Droit international général

Ilaria Pretelli (Swiss Institute of Comparative Law) has posted Provisional Measures in Family Law and the Brussels II Ter Regulation on SSRN.

Provisional and Protective Measures in family matters need special consideration because they are not limited to economic matters and significantly interfere with the self-determination of persons and often of vulnerable persons, namely children. This circumstance explains the exceptional regime of the Brussels II ter Regulation as compared to the general regime of the Brussels I and Lugano systems. The article also deals with the problem of the law applicable to provisional measures, in the absence of a specific European rule on this matter. We argue that, whenever a provisional or protective measure is taken by the judge who will not rule on the substance of the matter and especially in cases where the measure is provisional and anticipates the merits, judges should avoid the application of the law of their forum and apply the law applicable to the substance to the provisional measure they are required to issue.

The paper is forthcoming in the Yearbook of Private International Law.

By Ennio Piovesani. The author is a PhD Student at the Università degli Studi di Torino and at the Universität zu Köln.

1. Summary

The Italian Government has adopted a series of Decree-Laws [1] introducing measures to fight the emergency caused by the “new” Coronavirus.

These measures include “self-proclaimed” overriding mandatory provisions on the reimbursement of prices paid under transport, package travel and accommodation contracts by specified persons affected by the Coronavirus.

2. Arts. 28 of Decree-Law No. 9/2020 and 88 of Decree-Law No. 18/2020

In particular, on 2.4.3020, the Italian Government adopted Decree-Law No. 9, titled “Urgent measures to support families, workers and businesses, in connection with the epidemiological emergency by COVID-19” [2].

Article 28 of Decree-Law No. 9/2020 provides for “Reimbursement of Travel Tickets and Travel Packages”.

The first paragraph of Article 28 stipulates that, obligations arising from transport and package travel contracts, concluded by specified persons affected by the Coronavirus [3], are to be considered as impossible under Article 1463 of the Italian Civil Code [4].

Paragraphs 2 to 7 of Article 28 establish a specific procedure for obtaining and making the reimbursement of the price paid under the transport or package travel contract covered by the same Article.

The following paragraph 8 “proclaims”:

“The provisions of the present article constitute overriding mandatory provisions within the meaning of Article 17 of Law of 31 May 1995, No. 218 [“Italian PIL Act”] [5, 6] and of Article 9 of Regulation (EU) No. 593/2008 of the European Parliament and of the Council, of 17 June 2008 [“Rome 1 Regulation”]”.

On 17.3.2020, the Italian Government has adopted a new Decree-Law (dubbed “Heal Italy”), introducing new measures to fight the emergency caused by the Coronavirus [7].

Art. 88(1) of new Decree-Law No. 18/2020 extends the provisions of Art. 28 of Decree-Law No. 9/2020 to accommodation contracts.

3. Short Comment

As a short comment to the above, I note that it is not the first time that the Italian legislator enacts “self-proclaimed” overriding mandatory provisions [8].

However, as known, it is questionable whether, EU Member States can freely enact similar provisions when they fall within the material scope of Union private international law instruments, such as the Rome 1 Regulation.

In fact, this practice appears to be particularly questionable in cases such as that at issue, where the self-proclaimed overriding mandatory provisions do not appear to be “crucial” for safeguarding public interests within the meaning of Article 9(1) of the Rome 1 Regulation, but rather appear to be exclusively purported to protect private interests (for however widespread they may be).

Notes

[1] In the Italian legal order, a Decree-Law is a provisional act having force of law, adopted in extraordinary cases of necessity and urgency by the Government. A Decree-Law must be “converted” into a Law within a period of 60 days from its publication, or otherwise it loses its effects. See, in particular, Art. 77 of the Costituzione della Repubblica Italiana, Gazzetta Ufficiale No. 298 of 27.12.1947, www.gazzettaufficiale.it/eli/id/1947/12/27/047U0001/sg.

[2] Decree-Law of 2.3.2020, No. 9, Misure urgenti di sostegno per famiglie, lavoratori e imprese connesse all’emergenza epidemiologica da COVID-19, Gazzetta Ufficiale, Serie Generale No. 53 of 2.3.2020, www.gazzettaufficiale.it/eli/id/2020/03/02/20G00026/sg.

[3] See Art. 28(1)(a) to (f) of Decree-Law No. 9/2020.

[4] Article 1463 of the Italian Civil Code, headed “Total Impossibility”, can be translated as follows: “In [case of] contracts with reciprocal performances, the party that is freed due to supervening impossibility of the performance owed cannot demand counter-performance, and must return that which he has already received, in accordance with the rules on undue payment”. See, Royal Decree of 16.3.1942, No. 262, Approvazione del testo del Codice civile, Gazzetta Ufficiale, Serie Generale No. 79 of 4.4.1942, www.gazzettaufficiale.it/eli/id/1942/04/04/042U0262/sg.

[5] Law of 31.5.1995, No. 218, Riforma del sistema italiano di diritto internazionale privato, Gazzetta Ufficiale, Serie Generale No. 128 of 3.6.1995, Supplemento Ordinario No. 68, https://www.gazzettaufficiale.it/eli/id/1995/06/03/095G0256/sg.

[6] Article 17 of the Italian PIL Act, is the Italian (autonomous) private international law provision governing overriding mandatory provisions. Article 17, headed “Norms of necessary application”, can be translated as follows: “Norms of necessary application. 1. Italian norms which, considering their object and their objective, must be applied notwithstanding reference to foreign law, prevail over the following provisions”.

[7] Decree-Law of 17.3.2020, No. 18, Misure di potenziamento del Servizio sanitario nazionale e di sostegno economico per famiglie, lavoratori e imprese connesse all’emergenza epidemiologica da COVID-19, Gazzetta Ufficiale, Serie Generale No. 70 del 17.3.2020, https://www.gazzettaufficiale.it/eli/id/2020/03/17/20G00034/sg.

[8] See, e.g., Article 32-ter of the Italian PIL Act.

The Department of Law of the University of Aarhus and the European Association of Private International have decided to postpone by one year the Association’s founding conference, originally scheduled to take place on 14, 15 and 16 May 2020.

The conference is now set to take place on 27, 28 and 29 May 2021.

The decision comes in response to the challenges posed, and the concerns raised, by the coronavirus crisis.

The venue, Aarhus, remains unchanged, and so does the conference program.

The Department of Law of the University of Aarhus and the European Association of Private International Law hope that all those who expressed an interest in the event will attend the conference next year.

Registered participants wishing to maintain their registration are invited to write an e-mail to this effect to Gitte Schneider (gs@law.au.dk) by 17 April 2020.

All other registered participants will automatically receive their fees back. This will occur in the days following the above date.

For further information, please visit the webpage of the conference in the website of the Aarhus University, here.

See you in Aarhus in 2021!

In Manitou v J.C. Bamford Excavators, (defendant is better known as ‘JCB’ which in England is an eponym for ‘digger’ or excavator) the Paris Court of Appeal held that French Courts have jurisdiction in an interesting tale of patent insults. JCB (England incorporated) had obtained a French injunction against Manitou (domiciled at France) obliging it to halt production of one of its products possibly in violation of a JCB patent. On the eve of an important trade fair taking place in France, JCB boasted about the injunction in a Twitter, Linked-in and website post. Manitou argue the post was insulting and an act of unfair competition.

Manitou claim jurisdiction on the basis of A7(2) BIa, special jurisdiction for tort, per CJEU C-618/15 Concurrences /Samsumg /Amazon, which I reviewed here. It refers to all sites on which the news was posted being accessible in France (Pinckney would have been strong authority here); to the post discussing a French judgment which is only aimed at and enforceable in France; and that its publication was timed to coincide with the aforementioned French fair. JCB on the other hand argue mere accessibility does not suffice and that the sites did not target readers in France.

The Court refers both to Shevill and to Concurrences; decides that the very fact that the site was published in English does not insulate it from French jurisdiction (seeing also that plenty of potential clients looking to buy from Manitou at the time would have been in France for the fair); and that the publication clearly would have affected the brand’s reputation in France and also its sales there. Jurisdiction therefore established.

Geert.

(Handbook of) European private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2

Unfair competition, publication by UK defendant of judgment concerning #patent infringement
Jurisdiction, Article 7(2) Brussels Ia.
Paris CA upholds FR jurisdiction citing Shevill, Concurrences (on which https://t.co/Ibsofl7Jsl) https://t.co/WD61WwHtwv

— Geert Van Calster (@GAVClaw) March 5, 2020

Following the ratification of Qatar last week, on 12 March 2020, the United Nations Convention on International Settlement Agreements Resulting from Mediation will enter in force on 12 September 2020: that was quick!

Source: here

 

The Council on General Affairs and Policy of the Hague Conference met from 3 to 6 March 2020. Its conclusions and decisions are now available.

Key points:
“The projects on normative work include two further meetings of the Experts’ Group on Jurisdiction before CGAP 2021, the continuation of the Parentage / Surrogacy Project and the Tourists and Visitors Project, further work on the draft Practical Guide on cross-border recognition and enforcement of agreements reached in the course of family matters involving children and, subject to available resources, some exploratory work of the intersection of private international law and intellectual property and the monitoring of developments with respect to the private international law implications of distributed ledger technology (DLT).

In relation to post-Convention services, CGAP noted, amongst others, the approval of the Guide to Good Practice on Article 13(1)(b) under the 1980 Child Abduction Convention and the Guide to Good Practice on the Use of Video-Link under the 1970 Evidence Convention. CGAP also approved the holding of a first Special Commission on the 2007 Child Support Convention and its Protocol. In addition, CGAP invited another meeting of the Working Group on Preventing and Addressing Illicit Practices under the 1993 Adoption Convention, and an Experts’ Group to explore whether broader use of new technologies, including DLT, may further enhance the e-APP, in particular in relation to e-Registers”.

Source: here and there

For the Guide to Good Practice under the HCCH Convention of 25 October 1980 on the Civil Aspects of International Child Abduction – Part VI – Article 13(1)(b), see here

Last week, on 11 March 2020, the Court of Justice delivered its judgment in case C‑511/17 (Györgyné Lintner v UniCredit Bank Hungary Zrt.), which is about Directive 93/13 on unfair terms in consumer contracts:

“1. Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that a national court, hearing an action brought by a consumer seeking to establish the unfair nature of certain terms in a contract that that consumer concluded with a professional, is not required to examine of its own motion and individually all the other contractual terms, which were not challenged by that consumer, in order to ascertain whether they can be considered unfair, but must examine only those terms which are connected to the subject matter of the dispute, as delimited by the parties, where that court has available to it the legal and factual elements necessary for that task, as supplemented, where necessary, by measures of inquiry.

2. Article 4(1) and Article 6(1) of Directive 93/13 must be interpreted as meaning that, while all the other terms of the contract concluded between a professional and that consumer should be taken into consideration in order to assess whether the contractual term forming the basis of a consumer’s claim is unfair, taking such terms into account does not entail, as such, an obligation on the national court hearing the case to examine of its own motion whether all those terms are unfair”.

Source: here

Teemu Juutilainen is the author of Secured Credit in Europe – From Conflicts to Compatibility, which is about to be published by Hart Publishing.

The abstract reads as follows.

This monograph seeks the optimal way to promote compatibility between systems of proprietary security rights in Europe, focusing on security rights over tangible movables and receivables. Based on comparative research, it proposes how best to tackle cross-border problems impeding trade and finance, notably uncertainty of enforceability and unexpected loss of security rights. It offers an extensive analysis of the academic literature of more recent years that has appeared in English, German, the Scandinavian languages and Finnish. The author organises the concrete means of promoting compatibility into a centralised substantive approach, a centralised conflicts-approach, a local conflicts-approach and a local substantive approach. The centralised approaches develop EU law, and the local approaches Member State laws. The substantive approaches unify or harmonise substantive law, while the conflicts approaches rely on private international law. The author proposes determining the optimal way to promote compatibility by objective-based division of labour between the four approaches. The objectives developed for that purpose are derived from the economic functions of security rights, the conditions for legal evolution and a transnational conception of justice.

More information here.

Dr. Gérardine Goh Escolar, First Secretary at the Hague Conference on Private International Law, has prepared a lecture on the main features of the Hague Conference and its work. The lecture is available in three languages (English, French and Spanish) in the UN Audiovisual Library of International Law.

You can watch the lectures here. 

Many thanks 2TG for initially flagging the judgment, and for Maura McIntosh and colleagues not just for further reviewing it but also for sending me copy: for the case has not yet appeared on the usual sites.

In Pandya v Intersalonika [2020] EWHC 273 (QB), Tipples J held that proceedings were time-barred in accordance with Greek law as the lex causae, where the claim form was issued in the English courts before the expiry of the applicable Greek limitation period, but was not served until after that period had expired.

The claim arises out of a road traffic accident that happened in Kos, Greece on 29 July 2012. The claimant is a UK national and was on holiday in Kos with her family when she was struck by a motorcycle as she was crossing the road. The claimant suffered a severe traumatic brain injury and was then aged fifteen. Defendant is the Greek-registered insurance company which provided insurance to the motorcyclist or the motorcycle that he was riding.

That claimant is entitled to sue the insurer in England is not of course, contrary to Tipples J passing reference, a result of Rome II but rather of Brussels IA. Jurisdiction however at any rate was not under discussion.

Defendant then relies on A15(h) Rome II to argue a time bar under Greek law, the lex locus damni: service of the claim is a rule of Greek law in relation to limitation and a claim has to be issued and served to interrupt the limitation period. This means that the requirement of service cannot be severed, or downgraded, to a step which is simply governed by the rules of civil procedure under English law. Claimant by contrast argues that service of the claim is a point of pure procedure, which falls squarely within Article 1(3) and is governed by the rules of civil procedure under English law.

At 25 ff Tipples J discusses the issue (I highlight the most relevant arguments)

• starting with the principle of autonomous interpretation;
• further, a need for wide interpretation of A15 which she derives from its non-exhaustive character. I do not agree that non-exhaustive listings necessarily equate broad interpretations;
• thirdly the need, by contrast, to interpret A1(3) narrowly ‘because it is an exception’ to the general rule of lex locus damni in A4. This too I disagree with: A1(3) states it ‘it shall not apply to evidence and procedure, without prejudice to Articles 21 and 22’ (which concern formal validity and burden of proof). In my view A1(3) like A1(2) defines the scope of application, like A1(2). It is listed separately from the issues in A1(2) for unlike those issues, part of the excluded subject-matter is partially brought back into the scope of application. If anything therefore needs to be interpreted restrictively, it is the partial cover of evidence and procedure.  Seemingly between parties however this was not disputed.
• Further support is found in Dicey & Morris 15th ed., which refers to Wall v Mutuelle de Poitiers a case which discusses the issues somewhat, yet if anything more in support of English law applying to the discussion in Pandya rather than the other way around. (A reference further on in Andrew Dickinson’s Rome II Volume with OUP in my mind, too, further underlines the opaqueness of the A1 /A15 distinction and does not clearly lend support pro the lex causae argument).
• Fifth, predictability and certainty are cited in support however how these gazump exclusions from the scope of application is not clear to me.
• Finally PJSC Tatneft v Bogolyubov is referred to but dismissed as irrelevant (which surprises me).

Held: the claim was time-barred and therefore dismissed.

I would suggest there is plenty of scope for appeal here.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 3.

Dr. Gérardine Goh Escolar, First Secretary at the Hague Conference on Private International Law, has prepared a lecture on the main features of the Hague Conference and its work. The lecture is available in three languages (English, French and Spanish) in the UN Audiovisual Library of International Law.

You can watch the lectures here. 

The Court of Justice of the European Union on 27th February 2020 delivered its judgment in Corporis/Gefion Insurance, Case C-25/19. The case concerned rules surrounding service of documents in a specific, yet increasingly common context.

Corporis is a Polish insurance company, who was assigned damages by the owner of a vehicle following a car accident for the value of 30 euro. Gefion was the Danish insurance company covering the risk related to the accident. Under the Solvency II Directive, insurance undertakings may provide services in other Member States without having there an agency or an establishment – yet, for compulsory motor insurance coverages they must appoint a representative with “sufficient powers to represent the undertaking … including the payment of such claims, and to represent it or, where necessary, to have it represented before the courts and authorities of that Member State in relation to those claims” (Art 152). The Polish representative of Gefion was Crawford Polska.

When Corporis wanted to start judicial proceedings, it served legal documents upon the prospective defendant, in Denmark. Documents were not translated, and the recipient of the documents, according to Art 8 of the Service of Documents Regulation (no. 1393/2007), refused to accept service on the ground that it was in not in the condition to understand the content of the documents.

Polish courts suspended proceedings, requesting Corporis advanced payment for translation for 1.500 euro. Failing such payment, the court dismissed the case.

On appeal, the court of appeal questioned whether the Service of Documents Regulation was applicable, as its recital 8 states that it “should not apply to service of a document on the party’s authorised representative in the Member State where the proceedings are taking place regardless of the place of residence of that party”.

The Court of Justice was thus called to rule on whether the rules on the appointment of representatives contained in the Solvency II Directive and the scope of application of the Service of Documents Regulation as reconstructed in light of its recital extend the competence and duties of said representative to receive service of documents in the language of that specific host State for which he has been appointed.

The Court of Justice has confirmed that the Service of Documents Regulation is not applicable to service of a document on the party’s authorized representative in the Member State where the proceedings are taking place (para 28 f). The applicability of the regulation is set aside in light of its recital 8, according to which it should not be applied “to service of a document on the party’s authorised representative in the Member State where the proceedings are taking place regardless of the place of residence of that party”. This sets the difference from the previous case law of the court, namely the Alder judgment Case C-325/11, where there was no local representative of the foreign defendant, nor a legal obligation to appoint such a representative.

Yet, in the Court’s eye, the non-application of the Service of Documents Regulation in the case at hand does not mean that EU law remains silent in general. The Solvency II Directive creates a harmonized regime for the pursuit of insurance activities between Member States. Amongst its goals, not only the promotion of cross-border services, but the protection of persons as well. The necessity for an insurance undertaking to appoint a representative in a State where it decides to offer services without opening an agency or an establishment is pre-ordered at the protection of persons; even though the Solvency II Directive is silent on the matter, according to the Court, not recognizing the right to victim to serve documents in his own language to the representative with whom it has already taken preliminary steps would, in essence, deprive the provisions of their effet utile.

Interestingly, in terms of legal narrative, the matter is mostly constructed in positive terms. The Court speaks of the “possibility for that representative to accept service” (para 37); it stress the negative consequences of excluding “the powers [of the] representative to accept service of documents” (para 42). Evidently, from the perspective of the foreign insurance company and its representative, this is more a matter of legal obligation to accept service.

The approach and the perspective followed by the Court becomes apparent in the conclusion. The Court does not clearly say that the representative has an obligation to accept service – it says that the rules on appointment in the Solvency II Directive include the power to receive service of documents. An argumentative style that appears to little prejudice to the conclusion: insurance companies now know that when they appoint a representative in another Member State under Artt. 152 Solvency II Directive, persons will have the possibility to serve documents to that representative, and avoid a cross-border service of documents.

In May 2018, the European Commission published a proposal for a Regulation amending the 2001 Evidence Regulation. The name of the proposal immediately clarifies the lack of ambition of the project: the intention is to amend the existing text, not to recast it.

The Commission Proposal

The Proposal aims at improving the 2001 Regulation by: using electronic transmission as the default channel for electronic communication and document exchanges; promoting modern means of taking evidence such as videoconferencing and incentives (via the financing of national projects) for Member States to equip courts with videoconferencing facilities; removing legal barriers to the acceptance of electronic (digital) evidence; tackling divergent interpretations of the term ‘court’;  communicating the importance of the uniform standards provided by the Regulation (streamlined procedures, equal standard of protection of the right of the parties involved); best practices for competent courts, to help them apply the procedures properly and without delay; and raising courts’ and legal professionals’ awareness of the availability of the direct channel of taking evidence under the Regulation.

On 13 February 2019, the European Parliament adopted its first-reading position on the proposal, with 37 amendments to the text of the Commission.

On 29 November 2019, the Council of the European Union adopted a general approach of the text.

The main purpose of the proposal is to improve transmission of requests and communication by using modern communication technology. There is no doubt that this is an important concern. Yet, the operation of the Evidence Regulation arguably raises much more important issues.

The Optional Regulation

The Evidence Regulation should further European integration by facilitating and expediting the taking of evidence in other Member States.

Instead, it is the experience of many European practitioners that the Regulation does just the opposite. It creates obstacles, and slows down the taking of evidence abroad. The reason is simple: the Regulation requires the intervention of authorities in the requested state as a preliminary step to the taking of evidence abroad. The most liberal provision in this respect is Article 17, which introduced “Direct taking of evidence by the requesting court” in other Member States. But even under Article 17, it is necessary to “submit a request to the central body or the competent authority” of the requested state.

The European Union has abolished the exequatur procedure for judgments rendered in civil and commercial matters. Under the Brussels II bis Regulation, decisions on the return of a child are immediately enforceable and may not be challenged in the requested state, even for alleged violations of human rights. But the taking of evidence abroad is still subject to a preliminary procedure. The system completely lags behind.

In Lippens and ProRail, the Court of Justice of the European Union (CJEU) addressed the issue by ruling that the application of the Evidence Regulation was not mandatory, and that Member States could simply ignore it and take evidence abroad under their own procedures, without seeking any kind of approval from the requested state. In particular, the CJEU ruled in ProRail:

43. (…) it must be recalled that, according to recitals 2, 7, 8, 10 and 11 in the preamble to Regulation No 1206/2001, the aim of the regulation is to make the taking of evidence in a cross-border context simple, effective and rapid. The taking of evidence, by a court of one Member State in another Member State must not lead to the lengthening of national proceedings. (…)

45. An interpretation of Articles 1(1)(b) and 17 of Regulation No 1206/2001 according to which the court of a Member State is obliged, for any expert investigation which must be carried out directly in another Member State, to take evidence according to the method laid down by those articles would not be consistent with those objectives. In certain circumstances, it may be simpler, more effective and quicker for the court ordering such an investigation, to take such evidence without having recourse to the regulation. 

The CJEU however reserved cases where the taking of evidence would affect the powers of the requested Member State.

The Proposal of the Commission does not address the optional character of the Regulation. This means that the future amended Regulation will remain an optional instrument that the courts of the Member States are free to (continue to) ignore.

Liberalizing the Taking of Evidence in Other Member States

The most important issue that the Proposal does not tackle, however, is that of the obstacles that the Regulation creates in the taking of evidence abroad, and that litigants avoid by resorting to national law.

During the legislative process which lead to the adoption of the initial Evidence Regulation, Germany had proposed to fully liberalize the operation of judicial experts in other Members States. Under this exception, courts could appoint a judicial expert to carry out his mission in other Member States without any need for a preliminary procedure in the requested state. The exception was eventually not adopted. However, this is exactly what the CJEU has allowed in ProRail, which was concerned with the operation of a judicial expert in another Member State.

The reform of the Evidence Regulation was thus the perfect opportunity to reconsider the issue. A much more ambitious reform would have attempted to identify cases where the taking of evidence abroad could be liberalized by abolishing any preliminary procedure, and cases where some kind of involvement of the requested state would still appear to be justified.

Instead, the European lawmaker is about to ignore the problem and, by doing so, to generate considerable uncertainty.

Disclosure: the author was a member of the expert group established by the European Commission for the purpose of drafting the Proposal of the Commission.

The Covid-19 pandemic is on everybody’s mind. Around the world, countermeasures limit public life and freedom of movement, especially cross-border traffic. This raises the question to which extent Private International Law is relevant and capable of handling this new situation. Here are some provisional thoughts on the potential impact of travel bans and other emergency measures under the Rome I and II Regulation.

Transport contracts

Some countries have restricted free movement from persons coming from areas affected by the Corona virus. Austria, for instance, does not allow people coming from Italy into its territory, while the US has just banned travel from Europe with the sole exception of the UK. As a result, flights, trains and bus trips have been cancelled.

For courts in the EU (with the exception of Denmark), the law governing these transport contracts is regulated by Article 5 of the Rome I Regulation. The determination of the applicable law is quite straight forward: The fallback rule is that the law of the habitual residence of the passenger applies (Article 5(2) Rome I). The trickier question, however, is which impact the local law at the place of destination might have on the contract.

The answer for EU courts is given by Article 9 of the Rome I Regulation. The prohibition to enter the territory of a Member State certainly qualifies as an overriding mandatory rule in the sense of paragraph 1 of the provision. Should the courts of that Member State decide over the case, they would apply this provision as part of their lex fori (see Article 9(2) Rome I). The result would certainly not be very different for courts outside the EU, which would apply such provisions as part of their public policy.

The court of another Member State, for instance those of the place of departure, may give effect to the overriding mandatory rules of the state of destination because the contract is to be performed there (see Article 9(3) Rome I). In case the latter has prohibited all travel, this would render the performance of the contract unlawful in the sense of the provision. Mind that the courts of the other states have discretion whether to give effect to the travel ban (see the word “may” in Article 9(3) Rome I).

Cancelled or Postponed Events

The virus has led to the cancellation of events around the world, from congresses to concerts and soccer matches. Usually, the tickets to these events will be subject to the local law where the event takes place.

However, this is not always the case. The parties may have chosen another law (Article 3 Rome I). The consumer protection rules do not interfere with this choice, when the event takes place in a state in which the consumer does not have its habitual residence (see Article 6(4)(a) Rome I). In the absence of a choice, the law at the habitual residence of the service provider applies (Article 4(1)(b) Rome I). If it is – as usual – a corporate entity, the law at the place of its central administration governs (Article 19(1) Rome I). These laws may be replaced by that of a branch that has concluded or executed the contract (Article 19(2) Rome I).

If as a result a foreign law governs the contract, the law of the place of the event may be applied as an overriding mandatory rule under the conditions set by Article 9 of the Rome I Regulation. Insofar, the same considerations as for transport contracts apply. Where the law of the event does not call for a full cancellation, but rather for some changes, such as a postponement or the shift to another place, this law may be considered as the law of the place of performance (lex loci solutionis) under Article 12(2) of the Rome I Regulation.

Cancelled or Delayed Deliveries

Where deliveries of goods were cancelled or postponed, the solution is much the same as for events. The law of the place of performance may apply either as an overriding mandatory provision under Article 9 of the Rome I Regulation or is to be taken into account as lex loci solutionis under Article 12(2) of the same Regulation.

An interesting extension of the concept of public policy rules can be observed in China: According to a recent post on Chinese law a Chinese authority is issuing so-called force majeure certificates pretending to absolve Chinese companies from the need to fulfill contracts with foreign parties. The author assumes that courts of the People’s Republic could consider these certificates as part of public policy even in the absence of compulsory government orders.

From an EU viewpoint, the assessment is quite different. European courts apply legal concepts independently of any measures by administrative authorities. And while compulsory restrictions certainly qualify as overriding mandatory rules, the same is not true for the doctrine of force majeure, which does not meet the requirements of Art 9(1) Rome I. European courts will therefore follow this concept only where it is part of the law governing the contract, and assess independently whether its conditions are met. They can merely take into account, as a matter of fact, mandatory provisions at the place of performance if the applicable substantive law so allows (see to this effect the ruling of the Court of Justice in Nikiforidis, para 51).

Infections

It is hard to identify the source of a Corona infection, but it may not be impossible. A victim may for instance sue the operator of a foreign airport, hospital or hotel for the failure to take appropriate precautions. If both parties are privy to a contract, the law applicable to that contract will decide over the necessary measures, including duties of information and warning in the pre-contractual phase (Article 12 Rome II).

It is also possible that the parties are not contractually bound to each other. Imagine for instance a passenger of a flight suing another passenger who has neglected her infection. Which law applies? EU courts will have to search for the solution in the Rome II Regulation.

A first idea that might spring to mind is to apply Article 7 of the Rome II Regulation, which deals with environmental damages. Yet Recital 24 of the Rome II Regulation defines ‘environmental damage’ as ‘adverse change in a natural resource, such as water, land or air, impairment of a function performed by that resource for the benefit of another natural resource or the public, or impairment of the variability among living organisms’. The virus is respiratory and travels by air, but arguably, it does not change this natural resource. Its main negative effects are on the health of other individuals. While one may debate this assessment, it seems more certain that Corona does not impair fauna’s variation.

Hence the general rule of Article 4 of the Rome II Regulation applies. The first, rather curious, result is that any claim is governed by the law of the common habitual residence of the sick and the infected person (Article 4(2) Rome II). The dispute between two Italian residents on a plane from Frankfurt to Moscow would thus be governed by Italian law, unless there is a manifestly closer connection (Article 4(3) Rome II).

If the parties to the dispute reside in different states, then the law of the place where the damage occurred applies (Article 4(1) Rome II). Airplanes are considered as being part of the territory of the country where they are registered. The suit of a Swedish passenger against a Swiss resident on a flight from Stockholm to Geneva in a plane registered in Ireland would thus be governed by Irish law.

Cross-border infections, for instance by sending contaminated goods or livestock, are also governed by the law of the place of damage (Article 4(1) Rome II) or by the common habitual residence of the parties (Article 4(2) Rome II). Mind you, however, that the rules of safety and conduct at the place where the tortfeasor acted have to be taken into account (Art 17 Rome II). Thus, when infected animals are sent from Rome to Paris, the sanitary restrictions of Italian law would have to be considered by a court. But this is only the case insofar as they “appropriate”.

These results can again be influenced by overriding mandatory rules of the forum (Article 16 Rome II). Whether the court can also apply foreign overriding mandatory rules under the Rome II Regulation is subject to dispute. This should however be allowed in analogy to the possibility provided under the Rome I Regulation (Article 9(3) Rome I).

Conclusion

These considerations only concern private international law and leave out interesting questions of substantive law, such as those relating to force majeure, frustration or impossibility, which may be decided differently in each Member State. Moreover, they are merely provisional thoughts. It remains to be seen in which exact shape and form conflict of laws issues will arise from Covid-19.

The Court of Justice of the European Union on 27th February 2020 delivered its judgment in Corporis/Gefion Insurance, Case C-25/19. The case concerned rules surrounding service of documents in a specific, yet increasingly common context.

Corporis is a Polish insurance company, who was assigned damages by the owner of a vehicle following a car accident for the value of 30 euro. Gefion was the Danish insurance company covering the risk related to the accident. Under the Solvency II Directive, insurance undertakings may provide services in other Member States without having there an agency or an establishment – yet, for compulsory motor insurance coverages they must appoint a representative with “sufficient powers to represent the undertaking … including the payment of such claims, and to represent it or, where necessary, to have it represented before the courts and authorities of that Member State in relation to those claims” (Art 152). The Polish representative of Gefion was Crawford Polska.

When Corporis wanted to start judicial proceedings, it served legal documents upon the prospective defendant, in Denmark. Documents were not translated, and the recipient of the documents, according to Art 8 of the Service of Documents Regulation (no. 1393/2007), refused to accept service on the ground that it was in not in the condition to understand the content of the documents.

Polish courts suspended proceedings, requesting Corporis advanced payment for translation for 1.500 euro. Failing such payment, the court dismissed the case.

On appeal, the court of appeal questioned whether the Service of Documents Regulation was applicable, as its recital 8 states that it “should not apply to service of a document on the party’s authorised representative in the Member State where the proceedings are taking place regardless of the place of residence of that party”.

The Court of Justice was thus called to rule on whether the rules on the appointment of representatives contained in the Solvency II Directive and the scope of application of the Service of Documents Regulation as reconstructed in light of its recital extend the competence and duties of said representative to receive service of documents in the language of that specific host State for which he has been appointed.

The Court of Justice has confirmed that the Service of Documents Regulation is not applicable to service of a document on the party’s authorized representative in the Member State where the proceedings are taking place (para 28 f). The applicability of the regulation is set aside in light of its recital 8, according to which it should not be applied “to service of a document on the party’s authorised representative in the Member State where the proceedings are taking place regardless of the place of residence of that party”. This sets the difference from the previous case law of the court, namely the Alder judgment Case C-325/11, where there was no local representative of the foreign defendant, nor a legal obligation to appoint such a representative.

Yet, in the Court’s eye, the non-application of the Service of Documents Regulation in the case at hand does not mean that EU law remains silent in general. The Solvency II Directive creates a harmonized regime for the pursuit of insurance activities between Member States. Amongst its goals, not only the promotion of cross-border services, but the protection of persons as well. The necessity for an insurance undertaking to appoint a representative in a State where it decides to offer services without opening an agency or an establishment is pre-ordered at the protection of persons; even though the Solvency II Directive is silent on the matter, according to the Court, not recognizing the right to victim to serve documents in his own language to the representative with whom it has already taken preliminary steps would, in essence, deprive the provisions of their effet utile.

Interestingly, in terms of legal narrative, the matter is mostly constructed in positive terms. The Court speaks of the “possibility for that representative to accept service” (para 37); it stress the negative consequences of excluding “the powers [of the] representative to accept service of documents” (para 42). Evidently, from the perspective of the foreign insurance company and its representative, this is more a matter of legal obligation to accept service.

The approach and the perspective followed by the Court becomes apparent in the conclusion. The Court does not clearly say that the representative has an obligation to accept service – it says that the rules on appointment in the Solvency II Directive include the power to receive service of documents. An argumentative style that appears to little prejudice to the conclusion: insurance companies now know that when they appoint a representative in another Member State under Artt. 152 Solvency II Directive, persons will have the possibility to serve documents to that representative, and avoid a cross-border service of documents.

The author of this post is Giovanni Chiapponi, research fellow at the MPI Luxembourg. The post is based on a presentation given at the weekly meeting of researchers of Department 1 of the MPI Luxembourg on 11 March 2020.

As the Covid-19 (corona virus) spreads out, the Italian government has taken some important measures, which have a strong impact on the structure of the internal judicial system. Thus, the Decree-Law No 11/2020 of 8 March 2020 contains extraordinary and urgent measures on the management of the judicial workload and on the internal organization of the judiciary to contrast the negative effects of the virus on the functioning of judicial activities.

Indeed, even in a period of crisis, where there are many risks at stake for the health of the population, it is important to ensure a proper administration of justice. Hence, the rationale of the decree is to guarantee an effective and efficient functioning of the judicial system.

In this regard, the decree provides for the postponement of hearings and for the suspension of time limits in civil, criminal, fiscal and military proceedings.  Consequences follow in all these fields of law, however my remarks will only focus on the consequences affecting civil matters.

According to Article 1(1), most civil hearings scheduled between the day following the entry into force of the decree (9 March 2020) and 22 March 2020 will not take place due to a mandatory postponement.

In the same way, pursuant to Article 1(2), time limits for exercising judicial acts within civil proceedings are automatically suspended for the period 9 to 22 March 2020. Where a time limit would normally begin during the period of suspension, the starting point is delayed until the end of the latter period.

Despite the urgency of the situation, some exceptional rules are provided under Article 2 of the decree. Both the mandatory postponement of hearings and the suspension of time limits do not concern some categories of proceedings that deal with urgent issues. In this regard, Article 2(2)(g) lists the following exceptions: determinations as to the adoptability of children, matters relating unaccompanied minors, the removal of minors from their family and situations of serious prejudices; matters relating to maintenance obligations; provisional measures affecting fundamental rights; decisions regarding compulsory health treatments; matters in respect of the voluntary termination of pregnancy; measures of protection from domestic violence; measures of expulsion; decision on provisional enforceability of judgments before Courts of Appeal and the Court of Cassation; all matters entailing the risk of serious prejudice to the parties.

Furthermore, Article 2(1) provides that the presidents of individual courts may adopt technical and organisational measures aimed to respond to health concerns while ensuring, as far as practical, the proper administration of justice.

The following measures, among others, may be adopted for the above purposes: purely organisational measures such as limitations to the access to, or the opening hours of, courthouses; guidelines as regards the conduct of hearings; exceptions to the publicity of hearings in civil matters; the use of IT technologies in court hearings; the postponement of non urgent hearings.

Some comments

The decree impacts on some fundamental principles of civil procedure (e.g. the right of defense, the equality of arms, the reasonable length of the proceedings) enshrined in the Italian Constitution, the Charter of Fundamental rights of the European Union and the European Convention on Human rights. It aims at ensuring a balance between the right to health and health care (recognized at a constitutional and European level by the Charter of Fundamental rights and the European Convention on Human Rights) and the rights of the parties in the context of civil proceedings.

Despite the urgency and uncertainty of the situation, it is indeed important to ensure the respect of the fundamental procedural rights of the parties. In this regard, the decree suspends limitation periods to file a claim with the court and procedural time limits for the exercise of parties’ rights in order not to undermine parties’ prerogatives. The lapse of time is “locked” and in principle, this does not entail negative consequences for the parties in the proceedings.

However, some doubts on the interpretation of the text of the decree arise. In such a technical question as time limits, clear indications are needed as regards, in particular, the calculation of time limits.

Namely, the decree refers to “time limits … within the proceedings”. Which time limits are concerned, precisely? Does the suspension of time limits apply to all pending legal disputes (including the objections against injunctions and the appeal procedure) or does it apply only to those legal disputes in which hearings were fixed in the period 9 to 22 March 2020 and that have been postponed by the decree?

For instance, if no hearing is scheduled , but the deadline to submit an appeal before the Court of Appeal expires on 11 March, is the time to appeal suspended? Arguably, the first reading should be preferred, since it allows the parties to better safeguard and protect their rights.

If the first reading were adopted, another issue would arises: how should time limits be calculated retroactively if they expire within the period of suspension? For instance, if a time limit expires on 11 March, what would be the new expiry date? The expiry date, it is argued, should be 24 March (9+2/22+2), as the suspension period is to be applied.

In the meantime, the Government’s department for the relations with the Parliament in an explanatory note delivered on 11 March has indicated that the broad interpretation suspending time limits in all pending legal disputes should apply.

However, the note has no binding effect as such and does not bridge the existing legal gap. As required by the Italian Bar Council, the Italian legislator should intervene to guarantee certainty.

As the immediate conversion of the decree into law seems to be difficult, the government may provide for an authentic interpretation of the rules at stake. This would ensure that the parties’ legitimate expectations on the proper administration of justice are not undermined or frustrated.

The foreign proceedings, it is contended, should then prevail on the ground that they were brought first. The fact that the justice system in one EU Member State has come to a stand-still cannot entail that other Member States have to stop their systems, too. That would run counter the interest of the parties.

Finally, some considerations may be made on the implications of this emergency legislation for judicial cooperation at the European level. These uncertainties on time limits will inevitably entail uncertainty in cross-border cases. As Italian procedural law applies under the lex fori principle, the parties must act in accordance with Italian procedural time limits including these extraordinary rules provided by the law decree. As issues arise for parties in the context of national proceedings, in the same way they will spill over in cross-border settings.

In this respect, it is interesting to underline that some European instruments in the field of judicial cooperation in civil matters provide for strict time limits (e.g. Article 5(3) of the Small Claims Regulation or Article 18 of the Regulation on the European Account Preservation Order).

What happens to those time limits if the Italian law applies under the lex fori principle? Are they suspended in the period 9 to 22 March according to the Law decree? In order to safeguard the rights of the parties, which are even more at risk in cross-border cases, it would be reasonable to suspend also these time limits. However, the Italian legislator is not competent to suspend time limits laid down in EU Regulations. Should the European legislator intervene?

Another key issue, which may have negative consequences in cross border cases, concerns Article 32 of the Brussels I bis Regulation, which provides for an autonomous definition of the time in which a court is deemed to be seized of a dispute. May we consider that an Italian Court is seized of a dispute during the period 9 to 22 March? The same considerations pointed out above can be reiterated: the activity of Italian courts should, in principle, be suspended, but as we are dealing with a concept laid down in a European Regulation, the Italian lawmaker cannot provide for exceptional rules applying to the Brussels I bis Regulation. This is again an open question, which shines a light on the risk that the lis pendens rule may be frustrated.

To conclude, as Covid-19 spreads out throughout the EU, the exceptional situation may lead other Member States to adopt urgent measures to contain the spread of the virus. As the system of judicial cooperation in civil matters is based on mutual trust and the application of provisions under the law of the Member State of origin, the question arises how the EU procedural law system may react to the introduction of extraordinary measures.

Judicial cooperation in civil matters, indeed, is based on the assumption that there is no state of emergency. Thus, if Member States start to introduce exceptional procedural rules in their own systems, there is the high risk that the EU procedural system would not be ready to face emergency measures. The EU should arguably allow Member States a certain degree of flexibility at least to provide exceptional rules for the urgent circumstances at stake.

Thank you Matthias Lehmann for flagging and reviewing the Rotterdam Court’s judgment late in January on applicable law in the Petrobas case. I had earlier reviewed the jurisdictional issues, particularly the application of Brussels Ia’s Article 33-34.

The case relates to a Brazilian criminal investigation into alleged bribery schemes within Petrobras, which took place between 2004 and 2014. The court first, and of less interest for the blog, deals with a representation issue, holding that Portuguese speakers cannot be represented in the class, for the Portuguese version of the relevant dispute settlement provisions, unlike the English translation, was not faulty.

Turning then to applicable law at 5.39 ff. Events occurring on or after 12 January 2009 are subject to the Rome II Regulation. For those before that date, Dutch residual PIL applies which the Court held make Brazilian law lex causae as lex loci delicti commissi: for that is where the alleged fraud, bribery and witholding of information happened.

For the events which are covered by Rome II, the court does not wait for the CJEU finding in VEB v BP and squarely takes inspiration from the CJEU case-law on purely financial damage and jurisdiction: Kronhofer, Kolassa, Universal Music. The court notes that the CJEU in these cases emphasised a more than passing or incidental contact with a State (such as: merely the presence of a bank account) as being required to establish jurisdiction as locus damni. At 5.47 it rejects the place of the investor’s account as relevant (for this may change rapidly and frequently over time and may also be easily manipulated) and it identifies the place of the market where the financial instruments are listed and traded as being such a place with a particular connection to the case: it is the place where the value of the instruments is impacted and manifests itself. It is also a place that meets with the requirements of predictability and legal certainty: neither buyer nor seller will be surprised that that location should provide lex causae.

Conclusion therefore is one of Mozaik: Brasil, Argentina, Germany, Luxembourg are lex causae as indeed may be other places where Petrobas financial instruments are listed. (At 5.49: Article 4(2)’s joint domicile exception may make Dutch law the lex causae depending on who sues whom).

Geert.

(Handbook of) EU private international law, 2nd ed.2016, Chapter 4, Heading 4.4.

 

The Law Applicable to Investor Claims: New Developments from the Rechtbank Rotterdam’s Judgment in Petrobas https://t.co/cuQjWrrOe0

— EAPIL – Eur. Assoc. of Private International Law (@eapilorg) February 24, 2020

 

 

 

Olivier Cachard and Paul Klötgen (both University of Nancy) have published a new edition of their manual of private international law.

The book is primarily a teaching tool. It is a textbook but it also includes numerous abstracts of cases, legislation and articles, as well as a glossary.

The book covers the traditional topics of jurisdiction, choice of law and foreign judgments. The focus is on French private international law, but the book often refers to sources from other jurisdictions.

More details can be found here.

The author of this post is Marlene Brosch, senior research fellow at the MPI Luxembourg.

The first advisory opinion of the European Court of Human Rights (ECtHR) under Protocol 16 to the European Convention on Human Rights (ECHR), rendered on 19 April 2019, tackled no less than the highly sensitive and controversial topic of surrogacy motherhood in the well-known Mennesson case – in particular, the recognition of the intended, non-biological mother’s legal parenthood.

The opinion from Strasbourg and the subsequent judgment of the French Court of Cassation have already triggered numerous comments and reactions (notably on this blog; see also here and here). This post aims to raise some procedural aspects of overarching interest.

From hierarchy to cooperation: the change of procedural perspective

The kick-off Mennesson case illustrates the structural change envisaged by Protocol 16 to implement human rights compliance in the Contracting States. The hierarchical approach through the condemnation of France in 2014 shifted to the cooperative, dialogical approach initiated by the Cour de Cassation through the advisory opinion request.

It should be reminded that the judicial dialogue would not have been possible in this first case if the French legislator had not paved the way, in 2016, for the re-opening of proceedings on personal status matters following a judgment of the ECtHR affirming a violation of the Convention.

In this respect, it is worth considering whether domestic rules for the re-examination of a final decision could also be interpreted as applying to advisory opinions. Could the non-binding, yet factual authority of advisory opinions lead to a review of a final domestic judgment rendered previously on the issue in question?

The role of the advisory opinion procedure within the adjudicative function of the ECtHR

The amended Rules of Procedure of the ECtHR do not explicitly clarify the processing order between individual applications under Article 34 ECHR, on the one hand, and requests for an advisory opinion under Protocol 16, on the other. However, given the nature of the questions referred (“questions of principle”), Rule 93 (2) specifies that “requests for advisory opinions shall be processed as a matter of priority […]”.

This priority is indeed crucial. The domestic proceedings are usually stayed during the advisory opinion procedure, and, in light of the fundamental rights issues involved, delays before the ECtHR may have severe impacts on the domestic case.

This priority order was precisely put into practice within the first advisory opinion procedure. A few months before the Cour de Cassation filed the request for an advisory opinion, two individual applications were lodged against France under Article 34 ECHR concerning the very same issue, i.e., the recognition of the legal parenthood of the intended, non-biological mother. The Grand Chamber delivered the advisory opinion within a record-breaking period of only six months after the Cour de Cassation had filed the request.

About half a year later, in November 2019, the joint judgment concerning the individual applications was rendered in line with the advisory opinion. This timing seems to indicate that the ECtHR includes advisory opinions in its case-law with a “leading function” to decide on identical or similar individual complaints expeditiously.

Outlook towards Luxembourg

Incidentally, the issue of parental rights and surrogacy is also occupying the CJEU. In the pending Merly case (T-505/19), a staff member of the European Parliament (EP) seeks the annulment of an EP decision refusing to grant him adequate special leave to take care of his twin children newly born via surrogacy. In C.D. (C-167/12) the ECJ tackled a similar situation concerning maternity leave for the intended mother, which was denied under EU employment directives.

However, in the pending case before the General Court, the applicant directly claims a violation of the right to respect his family life under Article 8 ECHR in conjunction with Article 14 ECHR.

Thus, further implications of the recent developments in Strasbourg remain to be seen.

In a judgment delivered on 4 March 2020, the French supreme court for private and criminal matters (Cour de cassation) accepted to apply the doctrine of renvoi in a parenthood dispute.

The proceedings were initiated by a man who claimed that he was the father of a girl born from a married woman and demanded a DNA test to establish it. The spouses opposed it.

While the married couple resided with the child in France, the mother was a German national couple and the husband was an Italian and an Australian national. The child was born in Germany.

Article 311-14 of the French civil code provides that filiation is governed by the law of the nationality of the mother. The claim of the alleged lover was thus, in principle, governed by German law. The spouses argued that, under German law, the claim was inadmissible, unless the plaintiff could challenge that the girl was raised as the child of the spouses.

French courts, however, found that Articles 20, 19 et 14, § 1 of the German Introductory law to the Civil Code (EGBGB) provided that, under German private international law, filiation was governed by the law of the residence of the child and the law of the effects of marriage which was the law of the common domicile of the spouses if they were of different nationalities.

Indeed, Article 20 EGBGB provides that a challenge to filiation will be admitted if the action meets the requirements of either the law of the residence of the child or the law governing the effects of marriage. In the present case, Article 20 designated French law on each ground.

From the perspective of France, there was thus a renvoi from German law.

Substance blind choice of law rule

It is the first time that the court applies the doctrine of renvoi in the field of parenthood. While the doctrine is of general application in France (and more widely in many civil law jurisdictions), there was a doubt for parenthood because many choice of law rules in the field are not substance blind. They favour one outcome, for instance by providing that one way of establishing parenthood is valid if it is accepted by one of several laws.

Article 311-14 of the French civil code is a traditional choice of law rule, using a single connecting factor to determine the applicable law. It is does not, therefore, favour any particular outcome, and can be regarded as substance blind, or “neutral”. The court expressly insisted on this feature of the relevant choice of law rule.

The court held:

3. Pursuant to Article 311-14 of the Civil Code, filiation is governed by the personal law of the mother at the time of the birth of the child.

4. This provision lays down a multilateral, neutral choice of law rule which does not exclude renvoi. 

First degree renvoi

Although the English speaking world has borrowed the term renvoi from the French, the doctrine is very different in the civil law and in the common law tradition. There are, in truth, two doctrines of renvoi in the civil law tradition, and none of them corresponds to the English double renvoi/foreign court theory.

The first doctrine is first degree renvoi. It provides that if the choice of law rule of the forum designates foreign substantive law, and the foreign choice of law rule designate the substantive law of the forum, the forum should accept the renvoi and apply the substantive law of the forum. This is what this case was about: the French choice of law rule designated German substantive law, and the German choice law rule designated French substantive law. The Cour de cassation accepted the renvoi.

Scholars have long identified that first degree renvoi may lead to the remarkable situation where two states both accepting first degree renvoi would play a game of tennis table over the border and create an endless process of designating each other’s law. In the present case, Germany does accept first degree renvoi (Rückverweisung in German), so it might well be that a German court would find that French law provides for the application of German law, and accept the renvoi from Art 311-14. If that were the case, it would follow that each court would apply its own law, instead of applying each other’s law. Quite an incentive for forum shopping.

Until recently, the Cour de cassation never cared to elaborate on the rationale of its decisions. This has changed recently. So, in the present case, the court cared to explained why renvoi should be admitted. It held:

(…) the resolution of the conflict of laws by application of German rules, which designate French law, ensures coherence of outcomes irrespective of the court seized by the application of the theory of renvoi.

Well, I am not sure about that. The purpose of first degree renvoi never was to ensure consistency of outcomes. In the present case, which involves two civil law jurisdictions which admit renvoi, the doctrine will not create any coherence of outcomes whatsoever. A French court will apply French law. A German court, if it accepts renvoi, will apply German law.

In truth, it is the second doctrine of renvoi, second degree renvoi, which aims at ensuring consistency of outcomes. Under this second doctrine, the choice of law rule of the forum designates foreign jurisdiction 1, which designates foreign jurisdiction 2, which also designates foreign jurisdiction 2. The doctrine provides that all three courts should apply the law of foreign jurisdiction 2. If this is the case, then consistency of outcomes will be ensured: all courts will apply the same substantive law.

In other words, the Cour de cassation offered the rationale of second degree renvoi to justify the application of first degree renvoi.

Wrong reasoning, right outcome?

There is, however, one case scenario where first degree renvoi can accidentally ensure consistency of outcomes. This is the case of a foreign country which would not accept renvoi.

As already mentioned, German law accepts first degree renvoi in principle. However, the relevant German choice of law rule is not substance blind. It favours one outcome, namely challenge to an existing filiation. It might be, therefore, that German law limits the operation of renvoi in this context, in order not to contradict the policy advanced by the rule.

Our German readers probably know…