declaration of enforceability of the English order [Athens court of 1st Instance 420/2015, unreported].

The Ruling of the Supreme Court

The case at hand concerned an order of the Family Division of the High Court, which was issued upon the request of the wife in the course of divorce proceedings. In particular, the wife requested that she retain the ownership of the family house in London, and that she be granted the amount of ₤ 600.000 as a capitalised maintenance payment, plus 100% of the interests from a Merchant Investors assurance program, whereas the husband would retain the ownership of eight parcels of land in Greece.

The English court granted the request. The judge ruled as follows:

I consider that the wife’s need could be met by an even distribution of the assets listed in the KT list [i.e. the list prepared by the wife’s lawyer] and I therefore intend to issue a financial provision order in the form of a lump sum of 600,000 ₤ payable to the wife…  I am satisfied that the order I issue achieves the purpose of a fair distribution of assets between the parties.

The order to pay the lump sum raised an interesting issue of characterisation with far reaching consequences. It could either be regarded as a maintenance payment, or as distribution of the assets of the spouses, and thus related to their matrimonial property regime.

One of the consequences of the distinction is that separate legal regimes govern the enforcement of maintenance and matrimonial property judgments. Two different regulations apply: either the Maintenance Regulation, which provides for immediate enforcement (abolition of exequatur: Articles 17 et seq.), or the Matrimonial Property Regulation which has retained the ‘traditional’ requirement of a declaration of enforceability (Articles 36 et seq.). In this case, the application was filed prior to the entry into force of both regulations, but separate regimes already applied to each category. The Brussels I Regulation applied to maintenance, resulting in the simplified procedure of articles 38 et seq. Matrimonial property fell outside of the EU framework, and was thus governed by the common law of foreign judgments of the Member States (in Greece, Articles 323 & 905 of the Code of Civil Procedure), i.e. a more conservative regime, which, in addition to the international jurisdiction barrier (Article 323 No. 2), has a different starting point, as it is not bound by the famous principle of mutual trust and free movement of judicial decisions between EU Member States.

The Greek Supreme Court made the following characterisation:

The award of this lump sum does not have a supportive purpose; it does not seek to meet the basic needs of the applicant, so as to be considered a maintenance claim, but has a rather redistributive-compensatory purpose, leading to the distribution of assets between the spouses, as expressly stated in the reasoning of the foreign order.

In view of the above, the Supreme Court ruled that the dispute fell outside the scope of the Brussels I Regulation, pursuant to the exception under article 1 (2) (a) [rights in property arising out of a matrimonial relationship]. It allowed the appeal, and referred the case for retrial to the appellate court.

The Supreme court cited in support of its decision three judgments of the European Court of Justice, C-143/78, De Cavel, C-25/81, C.H.W. and C- 220/95, van den Boogaard. In van den Boogaard, the ECJ ruled:

a decision rendered in divorce proceedings ordering payment of a lump sum and transfer of ownership in certain property by one party to his or her former spouse must be regarded as relating to maintenance and therefore as falling within the scope of the Brussels Convention if its purpose is to ensure the former spouse’s maintenance.

Courts and scholars in other Member States have already  pointed out that the van den Boogaard ruling did not resolve the issue entirely, granting a margin of discretion to national judges.

Comparative Overview

A search of similar situations and their treatment by national courts of other Member States leads us to a ruling of the German Supreme Court from 2009 [BGH 12.08.2009, NJW-RR 2010, pp. 1 f = IPRax 2011, pp. 187 f]. Confronted with similar facts, the Bundesgerichtshof opted for a solution akin to the Judgment of Solomon: departing from the characterization of the case, it accentuated the dual function of the provision [Doppelfunktionalität der Vorschrift], and granted the request for recognition and declaration of enforceability of the part demonstrating qualitative features of a maintenance claim. Respectively, for the remaining part of the order, it proceeded in the fashion chosen by the Greek Supreme Court.

On the other hand, English scholarship tends to include similar cases under the category of maintenance claims, drawing an additional argument from Annexes I-IV of Reg. 4/2009, while at the same time taking into account the case law of the CJEU, and the possibility of separation, as opted by the German Supreme Court.

In a recent decision, the Swiss Court of Cassation overturned a decision which ruled that the Lugano Convention did not apply to an English Financial Remedy Order, and referred the case to the Zurich Supreme Court for resolving the crucial issue of distinction between maintenance and matrimonial property disputes. A comment on the ruling is available here

The Impact of the Ruling

The withdrawal of the United Kingdom from the EU does not undermine the importance of the Greek Supreme Court ruling for the future. The intentions of the English legislator are not yet revealed. As  is already widely known, a primary indication does not exist, given that the field of judicial cooperation in civil and commercial matters has been left outside the Agreement. The expected accession of the UK to the Lugano Convention has been recorded ad calendas Graecas. However, a specific instrument will continue to govern the enforcement of maintenance judgments. The Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance will substitute EU law in the relations between the UK and Greece. A change of course by the Greek Supreme Court is highly unlikely, however, and financial provision orders will be subject to domestic rules of recognition and enforcement.

It should also be underscored that the issue is not unique to the United Kingdom. Similar systems are to be found in the legislation of other Member States [e.g. the Republic of Ireland, and partly France]. Therefore, fresh applications are not to be ruled out. Prospective applicants are however advised to prepare the file more diligently: English orders are issued on the basis of a judgment. It is therefore considered necessary to produce a translated true copy of the foreign judgment, so that the judge is able to understand the peculiarities of the foreign system, and to decide upon having seen the whole picture in advance.

The Universidad de Valencia is organizing a seminar entitled “nuevos desafíos y oportunidades de los derechos del menor en asuntos transfronterizos”, to be held on 28 January 2021 online (in Spanish / and Portuguese in one panel). The Conflictus Legum blog published information about this seminar here.

This seminar is held in the context of “Minor’s Right to Information in civil actions (MiRI) – Improving children’s right to information in cross-border civil cases”, a Project co-funded by the European Union Justice Programme 2014-2020, JUST-JCOO-AG-2018, under Grant Agreement No 831608.

Among the speakers are: Cristina González Beilfuss, Andrés Rodríguez Benot, Mónica Herranz Ballesteros, Isabel Reig Fabado, Elena Rodríguez Pineau, Mercedes Soto Moya, María Carmen Chéliz Inglés, Idoia Otaegi Aizpurua, David Carrizo Aguado, etc.

The Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (Regulation Brussels II ter) will be discussed throughout the day (but particularly in panel #1).

Participation is free of charge (and there is no need to register). The link to the seminar is here.

In Top Optimized Technologies SL (A Company Incorporated Under the Laws of Spain) & Anor v Vodafone Group Services Ltd & Ors [2021] EWHC 46 (Pat) Smith J is asked to stay proceedings on the basis of Article 30 Brussels Ia’s related actions rule.

Three sets of proceedings are pending: one in Madrid; two in the UK. Parties, even some of them are of similar corporate blood, are not the same. Hence an Article 29 lis alibi pendens application is not possible. Arguments advanced at 39 ff in favour of a stay, are in the main, the same facts and matters being traversed (with an immediate indication of Smith J that the applicable law being different counts against, there being a ‘danger in overstating the overlap’); the danger of relitigating earlier proceedings elsewhere, and of consequential double recovery.

Smith J at 40 ff is in favour of what he calls the ‘wide approach’ to A30 (unlike a more narrow approach under A29 and incidentally under A45), to which I can subscribe. At 45 he sums up his reasons for declining the stay which of course are largely discretionary. However, among them is one oddity: at 45(4):

Moreover, this is a case where Vodafone has avoided – entirely properly – the jurisdiction of the Spanish courts by invoking the exclusive jurisdiction clauses in favour of England and Wales. Vodafone could have submitted to the jurisdiction of the Spanish courts under Article 26, but instead elected to invoke Article 25. As a result, proceedings involving all relevant parties (Vodafone and Huawei) and so eliminating any risk of irreconcilable judgments have not been possible. No criticism can be made of Vodafone in this: but, conversely, it seems to me perverse now to prevent the progression of the Second UK Proceedings in circumstances where the fragmentation of the originally constituted Madrid Proceedings against Huawei and Vodafone has occurred at Vodafone’s insistence. (emphasis in the original)

This echoes the findings of Lord Briggs in Vedanta, that the potential for submission carries a lot of weight in ultimate jurisdictional decisions. I am not convinced Brussels Ia supports this.

Geert.

European Private International Law, 3rd ed. 2021, Heading 2.2.15.2 (para 2.521 ff)

 

Application for a stay under A30 BIa dismissed, with oddly reference ia to the fact that Vodafone could have avoided the risk of irreconcilable judgments had it foregone its choice of court privilege and seized the Spanish courts for its own proceedings. https://t.co/T4XSzTk14J

— Geert Van Calster (@GAVClaw) January 14, 2021

Private International Law in Poland has been recently released by Wolters Kluwer. The monograph is written by Ewa Kamarad and Anna Wysocka-Bar (one of this blog’s editors), both affiliated with Jagiellonian University (Poland).

The e-version of the monograph forms part of the International Encyclopaedia of Laws, the volume on Private International Law edited by Bea Verschraegen, available online (for subscribers, for example via Peace Palace Library e-resources).

Private international law rules in Poland are unified at the EU level to a great extent. However, this unification leaves certain areas to domestic PIL or international agreements, including numerous bilateral ones in force in Poland (for example, law applicable to rights in rem or recognition and enforcement of judgements coming from outside the EU). Additionally, certain areas are unified in the EU within the enhanced cooperation mechanism which means that not all EU Member States apply them (for example, law applicable to divorce, jurisdiction, applicable law, as well as recognition and enforcement of EU judgements in matrimonial property matters). Poland is an example of a Member State, which is not participating in this cooperation and continues to apply its own rules. Due to the above the book might be of interest to international public, academics and practitioners, as it constitutes a general sketch of the whole system of PIL in Poland.

A succinct post on yesterday’s reports that the French courts are now properly engaging with the action brought in France by more than a dozen US-based corporations (and one local, French defendant) on the continuing impact of the use of Agent Orange by the US Army in Vietnam. Thank you Taco van der Valk for pointing me to an earlier interlocutory judgment which identifies defendants.

Claimant is a dual French-Vietnamese citisen. Jurisdiction is based on Article 4 BIa against the one French defendant. Anchor jurisdiction with that defendant in play, reinforces the jurisdiction based on claimant’s French nationality (the infamous, often labelled ‘exorbitant’ jurisdictional rule of Article 14 of the Code Civil; on which see here). Claimant’s domicile in France presumably is an additional reinforcing factor.

Geert.

European Private International Law, 3rd ed. 2021, para 2.139.

Universidade Portucalense (in Porto, Portugal), and its Research Center – Instituto Jurídico Portucalense and IJP IPLeiria, in collaboration with the University of Vigo, the University of Malaga, the University of Salamanca, the University of Granada and the Federal University of Rio de Janeiro, organize the I International Congress on Civil Procedural Law – The Challenges of Sustainable Global and Digital Development, to be held on 20 and 21 May 2021, in virtual format.

One of the Thematic Lines will be of interest to readers of this blog, namely “Transnational and European Civil Procedure. Global development process and challenges”.

More information here.

The American Journal of International Law’s online publication, AJIL Unbound, has recently published a symposium on the changing face of international commercial dispute resolution around the world.  The symposium, entitled Global Labs of International Commercial Dispute Resolution, includes works by scholars from China, Hong Kong, Europe, UK, US, and Australia.

The contributions consider the emergence of new legal hubs, international commercial courts, and arbitral courts around the world, and their implications for global commercial dispute resolution.

The contributions include:

Introduction by Anthea Roberts

Experimenting with International Commercial Dispute Resolution by Pamela K. Bookman and Matthew S. Erie

The Resolution of International Commercial Disputes – What Role (if any) for Continental Europe? by Giesela Rühl

 

 

Conservative Innovation: The Ambiguities of the China International Commercial Court by Julien Chaisse and Xu Qian

 

The International Commercial Dispute Prevention and Settlement Organization: A Global Laboratory of Dispute Resolution with an Asian Flavor by Guiguo Wang andRajesh Sharma

 

International Commercial Courts in the United States and Australia: Possible, Probable, Preferable? by S.I. Strong

 

Global Laboratories of Third-Party Funding Regulation by Victoria Shannon Sahani

Galapagos Bidco SARL v Kebekus & ors [2021] EWHC 68 (Ch) is yet again a fairly extensive first instance judgment merely on the issue of jurisdiction, entertaining Article 8(1) Brussel Ia’s anchor defendant mechanism as well as Article 25 choice of court.

On A8(1), focus of the discussion was the extent of a merits review under A8(1), which I also discuss  in Sabbagh v Khoury and Senior Taxi v Agusta Westland (both referred to here by Zacaroli J at 44 ff.; as was nb PIS v Al Rajaan). The issue was raised in CJEU C-98/06 Freeport but not answered. The judge here uses the notion of ‘sustainable claim’ to ensure absence of abuse of the anchor mechanism, concluding at 132 after fairly serious if arguably not excessive engagement with the merits, that the conditions of A8(1) are fulfilled.

Article 25 choice of court is discussed obiter at 138 ff., leading to some discussion on the timing of the binding character of the clause upon various parties (and a minor side-issue re Brexit).

A case-management stay was also applied for, with the judge justifiably adopting the strict approach at 160 that such a stay must not be used to circumvent the inapplicability of an Article 34 BIa challenge (the A34 route was dropped; in the light of A25 jurisdiction being established, it would be unavailable at any rate): case-management stay in such circumstances is in essence an application for forum non conveniens which is not permitted under BIa.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.13.1 (in particular 2.496); Heading 2.2.15.3.2.

In yet another very extensive jurisdictional ruling, jurisdiction in E&W accepted on the basis of A8(1) BIa anchor jurisdiction and A25 choice of court against another defendant. https://t.co/ppPZZqtxNy

— Geert Van Calster (@GAVClaw) January 19, 2021

Guest post by Bronwen Manby

In 2014, UNHCR launched a ten-year campaign to end statelessness by 2024. A ten-point global action plan called, among other things, for universal birth registration.  One year later, in September 2015, the UN General Assembly adopted the Sustainable Development Goals (SDGs), an ambitious set of objectives for international development to replace and expand upon the 15-year-old Millennium Development Goals.  Target 16.9 under Goal 16 requires that states shall, by 2030, ‘provide legal identity for all, including birth registration’. The SDG target reflects a recently consolidated consensus among development professionals on the importance of robust government identification systems.

Birth registration, the protection of identity, and the right to a nationality are already firmly established as rights in international human rights law – with most universal effect by the 1989 Convention on the Rights of the Child, to which every state in the world apart from the USA is a party. Universal birth registration, ‘the continuous, permanent, compulsory and universal recording within the civil registry of the occurrence and characteristics of birth, in accordance with the national legal requirements’, is already a long-standing objective of UNICEF and other agencies concerned with child welfare. There is extensive international guidance on the implementation of birth registration, within a broader framework of civil registration.

In a recent article published in the Statelessness and Citizenship Review I explore the potential impact of SDG ‘legal identity’ target on the resolution of statelessness. Like the UNHCR global action plan to end statelessness, the paper emphasises the important contribution that universal birth registration would make to ensuring respect for the right to a nationality. Although birth registration does not (usually) record nationality or legal status in a country, it is the most authoritative record of the information on the basis of which nationality, and many other rights based on family connections, may be claimed.

The paper also agrees with UNHCR that universal birth registration will not end statelessness without the minimum legal reforms to provide a right to nationality based on place of birth or descent. These will not be effective, however, unless there are simultaneous efforts to address the conflicts of law affecting recognition of civil status and nationality more generally. UNHCR and its allies in the global campaign must also master private international law.

In most legal systems, birth registration must be accompanied by registration of other life events – adoption, marriage, divorce, changes of name, death – for a person to be able to claim rights based on family connections, including nationality. This is the case in principle even in countries where birth registration reaches less than half of all births, and registration of marriages or deaths a small fraction of that number. Fulfilling these obligations for paperwork can be difficult enough even if they all take place in one country, and is fanciful in many states of the global South; but the difficulties are multiplied many times once these civil status events have to be recognised across borders.

Depending on the country, an assortment of official copies of parental birth, death or marriage certificates may be required to register a child’s birth. If the child’s birth is in a different country from the one where these documents were issued, the official copies must be obtained from the country of origin, presented in a form accepted by the host country and usually transcribed into its national records. Non-recognition of a foreign-registered civil status event means that it lacks legal effect, leaving (for example) marriages invalid in one country or the other, or still in place despite a registered divorce. If a person’s civil status documents are not recognised in another jurisdiction, the rights that depend on these documents may also be unrecognised: the same child may therefore be born in wedlock for the authorities of one country and out-of-wedlock for another. On top of these challenges related to registration in the country of birth, consular registration and/or transcription into the records of the state of origin is in many cases necessary if the child’s right to the nationality of one or both parents is to be recognised. It is also likely that the parents will need a valid identity document, and if neither is a national of the country where their child is born, a passport with visa showing legal presence in the country. A finding of an error at any stage in these processes can sometimes result in the retroactive loss of nationality apparently held legitimately over many years.  Already exhausting for legal migrants in the formal sector, for refugees and irregular migrants of few resources (financial or social) these games of paperchase make the recognition of legal identity and nationality ever more fragile.

These challenges of conflicts of law are greatest for refugees and irregular migrants, but have proved difficult to resolve even within the European Union, with the presumption of legal residence that follows from citizenship of another member state. The Hague Conference on Private International Law has a project to consider transnational recognition of parentage (filiation), especially in the context of surrogacy arrangements, but has hardly engaged with the broader issues.

The paper urges greater urgency in seeking harmonisation of civil registration practices, not only by The Hague Conference, but also by the UN as it develops its newly adopted ‘Legal Identity Agenda’, and by the UN human rights machinery. Finally, the paper highlights the danger that the SDG target will rather encourage short cuts that seek to bypass the often politically sensitive task of determining the nationality of those whose legal status is currently in doubt: new biometric technologies provide a powerful draw to the language of technological fix, as well as the strengthening of surveillance and control rather than empowerment and rights.  These risks – and their mitigation – are further explored in a twinned article in World Development.

 

Last week, the EAPIL blog published a post on the EU feedback period on modernising judicial cooperation between EU countries – use of digital technology (see here). This feedback period is open until 5 February 2021 (midnight Brussels time) and may be provided by clicking here.  A possible future type of act is a proposal for a regulation.

The relevant documents are: the Inception impact assessment – Ares(2021)172677 (available on the feedback page) and the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions.

In general, the objective and target groups of such feedbacks are: “Inception Impact Assessments aim to inform citizens and stakeholders about the Commission’s plans in order to allow them to provide  feedback  on  the  intended  initiative  and  to  participate  effectively  in  future  consultation  activities. Citizens  and stakeholders  are  in  particular  invited  to  provide  views  on  the  Commission’s  understanding  of  the  problem  and  possible solutions  and  to  make  available  any  relevant  information  that  they  may  have,  including  on  possible  impacts  of  the  different options.” But it is possible for non-EU citizens to provide feedback.

Apparently, an official public consultation – by way of a questionnaire – is upcoming (although there seems to be a mistake on the year on the website).

As stated on the EU website, the summary of this initiative is the following:

“This initiative aims to make judicial cooperation in cross-border cases throughout the EU more efficient and more resilient to crises, such as the COVID-19 pandemic.

It will make it mandatory for the authorities involved in each country to use digital technology, instead of paper, to communicate.

It will improve access to justice by ensuring that individuals, businesses and legal practitioners involved in cases can communicate digitally with the competent authorities in the other countries.”

 

It is worth noting the following excerpt of the Impact Assessment about the likely economic impacts:

“Positive. The initiative could require new investment from EU countries to develop the necessary infrastructure that can interact with e-CODEX. Investment  would  depend  on  the  current national level  of digitalisation, level  of involvement  in the e-CODEX  project, the  interoperability  of  solutions  implemented by EU countries and  the possibility under national law to allow for electronic transmissions. However, in the long run, digitalization of justice would significantly decrease the costs incurred by national justice systems in cross-border procedures.

To  address cost  concerns,  the initiative could  also propose that  the  Commission  develops  and  provides EU countries with a reference implementation software solution (back-end portal) for their national use.

As mentioned in the Communication on the digitalization of justice, the upcoming Multiannual Financial Framework and financial instruments for Next Generation EU could also provide funding.

The EU countries could reduce costs by re-using the infrastructure being developed for the European Investigation Order in criminal proceedings (eEDES) and for Service of Documents and Taking of Evidence also for other judicial cooperation instruments.

With  its  potential  to substantially cut  the cost of participating in cross-border  cases,  the  initiative would also directly  benefit citizens  and  businesses  (including small/medium  firms)  concerned  by  the various  EU civil  law instruments. Use  of  these  instruments  (e.g. the  European  Small  Claims  procedure  and  European Order for Payment) by citizens, businesses and legal practitioners would also increase, through the new electronic access point.”

The EU press release is available here.

 

The Interest Group on Private International Law of the Italian Society of International Law invites you to a series of webinars on current developments in jurisprudence in various topics of private international law.

The webinars will be hosted on Teams by Microsoft 365. In order to attend one or more webinars please write a message to the email address sidigdipp@gmail.com to be added to the relevant Teams group. Once the request has been made for one webinar, there will be no need to repeat it for subsequent events.

The webinars will take place in English except where indicate otherwise.

All webinars will be chaired by Prof. Stefania Bariatti (Università degli Studi di Milano), convenor of the Interest Group.

Programme:

29 January 2021 @ 4-6 PM (CET):

Limiting European Integration Through Constitutional Law? Recent Decisions of the German Bundesverfassungsgericht and their Impact on Private International Law

 Speaker: Christian Kohler, Universität Saarbrücken

 Discussant: Giulia Rossolillo, Università degli Studi di Pavia

 

19 February 2021 @ 4-6 PM (CET):

State Immunity and Jurisdiction in Civil and Commercial Matters in Recent Court of Justice Rulings

Speaker: Alexander Layton, King’s College London

Discussant: Lorenzo Schiano di Pepe, Università di Genova

 

12 March 2021 @ 4-6 PM (CET):

La trascrizione dell’atto di nascita nella recente giurisprudenza della Corte costituzionale italiana (in Italian)

Speaker: Sara Tonolo, Università degli Studi di Trieste

Discussant: Elena Rodriguez Pineau, Universidad Autonóma de Madrid

 

9 April 2021 @ 4-6 PM (CET):

Law Governing Arbitration Agreements in a Recent Judgment of the UK Supreme Court

Speaker: Adrian Briggs, University of Oxford

Discussant: Pietro Franzina, Università Cattolica del Sacro Cuore

 

TBC 23 April 2021 @ 4-6 PM (CET) TBC: 

Jurisdiction in Matters Relating to Cross-Border Torts according to the Recent Volkswagen Judgment of the Court of Justice

 Speaker: Giesela Rühl, Humboldt-Universität zu Berlin

Discussant: Fabrizio Marongiu Buonaiuti, Università di Macerata

 

Eduardo Álvarez-Armas is Lecturer in Law at Brunel University London and Affiliated Researcher at the Université Catholique de Louvain. He has kindly provided us with his thoughts on recent proposals for amending the Rome II Regulation. This is the first part of his contribution; a second one on corporate social responsibility will follow in the next days.

 

On December the 3rd, 2020, the EU commission published a call for applications, with a view to putting forward, by late 2021, a (legislative or non-legislative) initiative to curtail “abusive litigation targeting journalists and civil society”. As defined in the call, strategic lawsuits against public participation (commonly abbreviated as SLAPPs) “are groundless or exaggerated lawsuits, initiated by state organs, business corporations or powerful individuals against weaker parties who express, on a matter of public interest, criticism or communicate messages which are uncomfortable to the litigants”. As their core objective is to silence critical voices, SLAPPs are frequently grounded on defamation claims, but they may be articulated through other legal bases (as “data protection, blasphemy, tax laws, copyright, trade secret breaches”, etc) (p. 1).

The stakes at play are major: beyond an immediate limitation or suppression of open debate and public awareness over matters that are of significant societal interest, the economic pressure arising from SLAPPs can “drown” defendants, whose financial resources are oftentimes very limited. Just to name but a few recent SLAPP examples (For further review of cases throughout the EU see: Greenpeace European Unit [O. Reyes, rapporteur], “Sued into silence – How the rich and powerful use legal tactics to shut critics up”, Brussels, July 2020, p. 18ff): at the time of her murder in 2017, Maltese journalist Daphne Caruana Galizia was facing over 40 civil and criminal defamation lawsuits, including a 40-million US dollar lawsuit in Arizona filed by Pilatus Bank (Greenpeace European Unit [O. Reyes, rapporteur], pp. 9-12); in 2020, a one million euros lawsuit was introduced against Spanish activist Manuel García for stating in a TV program that the poor livestock waste management of meat-producing company “Coren” was the cause for the pollution of the As Conchas reservoir in the Galicia region.

In light of the situation, several European civil-society entities have put forward a model “EU anti-SLAPP Directive”, identifying substantive protections they would expect from the European-level response announced in point 3.2 of the EU Commission´s “European democracy action plan”. If it crystallized, an EU anti-SLAPP directive would follow anti-SLAPP legislation already enacted, for instance, in Ontario, and certain parts of the US.

Despite being frequently conducted within national contexts, it is acknowledged that SLAPPs may be “deliberately brought in another jurisdiction and enforced across borders”, or may “exploit other aspects of national procedural and private international law” in order to increase complexities which will render them “more costly to defend” (Call for applications, note 1, p. 1) Therefore, in addition to a substantive-law intervention, the involvement of private international law in SLAPPs is required. Amongst core private-international-law issues to be considered is the law applicable to SLAPPs.

De lege lata, due to the referred frequent resort to defamation, and the fact that this subject-matter was excluded from the material scope of application of the Rome II Regulation, domestic choice-of-law provisions on the former, as available, will become relevant. This entails a significant incentive for forum shopping (which may only be partially counteracted, at the jurisdictional level, by the “Mosaic theory”).

De lege ferenda, while the risk of forum shopping would justify by itself the insertion of a choice-of-law rule on SLAPPs in Rome II, the EU Commission´s explicit objective of shielding journalists and NGOs against these practices moreover pleads for providing a content-oriented character to the rule. Specifically, the above-mentioned “gagging” purpose of SLAPPs and their interference with fundamental values as freedom of expression sufficiently justify departing from the neutral choice-of-law paradigm. Furthermore, as equally mentioned, SLAPP targets will generally have (relatively) modest financial means. This will frequently make them “weak parties” in asymmetric relationships with (allegedly) libeled claimants.

In the light of all of this, beyond conventional suggestions explored over the last 15 years in respect of a potential rule on defamation in Rome II (see, amongst other sources: Rome II and Defamation: Online Symposium), several thought-provoking options could be explored, amongst which the following two:

1st Option: Reverse mirroring Article 7 Rome II

A first creative approach to the law applicable to SLAPPs would be to introduce an Article 7-resembling rule, with an inverted structure. Article 7 Rome II on the law applicable to non-contractual obligations arising from environmental damage embodies the so-called “theory of ubiquity” and confers the prerogative of the election of the applicable law to the “weaker” party (the environmental victim). In the suggested rule on SLAPPs, the choice should be “reversed”, and be given to the defendant, provided they correspond with a carefully drafted set of criteria identifying appropriate recipients for anti-SLAPP protection.

However, this relatively straightforward adaptation of a choice-of-law configuration already present in the Rome II Regulation could be problematic in certain respects. Amongst others, for example, as regards the procedural moment for performing the choice-of-law operation in those domestic systems where procedural law establishes (somewhat) “succinct” proceedings (i.e. with limited amounts of submissions from the parties, and/or limited possibilities to amend them): where a claimant needs to fully argue their case on the merits from the very first written submission made, which starts the proceedings, how are they meant to do so before the defendant has chosen the applicable law? While, arguably, procedural adaptations could be enacted at EU-level to avoid a “catch-22” situation, other options may entail less legislative burden.

2nd option: a post-Brexit conceptual loan from English private international law = double actionability

A more extravagant (yet potentially very effective) approach for private-international-law protection would be to “borrow” the English choice-of-law rule on the law applicable to defamation: the so-called double actionability rule. As it is well-known, one of the core reasons why “non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation” were excluded from the material scope of the Rome II Regulation was the lobbying of publishing groups and press and media associations during the Rome II legislative process (see A. Warshaw, “Uncertainty from Abroad: Rome II and the Choice of Law for Defamation Claims”). With that exclusion, specifically, the English media sector succeeded in retaining the application by English courts of the referred rule, which despite being “an oddity” in the history of English law (Vid. D. McLean & V. Ruiz Abou-Nigm, The Conflict of Laws, 9th ed., Swett & Maxwell, 2016, p. 479), is highly protective for defendants of alleged libels and slanders. The double actionability rule, roughly century and a half old, (as it originated from Philips v. Eyre [Philips v. Eyre (1870) L.R. 6 Q.B. 1.] despite being tempered by subsequent case law) is complex to interpret and does not resemble (structurally or linguistically) modern choice-of-law rules. It states that:

“As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be of such a character that it would have been actionable if committed in England … Secondly, the act must not have been justifiable by the law of the place where it was done” (Philips v. Eyre, p. 28-29).

The first of the cumulative conditions contained in the excerpt is usually understood as the need to verify that the claim is viable under English law (Lex fori). The second condition is usually understood as the need to verify that the facts would give rise to liability also under foreign law. Various interpretations of the rule can be found in academia, ranging from considering that once the two cumulative requirements have been met English law applies (Vid. Dicey, Morris & Collins, The Conflict of Laws, vol. II, 15th ed., Swett & Maxwell, 2012, pp. 2252-2270, para. 35-111), to considering that only those rules that exist simultaneously in both laws (English and foreign) apply, or that exemptions from liability from either legal system free the alleged tortfeasor (Vid. Cheshire, North & Fawcett, Private International Law, 15th ed., OUP, 2017, p. 885. Similarly, Dicey, Morris & Collins, The Conflict of Laws, vol. II, 15th ed., Swett & Maxwell, 2012, pp. 2252-2270, para. 35-128). Insofar as it is restrictive, and protective of the defendant, double actionability is usually understood as a “double hurdle” (Vid. Cheshire, North & Fawcett, Private International Law, 15th ed., OUP, 2017, p. 885; D. McLean & V. Ruiz Abou-Nigm, The Conflict of Laws, 9th ed., Swett & Maxwell, 2016, p. 479) to obtaining reparation by the victim, or, in other words, as having to win the case “twice in order to win [only] once” (Vid. A. Briggs, The Conflict of Laws, 4th ed., Clarendon Law Series, OUP, 2019, p. 274). Thus, the practical outcome is that the freedom of speech of the defendant is preserved.

A plethora of reasons make this choice-of-law approach controversial, complex to implement, and difficult to adopt at an EU level: from a continental perspective, it would be perceived as very difficult to grasp by private parties, as well as going against the fundamental dogma of EU private international law: foreseeability. This does not, nevertheless, undermine the fact that it would be the most effective protection that could be provided from a private-international-law perspective. Even more so than the protection potentially provided by rules based on various “classic” connecting factors pointing towards the defendant´s “native” legal system/where they are established (as their domicile, habitual residence, etc).

Truth be told, whichever approach is chosen, a core element which will certainly become problematic will be the definition of the personal scope of application of the rule, i.e. how to precisely identify subjects deserving access to the protection provided by a content-oriented choice-of-law provision of the sort suggested (and/or by substantive anti-SLAPP legislation, for that matter). This is a very delicate issue in an era of “fake news”.

On 30 September 2020, the French Supreme Court for private and criminal matters (Cour de cassation) issued a remarkable decision in the field of French international arbitration (Cass. Civ. 1st Chamber, 30 September 2020, no. 18-19.241).

The Court held that the power of the arbitral tribunal to determine its own jurisdiction based on Articles 1448 and 1506 of the French Civil Procedural Code shall not infringe consumers’ rights conferred by EU law. Therefore, an arbitration clause that is at odds with the requirements resulting form Directive 1993/13 concerning unfair terms in consumer contracts should be set aside by the courts.

EU Background

For those who are familiar with EU consumer law, the added-value of the decision may seem limited. Indeed, more than ten years ago, the European Court of justice ruled that national courts shall invalidate an unfair arbitration clause included in a B2C contract, on the basis of directive 1993/13 (Mostaza Claro, C-168/05 and Asturcom Telecomunicaciones SL, C-40/08). But the cases dealt with actions to set aside the arbitral award (for the first one) or to enforce it (for the second one); this means at the “post-award” procedural stage. Here, the French case concerns the prior phase of arbitration.

Facts and Issue

A French national sought the advice of a Spanish law firm for the succession of her father, opened in Spain. Despite the international reputation of the law firm’s mother company, the French client was not satisfied with the legal services provided for and sued the Spanish law firm for damages before French court. The law firm opposed an arbitration clause included within the legal services contracts concluded with her French client and, in the alternative, challenged the international competence of the court.

In response, the Court of Appeal set aside the arbitration clause on the basis of the prohibition of unfair terms in B2C contracts pursuant to Directive 93/13 (Article 3(1)) because the clause had not been individually negotiated. Then, the Court of Appeal recognised its jurisdiction pursuant to the Brussels I bis Regulation (Article 17(1)(c) and Article 18(1)). The law firm appealed to the French Supreme Court.

The main issue at stake, under French international arbitration law, was the implementation of the cornerstone principle of “jurisdiction to decide jurisdiction” (principe compétence-compétence) laid down in Article 1448 of the French Civil Procedure Code and applicable to international arbitration pursuant to Article 1506 of the same Code.

This principle has a twofold dimension. On the first hand, in case of dispute on the validity of an arbitration agreement, the arbitral tribunal has exclusive jurisdiction to assess its own jurisdiction. On the other hand, when such a dispute is brought before a court, such court shall decline jurisdiction. However, article 1448 provides for a narrow exception “if an arbitral tribunal has not yet been seized of the dispute and if the arbitration agreement is manifestly void or manifestly not applicable”.

Precedents and New Solution

Was the arbitration clause here “manifestly void”?

No, the law firm argued, as a comprehensive assessment by the Court of Appeal was needed to conclude to the unfair nature of the term. And this was indeed the position of the French Supreme Court so far, despite criticisms by the legal doctrine. In two famous cases, Jaguar (Cass. Civ., 1st Chamber, 21 May 1997) and Rado (Cass. Civ., 1st Chamber, 30 March 2004), related to B2C contracts, the French Supreme Court declined jurisdiction “in the absence of clear invalidity” of the arbitration clause and stated that the arbitral tribunal is entitled to apply any mandatory provisions commanded by the international public policy to assess its jurisdiction.

In the present case, the French Supreme Court overturns its jurisprudence and approves the decision of the Court of Appeal. However, the decision is taken outside the exception laid down in article 1448 (op. cit.). The solution is justified by the implementation of the “test of effectiveness” in the framework of the European principle of procedural autonomy. According to settled case-law of the Court of Justice:

“[…] in the absence of relevant Community rules, the detailed procedural rules designed to ensure the protection of the rights which individuals acquire under Community law are a matter for the domestic legal order of each Member State, under the principle of the procedural autonomy of the Member States, provided that they are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the Community legal order (principle of effectiveness)” (par. 24, Mostaza Claro, C-168/05).

As a consequence, the exclusive jurisdiction of arbitrators to assess the validity of an arbitration clause makes it more difficult for a claimant, in his/her capacity as European consumer, to benefit from his/her European rights, in particular in the present case the assessment of an arbitration clause under Directive 93/13. This is obviously a change of perspective, strongly documented by European case-law references in the ruling.

Assessment

In the present case, the French Supreme Court extends the principle of effectiveness into the prior stage of international arbitration proceedings. The control of an alleged violation of a European mandatory requirement by an arbitration clause shall therefore be undertaken ex ante to ensure the effectiveness of EU law.

It emerges from this decision that the autonomous nature of arbitration vis-à-vis State justice and national legal orders is incompatible with the autonomy of the European legal order. As arbitrators do not belong to any jurisdiction, shall we therefore assume, more globally, that they can never be trusted to implement European mandatory provisions, such as European consumer rights?

This decision is a key development from the French Supreme Court within a local legal framework that has traditionally shown a liberal as well as a favourable approach to international arbitration.

Written by Aline Beltrame de Moura, Professor at the Federal University of Santa Catarina, in Brazil

 

 

It is with great satisfaction that we announce the launch of the Portal of the Latin American Center of European Studies (LACES) – www.eurolatinstudies.com.

The portal proposes to create a channel for dialogue and exchange of good practices between Latin America and Europe through the dissemination of innovative scientific research with the Latin American Journal of European Studies, and relevant news and events in the Observatory on European Studies.

The proposed activities are developed within the scope of the Jean Monnet Network “BRIDGE Project” of the Erasmus + Program of the European Commission, which has a research network formed by professors and researchers from several Latin American and European universities.

We inform that we are already open for submissions of articles for the Journal and news for the Observatory.

In addition, we take the opportunity to invite all the academic community to submit their scientific papers to the Workshop event of the I Jean Monnet Network – BRIDGE Seminar on “EU – Latin America Trade and Investment Relations”, which will take place on the 15 March 2021, at the University of Lisbon (Portugal), through online platform.

The best articles will receive a prize, and it will be possible to publish in the Latin American Journal of European Studies, as well as in the Seminar Annals both backed by AAFDL Publisher. It is also possible to present your paper during the event.

Those who are interested must submit their full article until 8 February 2021 to the e-mail: network@eurolatinstudies.com.

For more information: https://eurolatinstudies.com/index.php/laces/announcement/view/2