Droit international général

Many thanks to Donna Williams for reporting and commenting on 1:18-cv-10798 Snöfrost AB v. Håkansson in the District Court of Massachusetts. Not all my blog posts relate to maverick cases, especially at the week-end perhaps. This one is a standard application of forum non conveniens in the US and a useful reminder of the application of the principle by US courts.

Snöfrost, a Swedish company, filed in the U.S. District Court for the District of Massachusetts against Susanne Håkansson, a Massachusetts resident, seeking to enforce an alleged share purchase agreement (“SPA”). The SPA required Håkansson to purchase shares in a Swedish company (Farstorps Gård AB) for 330 million Swedish Krona. Snöfrost alleged that Håkansson reneged on the deal “at the eleventh hour” by raising regulatory issues as an excuse.

Håkansson’s residence in the jurisdiction would have meant immediate dismissal of FNC under the Owusu rule, had this been a case before a court in the EU.

Jurisdiction dismissed: centre of gravity of the case is Sweden – Donna explains the relevant factors in her post.

Geert.

(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.2.1.

Case C-658/17 WB is one of the first in which the annoying new rule on anonymisation at the CJEU kicks in. At issue is the characterisation of notaries as ‘court’ under the EU succession Regulation 650/2012.

Particularly with regard to succession law, notaries in the Member States carry out tasks which can be considered ‘judicial’. In some jurisdictions (especially in the Anglo-Saxon world) a court is involved in transferring the estate from the deceased to those inheriting. This is not the case in most Member States with a so-called ‘Latin’ office of notary. A private international law regulation concerning inheritance can therefore not solely be aimed at courts in the traditional sense of the word. In particular, notaries and registry offices, but also testamentary executors entrusted with judicial authority, need to be integrated.

The rules with regard to jurisdiction and applicable law included in the Regulation have to be complied with by all above-mentioned legal professions, though only to the extent that they exercise judicial functions. The Regulation therefore adopts, in Article 3(2), a functional approach of a ‘court’:

For the purposes of this Regulation, the term ‘court’ means any judicial authority and all other authorities and legal professionals with competence in matters of succession which exercise judicial functions or act pursuant to a delegation of power by a judicial authority or act under the control of a judicial authority, provided that such other authorities and legal professionals offer guarantees with regard to impartiality and the right of all parties to be heard and provided that their decisions under the law of the Member State in which they operate:

(a)     may be made the subject of an appeal to or review by a judicial authority; and

(b)    have a similar force and effect as a decision of a judicial authority on the same matter.

The Member States shall notify the Commission of the other authorities and legal professionals referred to in the first subparagraph in accordance with Article 79.

Outside of the exercise of judicial functions, notaries are not bound by the rules on jurisdiction, and the authentic instruments they issue circulate in accordance with the provisions on authentic instruments rather than ‘judgments’.

In accordance with Article 79 of the Regulation, the Commission (on the basis of notifications by the Member States) has established a list of the authorities and legal professions which need to be considered as ‘courts’ in accordance with this functional determination. This list will also be particularly interesting for internal national use.

However I have always emphasised to Member States compiling their lists, that unlike in the Insolvency Regulation, where the extent of cover of national proceedings is entirely in the hands of the Member States, for the Succession Regulation it is an autonomous EU  definition which drives cover by the Regulation.

Bot AG agrees (Opinion of 28 February; not available in English). whether or not a particular office and /or function is included in the national notification is not determinant. An EU definition of Court kicks in. He refers in particular to his overview in C-484/15 Zulfikarpašić. Reference is also made to Pula Parking. Applied to the case at issue, Polish notaries by virtue of Polish law may only issue the Polish (not: EU) certificate of succession if there is consensus among the parties and no disagreement e.g. re jurisdiction. No judicial functions therefore and the certificate travels as an authentic instrument, not a judgment.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 6, Heading 6.2.1.

I reported on Bot AG’s Opinion in  Case C-579/17 BUAK (Bauarbeiter-Urlaubs- u. Abfertigungskasse v Gradbeništvo Korana d.o.o.) here. He focussed on admissibility viz the preliminary review procedure. He left the questions on ‘civil and commercial’, and the social security exception unanswered, suggesting these are now acte claire. The Court at the end of February did answer all questions. (For completeness sake I already note that for the latter, the CJEU referred to secondary EU law to find the payment not to be one in social security).

First, on the issue of admissibility under Article 267 TFEU. In the absence of discussion by the original court on the applicability of Brussels Ia, by determining whether it is competent to issue the certificate under Article 53 Brussels Ia (replacing exequatur), the court of origin implicitly confirms that the judgment given in default which must be recognised and enforced in another Member State falls within the scope of application of that Regulation: for evidently the issue of the certificate is possible only on that condition. That procedure in those circumstances is judicial in character, with the result that a national court ruling in the context of such a procedure is entitled to refer questions to the Court for a preliminary ruling. (But only in those circumstances: for otherwise the issuing of the certificate becomes a potential anchor for stalling quick enforcement, via preliminary review to Luxembourg).

Next, on the issue of ‘civil and commercial’, some usual suspects are discussed including in particular Pula Parking. flyLAL, and Sapir (but not Fahnenbrock or Kuhn). What needs to be examined, is firstly the legal relationship between the parties to the dispute and secondly the basis and the detailed rules governing the bringing of the action.

As to the former, BUAK may be governed by public law however its calculations of wage supplements and annual leave, the formula for which is determined by decree, are superimposed upon wage negotiations which employers either negotiate entirely freely with employees or agree so on the basis of collective agreements between employers and employees to which employers freely consent. And at 54: ‘in so far as the employer’s obligation to pay the wage supplements is intrinsically linked with the rights, which are of a civil nature, of workers to annual leave pay, …BUAK’s claim and, therefore, an action for payment of that claim, is also of a civil nature.’ (Note that Eurocontrol, not too dissimilar in context (here too the root cause of the debt incurred is one of free will: whether to use certain airspace and airports or not), did lead to a finding of non-civil and commercial matters). I do not find this application straightforward at all; ‘the parties’ are the employer (Korana, a Slovenian company which had posted workers to Austria) and BUAK. Their legal relationship is removed from the contract and /or collective agreements negotiations.

As for the second criterion, the basis and the detailed rules governing the bringing of the action, unlike purely internal situations, in which BUAK may itself issue an execution title in the form of a statement of arrears, with respect to arrears relating to posted workers who do not have their habitual place of work in Austria it must initiate legal proceedings for the payment of unpaid wage supplements. However there is divergence of views between the referring court and Austria and the EC before the CJEU: the former maintains that its hands are tied and that it cannot pursue a de novo review of the application by BUAC; the latter suggest the court seized does carry out a full review of all of the elements of the application. The CJEU at 60 would seem to lean on the side of the referring court but leaves it to take the final decision.

I will turn to this again when I work on the third edition of the handbook this summer yet it is clear that the formula for deciding civil and commercial is still not entirely settled. The First chamber issued Fahnenbrock (Tizzano (Rapporteur), Rodin, Levits, Berger and Biltgen), and Kuhn (Silva de Lapuerta (Rapporteur), Bonichot, Regan, Fernlund and Rodin; the latter the only common denominator in both), which are arguably more like the Lechoritou formula, which in turn applies Eurcontrol: exclusion of certain legal actions and judicial decisions from the scope of Regulation No 1215/2012, by reason either of the legal relationships between the parties to the action or of the subject matter of the action.

The Second chamber (K. Lenaerts, A. Prechal, Toader, Rosas and Ilešič; quite a few conflicts scholars indeed including the President of the CJEU) now focuses on Sapir which was issued by the third Chamber, comprising at the time Toader (Rapporteur), Ilešič, Jarašiūnas, Ó Caoimh,  Fernlund. Toader and Ilešič are the common denominator with current judment in BUAK). Sapir has focus also firstly on the legal relationship between the parties to the dispute, but secondly the basis and the detailed rules governing the bringing of the action (not: the to my knowledge never applied criterion of ‘subject matter’ of the action).

To ponder over the summer.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.16.1.1.

The Australian common law does not require reciprocity for recognizing and enforcing foreign judgments. Therefore, although Chinese courts have never recognized and enforced an Australian monetary judgment, Australian courts have recognized and enforced Chinese judgments. Thus far, there have been two Chinese judgments recognized and enforced in Australia (both in the State of Victoria). In both cases, the Australian judges considered whether the Chinese courts had international jurisdiction based on the defendants’ citizenship/nationality. The first case is Liu v Ma.[1] The plaintiff sought to recognize and enforce a default Chinese judgment (worth RMB 3,900,000) against the defendants. The defendants defaulted in the Australian judgment recognition and enforcement (hereinafter ‘JRE’) proceedings. By applying Australian law, the Supreme Court of Victoria held that the Chinese court had international jurisdiction over the defendants because they were born in China and held a Chinese passport, they had substantial activities or financial affairs in China, and Chinese law does not recognize dual nationality. The second case, Suzhou Haishun Investment Management Co Ltd v Zhao & Ors, was rendered recently on 27 February 2019.[2] It is a summary judgment but, in contrast to Liu, the defendant thoroughly argued her case in the Australian JRE court. The plaintiff sought to recognize and enforce three Chinese judgments (worth RMB 20,000,000). The plaintiff brought Chinese proceedings against a Ms. Zhao and her company where she was the director and the sole shareholder. A few days before the Chinese proceeding was commenced, Ms. Zhao was informed that the plaintiff intended to sue her, and she left China with no intention to return. However, Ms. Zhao was still registered to an address in the Chinese court’s jurisdiction under the hukou system (China’s system of household registration). She possessed a Chinese identity card and held a Chinese passport. The plaintiff tried various ways to serve Ms. Zhao but was unsuccessful. Finally, the service was conducted by public announcement. Ms. Zhao defaulted in the Chinese proceedings. But at the first hearing, a man purporting to be an employee of Ms. Zhao’s company appeared before the Chinese judge. This man was asked by the Chinese judge whether he knew Ms. Zhao, to which he responded that she was ‘the boss.’ Although this man did not hold Ms. Zhao’s power of attorney, he nevertheless indicated that he had with him documents verifying that Ms. Zhao was diagnosed with depression which explained why she could not attend the hearing. The Chinese court held that Ms. Zhao was aware of the proceedings and service by the public announcement was effective. Chinese judgments were rendered against Ms. Zhao and her company. Her company had no assets in China, so the plaintiff went to Australia to locate Ms. Zhao. The Australian court held that service by the public announcement was legal according to Chinese Civil Procedural law and there was no denial of natural justice. The Australian court also held that the Chinese court had international jurisdiction. First, because the parties submitted to the Chinese court by a choice of court clause in the loan contracts. Second, Ms. Zhao was a citizen of China, possessed a Chinese passport, held an identity card and submitted to the jurisdiction of the Chinese Court by agreement, so it is not necessary to decide whether she was considered by Chinese law to be domiciled in China.

Although the defendant’s citizenship is not a ground for Australian courts to exercise direct jurisdiction, it remains to be ground in the Australian JRE proceedings to determine whether a foreign court has international jurisdiction. In Independent Trustee Services Ltd v Morris,[3] the plaintiff applied to enforce a UK judgment in Australia on the ground that the defendant had an active UK citizenship. The defendant was a UK citizen and held a UK passport issued in 2003 and current until 2013, and he used this passport to travel to Australia. The Supreme Court of New South Wales found that the defendant’s citizenship was not some relic of an early stage of his life but was an active part of his present situation on which he had relied for international travel and for other purposes. It held that the UK judgment should be recognized and enforced because citizenship of a foreign country means allegiance to the foreign country, and it is a recognized ground of international jurisdiction on which the effectiveness of foreign judgments is accepted under the common law. However, even the judge deciding Morris acknowledges the ‘absence of citation in the English authorities of any case in which this ground of jurisdiction has been contested and upheld after argument’.[4] Liu cites the English case Emanuel v Symon[5], which found that a foreign court has international jurisdiction if the defendant is a subject of the foreign country in which the judgment has been obtained. However, this is a dictum rather than a holding. As Dicey, Morris and Collins The Conflict of Laws indicates there is no actual decision in English common law which supports that the courts of a foreign country might have jurisdiction over a person if he was a subject or citizen of that country. Private International Law in Australia by Reid Mortensen and et al also considers active citizenship is a dubious ground of international jurisdiction.

The cases involving Chinese citizenship and Hukou are more complicated. First, the fact that China does not recognize dual citizenship does not mean China is necessarily a Chinese citizen’s domicile. A Chinese citizen automatically loses his/her Chinese citizenship only when a Chinese citizen has obtained foreign citizenship and resides overseas.[6] It is not uncommon that a Chinese citizen may reside overseas under a foreign permanent residency visa. Second, these groups of Chinese citizens still maintain a registered address in China (Hukou). This is because every Chinese citizen must have a Hukou even if s/he resides abroad. This Hukou may enable them to receive Chinese pension and voter registration. Third, under Chinese civil procedure law, a Chinese court has jurisdiction on a Chinese citizen when his or her Hukou is in its jurisdiction,[7] even if the Chinese citizen (defendant) is not present in China when the initiating process is commenced. If all other service methods are not successful, people’s courts can use a public announcement to effect service. The question is whether Australian courts recognize and enforce the consequent Chinese default judgment based on the defendant’s citizenship. I would suggest Australian courts to be cautious to follow Liu and Zhao regarding the issue of citizenship. The classical grounds for international jurisdiction are presence and submission. Service by a public announcement is hard to establish international jurisdiction on a defendant who is neither present nor submitted. Citizenship as a ground of international jurisdiction has been doubted by three English High Court judges[8] and rejected by the Irish High Court.[9] Additionally, Liu is a default judgment, so the citizenship issue has not been contested, and the defendant in Zhao submits to Chinese court by a choice of court clause.

[1] Liu v Ma & anor [2017] VSC 810.

[2] Suzhou Haishun Investment Management Co Ltd v Zhao & Ors [2019] VSC 110.

[3] Independent Trustee Services Ltd v Morris [2010] NSWSC 1218.

[4] Ibid, para 28.

[5] Emanuel v Symon[1908] 1 KB 302.

[6] Art. 9 of the Chinese Nationality Law, http://www.mps.gov.cn/n2254996/n2254998/c5713964/content.html.

[7] Under the Hague Service Convention, service on Hukou may not be upheld if the defendant can demonstrate that his habitual residence is different. If a Chinese citizen leaves its Hukou address and resides in another address continuously for more than one year, the latter address becomes his habitual residence and the court in that address also has jurisdiction.

[8] Blohn v Desser [1962] 2 Q.B. 116, 123; Rossano v Manufacturers’ Life Insurance Co Ltd [1963] 2 Q.B. 352, 382–383; Vogel v RA Kohnstamm Ltd [1973] Q.B. 133; see also Patterson v D’Agostino (1975) 58 D.L.R. (3d) 63(Ont). Dicey, Morris and Collins The Conflict of Laws (15th ed) 14-085.

[9] Rainford v Newell-Roberts [1962] I.R. 95.

At the moment this note is written, it is unclear whether there will be another vote in the House of Commons concerning Theresa May’s deal with the EU-27 at all (see here for the latest developments). Already on 18 January 2019, the European Commission recognized that “[i]n view of the uncertainties surrounding the ratification of the Withdrawal Agreement, all interested parties are reminded of legal repercussions which need to be considered when the United Kingdom becomes a third country”. In order to clarify matters, the Commission has published a so-called Preparedness Notice which is meant to give guidance to stakeholders with regard to the implications of a no-deal Brexit in the field of judicial cooperation and private international law. The full text of this notice is available here.

The latest issue of Cuadernos de Derecho Transnacional, an open-access online journal focusing on private international law, is out.

It features some sixty papers (in Spanish, English and Italian) covering a broad range of topics, such as matrimonial property regimes, trade names, the legal framework of drones, child abduction, international data transfers, successions upon death and antitrust torts.

The current issue, like previous ones, can be accessed here.

The Organization of American States (OAS) has announced that the Inter-American Juridical Committee (CJI) has approved the Guide on the Law Applicable to International Commercial Contracts in the Americas. See the summarized recommendations on p. 6, the actual Guide starts on p. 16.

The Rapporteur of the Guide is Dr José Antonio Moreno Rodríguez.

Importantly, one of the recommendations of the Guide is that “OAS Member States, regardless of whether they have or have not ratified, or do or do not intend to ratify the Mexico Convention, are encouraged to consider its solutions for their own domestic legislation, whether by material incorporation, incorporation by reference, or other mechanisms as applicable to their own domestic legal regimes, taking into consideration subsequent developments in the law applicable to international commercial contracts as expressed in the Hague Principles and as described in this Guide.”

Unfortunately, only two States are parties to the Mexico Convention: Mexico and Venezuela. See here.

While the OAS Guide takes into consideration and examines both instruments, it should be noted that the official article-by-article Commentary on the Hague Principles is available here.

The OAS news item is available here (Spanish version of the Guide is not yet available).

“Laws are like sausages, it is better not to see them being made” is a quote widely attributed to German statesman Otto von Bismarck. It is not a wise perception. If, like laws,  we want sausages, then it is paramount we see how they are made, starting from the rearing of the animal, via the transport to and processing in abattoirs, through to food processing.

In Case C-497/17, Oeuvre d’assistance aux bêtes d’abattoirs the Court held that the particular methods of slaughter prescribed by religious rites that are carried out without pre-stunning and that are permitted by Article 4(4) of Regulation No 1099/2009 (on which more here) are not tantamount, in terms of ensuring a high level of animal welfare at the time of killing, to slaughter with pre-stunning which is, in principle, required by Article 4(1) of that regulation. No organic label under Council Regulation 834/2007 and Commission implementing Regulation 889/2008 may therefore be attached to said meat.

The AG had opined the matter is outside the scope of harmonisation of the organic labelling rules. The CJEU however essentially employs Regulation 1099/2009 as a conjoined piece of law and holds that organic labelling must not be assigned to meat originating from animals unstunned prior to slaughter.

The Court is wrong.

At 41 the Court itself acknowledges that ‘no provision of Regulation No 834/2007 or Regulation No 889/2008 expressly defines the method or methods for the slaughtering of animals that are most appropriate to minimise animal suffering and, consequently, to give concrete expression to the objective of ensuring a high level of animal welfare’.

At 47, the Court refers to Wahl AG’s statement in para 43 of his opinion, suggesting the AG ‘ stated, in essence, in point 43 of his Opinion, scientific studies have shown that pre-stunning is the technique that compromises animal welfare the least at the time of killing.’

What the AG actually said is ‘In the first place, it seems to me to be accepted that, while every killing is problematic from the viewpoint of animal welfare, the use of pre-stunning methods when animals are slaughtered may, at least in theory, and as a considerable number of scientific studies show, [FN omitted, GAVC] help to minimise that suffering when those methods are used in the proper conditions. that unstunned slaughter, properly carried out, meets with the ethos of organic farming.’ (emphasis added).

The AG in footnote refers to 2 studies in particular (he suggests there are more). Other studies show the exact opposite. Yet the wider relevance of what he opined lies in the ‘slaughter in the books’ admission. ‘In theory at least’ a perfectly carried out pre-slaughter stun minimises pain. That is very much the same with a perfectly carried out shechita or halal incision, particularly where it is carried out with the religiously-inspired stewardship ethos in mind.

In practice, pre-stunning goes horribly wrong in a considerable amount of cases for small and large animals alike. I am not the only one to have witnessed that. And as frequently occurring footage of abattoirs shows, there is little respect for animal welfare in commercial abattoirs, regardless of an eventual stun or not.

Of wider relevance in my view therefore is the problematic enforcement by certification bodies of generally formulated standards  – admittedly not an issue that may be solved by a court case.

Consider Wahl AG’s point made at 45 of his Opinion: ‘the certification ‘halal’ says very little about the slaughtering method actually employed.’ That is exactly the same for pre-stunning. The EU but more particularly its Member States and regions (which given subsidiarity ough to have a big say in this) will not achieve animal welfare if they do not properly address the wider relationship between food professional and animal, between upscale agro-industry and mass meat production.

Finally and evidently, this case is of no consequence to the acceptability of unstunned slaughter from the point of view of expression of freedom of religion.

Geert.

Dr. Felix M. Wilke (University of Bayreuth, Germany) recently published a new book titled “A Conceptual Analysis of European Private International Law”.

Here is an overview provided by the author.

The Regulations on Matrimonial Property and on the Property Consequences of Registered Partnerships having entered into force at the end of January, European Union private international law in the strict sense now comprises six regulations. Meanwhile, many Member States have been busy overhauling their domestic private international law codifications. In fact, in the last twenty-five years, twelve Member States have enacted substantial new private international law legislation, most recently Hungary (in force since 1 January 2018) and Croatia (in force since 29 January 2019).

The book A Conceptual Analysis of European Private International Law sets out to take both the EU and the national perspective into account and addresses what is often called the “general” issues of the field. The author has combed through legislation and academic contributions from all Member States in order to arrive at the conclusion that there is much more conceptual consensus than generally assumed.

In fact, none of the aforementioned codifications from the last twenty-five years does not have a chapter on “general provisions” and the like. The author charts the similarities and differences among these chapters (albeit without the too-recent Croatian reform), and compares them with positions from Member States without a private international law codification. He goes on to argue that the commonalities ought to ease apprehensions about the potential introduction of general rules of EU private international law – and that, in many cases, the EU is already halfway there, having created (near-)identical provisions for several or all of its regulations: e.g. for public policy, renvoi, overriding mandatory provisions, or non-unified legal systems. Furthermore, he submits that the conceptual-theoretical insights gained from the comparative analysis can easily and also should be transferred to the EU level.

From the foreword by Ralf Michaels: “This is a thoroughly researched work that is both comparative-empirical and prescriptive in nature, a study that both surveys existing law and makes proposals on the basis of its findings. … The fact that the book is written in English provides the discipline with a formidable opportunity to learn about and engage with a specific kind of position towards conceptual issues of private international law.”

The front matter and the table of contents can be found here.

More information can be found here.

As I discussed with Stephen Gardner in Bloomberg Environment, the CJEU held yesterday in C-399/17 EC v Czech Republic, where the question is whether the Czech Republic has infringed the waste shipments Regulation 1013/2006 by refusing to take back a substance known as TPS-NOLO (or Geobal) that had been shipped to Poland without respecting the requisite formalities of the Waste Shipment Regulation.

Approximately 20 000 tonnes of TPS-NOLO (Geobal) and composed of tar acid, a remnant after refining oil (code 05 01 07* of the European waste catalogue), of carbon dust and of calcium oxide. Poland considered the substance to be hazardous waste classified in Annex IV to the Waste Shipment Regulation (‘Waste tarry residues (excluding asphalt cements) arising from refining, distillation and any pyrolitic treatment of organic materials’).  The Czech citizen responsible for the shipment to Poland presented the standards adopted by the company as well as proof that the substance in question was registered under the REACH Regulation and that it was used as fuel.

Wahl AG had suggested inadmissability, as I discuss here. The Court however disagreed, and on substance dismissed the EC action in five steps summarised very well in its case-summary. Of note in particular with respect to the REACH /WFD relation is that the Court holds that while the EC is right in being sceptical about WFD evasion via REACH (not that straightforward an assumption, given the cumbersome implications of REACH compliance), the Commission needs to bring specific evidence to the table rather than mere speculation.

Not an earth-shattering case yet a relevant one also with a view to circular economy debates, where REACH’ data requirements are an important concern for recyclers.

Geert.

Handbook of EU Waste law, 2nd ed. 2015, OUP, i.a.at para 1.201.

This year’s Journée de droit international privé of the Swiss Institute of Comparative Law will be devoted to Interim Measures in International Commercial Litigation, and will take place on 23 May 2019, in Lausanne.

Speakers include George A. Bermann, Andrea Bonomi, Lawrence Boo, Sabine Corneloup, Gilles Cuniberti, Karim El Chazli, Sandrine Giroud, Laurent Hirsch, Alexander Layton, Ilaria Pretelli, and Gian Paolo Romano.

The detailed program, with further information on registration and fees, can be found here.

After the French Cour de Cassation in MJI v Apple Sales, the Brussels Court of Appeal in FIFA/UEFA, and the Court at Amsterdam in Kemira, (as well as other courts undoubtedly, too; and I have highlighted more cases on the blog), Ørjan Salvesen Haukaas has now reported an application of CDC in a decision of December 2018 by a Norwegian Court of appeal, LB-2018-136341 Posten /Bring v Volvo. The court evidently applies Lugano (Article 6), not Brussels Ia, yet the provision  is materially identical.

Norwegian and foreign companies in the Posten/Bring group (mail services) had sued companies in the Volvo group for alleged losses incurred when purchasing trucks from Volvo after certain companies in the Volvo group had been fined for participating in a price-fixing cartel. Posten/Bring also sued a Norwegian company in the Volvo group, which had not been fined for participating in the price-fixing cartel.

Borgarting Court of Appeal held that Norwegian courts have jurisdiction pursuant to Article 6(1) Lugano even if the anchor defendant is sued merely to obtain Norwegian jurisdiction. The court solely had to determine whether the claims were so closely connected that there was a risk of irreconcilable judgments, in the absence of any suggested collusion between the anchor defendant and claimants per CDC.

Geert.

(Handbook of) European Private International Law. 2nd ed. 2016, Chapter 2, Heading 2.2.12, Heading 2.2.12.1.

Professor Dr. Robert Freitag, Friedrich-Alexander-University Erlangen, has kindly provided us with his thoughts on the proposal for a Regulation on Third-Party Effects of Assigment:

Article 14 para. (1) of Regulation Rome I subjects the relationship between assignor and assignee under a voluntary assignment of a claim to the law that applies to the contract between the assignor and assignee. Pursuant to recital (38) of the regulation, the relevant law is to govern the “property aspects of an assignment, as between assignor and assignee”. It is a much debated question whether article 14 para. (1) of Regulation Rome I also applies to the third-party effects of assignments, i.e. to “proprietary effects of assignments such as the right of the assignee to assert his legal title over a claim assigned to him towards other assignees or beneficiaries of the same or functionally equivalent claim, creditors of the assignor and other third parties” (for this definition see article 2 lit. (2) of the Commission’s 2018 proposal for a Regulation of the European Parliament and of the Council on the law applicable to the third-party effects of assignments of claims, COM(2018)096 final). Only a short time ago, a German court has asked the CJEU for guidance on the matter, see here under http://conflictoflaws.net/2018/the-race-is-on-german-reference-to-the-cjeu-on-the-interpretation-of-art-14-rome-i-regulation-with-regard-to-third-party-effects-of-assignments/). The Commission clearly assumes that article 14 of Regulation Rome I leaves the matter to the autonomous conflict-rules of the Member States and has already expressed this view in its follow up-report under article 27 para. (2) of Regulation Rome I presented in 2016 (see COM(2016)626, p. 3). It has repeated this position in recital (11) of the aforementioned proposal for a regulation on the third-party effects of assignments dated 12 March 2018 and the Parliament has followed suite by demanding merely editorial changes to recital (11) of the proposed regulation (see Parliament resolution on the proposal adopted in the first reading on 13 February 2019, document P8_TA(2019)0086, as well as the Explanatory Statement by the Committee on Legal Affairs dated 16 July 2018, document A8-0261/2018, p. 18). It is not astounding that the Council, whose reluctance to accept a different stance of Regulation Rome I on third-party effects of assignments has caused the aforementioned legal uncertainty, at least implicitly subscribes to this position by discussing “only” the conflict of laws-rules proposed by article 4 of the proposal (see namely the Presidency’s suggestions in Council document 13936/18 dated 8 November 2018).

Ultimately, the answer to this question as well as the outcome of the proceedings before the CJEU are not decisive when dealing with the Commission’s 2018 proposal. The European legislator may at any time either complement or ? explicitly or at least implicitly ? modify article 14 of Regulation Rome I. The Commission has therefore proposed to start a legislative procedure destined to lead to the adoption of a new regulation exclusively addressing the conflict of laws-issues pertaining to the third-party effects of assignments. Under the proposal, the relevant conflict-rules shall be placed completely outside the realm of Regulation Rome I which shall not be touched at all. This approach is due to the wish of the Commission to cover the assignment of and pledges relating to “financial collateral” within the meaning of article 1 para. (4) of Directive 2002/47/EC and including inter alia, the assignment or pledge of securities (especially of shares and bonds). An integration of the new conflict rules into Regulation Rome I would therefore collide with the latter’s article 1 para. (2) lit. (d) and lit. (f) exempting matters relating to tradeable securities and to company law from the scope of its application.

As to the law which is to govern the third-party effects of assignments, article 4 para. (1) of the Commission’s proposal designates the law of the habitual reference of the assignor (at least as a general rule). The Parliament has mainly endorsed this approach (see document P8_TA(2019)0086 cited above), whereas the debates in the council on this point were so controversial as to hinder that an agreement on a common position could be reached as yet (see Council document 14498/18 dated 23 November 2018). Without having to dwell on this discussion, it is worth stressing one issue of major importance which, until now, has been left out of the equation: The Commission’s proposal as well as any other solution favoring the application of any law other than that designated by the existing article 14 para. (1) of Regulation Rome I will lead to a situation under which the proprietary effects of an assignment will be subjected to a split legal regime: As regards the relationship between assignor and assignee, article 14 para. (1) Rome I will continue to apply and the assignee will become “owner” of the claim (if only in relation to the assignor) under the condition that the assignments complies with the law which governs the obligation which gave rise to the assignment. In contrast, with regard to competing assignments and any other third-party effects of the assignment, including the question whether in case of insolvency of the assignor the assigned claim will be part of the insolvent assignor’s estate administered by an insolvency administrator, the assignee will only be considered owner of the claim if the assignment is validly executed under the law designated by the new regulation.

It is mandatory that this duplicity of legal regimes is to be avoided for dogmatic as well as for practical reasons. On the dogmatic level, it is not conceivable to speak of “proprietary effects” of an assignment under article 14 para. (1) of Regulation Rome I if these effects are exclusively limited to the relationship between the assignor and the assignee. It is the essence of any property right that the owner’s title in the asset is effective erga omnes, i.e. that it prevails over any competing right or claim of any third party. There undoubtedly exist exceptions to this rule, namely it is conceivable to consider a transfer of property ineffective in relation to a limited number of persons (the transfer being “relatively ineffective” in this case). However, a “transfer” of title is no transfer in the legal sense if it only were to be valid exclusively in relation to the transferor (the transfer being only “relatively effective” in this case). An “owner” of property who can rely on his “title” neither in relation to competing assignees nor in relation to the creditors of the assignor but only inter partes has not received any proprietary position exceeding a position under a merely obligatory agreement between those parties. This finding has significant practical consequences: First of all, it is out of the question for the assignee to activate in his balance sheet a claim “validly assigned” to him solely under article 14 para. (1) of Regulation Rome I, but not under the conflict rules of the proposed new regulation. Second, if one considers that an assignment under article 14 para. (1) of Regulation Rome I will render the assignee “proprietor” of the claim at least inter partes, the assignor will have fulfilled his obligation to transfer the relevant claim to the assignee. It is most unfortunate for the assignee that, although performance has been duly rendered to him, he will not have received any valuable title in the claim. It is highly debatable whether the assignee may claim damages from the assignor in case his legal position is successfully contested under the law applicable to the third-party effects despite the fact that performance has been duly rendered to him under the law relevant in his relation to the assignor. It is also unclear whether, unless the parties have explicitly agreed otherwise, the assignee may beforehand request that the assignor also complies with the law applicable under the new regulation at all.

This being premised, the European legislator, when deciding on a conflict of laws-rules on the third-party effects of assignments, must extend its scope of application also to the “proprietary” effects of the assignment as between the assignor and the assignee. One option would be to implement the rule to be agreed on for the new regulation also in article 14 para. (1) of Regulation Rome I. This approach would, however, lead to legal uncertainty as to the respective scope of application of the regulations dealing with assignments. The preferable approach therefore consists of creating a unique conflict of laws-regime for assignments outside Regulation Rome I. This regime would cover all assignments regardless of the legal cause of the transfer as well as all proprietary aspects of the transfer inter partes and erga omnes which would be subjected them to the same law. Consequently, article 14 of Regulation Rome I would have to be abolished and the contents of article 14 para. (2), (3) of Regulation Rome I would have to be implemented in the new regulation.

Prof. Uzelac has published recently an article on the current challenges to investor-state arbitration in Europe. The article comes almost as a birthday present, to celebrate one year after the CJEU published its famous Achmea ruling. The summary of the article reads as follows:

This paper addresses the current challenges to investor-state arbitration in Europe. Two parallel developments are outlined: the current change in the EU policy towards arbitration provisions in multilateral and bilateral investment treaties, and the consequences of the Achmea case decided by the Court of Justice of the European Union in March 2018. The author analyses the critical arguments behind the current European anti-arbitration stance and concludes that while some of them (but not all) may have some foundation, a sufficient number of reasons speak against the radical dismantling of the system of international investment arbitration. An analysis of the proposed alternatives shows that they fail to deliver viable solutions for diagnosed problems. In particular, the replacement of ad hoc tribunals by a multilateral investment court (MIC) seems to be a step in the wrong direction. The ISDS has played an important role in the global fostering of international investment by securing a basically fair system of dispute resolution in a very specific field. Its deficiencies are not beyond repair; on the other hand, the alternatives offered suffer from flaws that are the same or much more troubling. The author concludes that the consequences of the ‘change of tide’ in the approach to investor-state dispute resolution are likely to be detrimental to the very goals of those who advocate the abandoning of investment arbitration.

The article was published in the journal Access to Justice in Eastern Europe (AJEE), and is available in full text here.

The CJEU held in C-630/17 Milivojević v Raiffeisenbank on 14 February. The case in the main concerns Croatian legislation restricting financial services with Banks other than Croatian ones – a free movement of services issue therefore which the CJEU itself explains in its press release.

Of relevance to the blog is the issue of jurisdiction under the consumer title and Article 24(1)’s exclusive jurisdictional rule.

The Croatian legislation at issue, in the context of disputes concerning credit agreements featuring international elements, allows debtors to bring an action against non-authorised lenders either before the courts of the State on the territory of which those lenders have their registered office, or before the courts of the place where the debtors have their domicile or registered office and restricts jurisdiction to hear actions brought by those creditors against their debtors only to courts of the State on the territory of which those debtors have their domicile, whether the debtors are consumers or professionals.

Croatian law therefore first of all infringes Article 25(4) juncto Article 19 Brussels Ia. Their combined application does not rule out choice of court even between a business and a consumer (subject to limitations which I do not discuss here). It moreover infringes Article 25 (and Article 4) in and of itself for it precludes choice of court even in a B2B context.

Next, may a debtor who has entered into a credit agreement in order to have renovation work carried out in an immovable property which is his domicile with the intention, in particular, of providing tourist accommodation services be regarded as a ‘consumer’ within the meaning of Article 17(1) Brussels Ia? Reference is made ex multi to Schrems, emphasising the difficult balancing exercise of keeping exceptions to Article 4’s actor sequitur forum rei rule within limits, yet at the same time honouring the protective intention of the protected categories.

A person who concludes a contract for a dual purpose, partly for use in his professional activity and partly for private matters, can rely on those provisions only if the link between the contract and the trade or profession of the person concerned was so slight as to be marginal and, therefore, had only a negligible role in the context of the transaction in respect of which the contract was concluded, considered in its entirety (per Schrems following C-464/01Gruber). Whether Ms Milivojević can so be described as a ‘consumer’ is for the national court to ascertain.

Finally, does Article 24(1)’s rule on an action ‘relating to rights in rem in immovable property’, apply to an action for a declaration of the invalidity of a credit agreement and of the notarised deed relating to the creation of a mortgage taken out as a guarantee for the debt arising out of that agreement and for the removal from the land register of the mortgage on a building?

Reference here is made to all the classics, taking Schmidt v Schmidt as the most recent portal to earlier case-law. At 101: with regard to the claims seeking a declaration of the invalidity of the agreement at issue and of the notarised deed related to the creation of a mortgage, these ‘clearly’ (I assume based on the national law at issue) are based on a right in personam which can be claimed only against the defendant.

However at 102: re the request for removal from the land register of the registration of a mortgage, it must be noted that the mortgage, once duly constituted in accordance with the procedural and substantive rules laid down by the relevant national legislation (see indeed my comment above re passerelle of national law), is a right in rem which has effects erga omnes. Such an application does fall within Article 24(1). At 104 the Court again inadvertently or not highlights the potential for a procedural strategy, opening up forum connexitatis hinging unto A24(1) exclusivity: ‘in the light of that exclusive jurisdiction of the court of the Member State in which the immovable property is situated to the request for removal from the land register for the registration of mortgages, that court also has a non-exclusive jurisdiction based on related actions, pursuant to Article 8(4) of Regulation No 1215/2012, to hear claims seeking annulment of the credit agreement and the notarised deed related to the creation of that mortgage, to the extent that these claims are brought against the same defendant and are capable, as is apparent from the material in the file available to the Court, of being joined.’ (idem in Schmidt v Schmidt).

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.6, Heading 2.2.8.2.

Following a call for papers announced on this blog a few months ago, the University of Nice will host on 23 and 24 May 2019 a conference exploring the meaning of economic freedoms of movement (Le sense des libertés économiques de circulation).

The event, part of the IFITIS Project led by Jean-Sylvestre Bergé, is the third in a series of multidisciplinary, international and comparative doctoral workshops devoted to the study of movement phenomena.

The goal is to foster discussion on the capacity of the various disciplines represented (including law, economics, management, philosophy, sociology, history and computer science) to question the meaning – reasons for being, justifications, purposes – of economic freedoms of movement (free trade, international trade and European freedoms of movement).

Further information, including as regards registration, may be found here.

In case of opposition to a European Order for Payment, Article 17 (1) of Regulation (EC) No 1896/2006 (latest consolidated version) states: “the proceedings shall continue before the competent courts of the Member State of origin unless the claimant has explicitly requested that the proceedings be terminated in that event. The proceedings shall continue in accordance with the rules of: (a) the European Small Claims Procedure laid down in Regulation (EC) No 861/2007, if applicable; or (b) any appropriate national civil procedure”.

Moreover: 1) the transfer to civil proceedings is governed by the law of the State where the order has been issued, 2) this law must not prejudice the claimant’s position in the subsequent proceedings, and 3) the claimant is to be informed both of the opposition and of any transfer to civil proceedings.

Recital 24 of Regulation (EC) No 1896/2006 makes it clear that the opposition leads “to an automatic transfer of the case to ordinary civil proceedings”, adding that “the concept of ordinary civil proceedings should not necessarily be interpreted within the meaning of national law”.

The effects of the opposition in the CJEU’s case-law

The CJEU in turn has consistently stressed, on the one hand, that Article 17 produces only said effects and, on the other hand, that the transfer to ordinary civil proceedings is automatic (13 June 2013, Case C-144/12, Goldbet, para. 31; see also 4 September 2014, Joined Cases C-119/13 and C-120/13, eco cosmetics, para. 38).

In Flight Refund (10 March 2016, Case C-94/14), the Court sketched a slightly different scenario when holding that “the proceedings automatically continue […] in the Member State of origin of the order […]”, but further confirming that the continuation occurs “in accordance with the rules of ordinary civil procedure […]” (para. 52; emphasis added).

No national provisions for the transfer: how to fill the gap according to the Italian Supreme Court

What seems definite from the foregoing is that, if the claimant were not to request the termination of the proceedings, the opposition triggers the transfer to ordinary national civil procedure (or to the European Small Claims Procedure) under the law of the Member State of origin.

But, what if the lex fori does not provide rules as to the transfer?

An answer comes from the Italian Supreme Court (Corte di Cassazione) in a recent judgment (31 January 2019 no 2840). Although the Corte di Cassazione has reasoned under the initial version of the Regulation (EC) No 1896/2006, it infers from this latter certain principles which may be also applied to the latest version.

The Italian Court holds, in fact, that the continuation of the proceedings is not a matter left to national law, but it is directly governed by the Regulation through the reference to the national provisions that apply to ordinary civil proceedings.

The Member State has to apply the ordinary, normal form of national proceedings which apply to the disputed claim as if the claimant resorted directly to them.

In case the national legal order lacks rules to govern the transfer and determine the specific ordinary civil proceeding triggered by the opposition, the Corte di Cassazione puts forward the following solution.

First, the judge who issued the order is entitled not only to inform the claimant of the opposition, but also to give him a term to bring the action under the ordinary procedural rules. Second, the claimant may choose, among the ordinary civil proceedings, those that better suit the claim for which he resorted to the European procedure.

The Regulation does not allow the judge to lead the transfer, especially by determining the national rules governing the ordinary proceeding.

On the contrary, a national rule in case the claimant does not comply with the term to bring the action exists whereby the proceeding is extinguished (Article 307 (3), Italian Code of Civil Procedure).

A new “choice” for the claimant

The Italian Supreme Court finds in the Regulation the ground for providing the claimant with a sort of “choice of proceedings”.

Recalling the emphasis that both the Regulation and the CJEU put on the automatism in the “continuation/transfer” to the ordinary civil proceeding, what automatically comes out from the judgment of the Corte di Cassazione seems such “choice of proceedings” rather than the very “continuation/transfer”.

Moreover, on closer inspection, since the would-be ordinary proceeding is extinguished if the claimant makes the term to bring the action expire, the real “choice” lies between the continuation or the termination of the whole proceeding.

Perhaps the “choice” is not well founded in the Regulation, but…

The Italian Supreme Court’s effort to counterweigh the lack of national provisions is certainly worthwhile. As is it that to forge the transfer regime in compliance with the Regulation.

However, just reasoning with the Regulation in mind, one may wonder whether the aforementioned “choice” is actually well founded.

According to the Italian Supreme Court, the Regulation entitles the claimant to “explicitly” choose what national proceeding is to be applied. Furthermore, even though the claimant has not explicitly requested under the Regulation to terminate the proceedings following the debtor’s opposition, he is again requested, this time under Italian law, to possibly reveal such willingness by making the term expire without bringing the action.

Where is in the Regulation the room for such “choices”? Actually, where is the room for “choices” other than that to explicitly oppose to the transfer?

These doubts increase under the latest version of the Regulation.

Pursuant to Article 7 (4), the claimant may indicate to the court “which, if any, of the procedures listed in points (a) and (b) of Article 17(1) he requests to be applied to his claim in the subsequent civil proceedings”, unless he indicates to the court that “he opposes a transfer to civil proceedings […] in the event of opposition by the defendant”.

Article 17, which gives the claimant the alternative between the European Small Claims Procedure and any appropriate national civil procedure, adds that where the claimant has not indicated one of these procedures (or he has requested the application of the European Small Claims Procedure to a claim that does not fall within the scope of Regulation (EC) No 861/2007), “the proceedings shall be transferred to the appropriate national civil procedure” (para. 2; emphasis added).

Consequently, the Appendix 2 to the Application for a European Order for Payment (form A) puts in the claimant’s hand the option to request: 1) the discontinuance of the proceedings, or 2) the continuation in accordance with the rule of the European Small Claim Procedure, if applicable, or 3) the continuation in accordance with any appropriate national civil procedure.

Once again, where is the room for “choices” other than that to explicitly oppose to the transfer, or to request that the proceedings be continued under the European Small Claim Procedure or under the appropriate national civil procedure? Moreover, may the judgment as to the “appropriateness” of the national civil procedure be left to the claimant? May it be left to him even when the request to apply the European Small Claim Procedure is ungrounded because the claim falls outside the scope of Regulation (EC) No 861/2007? Who decides about the lack of “appropriateness”? Accordingly, what happens in case the claimant brings an action for civil proceedings that are not “appropriate” or suitable for the claim he sought to satisfy through the European Order for Payment procedure?

…the “choice” logically is the best way not to prejudice the claimant

All things considered, a room in the Regulation (EC) No 1896/2006 seems to unfold more for further judge’s burdens than for further claimant’s “choices” when it comes to governing the transfer under Article 17 in absence of specific national provisions.

However, it’s worth recalling that Article 17 (3) provides that “where the claimant has pursued his claim through the European order for payment procedure, nothing under national law shall prejudice his position in subsequent civil proceedings”.

It goes without saying that the claimant is not prejudiced, but fully protected, if he may even choose the national civil proceedings after the debtor’s opposition and benefits from a second choice between continuing or terminating the whole proceeding.

What about the defendant?

Despite being inclined to safeguard the claimant, the Regulation pays close attention also to the rights of the defendant.

Therefore, it should not be underestimated, as a concluding remark, that “[i]n the European order for payment, the defendant shall be informed that […] where a statement of opposition is lodged, the proceedings shall continue before the competent courts of the Member State of origin in accordance with the rules of ordinary civil procedure […]” (Article 12 (4)(c)).

It is debatable whether, from the defendant’s standpoint, the “accordance” with the rules of ordinary civil procedure may also include – in the silence of the Regulation and in absence of national rules governing the transfer – the “accordance” with the claimant’s choice of the national procedure that the defendant may eventually undergo.

The doubts increase if one considers that, unlike the claimant, who would benefit from a series of choices, the defendant has only two means (except for the remedies) to impinge on the procedural destiny of the disputed claim (to pay the amount or to oppose the order), which both result in the European procedure’s closing.

Ultimately, the idea that the claimant may choose the national civil proceeding and profits from a second choice between continuing or terminating the whole proceeding seems to unbalance the position in which the Regulation has placed the claimant and the defendant after the order has been issued.

On Friday, 12 April 2019, the EU Justice funded project GoInEu (Governing Inheritance Statutes after the Entry into Force of EU Succession Regulation) and the Hungarian Chamber of Civil Law Notaries’ will organize a conference and a workshop on the first three (and half) years of application of the EU Succession Regulation (650/2012/EU).

The conference and workshop will be held in Budapest (Hungary). The complete programme is available here. 

Participation is free of charge. The conference language will be Hungarian, with simultaneous English translation.

Those who wish to attend are kindly requested to register by filling out the registration form available here.

For questions and inquiries please contact Ádám Fuglinszky (Eötvös Loránd University, Budapest) at fuglinszky@ajk.elte.hu.

Thank you alumna and appreciated co-author Jutta Gangsted for flagging Charles Price’s (former learned colleague of mine at Dibb Lupton Alsop) and Sébastien Popijn’s alert on the Belgian Supreme Court’s ruling of 8 February last in C.18.0354.N Happy Flights v Ryanair. Happy Flights are a Belgium-based online claim agency to which disgruntled passengers may assign claims for compensation under Regulation 261/2004.

At issue is the validity of Ryanair’s choice of court in its general terms and conditions, referring consumers to Irish courts. The Brussels Commercial court on 30 May 2018 seemingly first of all did not assess whether the agency may be considered a ‘consumer’ within the terms of the consumer title of Brussels Ia, having been assigned the consumers’ claims. This decision is unreported <enters his usual rant about the lack of proper reporting of Belgian case-law>.

The Supreme Court (at 2, line 47) notes this lack of assessment by the lower court. It does not however complete the analysis sticking religiously to its role to interpret the law only, not the facts. Per CJEU Schrems mutatis mutandis I would suggest an affirmative answer (the agency having been assigned the consumers’ rights): in which case the Article 25 analysis becomes redundant.

The Brussels Commercial court subsequently and again from what one can infer from the Supreme Court’s ruling, discussed the validity of choice of court under Article 25 Brussels Ia, reviewing its formal conditions (formation of consent) yet judging the material validity under the lex fori, Belgian law, not the lex fori prorogati, Irish law. This is a clear violation of A25 juncto recital 20 Brussels Ia. The Supreme Court suggests that the relevant Irish implementation of the unfair consumer terms Directive 93/13 does imply invalidity of the clause (again: if the claim is held to fall under the consumer title, this analysis will become superfluous).

The Court’s judgment unlike the understandably enthusiastic briefing by Happy Flight’s counsel does not quite yet mean that Ryanair’s terms and conditions on this issue have been invalidated. However it is likely they will be upon further assessment on the merits. As I note above first up there will be the issue of assignment rather than the issue of A25.

For your interest, I gave a Twitter tutorial on a related issue (consumer law, lex causae, compulsory referral to arbitration) recently.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.9, Heading 2.2.9.4.

Another HCCH Convention has recently reached the number of 100 Contracting Parties. In February and March 2019, two States joined the HCCH Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (Intercountry Adoption Convention): Guyana (by accession) and Honduras (by ratification).

The Intercountry Adoption Convention will enter into force for Guyana and Honduras on 1 June 2019 and 1 July 2019, respectively. The status table is available here.

As announced, Guyana and Honduras are the first States in the Americas to become a party to all four modern HCCH Children’s Conventions. In addition to the Intercountry Adoption Convention, the other modern HCCH Children’s Conventions are:

• the HCCH Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (Child Abduction Convention);
• the HCCH Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (Child Protection Convention); and
• the HCCH Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance (Child Support Convention).

There is also a Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations but neither of them is yet a party.

The other two Hague Conventions that have reached 100 or more Contracting Parties are the Child Abduction Convention (see my previous post here) and the HCCH Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (Apostille Convention). The latter has 117 Contracting Parties, the latest one being the Philippines (to enter into force on 14 May 2019 see here).

The HCCH news item is available here.