Droit international général

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As Bot AG put it, Joined Cases C-24 and 25/16 Nintendo v Big Ben gave the Court an opportunity to  determine the territorial scope of a decision adopted by a court of a Member State in respect of two co-defendants domiciled in two different Member States concerning claims supplementary to an action for infringement brought before that court.

The case concerns the relation between Brussels I and Regulation 6/2002 – which was last raised in the recent BMW case, particularly as for the former, the application of Article 6(1) (now 8(1))’s rule on anchor defendants. And finally the application of Rome II’s Article 8(2): the identification of the ‘country in which the act of infringement was committed’. In this post I will focus on the impact for Brussels I (Recast) and Rome II.

The Landgericht held that there had been an infringement by BigBen Germany and BigBen France of Nintendo’s registered Community designs. However, it dismissed the actions in so far as they concerned the use of the images of the goods corresponding to those designs by the defendants in the main proceedings.

The Landgericht ordered BigBen Germany to cease using those designs throughout the EU and also upheld, without territorial limitation, Nintendo’s supplementary claims seeking that it be sent various information, accounts and documents held by the defendants in the main proceedings, that they be ordered to pay compensation and that the destruction or recall of the goods at issue, publication of the judgment and reimbursement of the lawyers’ fees incurred by Nintendo be ordered (‘the supplementary claims’).

As regards BigBen France, the Landgericht held that it had international jurisdiction in respect of that company and ordered it to cease using the protected designs at issue throughout the EU. Concerning the supplementary claims, it limited the scope of its judgment to BigBen France’s supplies of the goods at issue to BigBen Germany, but without limiting the territorial scope of its judgment. It considered the applicable law to be that of the place of infringement and took the view that in the present case that was German, Austrian and French law.

BigBen France contends that the German courts lack jurisdiction to adopt orders against it that are applicable throughout the EU: it takes the view that such orders can have merely national territorial scope. Nintendo ia takes the view that German law should be applied to its claims relating to BigBen Germany and French law to those relating to BigBen France.

Taking into account the objective pursued by Article 6(1) of Regulation No 44/2001, which seeks inter alia to avoid the risk of irreconcilable judgments, the existence of the same situation of fact must in such circumstances — if proven, which is for the referring court to verify, and where an application is made to that effect — cover all the activities of the various defendants, including the supplies made by the parent company on its own account, and not be limited to certain aspects or elements of them. If I understand this issue correctly (it is not always easy to see the jurisdictional forest for the many IP trees in the judgment), this means the Court restricts the potential for the use of anchor defendants in Article 8(1).

As for the application of Article 8(2) Rome II, at 98 and following inter alia analysis of the various language versions of the Article, the CJEU equates the notion ‘country n which the act of infringement is committed’ with the locus delicti commissi:  ‘it refers to the country where the event giving rise to the damage occurred, namely the country on whose territory the act of infringement was committed.‘ At 103: ‘…where the same defendant is accused of various acts of infringement falling under the concept of ‘use’ within the meaning of Article 19(1) of Regulation No 6/2002 in various Member States, the correct approach for identifying the event giving rise to the damage is not to refer to each alleged act of infringement, but to make an overall assessment of that defendant’s conduct in order to determine the place where the initial act of infringement at the origin of that conduct was committed or threatened.’

At 108 the Court rules what this means in the case at issue: ‘the place where the event giving rise to the damage occurred within the meaning of Article 8(2) of [Rome II] is the place where the process of putting the offer for sale online by that operator on its website was activated’.

At 99 however it warns expressly that this finding must be distinguished as being issued within the specific context of infringement of intellectual property rights: Regulation 6/2002 as well as Rome II in its specific intention for IP rights, aims to guarantee predictability and unity of a singly connecting factor. This is a very important caveat: for while this approach by the CJEU assists with predictability, it also hands means for applicable law shopping and, where the Court’s approach for locus delicti commissi in IP infringement extended to jurisdiction, for forum shopping, too.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2; Chapter 3.

 

Hang on a minute. Were not the EU and its Member States supposed to be precaution obsessed? Don’t the EU and its Member States alike adopt bans on all things GMO for no other reason than that they simply do not want them? How then can the CJEU hold in C-111/16 Fidenato that Member States do not have the option of adopting, in accordance with Article 54 of Regulation 178/2002, the EU’s general food safety law, interim emergency measures solely on the basis of the precautionary principle?

The reason lies in pre-emption, aka exhaustion, and in the balance between EU and national risk management which EU law strikes in the specific field of GM cultivation. Of note is that in the meantime most biotech companies have given up on cultivation of GM varieties in the EU.

As extremely well summarised by Bobek AG in his Opinion in the case, the formulation of the relevant EU legislation is such as to provide that post EU authorisation (here: of genetically modified maize MON 810) Member States may only take emergency measures where the continued cultivation of the approved products is ‘likely to constitute a serious risk’. While the precautionary principle may play its role fully at the level of the EU’s risk management preceding authorisation, and indeed post such authorisation, too, Member States are given less leeway in their national emergency measures. In prescribing these rules, the EU safeguards the harmonised approach to the GM varieties at issue.

(Mr Fidenato nb is something of a cause celebre among the GM community). Please note, again, that the case concerns the growing (‘cultivation’) of GM crops. Not the import, export or use of products containing GM.

Finally it is important to point out that the Court does not equate precaution with the absence of science. It is the degree of scientific certainty here which is relevant, not the absence ‘v’ presence thereof.

Geert.

Under the leadership of prof Hess, MPI Luxembourg have collated a treasure chest of data on what, in practice, continues to hold up recognition and enforcement of judgments in the EU Member States. The Study, released last week, was conducted for the European Commission. Its main conclusion suggests that in particular the service of documents could do with streamlining.

That all in all modest recommendation suggests that the very variety of civil procedure rules in the EU Member States in and of itself is not the main obstacle in recognition and enforcement. I insert a big caveat here for I have so far only read the exec summary and the main recommendations, however if they are anything to go by, the study in effect has to serve as a strong argument against more harmonisation of civil procedure rules at the EU level.

Debate no doubt to be continued.

Geert.

(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.16.

(This Report is provided by Guo Yujun, professor, Wuhan University Law School; Liang Wenwen, associate professor, Wuhan University Law School) 

On 22 and 23 September 2017, the “Global Forum on Private International Law & 2017 Annual Meeting of China Society of Private International Law: Cooperation for Common Progress?Evolving Role of Private International Law” was held in Wuhan, China, under the auspices of the Ministry of Foreign Affairs and China Society of Private International Law. The event was held on the 30th anniversary of China’s accession to the Hague Conference on Private International Law (HCCH) and the 30th anniversary of China Society of Private International Law. On the opening ceremony, Mr ZHANG Mingqi, Vice President of China Law Society; LIU Guixiang, Standing Member of the Adjudication Committee of the Supreme People’s Court of the People’s Republic of China; HAN Jin, President of University Council of Wuhan University; Christophe Bernasconi, Secretary-General of the HCCH; HUANG Jin, President of China Society of Private International Law, Professor and President of China University of Political Science and Law, and XU Hong, Director-General, Department of Treaty and Law, Ministry of Foreign Affairs of the People’s Republic of China, gave speeches. The event gathered over 400 officials and academics from 18 countries and regions.

Mr ZHANG Mingqi reviewed the work of China Society of Private International Law in facilitating the adoption of China’s first private international law act and in international exchange, and calls for its further contribution to providing the legal safeguards for the Belt and Road Initiative. Mr Liu Guixiang considered the Belt and Road Initiative an opportunity for Chinese private international law and reviewed the work of the Supreme People’s Court in providing the legal safeguards for the Belt and Road Initiative. Mr Han Jin welcomed the participants to Wuhan University, a leading institution in private international law. Mr Christophe Bernasconi recognized that the HCCH conventions can provide the legal safeguards for the Belt and Road Initiative, and China’s contribution to the work of the HCCH. Mr Huang Jin reviewed the achievements of China Society of Private International Law in advising the legislature and the judiciary, and education, and called for building a community of private international law. Mr Xu Hong called for the common progress through private international law and legal safeguards of the Belt and Road Initiative.

On Title I: Common Progress through Private International Law over 30 Years, speakers and topics are as follows: GUO Xiaomei, Deputy Director-General, Department of Treaty and Law, Ministry of Foreign Affairs of the People’s Republic of China, “Retrospect and Prospect on the 30th Anniversary of China’s Membership of the Hague Conference on Private International Law”; Symeon C. Symeonides, Professor, Willamette University College of Law, “Private International Law Codifications: The Last 50 Years”; Hans Van Loon, Former Secretary-General of the HCCH, “Common Progress of Private International Law over the Past 30 Years – China, the Hague Conference, and the World”; LIU Renshan, Professor, Zhongnan University of Economics and Law, “The HCCH and China: the History, Practical Choice and the Future”.

On Title II: The Belt and Road Initiative and International Legal Cooperation, speakers and topics are as follows: Christophe Bernasconi, Secretary-General of the HCCH, “The Belt & Road Initiative and the HCCH”; Mathijs H. ten Wolde, Professor, Department of Private International Law, University of Groningen, “Recognition and Enforcement of Chinese Money Judgments in the Netherland and the EU”; Anselmo Reyes, Professor of Legal Practice at the University of Hong Kong, “Facilitating the Resolution of Cross-Border Commercial Disputes within the Belt and Road Initiative”; Tang Zheng Sophia , Professor, Newcastle University Law School, “The Belt and Road and Cross-Border Judicial Cooperation”; HUO Zhengxin, Professor of Law, Faculty of International Law of the China University of Political Science and Law, “Proof of Foreign Law against the Background of the Belt and Road Initiative”.

On Title III: A Global Look at Recent Developments of Private International Law, speakers and topics are as follows: Michael Dennis, Attorney Adviser, Executive Director of the Department of State Advisory Committee on Private International Law, U.S. Department of State, “Improving Business Environment, Filling the Gaps, Missing Economic Legal Infrastructure in APEC Economies”; Kyung Han Sohn, Professor, Emeritus President, Korea Private International Law Association, Sungkyunkwan University School of Law, “Application of Lex Mercatoria in Asia: Focusing on Developments in Korea”; Tiong Min Yeo, Professor, School of Law Singapore Management University, “Party Autonomy in the Choice of Law for Torts in Asia” ; Yuko Nishitani, Professor, Kyoto University Graduate School of Law, “Enforcement of Choice of Court Agreements”; Elizabeth Aguiling-Pangalangan, Professor, College of Law, University of the Philippines, “The Hague Abduction Convention and Cross Border Family Relations”; CHEN Weizuo, Professor of Law, Tsinghua University School of Law, “The Asian Principles of Private International Law: Objectives, Contents, Structure and Selected Topics on Choice of Law”; Mary Keyes, Professor, Griffith Law School, “Developing Australian Private International Law: the Hague Choice of Court Agreements Convention and the Hague Principles of Choice of Law for International Commercial Contracts” ; Choong Yeow-Choy, Professor, Faculty of Law University of Malaya, “Harmonization of Transnational Dispute Resolution Mechanisms and the Recognition and Enforcement of Decisions in the ASEAN Region”; José Antonio Moreno Rodríguez, Lawyer and Professor, “The Hague Principles and the New Paraguayan Law on International Contracts: Potential Influence on Legal Reform in the Americas and Abroad”; Frank Poon, Representative of the Asia Pacific Regional Office (HCCH), “Recent Development of Private International Law” ; GUO Yujun, Vice President and Secretary-General of China Society of Private International Law, Professor, Wuhan University, “Changing the Law on Recognition and Enforcement of Foreign Judgments in China”.

On Title IV: The Hague Judgments Project, speakers and topics are as follows: Andreas Stein, Head of Unit, DG Justice and Consumers, European Commission, “The Hague Judgments Project: an EU Perspective”; Ronald A. Brand, Professor, Director, Center for International Legal Education, University of Pittsburgh School of Law, “Determining Qualification for the Global Circulation of a Judgment Under a Hague Judgments Convention”; Geert van Calster, Professor, University of Leuven, “The Hague Judgments Project: A powerful Potion or a Cauldron Full of Jurisdictional Spells?”; Richard Garnett, Professor, Law School of University of Melbourne, “The Hague Judgments Project and Increasing Interaction between Australia and China”; Alex Mills, Professor, UCL University Law School, “The Hague Judgments Project: Back to the Future”; Jan von Hein, Professor, Director, Director of the Institute for Comparative and Private International Law, University of Freiburg, “The Guarantee of a Fair Trial as an Obstacle to the Recognition and Enforcement of Judgments: Comparative Perspectives”; Maria Blanca Noodt Taquela, Professor, Universidad de Buenos Aires, “Relationship between the Hague Judgment Project and Other Instruments: The Argentina-China Treaty on Judicial Cooperation on Civil and Commercial Matters Adopted in 2001”; Knut Benjamin Pissler, M.A, Senior Research Fellow, Max Planck Institute for Comparative and International Private Law, “Recognition and Enforcement of Chinese Court Decisions in Germany: Problems and Perspectives”; SUK Kwang Hyun, Professor, Vice President, KOPILA, Seoul National University, “Several Issues of the Hague Choice of Court Convention”; HE Qisheng, Professor, Wuhan University, “Dilemma and Its Way out in Judgments Reciprocity: From Sino-Japan Model to Sino-Singapore Model”.

Chinese scholars gave presentations in Chinese on four titles: Doctrines and Practices of Chinese Private International Law; the Belt and Road Initiative and International Legal Cooperation; the Belt and Road and Innovations in Chinese Arbitration; China and the Hague Choice of Court Convention.

The Closing ceremony was chaired by Ms GUO Yujun. Mr Frank Poon, Representative of HCCH Asia Office, made a speech on behalf of Christophe Bernasconi, Secretary General of the HCCH, appreciating the involvement of China in the HCCH and the potential of the HCCH to the Belt and Road Initiative. Mr XIAO Yongping, Professor, Director of Wuhan University Institute of International Law, Standing Vice President of China Society of Private International Law, made the closing speech, summarizing the discussions and making three points: first, the Asian regional cooperation needs a set of effective dispute settlement mechanisms; secondly, the current international dispute settlement mechanism is dominated by western developed economies. It is the time for Asian countries to establish a dispute resolution body with regional characteristics; thirdly, to construct a more equitable and reasonable regional dispute resolution body should be the ideal choice for all Asian countries to promote regional cooperation. Professor Huo Zhengxin read the Wuhan Declaration, reviewing the development of private international law and the involvement of China in the work of the HCCH over the past thirty years and the current challenges to private international law, and calling for joint contributions to the prosperity of global private international law of all participants.

Prepared by Alexandre Biard, Xandra Kramer and Ilja Tillema, Erasmus University Rotterdam

The Netherlands has become dangerously involved in the treatment of mass claims, Lisa Rickard from the US Chamber of Commerce recently said to the Dutch financial daily (Het Financieele Dagblad, 28 September 2017) and the Dutch BNR newsradio (broadcast of 28 September 2017). This statement follows the conclusions of two reports published in March and September 2017 by the US Institute for Legal Reforms (ILR), an entity affiliated with the US Chamber of Commerce. Within a few hours, the news spread like wildfire in online Dutch newspapers, see for instance here.

Worryingly enough, the March 2017 report, which assessed collective redress mechanisms in ten Member States, predicted that ‘there are a number of very powerful indicators that all of the same incentives and forces that have led to mass abuse in other jurisdictions are also gathering force in the EU’. Among the jurisdictions surveyed, the Netherlands appeared as a place particularly prone to such abuse. The September 2017 report focuses on consumer attitudes towards collective redress safeguards, and ultimately concludes that 85% of respondents tend to support the introduction of safeguards for the resolution of mass claims.

The publication of the aforementioned reports is timely as the European Commission’s evaluation report on the 2013 Recommendation on Collective Redress is expected this autumn, following the recent call for evidence.  Some of the statements in these reports call for a more nuanced view. Indeed, the Dutch approach to the resolution of mass claims might have its drawbacks. It is certainly not exempt from criticisms. However, in a matter of such expedient nature, it is of the utmost importance that both sides are thoroughly addressed and assessed.

For the information of readers that are not familiar with the Dutch system: the Netherlands currently has two mechanisms that have been designed for collective redress specifically. The first one is the collective action for injunctive or declaratory relief. A verdict in such action can provide the basis for an amicable settlement or for individual proceedings to seek monetary compensation. The second mechanism is the much-discussed WCAM settlement (based on the Dutch Collective Settlements Act, see also a previous post linking to papers and a report on the WCAM procedure). In addition, there is a proposal to introduce a collective action for damages (see a previous post on this blog).

Bad apples and the bigger picture

In the past years, few incidents have occurred in Dutch collective redress that may indeed come close to ‘American situations’ that are generally feared in Europe. Unfortunately, some commentators have chosen to mainly highlight such incidents. Notably, the ILR report of March 2017 refers to the notorious case of Stichting Loterijverlies, in which a foundation initiated a collective action on behalf of aggrieved lottery ticket holders against the Dutch State Lottery. The report rightfully mentions that the foundation’s director has been accused of funnelling elsewhere, for personal gain, part of the consumers’ financial contribution to the foundation. However, the report neglects to mention that the foundation had also been litigating for quite some years and that, ultimately, the Supreme Court ruled in its favour: the Dutch State Lottery had misled consumers for years. Furthermore, the report fails to mention that some of the foundation’s participants successfully filed a request to replace the foundation’s board. Moreover, despite (or on account of) the complexity of establishing causation and damages, the case has now been amicably settled. As part of the settlement, participants of the foundation have been reimbursed their financial contribution thereto, and all class members were free to participate in the settlement: an extraordinary, one-off lottery draw. Reportedly, 2.5 million individuals have done so.

Obviously, incidents such as the aforementioned case are of no avail to civil justice, and justify concerns about claim vehicles’ activities and motives. However, we should also consider the many positive effects of collective redress mechanisms. Generally, Dutch collective actions and WCAM settlements provide for much-needed effective and efficient dispute resolution in mass harm situations.

Safeguards work: learning from experience

The March report by the ILR warns against the gradual decline of safeguards in the Netherlands, and in the EU more generally. Yet, various safeguards already exist, continue to do so, and generally function well in practice. For instance, the admissibility rules regarding representative organizations (that bring collective actions or are involved in a WCAM settlement) have become more stringent and are applied increasingly strict by courts. As to the current Dutch collective actions, there is proof that its numbers have slowly risen since 1994, but no proof exists that this is necessarily attributable to entrepreneurial parties, let alone that they have increased the number of frivolous claims (Tillema 2017). The proposed collective action for damages further raises the current threshold for representative organizations to obtain standing. The requirements concern the organizations’ governance, financial means, representativeness, experience and expertise, and individuals’ participation in the decision-making process. Indeed, a judgment will have binding effect upon all aggrieved parties who have not opted out, but all actions will be publicly registered, there is a strict scope rule, and individuals can raise objections.

So far, eight WCAM settlement have been declared binding. Undeniably, various parties have entered this market, including US counsels and their sizeable fees. However, in spite of its difficult task, the Amsterdam Court of Appeal seems growingly comfortable in assessing the reasonableness of a collective settlement, including the representative organizations’ remuneration. In Converium, the reasonableness of (contingency) fees was assessed for the first time. In the currently pending eighth WCAM case, the Fortis-settlement, the court has demonstrated its awareness of the risks and of its task to also scrutinize the motives of representative organizations. In its interlocutory judgment, it has ruled that the settlement, in its current state, cannot be declared binding. It is deemed not reasonable due to, inter alia, the sizeable remuneration of the representative organizations and their lack of transparency thereon.

A Dutch ‘manoeuvre’ to become a ‘go-to-point’ for mass claim or an attempt to enhance access to justice for all?

‘The Netherlands and the UK seem to be manoeuvring themselves to become the go-to jurisdictions for collective claims outside the EU’, the March report highlighted. Obviously, this not the first time that other countries express their concerns against the extra-territorial effects of the Dutch legislation, an issue that has been discussed for several years in the context of the WCAM (Van Lith, 2011). The ILR report indeed highlighted that in the Converium case, the Amsterdam Court of Appeal declared the settlement binding where a majority of shareholders were domiciled outside the Netherlands. Yet, the key question here is whether, for reasons linked to equality and efficiency, individuals who have suffered from losses resulting from a same misbehaviour should not be treated in a same manner and in the same proceeding, regardless of their actual location. By asserting global jurisdiction, the Amsterdam Court of Appeal ultimately ensured access to justice and equal treatment for all parties placed in similar situations, and ultimately avoided costly fragmentation of the case for parties and courts. In this regard, it should also be highlighted that the WCAM is a settlement-only mechanism, and – to the benefit of victims of wrongdoings – it is the wrongdoing party and the representatives of the aggrieved parties that jointly choose to address the Amsterdam Court of Appeal considering that the Netherlands has a suitable procedure to declare such settlement binding.

It is evident that collective redress mechanisms have both benefits and drawbacks. More than ever, the challenging, yet indispensable key word here is balance. As Commissioner Jourova recently observed at the release of the ILR September report, ‘the discussion in EU countries is in full swing on how to strike the right balance between access to justice and prevention of abuse’. We hope this short post can contribute to the discussion.

The Max Planck Institute Luxembourg (MPI), heading an international consortium, including researchers from the Universities of Florence, Ghent, Heidelberg, Madrid (Complutense), Oxford, Paris (Sorbonne), Rotterdam, Uppsala, Vienna and Warsaw, has undertaken a European Commission-funded Study (JUST/2014/RCON/PR/CIVI/0082) on the laws of national civil procedure of the 28 Member States and the enforcement of European Union law.

The Study has two strands: the first deals with the impact of national civil procedure on mutual trust and the free circulation of judgements within the 28 Member States of the EU and the second deals with the impact of national civil procedure on the enforcement of consumer rights derived from EU law.

On September 28, the first strand of the Max Planck Luxembourg procedural law study has been published by the European Commission on the EU Law and Publications portal.

More information are available here.

The object of the conference is to inquire into the key question of assessment of proof, namely standard of proof. In general, evaluation of evidence requires an intellectual process, in which the evaluator reconstructs the past based on available information. Since the past cannot be repeated, the evaluator may only attempt to get as close as possible to the reality. Generally, as to the standard of proof we may identify two extreme approaches. First, which we can describe as hypothetical or speculative, stems from the persuasion of the judge. It employs such terms as “truth”, “certainty” or “beyond reasonable doubts”, etc. The result of it is “everything or nothing”. The second approach is, on the first sight, more scientific, since it measures the extent of credibility of the reconstruction by a degree of probability. If, for example, the degree of probability exceeds 51 %, such information is considered as proven. The main purpose of the conference is therefore to learn about different approaches in relevant European jurisdictions. The second purpose of the conference is to assess these different approaches and find an adequate standard. Finally, the conference shall increase the understanding of the matter by the interested public and the participants.

The detailed program of the conference can be found here.

The Royal Netherlands Society of International Law (www.knvir.org) is delighted to announce its Annual General Meeting on PROTECTING THE RIGHTS OF FAMILIES AND CHILDREN IN A CHANGING WORLD.  Three reports on this theme will be presented and discussed on this occasion. The meeting will be held in The Hague on 3 November 2017 and participation is free of charge.

Should you be in or near The Hague on that date, feel free to join this interesting gathering. The reports will be available for sale at Asser Press shortly after the event.

On September 13, the Commission adopted a Recommendation for a Council Decison authorising the opening of negotiations for a Convention establishing a multilateral court for the settlement of investment disputes.

The multilateral investment court initiative is conceived as a reaction to a number of problems that have been identified as stemming from ISDS (Investor-State Dispute Settlement), including the lack of or limited legitimacy, consistency and transparency of ISDS as well as the absence of a possibility of review.  In the words of the Commission, the initiative aims at “setting up a framework for the resolution of international investment disputes that is permanent, independent and legitimate; predictable in delivering consistent case-law; allowing for an appeal of decisions; cost-effective; transparent and efficient proceedings and allowing for third party interventions (including for example interested environmental or labour organisations). The independence of the Court should be guaranteed through stringent requirements on ethics and impartiality, non-renewable appointments, full time employment of adjudicators and independent mechanisms for appointment”.

The text can be found here.

(I am grateful to Prof. Francesca Villata – University of Milan – for the following presentation of the latest issues of the RDIPP)

The first and second issues of 2017 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) were just released.

The first issue features three articles, one comment, and two reports.

• Franco Mosconi, Professor Emeritus at the University of Pavia, and Cristina Campiglio, Professor at the University of Pavia, ‘Richiami interni alla legge di diritto internazionale privato e regolamenti comunitari: il caso dei divorzi esteri’  (‘Effects of EU Regulations on Domestic Private International Law Provisions: The Case of Foreign Divorces’; in Italian).

This paper inquires whether Article 65 (Recognition of foreign rulings) and the underlying private international law reference are still applicable to foreign divorces after Regulations No 2201/2003 and No 1259/2010 replaced Article 31 of Law No 218/1995 and after the recent provision submitting the dissolution of same-sex partnerships to Regulation No 1259/2010.

• Peter Kindler, Professor at the University of Munich, ‘La legge applicabile ai patti successori nel regolamento (UE) n. 650/2012’  (‘The Law Applicable to Agreements as to Successions According to Regulation (EU) No 650/2012’; in Italian).

Under Italian substantive law agreements as to succession are not admitted. The same is true, inter alia, for French and Spanish law. The idea behind this rule is deeply rooted in the dignity of the de cuius. The freedom to dispose of property upon death is protected until the last breath and any speculation on the death of the disponent should be avoided. Other jurisdictions such as German or Austrian law allow agreements as to succession in order to facilitate estate planning in complex family situations. This is why the Succession Regulation (650/2012/EU) could not ignore agreements as to succession. Article 25 of the Regulation deals with the law applicable to their admissibility, their substantive validity and their binding effects between the parties. The Regulation facilitates estate planning by introducing the freedom of the parties to such an agreement to choose the applicable law (Article 25(3)). The Author favours a wider concept of freedom of choice including (1) the law of the State whose nationality the person whose estate is involved possesses at the time of making the choice or at the time of death and (2) the law of the habitual residence of that person at the time of making the choice or at the time of death. As to the revocability of the choice of the lex successionis made in an agreement as to succession, the German legislator has enacted a national norm which allows the parties to an agreement as to succession to establish the irrevocability of the choice of law. This is, according to the Author, covered by Recital No 40 of the Succession Regulation. The Regulation has adopted a wide notion of agreements as to succession, including, inter alia, mutual wills and the Italian patto di famiglia. The Author welcomes that, by consequence, the advantages of Article 25, such as the application of the hypothetical lex successionis and the freedom of choice, are widely applicable.

The Regulation did not (and could not) introduce the agreement as to succession at a substantive law level. It does not interfere with the legislative competence of the Member States. According to the author this is why member states such as Italy are free to consider their restrictive rules on agreements as to succession as part of their public policy within the meaning of Articles 35 e 40 litt. a of the Regulation.

• Cristina Campiglio, Professor at the University of Pavia, ‘La disciplina delle unioni civili transnazionali e dei matrimoni esteri tra persone dello stesso sesso’  (‘The Regulation of Cross-Border Registered Partnerships and Foreign Same-Sex Marriages’; in Italian).

With Law No 76/2016 two new types of pair bonds were regulated: civil unions between same-sex persons and cohabitation. As for transnational civil unions, the Law merely introduced two provisions delegating to the Government the amendment of Law No 218/1995 on Private International Law. The change is laid down in Legislative Decree 19 January 2017 No 7 which, however, has not solved all the problems. The discipline of civil unions established abroad is partial, being limited to unions between Italian citizens who reside in Italy. Some doubt remains moreover in regulating the access of foreigners to civil union in Italy as well as in identifying the law applicable to the constitution of the union, its effects and its dissolution; finally, totally unresolved – due to the limitations of the delegation – remains the question of the effect in Italy of civil unions established abroad between persons of opposite sex. With regard to same-sex marriages celebrated abroad the fate of Italian couples is eventually clarified but that of mixed couples remains uncertain; in addition, no information is provided as to the effects of marriages between foreigners.

In addition to the foregoing, the following comment is featured:

• Domenico Damascelli, Associate Professor at the University of Salento, ‘Brevi note sull’efficacia probatoria del certificato successorio europeo riguardante la successione di un soggetto coniugato o legato da unione non matrimoniale’ (‘Brief Remarks on the Evidentiary Effects of the European Certificate of Succession in the Succession of a Spouse or a Partner in a Relationship Deemed to Have Comparable Effects to Marriage’; in Italian).

This article refutes the doctrinal view according to which the European Certificate of Succession (ECS) would not produce its effects with regard to the elements referred to therein that relate to questions excluded from the material scope of Regulation EU No 650/2012, such as questions relating to matrimonial property regimes and property regimes of relationships deemed by the law applicable to such relationships to have comparable effects to marriage. This view is rejected not only on the basis of its paradoxical practical results (namely to substantially depriving the ECS of any usefulness), but mainly because it ends up reserving the ECS a pejorative treatment compared to that afforded to the analogous certificates issued in accordance with the substantive law of the Member States (the effects of which, vice versa, have to be recognized without exceptions under Chapter IV of the Regulation). The rebuttal is strengthened considering the provisions contained in Chapter VI of the Regulation, from which it emerges that, apart from exceptional cases (related, for example, to the falsity or the manifest inaccuracy of the ECS), individuals to whom is presented cannot dispute the effects of ECS.

Finally, the first issue of 2017 of the Rivista di diritto internazionale privato e processuale features the following reports:

• Katharina Raffelsieper, Attorney at Thewes & Reuter Avocats à la Cour, ‘Report on Recent German Case-Law Relating to Private International Law in Civil and Commercial Matters’ (in English).
• Stefanie Spancken, Associate at Freshfields Bruckhaus Deringer LLP, Düsseldorf, ‘Report on Recent German Case-Law Relating to Private International Law in Family Law Matters’ (in English).

*****

The second issue of 2017 of the Rivista di diritto internazionale privato e processuale features three articles and one report.

• Costanza Honorati, Professor at the University of Milan-Bicocca, ‘La proposta di revisione del regolamento Bruxelles II-bis: più tutela per i minori e più efficacia nell’esecuzione delle decisioni’ (‘The Proposal for a Recast of the Brussels IIa Regulation: More Protection for Children and More Effectiveness in the Enforcement of Decisions’; in Italian).

The present essay is a first assessment of the Proposal for a recast of the Brussels IIa Regulation (COM(2016)211). After a short explanation of the reasons for not touching on the highly controversial grounds for divorce, the essay develops on the proposed amendments in the field of parental responsibility and international abduction of children. It further analyses the amendments proposed to the general criterion of the child’s habitual residence and to prorogation of jurisdiction (par. 3) and the new provision on the hearing of the child (par. 4). Major attention is given to the new chapter on abduction of children, that is assessed into depth, also in regard of the confirmation of the much-discussed overriding mechanism (par. 5-7). Finally, the amendment aiming to the abolition of exequatur, counterbalanced by a new set of grounds for opposition, is assessed against the cornerstone of free circulation of decision’s principle. Indeed, new Article 40 will allow to refuse enforcement when the court of the state of enforcement considers this to be prejudicial to the best interest of the child, thus overriding basic EU principles (par. 8-9).

• Lidia Sandrini, Researcher at the University of Milan, ‘Nuove prospettive per una più efficace cooperazione giudiziaria in materia civile: il regolamento (UE) n. 655/2014’ (‘New Perspectives for a More Effective Judicial Cooperation in Civil Matters: Regulation (EU) No 655/2014’; in Italian).

Regulation (EU) No 655/2014 – applicable from 18 January 2017 – established a European Account Preservation Order procedure (EAPO) to facilitate cross-border debt recovery in civil and commercial matters. In order to give a first assessment of the new instrument, the present contribution aims at identifying the peculiarity that could make the EAPO preferable to the creditor vis-à-vis equivalent measures under national law. It then scrutinizes the enactment of this new piece of European civil procedure law in light of the principles governing the exercise of the EU competence in the judicial cooperation in civil and commercial matters as well as its compliance with the standard of protection of the creditor’s and debtor’s rights resulting from both the EU Charter of Fundamental Rights and the ECHR. Finally, it analyses the rules on jurisdiction as well as on the applicable law, provided for by the Regulation, in order to identify hermeneutical solutions to some critical issues raised by the text and clarify its relationship with other EU instruments.

• Fabrizio Vismara, Associate Professor at the University of Insubria, ‘Legge applicabile in mancanza di scelta e clausola di eccezione nel regolamento (UE) n. 2016/1103 in materia di regimi patrimoniali tra i coniugi’ (‘Applicable Law in the Absence of a Choice and Exception Clause Pursuant?to Regulation (EU) No 2016/1103 in Matters of Matrimonial Property Regimes’; in Italian).

This article analyzes the rules on the applicable law in the absence of an express choice pursuant to EU Regulation No 2016/1103 in matters of matrimonial property regimes. In his article, the Author first examines the connecting factors set forth under Article 26 of the Regulation, with particular regard to the spouses’ first common habitual residence or common nationality at the time of the conclusion of the marriage and the closest connection criteria, then he proceeds to identify the connecting factors that may come into play in order to establish such connection. The Author then focuses on the exception clause under Article 26(3) of the Regulation by highlighting the specific features of such clause as opposed to other exception clauses as applied in other sectors of private international law and by examining its functioning aspects. In his conclusions, the Author underlines some critical aspects of such exception clause as well as some limits to its application.

Finally, the second issue of 2017 of the Rivista di diritto internazionale privato e processuale features the following report:

• Federica Favuzza, Research fellow at the University of Milan, ‘La risoluzione n. 2347 (2017) del Consiglio di Sicurezza e la protezione dei beni culturali nei conflitti armati e dall’azione di gruppi terroristici’ (‘Resolution No 2347 (2017) of the Security Council on the Destruction, Smuggling of Cultural Heritage by Terrorist Groups’; in Italian).

Indexes and archives of RDIPP since its establishment (1965) are available on the website of the Rivista di diritto internazionale privato e processuale.

The book Le Brexit, Enjeux régionaux, nationaux et internationaux (Bruylant, 2017), edited by Pr. Charles Bahurel, Pr. Elsa Bernard and Associate Pr. Marion Ho-Dac, has just been published. It includes a foreword, an introduction and papers from a three-days symposium on legal aspects of Brexit which took place in February and March 2017 in different universities.
The book is divided in three parts. The first is dedicated to the policy and institutional issues of Brexit and deals with Brexit preparation and post-Brexit relationships. The second part concerns EU citizenship and economic issues and deals with internal market and judicial cooperation in civil and commercial matters (see, inter alia, the contribution of Gilles Cuniberti on international economic aspects with a discussion paper by Emmanuel Guinchard and the contribution of Jean Sagot-Duvauroux on international family law aspects). It also focuses on some major actors of Brexit: EU citizens, students, patients, bankers and lawyers. The third part is devoted to criminal and immigration issues.

The abstract reads as follows:
Moins d’un an après le referendum britannique sur le retrait du Royaume-Uni de l’Union européenne, de nombreuses questions d’ordre économique, politique, juridique et social se posent quant à cet événement sans précédent dans l’histoire de la construction européenne.
Compte tenu des conséquences régionales, nationales et internationales du Brexit, il était nécessaire que des spécialistes viennent éclairer les multiples zones d’ombre qui subsistent sur des sujets aussi divers que l’engagement du retrait, les modèles de coopération possibles entre le Royaume-Uni et l’Union européenne, l’avenir politique, juridique et économique de cette Union, les enjeux migratoires du Brexit mais aussi ses enjeux pour les citoyens européens et pour les opérateurs économiques que sont, par exemple, les banques ou les entreprises.
Cet ouvrage s’adresse aux praticiens spécialisés en droit européen (avocats, notaires, fiscalistes, banquiers) ainsi qu’aux universitaires et aux membres des collectivités territoriales.

Foreword of the editors: here

Tables of contents: here

The University of Milan will recruit a postdoctoral researcher in Private International Law, starting in January 2018, for a duration of 24 months (renewable once).

The researcher will work on the project ‘Private International Law and New Technologies’.

Eligible candidates must hold a doctorate in law or have comparable
research experience. They must have a good/excellent command of Italian.
Good command of English is an additional asset. Additional accommodation funding for candidates relocating from abroad is available.

Deadline for applications: 16 October 2017.

More details can be found here

 

The Central and Eastern European Company Law Research Network is organising an international conference on the Arbitrability of Company Law Disputes in Central and Eastern Europe that will take place at the Department of Law of the Sapientia University in Cluj-Napoca (Romania). The event will be on 20 October 2017. Speakers include distinguished academics from various Central and Eastern European countries. The conference is open to the public. For the programme, registration and further details, please click here.

The International Law Association has launched the following Call for Papers:

„In 2018, the Australian Branch of the International Law Association will be hosting the biennial ILA conference. The conference, which is being held in Sydney, Australia, from 19-24 August 2018, is a major international event that will bring together hundreds of judges, academics, practitioners and officials of governments and international organisations from all around the globe. The Australian Branch of the ILA is calling for paper and panel proposals as part of the program for the conference.
The objectives of the International Law Association include ‘the study, clarification and development of international law, both public and private, and the furtherance of international understanding and respect for international law’. Yet how are we to anticipate the development of international law, and particularly understanding and respect for international law, in an ever-changing world? There are a myriad of international challenges facing global society—sharpening economic divides, nationalist assertions of boundaries, climate change, cycles of war and poverty, new uses of technology. The 2018 ILA conference will address diverse cutting-edge issues in international law as part of its ongoing study of international law, as well as through dialogue on pressing questions of public and private international law.
The ILA biennial conferences provide an opportunity for members of the ILA Committees to meet and advance their work on discrete areas of international law. The current work of the ILA Committees may be found here. Open sessions will be held on these topics to provide all attendees with the opportunity to learn of the Committees’ work and to contribute to the development of the program of work.
In addition, a program will run for all attendees on the core theme of the conference: Developing International Law in Challenging Times. To this end, proposals are sought either for individual paper presentations or for panel presentations on specific themes. Higher degree research (PhD) students are also encouraged to submit poster presentation proposals. A networking and social program is also being organised to run during the conference for international and inter-state visitors.
For paper and poster proposals, speakers are to submit a title and 150-200 word abstract, along with a 150 word biography for potential inclusion in the program. A one-page CV should also be submitted. For panel proposals, the title of the panel and the titles of each paper are to be submitted with a 200 word abstract of the discussions of the panel and a statement on the proposed format for the panel. A biography and one-page CV should also be sent for each proposed speaker on the panel.
Submissions are to be emailed to info@ila2018.org.au by 1 November 2017.
We look forward to welcoming you to Sydney in 2018!“

When I cannot add anyting sensible to others’ analysis, I let theirs speak for itself. Enjoy.

Corporate Finance Lab

On September 14th 2017, the CJEU ruled on the Panayi Trust case (Case C-646/15), to which we have already referred in an earlier blog post. The CJEU’s ruling in the Panayi Trust case will provide ample opportunity for debate and reflection in the near future, especially with Brexit coming into view.

However, in this blog post we will restrict ourselves to a brief presentation of the case and some first observations regarding the question whether trusts can indeed come under the scope of the freedom of establishment.

View original post 1,502 more words

This blog post presents a condensed version of an article by Dr Mukarrum Ahmed (Lancaster University) and Professor Paul Beaumont (University of Aberdeen) in the August 2017 issue of the Journal of Private International Law. The blog post includes specific references to the actual journal article to enable the reader to branch off into the detailed discussion where relevant. It also takes account of recent developments in the Brexit negotiation that took place after the journal article was completed.    

On 1 October 2015, the Hague Convention on Choice of Court Agreements 2005 (‘Hague Convention’) entered into force in 28 Contracting States, including Mexico and all the Member States of the European Union, except Denmark. The Convention has applied between Singapore and the other Contracting States since 1 October 2016. China, Ukraine and the USA have signed the Convention indicating that they hope to ratify it in the future (see the official status table for the Convention on the Hague Conference on Private International Law’s website). The Brussels Ia Regulation, which is the European Union’s device for jurisdictional and enforcement matters, applies as of 10 January 2015 to legal proceedings instituted and to judgments rendered on or after that date. In addition to legal issues that may arise independently under the Hague Convention, some issues may manifest themselves at the interface between the Hague Convention and the Brussels Ia Regulation. Both sets of issues are likely to garner the attention of cross-border commercial litigators, transactional lawyers and private international law academics. The article examines anti-suit injunctions, concurrent proceedings and the implications of Brexit in the context of the Hague Convention and its relationship with the Brussels Ia Regulation. (See pages 387-389 of the article)

It is argued that the Hague Convention’s system of ‘qualified’ or ‘partial’ mutual trust may permit anti-suit injunctions, actions for damages for breach of exclusive jurisdiction agreements and anti-enforcement injunctions where such remedies further the objective of the Convention. (See pages 394-402 of the article) The text of the Hague Convention and the Explanatory Report by Professors Trevor Hartley and Masato Dogauchi are not explicit on this issue. However, the procès-verbal of the Diplomatic Session of the Hague Convention reveal widespread support for the proposition that the formal ‘process’ should be differentiated from the desired ‘outcome’ when considering whether anti-suit injunctions are permitted under the Convention. Where anti-suit injunctions uphold choice of court agreements and thus help achieve the intended ‘outcome’ of the Convention, there was a consensus among the official delegates at the Diplomatic Session that the Convention did not limit or constrain national courts of Contracting States from granting the remedy. (See Minutes No 9 of the Second Commission Meeting of Monday 20 June 2005 (morning) in Proceedings of the Twentieth Session of the Hague Conference on Private International Law (Permanent Bureau of the Conference, Intersentia 2010) 622, 623–24) Conversely, where the remedy impedes the sound operation of the Convention by effectively derailing proceedings in the chosen court, there was also a consensus of the official delegates at the meeting that the Convention will not permit national courts of the Contracting States to grant anti-suit injunctions.

However, intra-EU Hague Convention cases may arguably not permit remedies for breach of exclusive choice of court agreements as they may be deemed to be an infringement of the principle of mutual trust and the principle of effectiveness of EU law (effet utile) which animate the multilateral jurisdiction and judgments order of the Brussels Ia Regulation (see pages 403-405 of the article; C-159/02 Turner v Grovit [2004] ECR I-3565). If an aggrieved party does not commence proceedings in the chosen forum or commences such proceedings after the non-chosen court has rendered a decision on the validity of the choice of court agreement, the recognition and enforcement of that ruling highlights an interesting contrast between the Brussels Ia Regulation and the Hague Convention. It appears that the non-chosen court’s decision on the validity of the choice of court agreement is entitled to recognition and enforcement under the Brussels Ia Regulation. (See C-456/11 Gothaer Allgemeine Versicherung AG v Samskip GmbH EU:C:2012:719, [2013] QB 548) The Hague Convention does not similarly protect the ruling of a non-chosen court. In fact, only a judgment given by a court of a Contracting State designated in an exclusive choice of court agreement shall be recognised and enforced in other Contracting States. (See Article 8(1) of the Hague Convention) Therefore, the ruling of a non-chosen court is not entitled to recognition and enforcement under the Hague Convention’s system of ‘qualified’ or ‘partial’ mutual trust. This provides a ready explanation for the compatibility of anti-suit injunctions with the Hague Convention but does not proceed any further to transpose the same conclusion into the very different context of the Brussels Ia Regulation which prioritizes the principle of mutual trust.

The dynamics of the relationship between Article 31(2) of the Brussels Ia Regulation and Articles 5 and 6 of the Hague Convention is mapped in the article (at pages 405-408). In a case where the Hague Convention should apply rather than the Brussels Ia Regulation because one of the parties is resident in a non-EU Contracting State to the Convention even though the chosen court is in a Member State of the EU (See Article 26(6)(a) of the Hague Convention) one would expect Article 6 of the Convention to be applied by any non-chosen court in the EU. However, the fundamental nature of the Article 31(2) lis pendens mechanism under the Brussels Ia Regulation may warrant the pursuance of a different line of analysis. (See Case C-452/12 Nipponkoa Insurance Co (Europe) Ltd v Interzuid Transport BV EU:C:2013:858, [2014] I.L.Pr. 10, [36]; See also to similar effect, Case C-533/08 TNT Express Nederland BV v AXA Versicherung AG EU:C:2010:243, [2010] I.L.Pr. 35, [49]) It is argued that the Hartley–Dogauchi Report’s interpretative approach has much to commend it as it follows the path of least resistance by narrowly construing the right to sue in a non-chosen forum as an exception rather than the norm. The exceptional nature of the right to sue in the non-chosen forum under the Hague Convention can be effectively reconciled with Article 31(2) of the Brussels Ia Regulation. This will usually result in the stay of the proceedings in the non-chosen court as soon as the chosen court is seised. As a consequence, the incidence of parallel proceedings and irreconcilable judgments are curbed, which are significant objectives in their own right under the Brussels Ia Regulation. It is hoped that the yet to develop jurisprudence of the CJEU on the emergent Hague Convention and the Brussels Ia Regulation will offer definitive and authoritative answers to the issues discussed in the article.

The implications of Brexit on this topic are not yet fully clear. (See pages 409-410 of the article) The UK is a party to the Hague Choice of Court Agreements Convention as a Member State of the EU, the latter having approved the Convention for all its Member States apart from Denmark. The UK will do what is necessary to remain a party to the Convention after Brexit.  In its recently published negotiating paper – only available after the article in the Journal of private International Law was completed – the UK Government has explicitly stated that:

“It is our intention to continue to be a leading member in the Hague Conference and to participate in those Hague Conventions to which we are already a party and those which we currently participate in by virtue of our membership of the EU.”  (see Providing a cross-border civil judicial cooperation framework (PDF) at para 22).

The UK will no doubt avoid any break in the Convention’s application. Brexit will almost certainly see the end of the application of the Brussels Ia Regulation in the UK. The reason being that its uniform interpretation is secured by the CJEU through the preliminary ruling system under the Treaty on the Functioning of the European Union (TFEU).  The UK is not willing to accept that jurisdiction post-Brexit (“Leaving the EU will therefore bring an end to the direct jurisdiction of the CJEU in the UK, because the CJEU derives its jurisdiction and authority from the EU Treaties.” see  Providing a cross-border civil judicial cooperation framework at para 20). So although the UK negotiators are asking for a bespoke deal with the EU to continue something like Brussels Ia (“The UK will therefore seek an agreement with the EU that allows for close and comprehensive cross-border civil judicial cooperation on a reciprocal basis, which reflects closely the substantive principles of cooperation under the current EU framework” see  Providing a cross-border civil judicial cooperation framework at para 19) it seems improbable that the EU will agree to such a bespoke deal just with the UK when the UK does not accept the CJEU preliminary ruling system.  The EU may well say that the option for close partners of the EU in this field is the Lugano Convention. The UK Government has indicated that it would like to remain part of the Lugano Convention (see Providing a cross-border civil judicial cooperation framework at para 22). In doing so it would continue to mandate the UK courts to take account of the jurisprudence of the CJEU -when that court is interpreting Brussels Ia or the Lugano Convention – when UK courts are interpreting the Lugano Convention (see the opaque statement by the UK Government that “the UK and the EU will need to ensure future civil judicial cooperation takes into account regional legal arrangements, including the fact that the CJEU will remain the ultimate arbiter of EU law within the EU.” see  Providing a cross-border civil judicial cooperation framework at para 20). However, unless the Lugano Convention is renegotiated it does not contain a good solution in relation to conflicts of jurisdiction for exclusive choice of court agreements because it has not been amended to reflect Article 31(2) of Brussels Ia and therefore still gives priority to the non-chosen court when it is seised first and the exclusively chosen court is seised second in accordance with the Gasser decision of the CJEU (see Case C-116/02 [2003] ECR I-14693).  Renegotiation of the Lugano Convention is not even on the agenda at the moment although the Gasser problem may be discussed at the Experts’ Meeting pursuant to Article 5 Protocol 2 of the Lugano Convention on 16 and 17 October 2017 in Basel, Switzerland (Professor Beaumont is attending that meeting as an invited expert).  Revision of the Lugano Convention would be a good thing, as would Norway and Switzerland becoming parties to the Hague Convention.  It seems that at least until the Lugano Convention is revised and a means is found for the UK to be a party to it (difficult if the UK does not stay in EFTA), the likely outcome post-Brexit is that the regime applicable between the UK and the EU (apart from Denmark) in relation to exclusive choice of court agreements within the scope of the Hague Convention will be the Hague Convention. The UK will be able to grant anti-suit injunctions to uphold exclusive choice of court agreements in favour of the courts in the UK even when one of the parties has brought an action contrary to that agreement in an EU Member State. The EU Member States will apply Article 6 of the Hague Convention rather than Article 31(2) of the Brussels Ia Regulation when deciding whether to decline jurisdiction in favour of the chosen court(s) in the UK.

Whilst the Hague Convention only offers a comprehensive jurisdictional regime for cases involving exclusive choice of court agreements, it does give substantial protection to the jurisdiction of UK courts designated in such an agreement which will be respected in the rest of the EU regardless of the outcome of the Brexit negotiations. Post-Brexit the recognition and enforcement regime for judgments not falling within the scope of the Hague Choice of Court Agreements Convention could be the new Hague Judgments Convention currently being negotiated in The Hague (see Working Paper No. 2016/3- Respecting Reverse Subsidiarity as an excellent strategy for the European Union at The Hague Conference on Private International Law – reflections in the context of the Judgments Project? by Paul Beaumont). Professor Beaumont will continue to be a part of the EU Negotiating team for that Convention at the Special Commission in the Hague from 13-17 November 2017. It is greatly to be welcomed that the UK Government has affirmed its commitment to an internationalist and not just a regional approach to civil judicial co-operation:

“The UK is committed to increasing international civil judicial cooperation with third parties through our active participation in the Hague Conference on Private International Law and the United Nations Commission on International Trade Law… We will continue to be an active and supportive member of these bodies, as we are clear on the value of international and intergovernmental cooperation in this area.” See Providing a cross-border civil judicial cooperation framework at para 21.

One good thing that could come from Brexit is the powerful combination of the EU and the UK both adopting a truly internationalist perspective in the Hague Conference on Private International Law in order to genuinely enhance civil judicial co-operation throughout the world.  The UK can be one of the leaders of the common law world while using its decades of experience of European co-operation to help build bridges to the civil law countries in Europe, Africa, Asia and Latin America.

Sabbagh v Khoury at the High Court was the subject of a lengthy review in an earlier post. The Court of Appeal has now considered the issues at stake, in no lesser detail.

In line with my previous post (readers unfamiliar with it may want to refer to it; and to very good Hill Dickinson summary of the case), of particular consideration here is the jurisdictional test under (old) Article 6(1) Brussels I, now Article 8(1) in the Recast, in particular the extent of merits review; and whether the subject matter of the claim comes within the succession exception of Article 1(2)(a) of the Brussels I Regulation.

As for the latter, the Court, after reviewing relevant precedent and counsel argument (but not, surprisingly, the very language on this issue in the Jenard report, as I mention in my previous post) holds in my view justifiably that ‘(t)he source of the ownership is irrelevant to the nature of the claim. ..The subject matter of the dispute is not whether Sana is an heir, but whether the defendants have misappropriated her property.‘ (at 161).

With respect to the application of Article 6(1) – now 8(1), the majority held in favour of a far-reaching merits review. Lady Justice Gloster (at 166 ff) has a minority opinion on the issue and I am minded to agree with her. As she notes (at 178) the operation of a merits test within Article 6(1) does give rise to risk of irreconcilable judgments, which can be demonstrated by reference to the present facts. She successfully, in my view, distinguishes the CJEU’s findings in Kolassa and in CDC, and the discussion at any rate one would have thought, merits CJEU review.

Geert.

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

I am in Wuhan 2 1/2 days this week, where I am pleased to be engaging in three of my favourites: a class on environmental law, at Wuhan University’s unparalleled Research Institute of Environmental Law; a session on best practices for PhD research at same; and a conference presentation on conflict of laws at the solidly A+++ ‘Global Forum’ of the Chinese Society of Private International Law and Wuhan University’s Institute of International Law.

Anyways, on my way I inter alia wrote following intro to a volume on Waste to Energy, edited by Harry Post. I thought would share.

The European Union purports to be moving towards a Circular Economy (CE). If recent experience in environmental and energy law is anything to go by, the rest of the world will look with interest to its progress. It is fashionable to say that in the CE ‘waste’ will no longer exist. This is however not relevant beyond semantics. What really matters is how the EU and others after or before it, create the economic and regulatory environment that enables the innovation which a CE requires.

Regulatory circles have ample sympathy for business implementing and bringing to market the many exciting ideas which engineers continue to develop. At the same time one must not be blind to the excess which unchecked engineering imagination does have on society, in all pillars of sustainable development: social, economic and environmental. We must not compromise on a robust regulatory framework which looks after what public health and environmental protection require: two Late Lessons from Early Warnings reports tell us that we would do so at our own peril. However we do have to question continuously whether our existing laws are best practice in reaching that desired outcome. It would be a particular affront if innovative products and services that truly may boost environmental protection, were not to be rolled-out because of anxiety over their legal status.

In an innovative environment, legal certainty is an important driver for success. Lack of clarity over the legal framework and /or the regulators’ implementation of same, leads industry either to seek out and concentrate development on those States with lax or flexible regulators only; or to stick to old and trusted products.

The European Union is particularly suited to providing that clarity. On the scientific front, by investing in research and development, especially at SME and specialised spin-offs level. On the regulatory front, it would do well to work out a regime which enables innovators to query enforcement agencies about the legality of a new product or service line without the fear of subsequently being disciplined for it.

This volume is a scholarly effort to assist with both strands of the exercise. It is to be much commended for that effort and I for one am sure both industry and legal scholars will find its content encouraging.

Geert.

 

I discussed this case with my students the day the judgment came out. Copy of the judgment has travelled with me far and wide. Yet I only now find myself getting round to posting on Anas v Facebook, at the courts at Würzburg back in February. Mr Anas came from Syria as a refugee and took a famous selfie with Frau Merkel. The photo later came to haunt him as fake news sites used it in connecting with accusations of terrorism. Mr Anas thereupon sued Facebook, requesting it to act more swiftly to remove the various content reporting on him in this matter. The Würzburg court obliged. I understand that in the meantime Mr Anas has halted further action against FB which I am assuming includes the appeal which FB must have launched.

Now, the interest for this blog lies not in the issue of fake news, but rather the jurisdictional grounds for the ruling. Mr Anas sued Facebook Ireland, not Facebook Inc. The latter, I would suggest, he might have done on the basis of the Brussels I Recast’s provisions on consumer contracts – albeit that the conditions for that title might not be fulfilled if Mr Anas became a FB user in Syria.

The court did not entertain the consumer title. It did uphold its jurisdiction on the basis of Article 7(2) of the Recast, as lex loci damni. (But without consideration of the Shevill limitation). Awkwardly, it then lest my German fails me, goes on to determine its internal jurisdiction on the basis of German civil procedure law. Plaintiff was domiciled in Berlin; not Würzburg. The judgment therefore turns into the proverbial cake and eating it: Article 7(2) does not just lay down jurisdiction for a Member State: it also identifies the very court in that MS that has jurisdiction. It cancels out internal rules of jurisdiction. With Mr Anas’ domicile in Berlin, Wurzburg as locus damni is not immediately obvious.

German speakers, if I am not reading this right please do comment.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.