Droit international général

Lawyers who speak both Spanish and English may be interested in a new book written by Professors S.I. Strong of the University of Missouri, Katia Fach Gómez of the University of Zaragoza and Laura Carballo Piñeiro of the University of Santiago de Compostela. Comparative Law for Spanish-English Lawyers: Legal Cultures, Legal Terms and Legal Practices / Derecho comparado para abogados anglo- e hispanoparlantes: Culturas jurídicas, términos jurídicos y prácticas jurídicas (Edward Elgar Publishing Ltd., 2016), is an entirely bilingual text that seeks to help those who are conversationally fluent in a second language achieve legal fluency in that language. The book, which is aimed primarily at private international and comparative lawyers, is appropriate for both group and individual study, and provides practical and doctrinal insights into a variety of English- and Spanish-speaking jurisdictions. The book is available in both hard copy and electronic form, and Elgar is currently offering a discount on website sales. See here for more information.

Isn’t it just a perfect exam question for a graduate course, nay this question involves so many issues it could arguably serve as one single exam for a whole law degree: such is the intensity of legal areas at issue: constitutional law, international law, international trade, regulatory law and risk analysis, intellectual property law…

Discuss why the Court of Appeal for England and Wales denied Government wrongdoing in plain packaging, while the German Bundesverfassungsgericht rejected an argument of expropriation in Energiewende yet held that German Government must nevertheless pay compensation to the energy companies involved (E.ON, RWE and Vatenfall).

Source tip: you may want to consult my former student Dr Catherine Banet’s excellent analysis on the Vatenfall issue.

Issues tip: a good way to go about it would be to draft a table of issues that both cases have in common and those which they do not (eg the Court of Appeal’s review of intellectual property). A discussion of the precautionary principle would not go amiss (in the plain packaging case: specifically whether precaution applies to uncertainty as to efficiency of remedies rather than uncertainty as to a phenomenon). A point of discussion may also be why the CA refers profusely to European precedent while the Bundesverfassungsgericht does not. Finally, any consideration of the link between the latter proceedings and the concurrent ISDS procedure, will gain you brownie points.

To fellow faculty out there: if you do use this exam Q, please do share good student answer copies.

Geert.

archa joint seminar of the Child & Family Law Quarterly and Cambridge Family Law

27 March 2017, at Trinity College, University of Cambridge

The withdrawal of the UK from the European Union will precipitate important change in the field of international family law. EU law has increasingly come to define key aspects of both jurisdiction and recognition & enforcement of judgments on divorce, maintenance, and disputes over children, including international child abduction, and provided new frameworks for cross-national cooperation. At this seminar, international experts and practitioners will discuss the impacts of ‘Brexit’ on family law, from a range of national and European perspectives, and reflect on the future of international family law practice in the UK.

Booking will open soon. CPD points will be available.

Please visit www.family.law.cam.ac.uk/ to join the Cambridge Family Law mailing list in order to receive an email when booking opens.

I have in the past reported fleetingly about the Trafigura litigation, in which the company is and has been pursued in various jurisdictions for the environmental and public health damage resulting from the dumping in Abidjan, Ivory Coast’s capita, of toxic waste originating from the Probo Koala. I discuss the corporate social responsibility implications of conflict of laws ia here.

The case has led ia to the so-called ‘Leigh Day settlement’ in the United Kingdom (representing 30.000 victims) and to a 2007 ‘Protocole d’Accord’ between Trafigura and Ivory coast.

Current judgment was issued on 30 November and involves Stichting Union des Victimes de Déchets Toxiques D`Abidjan et Banlieues, a foundation set up in accordance with Dutch law, claiming to represent victims not yet represented in the Leigh Day settlement.

The Dutch court first of all swiftly rejects any impact of the choice of court clause included in the 2007 protocol. This discussion could have been quite interesting, however the Court suffices with a reference to the narrow formulation of the clause. It refers to any and all issues arising out of the validity, application and interpretation of the agreement. The agreement being a contractual arrangement and the suit here being based on liability in tort, in an action started by victims not party to the agreement, the court at Amsterdam suffices with the remark that current case is evidently not covered by the clause.

This leaves aside the discussion on the merits with respect to that choice of court. The 2007 protocol was signed by Ivory Coast ‘for and on behalf of all victims of the toxic wastes’. Whether the State can legitimately bind all those victims, particularly since presumably not all of them are Ivory Coast nationals, requires a lex causae to settle. Were this to follow the Brussels I Recast rule (the case looks to have been introduced after January 2015), this would imply a discussion on the inclusion of choice of court ex-EU. Over and above that discussion, the Court at Amsterdam would then have to discuss whether perhaps ordre public protests against allowing a State to represent all victims in cases such as these.

Having dismissed (again, all too briefly) choice of court, the court subsequently upholds jurisdiction on the basis of Article 4 Brussels I Recast: the Dutch domicile of Trafigura Beheer BV.

In the remainder of the assessment of jurisdiction and standing, the Court applies Dutch law (de Stichting has been set up under Dutch law) and finds ultimately that the personal, business interests of its creator are not sufficiently split from the interests of the victims which the foundation purports to represent. The court adds that the Stichting would not seem properly to manage its documentation etc., leaving doubt as to whether it is properly equipped to attain its objective.

The suit is therefore dismissed on standing.

An interesting judgment to kick-start all sorts of issues of relevance to corporate social responsibility.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.9.2, Chapter 8, Heading 8.3.

I’ve come across this piece of news by Stacie I. Strong, and found it worth to be shared.

On Friday, the U.S. Supreme Court granted certiorari in Water Splash, Inc. v. Menon to address the question of whether the Hague Service Convention authorizes service of process by mail.

Click here to get to the initial submissions on whether the matter should be addressed by the SC.

On 16 December 2016, the University of Verona will host a seminar held by Robert Bray – Head of Unit at the Secretariat of the European Parliament’s Committee on Legal Affairs – on The immunities of the Members of the European Parliament. Ruggiero Cafari Panico (Univ. Milan) will intervene as discussant. The flyer of the event is available here.

Il 16 dicembre 2016 l’Università degli Studi di Verona ospita un seminario di Robert Bray – capo unità del Segretariato della Commissione per gli Affari giuridici del Parlamento europeo – dedicato a Le immunità dei membri del Parlamento europeo. Interverrà come discussant Ruggiero Cafari Panico (Univ. Milano). Per maggiori informazioni si veda qui.

Brussels Ibis Regulation – Changes and Challenges of the Renewed Procedural Scheme – Short Studies in Private International Law,

is the title of a book just released, edited by Vesna Lazic and Steven Stuij.

The book focuses on major amendments introduced in the Brussels I regulatory framework. The contributions scrutenise the changes introduced in the Brussels Ibis Regulation, a legal instrument that presents a core of the unification of private international law rules on the European Union level. It is one of the first publications addressing all the changes in the Brussels I regulatory scheme, which takes into consideration relevant CJEU case law up to July 2016.
The texts, written by legal scholars who have published extensively in the field of private international law and international civil procedure, will add to the development of EU private international law. In addition, the authors’ critical analysis may open further discussions on the topic and so benefit a consistent and harmonised application of the Regulation. In this respect the book takes a different approach than the commentaries which have so far been published.
It is primarily meant for legal academics in private international law and practitioners who are regularly engaged in cross-border civil proceedings. It may also be of added value to advanced students and to those with a particular interest in the subject of international litigation and more generally in the area of dispute resolution.

Vesna Lazic is a Senior Researcher at the T.M.C. Asser Instituut, an Associate Professor of Private Law at Utrecht University and Professor of European Civil Procedure at the
University of Rijeka.
Steven Stuij is an expert in Private International Law and an external Ph.D. candidate at Erasmus School of Law, Rotterdam.

In Philipp Plein, the court at Rotterdam held against the applicability of contractual choice of court to cases involving (alleged) unfair trading practices /infringement of competition law. (The judgment is not entirely clear on how the alleged tort needs to be qualified). I should also rephrase: I am assuming the case involves clothing chain Philipp Plein (‘PP’): this party’s name (albeit with presumably a typoo reported as ‘Philipp Klein’) is mentioned once in the judgment, probably because redacting missed this one particular reference. I find this process of anonimisation rather tiring: I fail to understand why in issues of commercial law, companies should at all be offered anonymity in public recording of the case. But I digress.

PP is domiciled at Lugano. The court is not entirely clear in its distinction between the Brussels I Recast Regulation and the Lugano Convention 2007. Domicile of the defendant in Switzerland was already immaterial under the Brussels I Regulation, given that one of the parties is domiciled in The Netherlands. The court applies Brussels I Recast and Lugano 2007 more or less jointly, given their similar outcome for the case at issue. Given this parallel application it is quite remarkable that no reference is made to CDC, which emphasised that extension of choice of court to non-contractual liability cannot be assumed. Instead the court here reviews how other parts of PP’s standard terms and conditions are formulated and what impact this has on the clause at issue.

It decides the choice of court clause (which read ‘“If both parties are businessmen, then the place of jurisdiction […] is Nuremberg, Germany”.’) does not extend to non-contractual liability. Parties seemingly agreed that in the event of non-applicability of choice of court, the Court at Rotterdam can hear the case on the basis of Article 5(3) Lugano 2007 (similar to now Article 7(2) Brussels I Recast).

I agree with Bas Braeken and Marianne Meijssen: A good result but an awkward way to go about it.

Geert.

(Handbook of) European Prviate International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.9, Heading 2.2.9.7.

Chiara Ghionni, Adozione internazionale e diritto alla famiglia, Edizioni Scientifiche Italiane, 2016, pp. 192, ISBN 9788849532098, EUR 23.

Nel volume si esamina il tema dell’adozione nella sua evoluzione normativa e applicativa, dal contesto internazionale ed europeo a quello interno, assumendo come filo conduttore la ricerca dei diritti del minore e la loro effettività. Il declino della c.d. famiglia tradizionale e la parallela emersione di nuovi, e diversi, modelli genitoriali obbligano ad un’attenta riflessione e ad una prudente valutazione delle situazioni inedite e complesse che la vita contemporanea propone, al fine di selezionare adeguatamente i valori guida cui affidare la soluzione delle questioni di disciplina. Un discorso sull’adozione internazionale, dunque, diventa un banco di prova per testare il grado di resistenza dei principi generali nell’attuale trasformazione che coinvolge i diritti della persona, i diritti fondamentali e gli istituti posti a fondamento della società, quali sono la famiglia e i rapporti di filiazione.

The author of this entry is Dr. Arantxa Gandía Sellens, senior research fellow at the MPI Luxembourg.

Yesterday the UK government announced that it is proceeding with preparations to ratify the Unified Patent Court Agreement. Following the Brexit vote, this piece of news is not only relevant for the patent world, but also for the future Brexit negotiations between the UK and the EU (art. 50 Treaty of the European Union).

Here I will focus on the implications of this decision on the unitary patent system.

A brief explanation of the unitary patent system

The European patent with unitary effect –thus different from the «classic» European patent– was introduced by Regulation (EU) no. 1257/2012 of the European Parliament and of the Council of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection (hereinafter, Regulation 1257/2012).

According to its art. 2 (c), the European patent with unitary effect is a «[…] European patent which benefits from unitary effect in the participating Member States by virtue of this Regulation». Furthermore, its arts. 5 (1) and 1 (1) establish that the so-called unitary effect of this kind of patent consists of the protection provided throughout the territories of the Member States participating in the enhanced cooperation authorized by Decision 2011/167/EU. The unitary patent protection may be requested for any European patent granted on or after the date of application of Regulation 1257/2012 (art. 18.6), which is linked to the date of entry into force of the Agreement on a Unified Patent Court (hereinafter, UPC Agreement), following its art. 18 (2).

The object of the UPC Agreement is to establish a Unified Patent Court for the settlement of disputes relating to European patents and European patents with unitary effect (art. 1). The Agreement requires for its entry into force the ratification of at least thirteen Member States, including the three Member States in which the highest number of European patents had effect in 2012 (art. 89 (1)). At the moment, eleven States have ratified the convention, and only one of them is among those three States whose ratification is mandatory, namely France.

Who can sign and ratify the UPC Agreement?

According to art. 84 of the UPC Agreement, it is open for signature by any Member State. Regarding ratification, the same requirement applies: “This Agreement shall be subject to ratification in accordance with the respective constitutional requirements of the Member States. […]”.

Thus, while the UPC Agreement is not an EU instrument but a classical international convention, only Member States of the European Union can sign and ratify the UPC Agreement.

Notwithstanding the Brexit vote, the UK remains for the moment a Member State of the European Union; therefore, at this time the requirements established by the UPC Agreement for ratification are met. However, the UK government is determined to proceed to Brexit and to become a non-EU country. Therefore, the ratification could create a measure that is contrary to the European Treaties to which the UK is still bound. According to art. 4.3 of the Treaty on European Union a Member State “shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives”.

Consequences of the UK’s ratification of the UPC Agreement

Ratification of the UPC Agreement, followed by exit from the EU would create a series of consequences that would have to be dealt with:

1. The unitary patent cannot cover the territory of a third State. According to art. 3 of Regulation 1257/2012, the unitary patent shall have equal effect in all the participating Member States, meaning that States without the status of “Member State” are excluded. In that scenario, the unitary patent would not have effect in the UK, unless the necessary modifications are made in the legal instruments that constitute the so-called “unitary patent package”.
2. Both Regulation 1257/2012 and the UPC Agreement use the terms “participating Member States” or “Contracting Member States” when referring to the States taking part in the system. This wording is a reaction to the ECJ’s Opinion 1/09, which dealt with the question of the compatibility of the failed agreement creating a Unified Patent Litigation System with EU law (open also to third States). The ECJ opposed the participation of third States in that convention, as the referral of preliminary questions on EU law could not be guaranteed. Moreover, a third State cannot refer preliminary questions on EU law to the ECJ. This means that a non-member State would not be able to comply with Art. 21 of the UPC Agreement, titled “Requests for preliminary rulings”: “[…] the Court shall cooperate with the Court of Justice of the European Union to ensure the correct application and uniform interpretation of Union law […]”.

3. A seat of the central division cannot be located in a third State. Art. 7.2 of the UPC Agreement establishes that the central division shall have its seat in Paris, with sections in London and Munich. Although the UPC Agreement does not require that the sections of the central division must be located in a Contracting Member State (paradoxically, this requisite does exist for the local and regional divisions, so that it could also be argued that it applies to the central division, mutatis mutandis), the question is not clear cut in light of the EU’s constitutional framework, which includes the Treaty on European Union and the Treaty on the Functioning of the European Union.

Two options for the unitary patent system after the Brexit vote

Taking into consideration that the UK will have the status of a non-EU country (third State), two options remain open to proceed with the establishment of the system following the Brexit vote:

First option) Maintaining the status quo. As discussed above, if the UK ratifies now the UPC Agreement, the other Member States might rely on art. 4.3 EU Treaty in order to block that ratification. Once the UK’s ratification is blocked –and the wording of the UPC Agreement remains– the process for the start-up of the unitary patent system will be delayed until the negotiations following the exit declaration (art. 50 EU Treaty) are concluded.

If, after the negotiations, it is agreed that the unitary patent system should be established without the UK, the UPC Agreement will have to be modified, at least regarding the seat of the UPC central division in London (art. 7.2 of the UPC Agreement).

Second option) Including the UK in the unitary patent system. If the UK ratifies the UPC agreement and the other Member States do not rely on art. 4.3 EU treaty, the setting up process will continue as it has been foreseen.

At the moment, as the UK is still an EU Member State, its active participation in the unitary patent system does not entail any problem, formally speaking. On the contrary, the UK is one of the three Member States in which the highest number of European patents had effect in 2012, which makes its ratification a condition for the setting up of the system (art. 89 of the UPC Agreement). However, when the UK loses its status as EU Member State, some modifications to the UPC Agreement will have to be made. Those modifications will have: 1) to make sure that third States are invited to take part in the system, provided that they oblige themselves to respect EU law and refer questions to the ECJ (in light of the Opinion 1/09); and 2) to change Regulation 1257/2012, in order that the unitary patent system can cover the territory of third States. This might also entail the participation in the system not only by the UK, but also by other interested third States.

The biggest disadvantage of this option is the risk of endangering the application and interpretation of EU law, as already pointed out in the ECJ’s Opinion 1/09. The ECJ will have to be consulted on the possibility of the inclusion of third states if those third States are willing to respect the primacy of EU law, referring preliminary questions to the ECJ when necessary. This would be a new feature in comparison to the failed agreement creating a Unified Patent Litigation System, where the referral of preliminary questions to the ECJ was not guaranteed.

A public meeting was held on 15 November 2016, in Washington, under the auspices of the US Department of State, to obtain the views of interested stakeholders on the current draft provisions of the Convention on the recognition and enforcement of foreign judgments, presently under discussion within the Hague Conference on Private International Law (regarding the Judgments Project, see further here; as concerns the draft text of the Convention, see here). A text resuming the outcome of the Washington meeting is available here.

Il 15 novembre 2016 si è svolto a Washington, con il patrocinio del Dipartimento di Stato americano, un incontro pubblico volto a conoscere le opinioni degli interessati circa il progetto di una Convenzione a vocazione universale sul riconoscimento e l’esecuzione delle decisioni straniere, attualmente in discussione in seno alla Conferenza dell’Aja di diritto internazionale privato (sul Judgments Project della Conferenza, si veda qui; quanto alla bozza della Convenzione, si veda qui). Un resoconto dell’incontro di Washington è disponibili a questo indirizzo.

According to a press release of 28 November 2016, the UK government is proceeding with preparations to ratify the Unified Patent Court Agreement.

Secondo un comunicato stampa del 28 novembre 2016, il Governo britannico sta procedendo alla preparazione della ratifica dell’Accordo relativo a un Tribunale Unificato dei Brevetti.

For those with an interest in UK constitutional law and its impact on the EU, these evidently are interesting days. I just wanted briefly to flag that the Scottish Government’s submission to the Supreme Court’s Article 50 case contains a short section on the EU’s civil justice agenda. At 48, the submission points out the impact withdrawal will have on the civil justice relations between Scotland, the remainder of the UK, and the EU.

There are plenty of papers out there on the impact of Brexit on conflict of laws. Without the correct arrangements, the UK is bound to lose a lot of its attraction in international dispute settlement. With the falling pound, Christmas shopping in London is particularly attractive to those outside the UK. Forum shopping a lot less so.

Geert.

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

U. Magnus: A Special Conflicts Rule for the Law Applicable to Choice of Court and Arbitration Agreements?
The article examines whether the German legislator should enact a separate conflicts rule which determines the law that is applicable to the conclusion and validity of choice of court and arbitration agreements. With respect to choice of court agreements the national legislator’s room for manoeuvre is anyway very limited due to the regulations in Art. 25 Brussels Ibis Regulation and Art. 5 Hague Convention on Choice of Court Agreements of 2005. There is no genuine need for an additional national conflicts rule, in particular since the interpretation and exact scope of the new conflicts rule in Art. 25 (1) Brussels Ibis Regulation still requires its final determination by the CJEU. After weighing all pros and cons the article recommends not to enact a separate conflicts provision. The same result is reached for arbitration agreements. Here, the international practice that in the absence of a choice the law at the place of arbitration applies should be fixed on the international or European level.

K. Bälz: Failing states as parties in international commercial disputes: public international law and conflict of laws
In the aftermath of the “Arab Spring” a number of states in the immediate vicinity of Europe have turned into failing states. Using the Libya cases of the English High Court as a starting point, this article examines the practical questions that arise in commercial disputes involving failing states. The key question is how to implement the international law principles on regime change and state failure in international disputes.

U.P. Gruber: The new international private law on the equalization of pension rights – a critical assessment
German international private law contains an extremely complicated rule on the equalization of pension rights. Under this rule, the equalization of pension rights of husband and wife shall be subject to the law applicable to the divorce according to the Rome III Regulation; however, an equalization shall only be granted if accordingly German law is applicable and if such equalization is recognized by the law of one of the countries of which the spouses were nationals at the time when the divorce petition was served. If one of the spouses has acquired during the subsistence of the marriage a pension right with an inland pension fund and carrying out the equalization of pension rights would not be inconsistent with equity, the equalization of pension rights of husband and wife shall be carried out pursuant to German law on application of a spouse.
Lately, Art. 17 (3) EGBGB was amended. Whereas in former times, Art. 17 (3) EGBGB referred to the law applicable to divorce determined by an autonomous German rule, the provision now makes referral to the Rome III Regulation. In the legislative process, this amendment was neither discussed nor justified. At a closer look, however, the new rule has serious flaws and should be changed.

C. Heinze/B. Steinrötter: When does a contract fall within the scope of the „directed activity“ as provided for in Art. 15 (1) (c) Regulation (EC) No 44/2001 (= Art. 17(1) (c) Regulation [EU] No 1215/2012)?
This contribution analyses the recent Hobohm-judgment of the European Court of Justice (ECJ), which concerns the requirement “contract falls within the scope of such activities” in Art. 15 (1) (c) Regulation (EC) No 44/2001 (= Art. 17 (1) (c) Regulation [EU] No 1215/2012). The CJEU decided that the rules on jurisdiction over consumer contracts are applicable even if the respective contract on its own does not fall within the scope of the professional activity which has been directed to the consumer’s home state, provided that it is closely linked to an earlier contract falling under Art. 17 (1) (c). The authors analyse the elements of this test of close connection and place it into the more general context of the jurisdiction rules for consumer disputes.

T. Lutzi: Qualification of the claim for a ‘private copying levy’ and the requirement of seeking to establish the liability of a defendant under Art. 5 No. 3 Brussels I (Art. 7 (2) Brussels I recast)
Seized with the question whether a claim for the “blank-cassette levy” under § 42b of the Austrian Urheberrechtsgesetz (which transposes Art. 5 (2) b of the European Copyright Directive) qualifies as delictual within the meaning of Art. 5 No. 3 of the Brussels I Regulation (Art. 7 (2) of the recast Regulation), the Court of Justice had an opportunity to refine its well-known Kalfelis formula, according to which an action falls under Art. 5 No. 3 if it “seeks to establish the liability of a defendant” and is “not related to a ‘contract’ within the meaning of Art. 5 No. 1”. Holding that the claim in question sought to establish the liability of the defendant “since [it] is based on an infringement […] of the provisions of the UrhG”, the Court seems to have moved away from the more restrictive interpretation of this criterion it has applied in the past. Yet, given the implications of such a broad understanding of Art. 5 No. 3, not least for claims in unjust enrichment, a restrictive reading of the decision is proposed.

L. Hübner: Effects of cross-border mergers on bonds
The article deals with the complex interplay of international contract law and international corporate law exemplified by the ECJ decision in the KA Finanz case. Three issues will be focused on: (i) the law applicable to a bond indenture after a cross-border merger of one of the contracting parties with a third party; (ii) the law applicable to the legal consequences of such a merger (legal and asset succession as well as creditor protection); and (iii) the application of Art. 15 of Directive 78/855 to securities to which special rights are attached.

C. Thomale: Multinational Corporate Groups, Secondary insolvency proceedings and the extraterritorial reach of EU insolvency law
In its preliminary ruling on the Nortel Networks insolvency dispute, the ECJ has made important assertions on procedural and substantive aspects of secondary insolvency proceedings and their coordination with the main proceedings as well as their reach to extraterritorial assets of the debtor. At the same time, the decision fuels the general regulatory debate on corporate group insolvencies. This comment analyses the decision and develops an alternative approach.

D.-C. Bittmann: Requirements regarding a legal remedy in terms of art. 19 of Regulation (EC) No. 805/2004 and competence for carrying out the certification of a judgment as a European Enforcement Order
The following article examines a judgment of the ECJ, which deals with several problems regarding the interpretation of Regulation (EC) No. 805/2004 creating a European Enforcement Order (EEO) for uncontested claims. The first part of the decision regards the requirements established by Art. 19 of the regulation. The ECJ rules, that Art. 19 (1) of Regulation (EC) No. 805/2004 requires from the national legal remedy in question that it effectively and without exception allows for a full review, in law and in fact, of a judgment in both of the situations referred to in that provision. Furthermore the EJC rules, that this legal remedy must allow the periods for challenging a judgment on an uncontested claim to be extended, not only in the event of force majeure, but also where other extraordinary circumstances beyond the debtor’s control prevented him from contesting the claim in question (Art. 19 (1) (b)). In the second part of the decision the ECJ rules, that the certification of a judgment as an EEO, which may be applied for at any time, can be carried out only by a judge and not by the registrar. The latter is only allowed to carry out the formal act of issuing the standard form according to Art. 9 of Regulation (EC) No. 805/2004 after the decision regarding certification as an EEO has been taken by the judge.

S. Arnold: Contract, Choice of Law and the Protection of the Consumer abroad when lured into business premises
Consumer protection is a cornerstone of European Law – just like party autonomy. Even in consumer contracts, parties can choose the applicable law. Yet the choice must not be to the detriment of the consumer. This is the core idea of Art. 6 (2) Rome I-Regulation. The OLG Stuttgart (Higher Regional Court of Stuttgart) addressed the range of that provision which is a central tool of consumer protection through conflict of laws. During a package holiday in Turkey, an 85 year old lady had bought a carpet. Turkish substantive Law did not allow for the lady to withdraw from the contract, German substantial Law, however, did. The OLG Stuttgart decided that the lady could withdraw from the contract on the basis of German substantial Law. The OLG Stuttgart found that the Turkish seller had worked together with the German travel agency in order to lure tourists from Germany into his business premises.

C. Wendelstein: Cross-border set-off based on counterclaim governed by Italian law
In the context of an international set-off the German Federal Court of Justice had to deal with various questions in the field of conflict of laws. For the first time the Court had to adjudicate upon the characterization of the notion of liquidità in Italian law (Art. 1243 Codice civile = Cc). According to the Federal Court of Justice this question has to be answered by the law designated by Art. 17 Rome I Regulation. The author agrees with this finding.

G. Schulze: The personal statute in case of ineffective dual nationalities (case note on a judgment given by the Federal Court of Justice of Germany on 24th June 2015 – XII ZB 273/13)
The applicant had been living in Germany since his birth. As he had a double name (according to Spanish customs) registered in the civil registry in Spain he wanted to go by his Spanish family name in Germany as well. The case raises the question of how to determine the personal statute of a multinational person having both a Spanish and a Moroccan nationality if the person has no connections whatsoever to the countries in question. The Federal Court of Justice of Germany (Bundesgerichtshof, BGH) held: That in default of an “effective” citizenship the law of habitual residence shall be applicable, in casu: German law. That the “limping” name does not violate EU law. There are doubts about this solution: The effectiveness of nationality does not form a part of the elements of Art. 10 (1) of the Introductory Act to the Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch, EGBGB). Effectiveness serves only to clearly define the personal statute for given connecting factors, viz. in order to choose between several citizenships in Art. 5 (1) sentence 1 or to determine the (closer connected) habitual residence in Art. 5 (2) EGBGB. De lege lata there is no well-founded basis for a supported rejection of the application of law of nationality. However the general tendency to apply the law of habitual residence is not a reason to apply Art. 5 (2) EGBGB in analogy given multiple ineffective nationalities. It is not suitable to extend the escape clause in Art. 5 (2) EGBGB. In any case it is not a solution if the nationalities are EU nationalities. A former opportunity for choice of law which was unknown by the tenants does not eliminate an infringement of Art. 18 TEU (discrimination) and 21 TEU (freedom of movement).

M. Andrae: The matrimonial property regime of the spouses with former Yugoslav nationality
For the determination of the law applicable to matrimonial property referring to spouses who had at the time of marriage the Yugoslav nationality, two principles have a special significance: 1. The law of the former Yugoslavia shall not apply, including its interregional law and its conflict of laws principles. 2. An automatic change of the applicable law must be avoided, if possible and if it is not the consequence of a choice of law. Priority is given to the first principle. The connecting factor of the common nationality pursuant to Art. 15 (1) and 14 (1) No. 1 EGBGB must be supplemented. For this it is suitable to use the principle of closest connection by analogy to Art. 4 (3) sentence 2 EGBGB. Reference is made to the right of a successor State, if the spouses have had at the time of entering the marriage the Yugoslav nationality and a common closest connection to an area of the former Yugoslavia, which is now the territory of successor state. If such a connection is absent, then the applicable law has to be determined in accordance with Art. 15 (1) and 14 (1) No. 2 of the EGBGB, if necessary by Art. 14 (1) No. 3 EGBGB.

A. Reinstadler/A. Reinalter: The decision opening the debtor-in-possession proceeding pursuant to § 270a German Insolvency Act is not an insolvency proceeding pursuant to the European Insolvency Regulation (2002)
The Court of Appeal of Trento, local section of Bolzano (Italy) had to rule on the question whether the debtor-in-possession proceeding/Verfahren auf Eigenverwaltung (§ 270a German Insolvency Act) can be qualified as decision opening an insolvency proceeding pursuant to art. 16 European Insolvency Regulation (2002) and has, therefore, to be recognized automatically by operation of law by the courts of other Member States. Judge-Rapporteur Elisabeth Roilo concluded (implicitly referring to the Eurofood-formula) that the decision issued by the German district court in which opened the debtor-in-possession proceeding pursuant to § 270a German Insolvency Act is neither listed in Annex A of the Regulation nor is the appointed provisional liquidator (vorläufiger Sachwalter) included in Annex C of the Regulation. Since the decision, furthermore, foresees neither the divestment of debtor’s assets nor the forfeiture of the powers of management which he has over his assets, the criteria set down in the Eurofood-judgment are not fulfilled. The result is that the decision may not be qualified as a decision opening an insolvency procedure under the terms of art. 16 European Insolvency Regulation (2002).

Following the draft bill and consultation paper on Dutch collective actions for damages of 2014 (see our previous post), the final – fully amended – draft has been put before Parliament.

The following text has been prepared by Ianika Tzankova, professor at Tilburg University.

On 16 November 2016 the Dutch Ministry of Justice presented to Parliament a new Bill for collective damages actions. The proposal aims to make collective settlements more attractive for all parties involved by improving the quality of representative organizations, coordinating the collective (damages) procedures and offering more finality. It is unclear when or whether the Bill will be passed in its current form, but below are my first impressions and a personal selection of some noteworthy features of the Bill.

1. The proposed regime covers all substantive areas of law, which is a continuation of the status quo. What is new, is that now damages can also be claimed collectively and not only declaratory and injunctive relief, and that the same requirements apply to all types of actions: injunctive, declaratory or damages. More specifically, under the new regime it will be much harder for claimants to file actions for injunctive and declaratory relief (see further below under 6. and further).
2. The legislation would apply to all substantive areas of law, which is a continuation of the status quo on collective actions. What is new is that plaintiffs would be able to claim collective damages, not only declaratory and injunctive relief, and that the same requirements would apply to all types of actions: injunctive, declaratory or damages. More specifically, under the new legislation it would be much harder for claimants to file actions for injunctive and declaratory relief (see further below under 6. and further).
3. Exclusive jurisdiction in the first instance would be with the Amsterdam District Court, but it would be possible to transfer the collective action to another lower court if that would be more appropriate in a given situation.
4. There would be a registry for class actions so the public is notified once a class action has been initiated.
5. A system of ‘lead representative organizations’ would be introduced to streamline the process if there are multiple candidates for the position. There could also be co-lead representative organizations if that is appropriate for a specific action. Under the current regime it is possible to have multiple competing collective actions, a situation that is perceived as confusing for consumers and burdensome for defendants.
6. Only non-profit entities would be allowed to file the collective action, as under current law. Those could also be ad hoc foundations, but heavy governance requirements would be put in place for their Board and Supervisory Board structure, which would require D&O insurance, guarantees for non-profit background of the Board and Supervisory Board members, a website and communication strategy for the group, the preparation of financial statements etc. This would require a significant financial investment beforehand in the logistical infrastructure of the organization, and it is unclear how this could be funded on a non-commercial basis. There is an exception for matters with a idealistic public policy background. Those ad hoc foundations might be exempted from some of the requirements, but in fact the Bill puts the ad hoc foundations in a disadvantageous position in comparison to pre-existing non-profit organizations.
7. Moreover, the lead representative candidates would need to demonstrate expertise and track record in class actions, have a sufficient number of claimants supporting them in relation to the specific action, and have sufficient financial means. The parliamentary notes specify that the court might ask a neutral third party to review the agreement, which would not need to be shared with the defendant.
8. Opt out seems to be the main rule under the new regime, but this is somehow mitigated, because under the selection test for lead representative organization (see under 6 above), the candidate has to demonstrate that it has a large enough group of claimant supporters behind it and is not an empty shell. This assumes at least some book-building effort beforehand and is therefore at least in part an opt in. After the lead representative organization is appointed, the whole group will be represented on an opt out basis.
9. The lead representative organization would need to demonstrate the superiority of the collective action in comparison to individual law suits.
10. The lead representative organization would need to demonstrate a sufficient link with the Netherlands. The Dutch legislator has consulted the Dutch State Commission for Private International Law and the Advisory Commission on Civil Procedure in relation to that requirement. According to the legislature, the test for a sufficient link with the Netherlands is compatible with Brussels I, because it does not concern the jurisdictional test but the certification of a civil action, which is a matter of national civil procedure. It aims to exclude from the collective action situations where the defendant is not based in the Netherlands, the harmful events did not take place in the Netherlands or the majority of the claimants are not domiciled in the Netherlands. In those situations the claimants will still have the option of starting an individual action. This requirement seems to aim to address the recent VEB v BP type of collective actions, where the Dutch Investors’ Association VEB initiated a collective action for declaratory relief for all investors who had their BP shares in bank accounts in the Netherlands, following the ECJ’s criteria formulated in the Kolassa ruling (C-375/13). The Amsterdam District Court declared on 28 September of this year that it lacked jurisdiction to hear the action, which is questionable in view of the Kolassa ruling. The current proposal aims to eliminate the use of the new Dutch collective actions regime in situations where Dutch courts under Brussels I and ECJ case law would have jurisdiction to hear individual cases for the ‘Kolassa type’ of claimant, but those would not be able to use the Dutch collective action regime to effectuate their rights.
11. Group members could opt out at the beginning of the certified class action and start an individual proceeding, but those individual proceedings could be stayed at the request of the defendant, at least for one year after the parties opted out. The court would have discretion to allow the stay of the proceedings. This departs somewhat from the systems existing in other jurisdictions (e.g. US and Canada) where claimants who opt out can resume their individual actions with no delays.
12. The collective action tolls the statute of limitation for the whole group represented by the lead representative organization. Parties who choose to opt out need to preserve their individual rights within 6 months after they have opted out. Under Dutch law it is not necessary to start a civil action to preserve one’s rights. It is sufficient to send a letter to that effect to the defendant.
13. Under current Dutch law, adverse cost orders are fixed. Under the proposal it would be possible for the lead representative organization to recover the real costs of litigation if parties reach a settlement. The lead representative organization would be liable for any adverse costs if it loses the action.
14. Any settlement reached under the new collective action regime would need to be approved by the District Court. It is unclear whether the new regime aims to limit the extra-territorial application of the WCAM: the Dutch act on collective settlements that has already been used twice for global settlement purposes. Presumably not, if globally settling parties choose to invoke the WCAM directly and not via the Dutch collective action regime.

The second issue of the Revista  Chilena de Derecho Internacional Privado – the journal of the Asociación Chilena de Derecho Internacional Privado (ADIPRI – see this post) – has been published and can be freely downloaded here.

È uscito il secondo fascicolo della Revista Chilena de Derecho Internacional Privado, la rivista della Asociación Chilena de Derecho Internacional Privado (ADIPRI – per cui si veda questo post). Può essere consultato gratuitamente a questo indirizzo.

Si terrà a Lucca, il 16 e 17 dicembre 2016, il terzo incontro organizzato nell’ambito del progetto European Civil Procedure for Lawyers: Promoting Training to Improve the Effectiveness of Transnational Justice (segnalato in questo post).

L’incontro avrà ad oggetto il regolamento (UE) n. 655/2014 istitutivo dell’ordinanza europea di sequestro conservativo su conti bancari (OESC).

Si tratta, come i precedenti, di un tirocinio formativo a partecipazione attiva con presentazione, discussione e risoluzione di casi concreti. La prima giornata sarà dedicata ai provvedimenti cautelari italiani e l’OESC, nonché alla richiesta di informazioni del creditore sui conti correnti bancari del debitore, mentre il secondo giorno si parlerà di esecuzione e dei rimedi possibili avverso l’OESC. Verrà analizzato anche il regolamento di esecuzione 2016/1823 del 19 ottobre 2016, con il quale la Commissione europea ha recentemente adottato i relativi moduli standard (si veda questo post).

Interverranno Elena D’Alessandro (Univ. Torino), Silvana Dalla Bontà (Univ. Trento), Antonio Mondini (Trib. Lucca) e Giampaolo Benedetti Pearson (Foro di Lucca).

La partecipazione al seminario è gratuita. Le iscrizioni sono già aperte e devono essere richieste tramite e-mail all’indirizzo info@europeancivilprocedureforlawyers.eu non oltre il 7 dicembre 2016.

Ulteriori informazioni sono disponibili qui.

The most recent issue of the Zeitschrift für Vergleichende Rechtswissenschaft (German Journal of Comparative Law; Vol. 115 [2016], No. 4) features the contributions to the conference on the application of EU private international law in German legal practice that was held at the University of Freiburg (Germany) on 14 and 15 April 2016 (see our previous post here). This event was part of the EUPILLAR („European Private International Law – Application in Reality“) project funded by the EU Commission (see the project’s homepage here); it was organized by the German branch of the project team, Prof. Dr. Jan von Hein, University of Freiburg.

The issue starts with a concise introduction by Jan von Hein into the EUPILLAR project (p. 483) and continues with an in-depth analysis of the problems involved in evaluating EU PIL Regulations by Prof. Dr. Giesela Rühl (University of Jena; p. 499). It then contains three articles dealing with pervasive problems inherent in the application of EU PIL: firstly, the challenges it poses for the organization of domestic courts (by Prof. Dr. Hannes Rösler, University of Siegen; p. 533); secondly, the challenges for the CJEU (by Prof. Dr. Martin Gebauer, University of Tübingen; p. 557); and thirdly, the application of foreign law designated by PIL rules (by Prof. Dr. Oliver Remien, University of Würzburg; p. 570). In the following contributions, the handling of the EU PIL Regulations in German case-law is scrutinized, starting with the application of Rome I by ordinary civil courts (Prof. Dr. Dennis Solomon, University of Passau; p. 586) and by labour courts (Prof. Dr. Dr. h.c. Monika Schlachter, University of Trier; p. 610). Moreover, Prof. Dr. Wolfgang Wurmnest (University of Augsburg) analyzes how German courts have interpreted the Rome II Regulation (p. 624). Finally, German court practice regarding international family law is evaluated as well, Brussels IIbis and Rome III by Prof. Dr. Peter Winkler von Mohrenfels (University of Rostock; p. 650), and the Maintenance Regulation resp. the Hague Protocol by Prof. Dr. Wolfgang Hau (University of Passau; p. 672).

The Zeitschrift für Vergleichende Rechtswissenschaft was founded in 1878 and is Germany’s oldest continuously published periodical on comparative and private international law. Its current editor-in-chief is Prof. Dr. Dres. h.c. Werner F. Ebke, University of Heidelberg. Content is available online either through the website of the Deutscher Fachverlag or via beck online.

The Rotterdam court in Hanjin Europe held on the opening of secondary proceedings in The Netherlands, in application of the European Insolvency Regulation (EIR), with main proceedings and COMI in Germany. On the application of the insolvency Regulation there are few that match prof Wessels’ insights and I am happy to refer to them. Indeed it is Bob who alerted me to the case. Prof Wessels in particular points us to the following considerations:

• the relationship between Annex A, Annex C and the abstract definition of ‘insolvency’ in the EIR. Useful precedent is Eurofood.
• the power of a provisionary liquidator to request the opening of secondary proceedings.
• the exact meaning of ‘establishment’, inter alia following judgment in Interedil.
• whether applicant has to show an interest in requesting secondary proceedings.

Geert.

(Handbook of) European private international law, 2nd ed. 2016, Chapter 5.

Thomas Kadner Graziano, Cross-border traffic accidents in the EU – The potential impact of driverless cars, Brussels, 2016

Commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the JURI committee, this study provides an analysis of the potential legal impact of the introduction of connected and autonomous vehicles on rules of private international law determining jurisdiction and applicable law in the EU Member States in the event of a cross-border traffic accident. Following a case-studies approach, it makes a number of recommendations to improve the legal framework. In line with recent EU law trends towards enhanced protection for the victims and given that products liability is likely to gain more importance in the area, the study suggests the introduction of a duty for car manufacturers to contract liability insurance covering traffic accidents victims; the possibility of a direct action against a manufacturer’s liability insurer and the establishment of a forum at the domicile of the victim for claims against manufacturers of cars using new technologies. In order to increase legal certainty, the study recommends to redefine the respective scopes of application of the two systems of private international law currently coexisting in the EU to determine the law applicable (the Rome II Regulation and the 1971 and 1973 Hague Conventions), and to apply Rome II in cases in which both the claimant and the defendant are domiciled in EU Member States. Finally, autonomous technologies may increase the difficulty to initiate extra-contractual liability claims therefore the study proposes that limitation periods be extended at the substantive law level or that a cumulative connecting mechanism be introduced at private international level for the benefit of the victims.