Droit international général

The first issue of 2021’s International and Comparative Law Quarterly  has recently been published. It features a book review by Dr. Nahel Asfour of Dr. Gianluigi Passarelli’s book titled “Contract Law in Contemporary International Commerce: Considerations on the Complex Relationship between Legal Process and Market Process in the New Era of Globalisation [Nomos, Baden-Baden, 2019]. ” It contains no other topic on directly on private international law.

On a personal note, I have earlier read Dr. Passarelli’s book to completion at least twice, and found it to be thought provoking.  His book is focused on the applicable law in the absence of choice under Rome I Regulation, and challenges the approach of the European legislator for giving too much emphasis to certainty through hard and fast rules, at the expense of flexibility. In this connection, he argues that the European legislator’s approach  is contrary to the expectations of international commercial actors. The central theme that motivates the thesis of his book is that legal certainty in choice of law in determining the applicable law in the absence of choice is overrated under Rome I Regulation.  It is unlikely that the European legislator will be convinced  by Dr. Passarelli’s argument that elevates the role of flexibility in the choice of law process, or accept a “regression” to Article 4(5) of Rome Convention style of flexibility that produced  uncertainty among Member States. My verdict is that Dr. Passarrelli’s work will remain relevant to students, scholars, practitioners, judges and legislators in other jurisdictions who prize flexibility over certainty in private international law.

 

As announced on this blog a few days ago, the second EAPIL Virtual Seminar, devoted to Digital Teaching and Private International Law, will take place on 27 January 2021 from 5 to 7 p.m. (MET).

Around ninety persons have already registered and will soon receive the details to attend the seminar.

All others interested in joining the discussion are encouraged to fill in this form: registrations are open until 25 January at noon.

The Comité Français de Droit International Privé has launhed the 6th edition of the Committee’s Thesis Award.

For detailed information, see the official announcement.

Eligible PhD dissertations are those written in French and defended between 1 January 2020 and 15 January 2021.

The deadline for submissions is 16 February 2021.

 

Written by Abubakri Yekini

We wish to share with us the shocking news of the demise of Professor Jonathan Fitchen. Prof Fitchen died today, Friday 22nd January 2021. His death was announced by Prof Greg Gordon, the Head of Aberdeen Law School in an e-mail sent to colleagues earlier today. The email noted that Prof Fitchen “had been off work for since summer, when he suffered a serious break to his arm.  Over the last month or so it sadly became clear that this had been caused by a weakening of the bone as a result of the effects of cancer, and although treatment was attempted, the disease had advanced too far for this to be successful”.

Until his death, Fitchen was a Professor of Law at the University of Aberdeen, Scotland. He was also the Director of the Centre for Private International Law and the Convenor of the Board of Examiners for the Law School. Prof Fitchen is the author of The Private International Law of Authentic Instruments which was published in the Hart Studies of Private International Law in November 2020. The first chapter is currently accessible for free online.

Prof Fitchen was promoted to a Personal Chair a week before his death. On a personal note, this was a piece of cheering news to me. I am glad that Prof Fitchen received the news of his promotion and witnessed the publication of the book that has taken him several years of hard work before he died.

Prof Fitchen (together with Prof Beaumont) supervised my PhD thesis which I defended in May 2020. Despite his health challenges, he would always create time to discuss my thesis with me and his feedback is always excellent. He was a great mentor.

He is survived by his wife Kathrin and his children Thomas and Sofia.

 

Pursuant to Protocol No 22 to the Treaty on European Union and the Treaty on the Functioning of the European Union, Denmark is not bound by the measures enacted by the EU in the area of freedom, security and justice, including as regards judicial cooperation in civil matters.

However, an agreement was concluded in 2005 between the European Community, as it was then, and Denmark to ensure the application in Denmark, and in respect of Denmark, of the EU rules concerning the service of judicial and extrajudicial documents in civil and commercial matters, i.e., at that time, the rules laid down in Regulation 1348/2000.

According to Article 3(2) of the 2005 agreement, whenever amendments to the latter Regulation are adopted, Denmark shall notify to the Commission of its decision whether or not to implement the content of such amendments.

This occurred when the 2000 Service Regulation was replaced by Regulation 1393/2007, and has now occurred for Regulation 2020/1784 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, which was adopted on 25 November 2020 (as announced on this blog by this post by Apostolos Anthimos) and is set to apply in full from 1 July 2022.

In accordance with Article 3(2) of the 2005 agreement, Denmark has by letter of 22 December 2020 notified the Commission of its decision to implement the contents of Regulation 2020/1784. In accordance with Article 3(6) of the agreement, the Danish notification creates mutual obligations between Denmark and the Community. Thus, Regulation (EU) 2020/1784 constitutes an amendment to the agreement and is considered annexed thereto.

In accordance with Article 3(4) of the agreement, the necessary administrative measures enter into force on the date of entry into force of Regulation 2020/1784.

The European Commission is carrying out a public consultation on the modernisation of judicial cooperation via digital technology (Modernising judicial cooperation between EU countries – use of digital technology). The consultation is opened until 5 February 2021 and will be taken into account for a proposal for an initiative by the European Commission. This will be followed by a public consultation later this year.

The initiative for which the European Commission is gathering input 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 that we are currently going through.

The project for the regulation seeks to make it mandatory for the authorities involved in judicial cooperation each Member State to use digital technology for communicating documents and information, instead of paper, as it is usually the case at the moment. In taking this initiative, the European Commission looks to improve access to justice by ensuring that individuals, businesses and legal practitioners involved in cross-border civil, commercial or criminal cases can communicate digitally with the competent authorities in the other Member States.

Additional information on European Commission’s vision and objectives for the coming period can be found in the communication published on 2 December 2020 – Communication on digitalisation of justice in the EU – A toolbox of opportunities.

An important notification under the Agreement between the European Community and the Kingdom of Denmark on the service of judicial and extrajudicial documents in civil or commercial matters has been published today at the OJEU (L 19, 21.1.2021, p. 1):

“According to Article 3(2) of the Agreement between the European Community and the Kingdom of Denmark on the service judicial and extrajudicial documents in civil or commercial matters, […] (hereafter “the Agreement”), whenever amendments to the Regulation on the service of documents are adopted, Denmark shall notify to the Commission of its decision whether or not to implement the content of such amendments.

Regulation (EU) 2020/1784 of the European Parliament and of the Council on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents) (recast) was adopted on 25 November 2020.

In accordance with Article 3(2) of the Agreement, Denmark has by letter of 22 December 2020 notified the Commission of its decision to implement the contents of Regulation (EU) 2020/1784. In accordance with Article 3(6) of the Agreement, the Danish notification creates mutual obligations between Denmark and the Community. Thus, Regulation (EU) 2020/1784 constitutes an amendment to the Agreement and is considered annexed thereto.

In accordance with Article 3(4) of the Agreement, the necessary administrative measures enter into force on the date of entry into force of Regulation (EU) 2020/1784”.

Source: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2021.019.01.0001.01.ENG&toc=OJ%3AL%3A2021%3A019%3AFULL

In the context of its investigation on the issues surrounding the Autonomous v. Nationalistic Interpretation of the 1958 New York Convention, and as a follow up to the first Seminar it organized in this framework, on 25 January 2021 the NYU Center for Transnational Litigation, Arbitration, and Commercial Law will host a second Seminar.

The event will feature internationally renowned scholars who will address core issues such as:  ‘Incapacity’ (Francesca Ragno); ‘Deviations from the agreed procedure’ (Friedrich Rosenfeld); ‘Public policy’ (Giuditta Cordero-Moss); ‘Procedure to enforce and arbitral award’ (Lucas Siyang Lim).

More information on this event is available here.

From the publisher’ site:

 

About Climate Change Litigation This book investigates and discusses the respective issues arising in the current discourse on climate protection from different legal perspectives (including international law, European law and national public and civil law). In particular, it addresses the issue of “climate protection by courts”.

It gives an overview of important jurisdictions in the field of climate change litigation, including the US, Canada, Australia, the UK, France, the Netherlands, Italy, Brazil and Germany.

The handbook provides answers and ideas both to scholars and practitioners in the field. Furthermore, it is guaranteed to provide an overview of the latest news in cases and progress in the field of climate change litigation.

Table Of Contents Summary of Contents
INTRODUCTION
CLIMATE CHANGE AS A CHALLENGE FOR GLOBAL GOVERNANCE, COURTS AND HUMAN RIGHTS (Voigt)
PART 1
FUNDAMENTAL QUESTIONS
A. Liability for climate damages, sustainability and environmental justice (Kloepfer/Neugärtner)
B. Climate damages and the ‘Polluter Pays’ Principle (Rehbinder)
C. The role of courts in climate protection and the separation of powers (Payandeh)
D. Climate change and duties to protect with regard to fundamental rights (Gross)

PART 2
PROCEDURAL ISSUES AND CONFLICT OF LAWS
E. Arbitration proceedings (Lennarz)
F. Conflicts of jurisdiction and the applicable law in domestic courts’ proceedings (Kieninger)

PART 3
STATE LIABILITY UNDER INTERNATIONAL AND EUROPEAN LAW
G. Environmental liability in international law (Wolfrum)
H. The international law and policy implications of climate change litigation: sustainable developments in international investment law and policy related to renewable energy, climate change mitigation and adaptation (Cordonier Segger/Arvan/Byron/Srinivas)
I. The Paris Climate Agreement and liability issues (Franzius/Kling)
J. Liability of EU Member States under EU law (Purnhagen/Saurer)

PART 4
CLIMATE CHANGE LITIGATION – NATIONAL REPORTS
K. Climate change litigation in the United States (Farber)
L. Climate change litigation in Canada (Jodoin/McGinn)
M. Climate change litigation in Brazil (Wedy)
N. Climate change litigation in Australia (Bell-James)
O. Climate change litigation in the United Kingdom (Ohdedar/McNab)
P. Climate change litigation in Italy (Butti)
Q. Climate change litigation in France (Epstein/Deckert)
R. Climate change litigation in the Netherlands – the Urgenda case and beyond (Van der Veen/De Graaf)
S. Climate change litigation in Germany (Weller/Nasse/Nasse)

PART 5
LIABILITY FOR CLIMATE DAMAGES – GERMANY AS AN INTERNATIONAL PIONEER?
T. Liability for climate damages under the German law of torts (Wagner/Arntz)
U. Liability for climate change damages under the German Environmental Liability Act (Nitsch)
V. Climate protection and compliance in German corporate law (Habersack/Ehrl)
W. Investor-led action for climate and business sustainability (Duve/Hamama)
X. Liability for climate damages under the Environmental Damage Act (Kahl/Stürmlinger)
Y. The role of non-governmental organizations for climate change litigation (Verheyen/Pabsch)
PART 6
CONCLUSIONS
LIABILITY FOR CLIMATE DAMAGES –
SYNTHESIS AND FUTURE PROSPECTS (Kahl/Weller)

 

 

This post is addressed, in particular, to my fellow colleagues of the ILA Committee Committee on the Protection of Privacy in Private International and Procedural Law; may we meet this year, in person.

Violeta Friedman (1930–2000) was a Jewish Holocaust survivor born in Marghita, Transylvania, Romania. She became well-known in Spain thanks to a ruling of the Constitutional Court (STC 214/1991 – aka the ‘Violeta Friedman case’) on the fundamental right to honor.

Violeta Friedman was deported in 1944 to the Auschwitz-Birkenau concentration camp, at the age of fourteen. She lost most of her family to the Nazis. After the  War she lived in Canada and in Venezuela; in 1965 she moved to Spain with her daughter.

In 1985, feeling outraged by statements made by the former head of the Waffen SS L. Degrelle to a Spanish journal, where he denied the Holocaust and voiced anti-Semitic and racist opinions, she started civil proceedings in Spain against him, the journalist signing the report, and the editor of the journal. After several unfavorable decisions of the ordinary courts, the Constitutional Court of Spain confirmed her legal standing to sue in 1991, based on ‘her dual condition, as a citizen of a people such as the Jews, who suffered an authentic genocide by National Socialism, and as a descendant of her parents, maternal grandparents and great-grandmother (all of whom were murdered in the aforementioned concentration camp)’. Most relevant, just before this assertion the Court had said that

It is considered as original legal standing that of a member of a specific ethnic or social group, when the offense is directed against that entire group in such a way that, by belittling said group, it tends to provoke feelings from the rest of the social community hostile or, at least, contrary to the dignity, personal esteem or respect to which all citizens are entitled.

The Constitutional Court also found that Degrelle’s assertions amounted to a violation of the right to honor of Violeta Friedman and the victims of Nazi camps. This ruling served as a precedent for the reform of the Spanish Criminal Code.

Violeta Friedman’s claim was never contested on the basis of lack of international jurisdiction of the Spanish courts. L. Degrelle was present in Spain when he was interviewed, and there appears to have been no discussion about his domicile there at the time the court was seized; the same applies to the co-defendants. Degrelle’s anti-Semitic assertions were printed in a Spanish magazine, and distributed mainly in Spain. It could be argued that, even if the case involved a foreign element to some extent, it affected the claimant’s side and did not trigger doubts related to the international jurisdiction under the applicable rules.

40 years later, one can safely take for granted that the declarations of Degrelle would be on the net, largely accessible. Violeta Friedman could have read them at home in Madrid; other survivors of a concentration camp, at home as well, in Bucharest or in Paris – just to name a couple of places. For the sake of the argument, let’s assume that the publisher has its seat in Germany and the online newspaper is published in German on a website ending ‘.de’. Would the Spanish (Romanian, French, etc) courts still have jurisdiction for a claim like hers?

In fact, there is no need to assume anything. A preliminary reference currently pending before the Court of Justice, which has so far, to the best of my knowledge, remain unnoticed, will provide for an answer in due course. Case C-800/19 relates to a dispute between SM, a Polish national living in Warsaw, and Mittelbayerischer Verlag KG, a German company which publishes a daily journal in German on the http://www.mittelbayerische.de website. The newspaper is regional in nature but may be accessed from other countries, including Poland.

SM was a prisoner in Auschwitz during the Second World War; today, he is involved in activities aimed at preserving, in the public consciousness, the memory of the victims of crimes committed by Nazi Germany against Poles during the Second World War. On 15 April 2017, an article entitled ‘Ein Kämpfer und sein zweites Leben’ was published on http://www.mittelbayerische.de. At some point, the sentence ‘was murdered in the Polish extermination camp of Treblinka’ (italics added) appeared in the text. The phrase remained on the website for only a few hours on 15 April 2017. After an e-mail by the Polish consulate in Munich, the phrase in question was replaced with ‘was murdered by the Nazis in the German Nazi extermination camp of Treblinka in occupied Poland’, thus reflecting the historical fact that the camp in Treblinka was a German Nazi extermination camp established during the Second World War within the territory of occupied Poland.

SM lodged an application against Mittelbayerischer Verlag KG with the Regional Court of Warsaw on 27 November 2017, requesting that his personality rights, in particular national identity and national dignity, be protected by:

–   prohibiting the defendant from disseminating in any way the terms ‘Polish extermination camp’ or ‘Polish concentration camp’ in German or any other language in relation to German concentration camps located within the territory of occupied Poland during the Second World War;

–   ordering the defendant to publish on its website a statement with the content specified in the application, apologising to the applicant for the infringement of his personality rights caused by the online publication of 15 April 2017, which suggested that the extermination camp in Treblinka was built and operated by Poles;

–  ordering the defendant to pay the amount of PLN 50 000 to the Polski Związek Byłych Więźniów Politycznych Hitlerowskich Więzień i Obozów Koncentracyjnych (Polish Association of Former Political Prisoners of Nazi Prisons and Concentration Camps).

To justify the jurisdiction of the Polish court, the applicant relied on the judgment of the Court of Justice in eDate Advertising and Martinez (Joined Cases C-509/09 and C-161/10).

The defendant filed a motion for dismissal of the action on the ground that Polish courts lack jurisdiction. He stresses that, unlike the situation in Joined Cases C-509/09 and C-161/10, the online article which became the basis for SM’s action did not directly concern the applicant. The defendant also emphasises its regional profile and readership range, as its reporting covers the Upper Palatinate, Bavaria and focuses primarily on regional news; the heading ‘Germany and the World’ is only in fourth place on the page menu. He also points out that the website exists solely in a German-language version. All in all, the defendant relies on the requirement that jurisdiction under Article 7(2) of the Brussels Ibis Regulation must be predictable and claims that, operating on a local scale and addressing its message to recipients who do not include the applicant, he could not have objectively foreseen the jurisdiction of Polish courts.

The case reached the Court of Appeal of Warsaw, First Civil Division, which has addressed the following questions to the Court of Justice:

1. Should Article 7(2) of Regulation (EU) No 1215/2012 […] be interpreted as meaning that jurisdiction based on the centre-of-interests connecting factor is applicable to an action brought by a natural person for the protection of his personality rights in a case where the online publication cited as infringing those rights does not contain information relating directly or indirectly to that particular natural person, but contains, rather, information or statements suggesting reprehensible actions by the community to which the applicant belongs (in the circumstances of the case at hand: his nation), which the applicant regards as amounting to an infringement of his personality rights?
2. In a case concerning the protection of material and non-material personality rights against online infringement, is it necessary, when assessing the grounds of jurisdiction set out in Article 7(2) of Regulation No 1215/2012 […], that is to say, when assessing whether a national court is the court for the place where the harmful event occurred or may occur, to take account of circumstances such as:

– the public to whom the website on which the infringement occurred is principally addressed;

– the language of the website and in which the publication in question is written;

– the period during which the online information in question remained accessible to the public;

– the individual circumstances of the applicant, such as the applicant’s wartime experiences and his current social activism, which are invoked in the present case as justification for the applicant’s special right to oppose, by way of judicial proceedings, the dissemination of allegations made against the community to which the applicant belongs?

At point 16 of the request, the referring court states

At the present stage of the main proceedings, no consideration may be given to the substantive law applicable to the assessment of the claims submitted and the Sąd Apelacyjny (Court of Appeal) is even less able to consider whether those claims have merit under the substantive law and whether the applicant is entitled to make them.

I am not sure one can split the decision on legal standing and the one on international jurisdiction when the latter requires identifying the center of interest of the victim. In any event, and not only for this: a preliminary reference which deserves to be followed.

The New York Convention of 1958 owes much of its success to being an international convention setting forth uniform rules. Its uniform enforcement regime not only lowers the parties’ transaction costs of identifying under which circumstances an award will be recognized and enforced across jurisdictions; it also ensures that States cannot justify the failure to comply with their obligations under the New York Convention by reference to domestic law. Still, the courts of different contracting States apply the Convention differently. Oftentimes, this is due to the erroneous understanding of concepts employed by the drafters of the Convention.

To shed the light on this complex matter, on 21 January 2021 the NYU Center for Transnational Litigation, Arbitration, and Commercial Law will host a conference on Autonomous v. Nationalistic Interpretation of the 1958 New York Convention. In this context, a group of internationally renowned scholars will address core issues such as: ‘Autonomous Interpretation of the New York Convention’ (Franco Ferrari); ‘The notion of an arbitral award’ (Burkhard Hess); ‘Arbitration agreement – Scope issues’ (Dennis Solomon); and ‘Arbitrability’ (Winnie Ma).

More information on this event is available here.

 

The new issue of the AJ Contrat (12/2020) Dalloz contains a special dossier to mark the 40th Anniversary of the United Nations Convention on Contracts for the International Sale of Goods (CISG), prepared by Gustavo Cerqueira, full professor at the University of Nîmes, France (in French).

The dossier foreword reads as follows (English translation): “The international sale of goods supports a peace project between Nations. Ninety-four of them share today the same body of substantive rules largely governing the formation and the performance of contracts for the sale of goods as diverse as wine and children’s toys. This uniform law is supported by the United Nations Convention concluded in Vienna on April 11, 1980 (the CISG), which celebrates in 2020 its forty years. This anniversary could not go unnoticed. Few are the instruments on international harmonization that are coming at the age of maturity with such unparalleled authority and vitality. In addition to the constant expansion of its geographical scope of application through the increasing number of accessions, its influence on modernization of certain domestic contract laws, such as the recent legislative reform passed in France, attests to its importance. This can also be measured by the always fascinating questions that arise regarding its existence, its content and its application. Some of them will deserve a sharp analysis, sometimes renewed by those who are participating in this commemorative dossier. Thus, crucial to the success of the Convention – the uniform interpretation remains a challenge, while European Union law recognizes an unexpected importance to the Convention. Also, the CISG’s application still seems to be threatened by the silence of the contractors, while the Convention has dangerous liaisons with the French action directe. The links are no less complex between the foreclosure period and the deadline prescription period, while interest rates reveal unresolved issues. Last but not least, poignant current events call for a reinterpretation of the notion of impediment to perform”.

The dossier contains the following articles (titles have been translated into English):

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

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

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

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

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

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

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

The full table of contents is available here (in French).

Sánchez-Bordona AG opined last week in C-913/19 CNP. The issue is whether a Polish court has international jurisdiction to rule on a dispute between a company to which a person injured in a road traffic accident that occurred in Poland had assigned his rights, and the insurance undertaking, established in Denmark, which insures the risks of the person who caused the accident. Krzysztof Pacula has interesting Polish context here. He also gives more background to the market and legal implications of involving third parties (such as garages repairing vehicles and providing replacement vehicles) and I am happy to refer to his analysis.

On applicable law and assignment, the EC has proposed rules which complement Rome I. That proposal is making its way through the Institutions, at snail’s pace. On jurisdiction, CJEU Hofsoe clarified one or two things but also created extra fog. The UKSC distinguished Hofsoe in Aspen Underwriting, not however without great effort and with continuing question marks. This really is an area which could do with co-ordinated Rome I and BIa legislative tweaking.

On the specific issue of branch jurisdiction, the case echoes Ryanair v DelayFix. The AG finalises his analysis on that question as follows:

 a commercial company established in a Member State which operates under a contract with an insurance undertaking established in another Member State may be classified as a ‘branch, agency or other establishment’ of that undertaking if, cumulatively:

–        it operates in a Member State by providing compensation for material damage on the basis of insurance against civil liability arising from the use of motor vehicles the risks connected with which are covered by the insurance undertaking;

–        it has the appearance of an extension of the insurance undertaking; and

–        it has a management body and material facilities such as to enable it to transact business with third parties, so that the latter, although knowing that there will if necessary be a legal link with the insurance undertaking, do not have to deal directly with that undertaking.’

Not of course a set of criteria which lead to much spontaneous predictability – again an issue which in the specific insurance context could do with statutory intervention.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.293 ff, para 2.73 ff.

Opinion Sanchez-Bordona in C‑913/19 CNP this morning the concept of 'branch' (for: branch jurisdiction) in Brussels Ia https://t.co/R0ubu9kTDE
with reference to ZX v Ryanair (on which see https://t.co/LPpDMQwMTE)

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

Marilyn Freeman (University of Westminster, London) has written an in-depth analysis on the Child Perspective in the Context of the 1980 Hague Convention at the request of the Committee on Legal Affairs (JURI Committee) of the European Parliament.

The abstract reads as follows:

This in-depth analysis, commissioned by the Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the Committee on Legal Affairs in the context of the Workshop to mark the 40th Anniversary of the Hague Convention on the Civil Aspects of International Child Abduction, examines the way in which subject children feature within Convention proceedings. It considers the aims of the Convention, and the lack of supranational control of its application. It draws on empirical research relating to the effects and consequences of child abduction to discuss the opportunities for children and young people to participate within Convention proceedings, and highlights the international obligations for such participation within the United Nations Convention on the Rights of the Child, The Charter of Fundamental Rights of the European Union, and other regional instruments. Different jurisdictional approaches are explained, and the role of culture in this context is probed. The impact of COVID-19 on abducted children is also explored.

Here’s an overview of the analysis.

The 1980 Hague Convention considers as paramount children’s interest in matters relating to their custody as well as their protection from the harmful effects of their wrongful removal or retention, and the procedures to secure their prompt return to the State of habitual residence. According to Article 12(1) of the Convention an abducted child under the age of 16 should be returned in less than one year since his/her wrongful removal or retention unless one of the limited exceptions to return under the Convention is established (see Articles 12(2), 13 and 20), and there are opportunities for children’s involvement in the far-reaching decisions which are taken in those proceedings.

The way in which these relevant provisions are interpreted and applied within the 101 Contracting States determine both the extent to which children’s rights are recognised and upheld under the Convention, as well as the success of the Convention in its aim of protecting children from the harmful effects of child abduction.

The present in-depth analysis relies on a small-scale qualitative study based on 34 interviews carried out by Professor Freeman (more about this can be read here). The empirical research sought to reveal more about ‘the lived experiences of those who had been through an abduction many years earlier’ and ascertain ‘whether, and how, the participants felt that the abduction had affected their lives, and if those effects had continued long-term’.

The results indicate that there is often still a lack of awareness by children and young people, and their families, about the opportunities to participate in the proceedings, as well as on how to ensure that their rights are recognised and protected. Furthermore, to observe the right of the children to benefit from meaningful opportunities to participate in the proceedings and prevent harm, it appears that a closer integration of children’s rights’ principles in the application of the Convention is desirable.

The impact of COVID-19 on children subject to abduction proceedings is also discussed. The international nature of these cases and the difficulties and limitations created by the pandemic meant that children had to spend an undesirable period after the decision waiting for return to be carried out. Additionally, a procedure of return can involve periods of quarantine, a situation that can exacerbate the child’s distress due to the separation from the abducting parent who may be a primary or joint primary carer and who may choose not to return with the child or be unable to do so. According to the analysis, the emotional effect of a return ordered in these circumstances may be very difficult for the child to manage. The remote conduct of return hearings can also create challenges for subject children and reflect on their decision about participating in a hearing that concerns them. According to Professor Freeman ‘children should have opportunities to express their views within abduction proceedings whether or not an objection to return has been raised, and regardless of whether or not the jurisdiction involved is governed by a regulatory regime, like Brussels IIa and the upcoming Recast, which specifically address the rights of children to be heard within a specific jurisdictional area’. Thus, to protect children from the harmful effects of child abduction, it is paramount to give children who wish to participate in the proceedings about their abduction the opportunity to be heard when the decision has the potential to impact significantly on their lives.

The analysis concludes that further discussions are necessary in this area as well as a ‘closer incorporation of children’s rights’ principles in the 1980 Convention framework’.

Yesterday, 18 January 2021, Singapore acceded to the HCCH Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents, which will enter into force for Singapore on 16 September 2021.

Source: https://www.hcch.net/en/news-archive/details/?varevent=781

Soriano v Forensic News LLC & Ors [2021] EWHC 56 (QB) engages ia the jurisdictional implications of the GDPR (this post focuses solely on the data protection claim). Claimant  (habitually resident in the UK) sues in relation to ten internet publications and various social media postings including on Facebook and on Twitter. He relies on various causes of action including data protection, malicious falsehood, libel, harassment and misuse of private information. Defendants are all domiciled in various US States.

The Brussels Ia Regulation is not engaged; the GDPR is. (On the partial overlap and conflict between BIa and the GDPR see my paper here). A79 GDPR reads

“Right to an effective judicial remedy against a controller or processor

1. 1. Without prejudice to any available administrative or non-judicial remedy, including the right to lodge a complaint with a supervisory authority pursuant to Article 77, each data subject shall have the right to an effective judicial remedy where he or she considers that his or her rights under this Regulation have been infringed as a result of the processing of his or her personal data in non-compliance with this Regulation.
   2. Proceedings against a controller or a processor shall be brought before the courts of the Member State where the controller or processor has an establishment. Alternatively, such proceedings may be brought before the courts of the Member State where the data subject has his or her habitual residence, unless the controller or processor is a public authority of a Member State acting in the exercise of its public powers.”

At 45-47 the ‘establishment’ issue is not much discussed for the claimant at any rate meets with the habitual residence gateway. Focus of the discussion is on A3’s territorial scope provisions (I am not sure I agree with the suggestion at 46 that A79 logically comes before consideration of A3). Reference is made to Google Spain, Weltimmo and  Verein fur Konsumerentenininformation- see also my review with Yuliya Miadzvetskaya here. The European Data Protection Board’s Guidelines 3/2018 on the Territorial Scope of the GDPR are then turned to to consider targeting, processing and ‘related to’ per A3(2) GDPR.

At 60, Claimant’s case on A3 (2)(a) is set out as arguing that the Defendants, to the extent that they are data controllers, offer services to readers in the UK irrespective of payment. As for A3.2(b), it is contended that the website places cookies on readers’ devices and processes their personal data using Facebook and Google analytics for the purpose of targeting advertisements, with Facebook Ireland Ltd and Google Ireland Ltd operating as the registered joint data controller. Further, it is submitted (By Greg Callus – the same counsel as in the Court of Appeal judgment in Wright v Grannath which I reported yesterday) that the Defendants were collecting and obtaining data about the Claimant and were monitoring his behaviour within the UK and the EU with a view to making publishing decisions.

Justice Jay held claimant has no real prospect of success on either (a) or (b). At 64 ff: the ‘journalistic endeavour’ complained of is not oriented towards the UK in any relevant respect; as for article 3.2(a), there is nothing to suggest that the First Defendant is targeting the UK as regards the goods and services it offers; as for article 3.2(b), at 68

First Defendant’s use of cookies etc. is for the purpose of behavioural profiling or monitoring, but that is purely in the context of directing advertisement content. There is no evidence that the use of cookies has anything to do with the “monitoring” which forms the basis of the Claimant’s real complaint: the Defendant’s journalistic activities have been advanced not through any deployment of these cookies but by using the internet as an investigative tool. In my judgment, that is not the sort of “monitoring” that article 3.2(b) has in mind; or, put another way, the monitoring that does properly fall within this provision – the behavioural profiling that informs advertising choices – is not related to the processing that the Claimant complains about (assuming that carrying out research online about the Claimant amounts to monitoring at all).

(Obiter, at 69, it is held that had the good arguable case succeeded, the claim would have withstood a forum non conveniens argument).

At 112 ff the jurisdictional case for libel is upheld.

An interesting illustration of the unsettled nature of jurisdictional claims under the GDPR.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.9.2.5, para 2.258 ff.

 

#GDPR, jurisdiction, merits test and forum non
Claimant represented by @Greg_Callus
On the A79 GDPR issue discussed in the judgment, see my paper here https://t.co/bjIRmMejB3 https://t.co/FJEpJ3nOy2

— Geert Van Calster (@GAVClaw) January 15, 2021

 

He Qisheng, Professor of International Law, Peking University Law School, and Chairman at the Peking University International Economical Law Institute, has published the 7th Survey on Chinese Practice in Private International Law.

This survey contains materials reflecting the practice of Chinese private international law in 2019. First, this paper describes the judiciary’s caseload: Chinese courts decided some 17,000 foreign-related civil and commercial cases, 16,000 maritime cases and 9,648 requests for judicial assistance in 2019. Regarding changes in the statutory framework of private international law, four legislative acts, one set of Regulations and six Supreme People’s Court (SPC) Judicial Interpretations were adopted or amended in 2019 on investment contracts, action preservation in intellectual property, punitive damages, etc. Second, eight typical cases on jurisdictional issues are selected, including jurisdiction clauses, parallel proceedings, and res judicata. Third, seven new representative cases on choice of law relating, in particular, to international transport, force majeure, gambling debts and public order, are examined. Fourth, five cases on the recognition and enforcement of foreign judgments and one SPC Opinion in favour of presumed reciprocity are briefly examined. Finally, this paper also covers seven key cases which reflect the latest development in Chinese private international law on other procedural issues, such as service of process abroad and authentication, and three cases on international arbitration (including the first decision rendered by the China International Commercial Court).

Here are the links to the article:

·         Abstract:
https://academic.oup.com/chinesejil/advance-article-abstract/doi/10.1093/chinesejil/jmaa032/6032845

·         Article (free access):
https://academic.oup.com/chinesejil/advance-article/doi/10.1093/chinesejil/jmaa032/6032845?guestAccessKey=02dcf09b-8bd6-4af4-bc02-9bf523212c37

The European Association of Private International (EAPIL) will host its Second Virtual Seminar on 27 January 2021, 5 to 7 pm (MET). Devoted to the digital teaching of Private International Law and its challenges in Corona times, the Seminar will present tools that may help to improve the digital teaching of our discipline and discuss pervasive problems from the perspective of both professors/lecturers and students.

The Seminar will be structured into two parts. The first part will focus on the perspective of professors/lecturers and the challenges of teaching Private International Law in digital formats. Speakers will be Morten Midtgaard Fogt (University of Aarhus) and Marion Ho-Dac (Polytechnic University of Hauts-de-France, Valenciennes). The second part will take the students’ perspective and discuss different digital teaching tools. Speakers will include Susanne Lilian Gössl (University of Kiel), María-Asunción Cebrián Salvat, Isabel Lorente Martínez and Javier Carrascosa González (all three University of Murcia).

The Seminar will be held via Zoom. If you wish to join, please register here by 25 January 2021 at noon. Registered participants will receive the details to join the Seminar on 26 January 2021.

For more information regarding the Second EAPIL (Virtual) Seminar, please write an e-mail to Susanne Gössl at sgoessl@law.uni-kiel.de.

For information regarding the EAPIL Seminar Series as such please get in touch with the EAPIL Secretary General, Giesela Rühl, at secretary.general@eapil.org.

Background:

The EAPIL (Virtual) Seminar Series seeks to contribute to the study and development of (European) Private International Law through English-language seminars on topical issues. It will provide an easily accessible and informal platform for the exchange of ideas – outside the bi-annual EAPIL conferences. At the same time, it will serve as a means for EAPIL members to connect with other EAPIL members and non-members.

2021 will be a milestone for the International Commission on Civil Status (ICCS). Driven by a powerful internationalisation movement, the new internal regulation of ICCS entered into force on 1 January 2021.

I have interviewed Nicolas Nord, the Secretary General of ICCS, on the Commission’s work, functioning and challenges.

— Can you remind us what the ICCS is and the scope of its activities?

The ICCS is an international organisation created in 1949. The seat is in Strasbourg, in France. Its objectives are to facilitate international co-operation in civil-status matters and to further the exchange of information between civil registrars. A practical approach has always been privileged. The idea is to deal with concrete issues that arise in the daily activity of national authorities.

To achieve the general aims, the ICCS draws up normative instruments. 34 international conventions and 11 recommendations have been adopted till today. Comparative law studies are also carried out. The goal is always the same: harmonizing the provisions in force in the member States on matters relating to the status and capacity of persons, to the family and to nationality and improving the operation of civil-status departments in those States.

It materializes in different ways and has given rise to the creation of original methods. This is the case with multilingual civil status forms which allow any State authority to understand an act issued in another State Party, without having to face the problem of translation. It is an essential tool that also makes life easier for individuals. This is why Convention n° 16 has been so successful. It is in force in 24 States. Uniform acts such as certificates of matrimonial capacity (convention n° 20) or of life (convention n° 27) have also been created. There are the same in all the States parties. Another aspect is cooperation between authorities. Different conventions allow a direct international communication between the civil registrars. This allows for simplified updating of civil status documents in the various States Parties (convention n°3, 23 and 26).

The ICCS also compiles and keeps up to date a documentation on legislation and case-law setting out the law of the member States on the matters falling within its field of competence and provides, on the basis of that documentation, information to the national authorities.

— The ICCS recently adopted a new internal regulation. Can you tell us more about it?

The will of the member States is to modernize the organisation, to adapt it to new challenges and to make it more attractive. Some essential reforms have thus been introduced. Three examples may be given. English becomes the second official language of the organisation, alongside French. Membership is no longer reserved for states but also open, from now on, to any international organisation, any regional economic integration organisation and any other international entity. Membership procedure has been simplified. An approval by the General Assembly is the only requirement.

— What’s in it for the European Private International Law community?

The birthplace of ICCS is in Europe. Most of our members are European. Our instruments are in force in many European countries, although there is of course no geographical limitation. Our desire by introducing a second official language is to allow non-French speaking countries, European or not, to join us in order to work together. We also want to allow the EU to join us.

We have been working with the European Commission for many years now. The cooperation agreement between our two institutions was concluded in 1983. The adoption of the “public documents” regulation, now in force, clearly reflects this cooperation since the methods invented by the ICCS, such as multilingual forms or the coding of civil status forms, have been used in it. However, the instruments of the EU and the ICCS now coexist in Europe. It is a source of complexity and is not always well understood by practitioners. That is why we would like to strengthen our links with the EU.

— Some scholars have recently expressed their worries about the future of the ICCS (here). What do you think?

We fully understand their concern. It is a reaction to the surprising withdrawal of France. There is a risk of disappearance of the organisation if all the States adopt the same attitude of course.This would be prejudicial for the States themselves and for the practitioners of civil status. The reform of the ICCS internal regulation is precisely a reaction to such concerns, in order to make the organisation more attractive and to ensure its sustainability. Our wish is to convince new member states, new international entities to join us and to allow a return of our former members. 

— What are the ICCS’ work forecasts and challenges ahead?

 In September 2021, we are organising a conference on our flagship convention, the convention n° 16. Our wish is to establish a kind of diagnosis and to see what works well, gives satisfaction to the practitioners but also to detect the problems which appeared since 1976, date of its adoption. This is an exciting prospect. Having such feedback will be very enriching, both for the States Parties, the civil registrars and the organisation itself.

In addition to working on the substance of the matter, we want to make our organisation known, highlight its instruments which have demonstrated their effectiveness in practice and convince new States and international organisations to join us, by becoming members or by adopting our instruments.

As a conclusion, I would like to thank Nicolas for the very interesting light he has shed on the ICCS central mission for States and regional organisations such as the European Union to pursue and perhaps even step up their work on the key-issue of civil status for mobile citizens. Let us wish that the ICCS’ makeover will lead to a greater European and international cooperation in the field of civil status in the near future!

Please note that Nicolas is available to answer any questions that fellow blog readers may have on the ICCS.