Droit international général

In its judgment of 13 October 2016, case C-294/15, Mikołajczyk, the Court of Justice stated as follows.

(1)    Article 1(1)(a) of Regulation No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, must be interpreted as meaning that an action for annulment of marriage brought by a third party following the death of one of the spouses falls within the scope of that Regulation.

(2)    The fifth and sixth indents of Article 3(1)(a) of Regulation No 2201/2003 must be interpreted as meaning that a person other than one of the spouses who brings an action for annulment of marriage may not rely on the grounds of jurisdiction set out in those provisions.

Nella sentenza resa il 13 ottobre 2016, relativa alla causa C-294/15, Mikołajczyk, la Corte di giustizia ha affermato quanto segue.

(1)     L’art. 1, par. 1, lett. a), del regolamento n. 2201/2003 relativo alla competenza, al riconoscimento e all’esecuzione delle decisioni in materia matrimoniale e in materia di responsabilità genitoriale va interpretato nel senso che un’azione per l’annullamento del matrimonio proposta da un terzo successivamente al decesso di uno dei coniugi rientra nell’ambito di applicazione di detto regolamento.

2)      L’art. 3, par. 1, lett. a), del medesimo regolamento, segnatamente il quinto e il sesto trattino (che valorizzano la residenza abituale dell’attore come titolo di giurisdizione in materia matrimoniale), va interpretato nel senso che una persona diversa da uno dei coniugi che proponga un’azione per l’annullamento del matrimonio non può avvalersi dei criteri di competenza previsti in tali disposizioni.

The European Parliamentary Research Service has published a study, authored by Christian Salm, to support a legislative initiative report on the protection of vulnerable adults to be prepared by the French MEP Joëlle Bergeron.
The purpose of the study is to provide an objective evaluation of the potential added value of taking legislative action at EU level in this field, in particular where a cross-border element is present.

The study builds on expert research carried out for the purpose by Ian Curry-Sumner of the Voorts Juridische Diensten (Dordrecht), on the one hand, and by Pietro Franzina of the University of Ferrara and Joëlle Long of the University of Turin, on the other. The research papers are annexed to the study.

The study argues that, together with the ratification of the Hague Convention of 13 January 2000 on the international protection of adults by all EU Member States, the adoption of certain EU legal measures would create a more reliable legal framework for the protection of vulnerable adults in cross-border situations than is currently the case. This would constitute an added value in itself, and would also contribute to reducing legal and emotional costs for vulnerable adults when facing issues in a cross-border situation.

The proposed measures, which could be adopted on the basis of Article 81 of the Treaty on the Functioning of the European Union, include: (i) enhancing cooperation and communication among authorities of EU Member States in this area; (ii) abolishing the requirement of exequatur for measures of protection taken in EU Member States; (iii) creating a European certificate of powers granted for the protection of an adult; (iv) enabling the adult, under appropriate safeguards, to choose in advance the EU Member States whose courts should be deemed to possess jurisdiction to take measures concerning his or her protection; (v) providing for the continuing jurisdiction of the courts of the EU Member State of the former habitual residence.

The European Parliamentary Research Service has published a study accompanying a legislative initiative report on the protection of vulnerable adults to be prepared by the French MEP Joëlle Bergeron for the purposes of Article 225 of the TFEU. Its purpose is to assess the potential added value of taking legislative action at EU level in this field, in particular as regards situations where a cross-border element is present. The study builds on expert research carried out for the purpose, inter alia, by Ian Curry-Sumner (Voorts Juridische Diensten, Dordrecht), and Joëlle Long (Univ. Turin). The research papers are annexed to the study.

Il Servizio Ricerca del Parlamento europeo ha pubblicato uno studio destinato ad accompagnare una relazione di iniziativa legislativa ai sensi dell’art. 225 del TFUE dedicata alla protezione degli adulti e affidata alla Parlamentare europea francese Joëlle Bergeron. Lo studio punta ad accertare il valore aggiunto di un’azione legislativa condotta in quest’ambito a livello europeo, in particolare per quanto concerne le situazioni caratterizzate da elementi di internazionalità. Lo studio si basa su ricerche svolte, fra gli altri, da Ian Curry-Sumner (Voorts Juridische Diensten, Dordrecht) e Joëlle Long (Univ. Torino). Il testo integrale di tali lavori di ricerca è allegato allo studio.

On 7 October 2016, Turkey ratified the 1996 Hague Convention the Protection of Children and the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance. Both Conventions will enter into force for Turkey on 1 February 2017.

Il 7 ottobre 2016, la Turchia ha ratificato la Convenzione dell’Aja del 1996 sulla protezione dei minori e la Convenzione dell’Aja del 2007 sulle obbligazioni alimentari. I due strumenti saranno internazionalmente in vigore per la Turchia dal 1° febbraio 2017.

The EU Succession Regulation – A Commentary, edited by Alfonso-Luis Calvo Caravaca, Angelo Davì, Heinz-Peter Mansel, Cambridge University Press, 2016, ISBN 9781107127302, GBP 125.

The European Succession Regulation is a landmark in the field of EU private international law. It unifies the conflicts of laws, jurisdiction and recognition of foreign judgments and some other legal instruments in the field of succession and wills. This volume provides an article-by-article commentary on the individual provisions of the Regulation, introduced by an overview of its general framework and underlying principles. As a reference tool for the Regulation, this book is intended to promote a high standard of interpretation and application. With contributions from leading scholars in the field, it uses a comparative approach in its analysis to enrich the academic debate and highlight the problems likely to arise in the practical application of the Regulation.

The University of Rome La Sapienza will host a conference, on 13 October 2016, on the occasion of the publication of the book. Speakers include Cristina Campiglio (Univ. Pavia), Sergio Maria Carbone (Univ. Genova), Javier Carrascosa González (Univ. Murcia), Claudio Consolo (Univ. Roma La Sapienza), Erik Jayme (Univ. Heidelberg), Peter Kindler (LMU Munich), Paolo Pasqualis (Italian Council of Notaries), Ugo Villani (Univ. Bari).

Il 13 ottobre 2016, si svolgerà a Roma, all’Università La Sapienza, un convegno in occasione della pubblicazione del volume. Interverranno, fra gli altri, Cristina Campiglio (Univ. Pavia), Sergio Maria Carbone (Univ. Genova), Javier Carrascosa González (Univ. Murcia), Claudio Consolo (Univ. Roma La Sapienza), Erik Jayme (Univ. Heidelberg), Peter Kindler (LMU Monaco), Paolo Pasqualis (Consiglio Nazionale del Notariato), Ugo Villani (Univ. Bari).

On 27–28 October 2016, Professor Amnon Lehavi (Atara Kaufman Professor of Real Estate at Radzyner School of Law, Israel, and currently Global Chair at Tilburg University, Netherlands) and Anna Berlee (Tilburg Law School) will host an international expert meeting of speakers representing all areas of property law, from the Netherlands and abroad. The workshop will study the various challenges that processes of globalisation pose to the different fields of property law, from land law to tangible and intangible goods, intellectual property, property aspects of family law and new outer-world cyberspace and outer space property. Further details will be available here shortly. Those interested in participating should contact Anna Berlee at a.berlee@tilburguniversity.edu.

On 28 October 2016, the University of Florence will host a conference devoted to ‘New instruments to promote the proper application of the EU Charter of Fundamental Rights. A discussion with the EU Institution and national actors on the results and future perspectives of the Charterclick! Project’. The programme is available here.

Il 28 ottobre 2016, l’Università di Firenze ospiterà un convegno dedicato al tema “Nuovi strumenti per promuovere la corretta applicazione della Carta dei diritti fondamentali dell’Unione Europea. Una discussione con le istituzioni dell’Unione Europea e gli attori nazionali sui risultati e le prospettive future del Progetto Charterclick!. Il programma dell’evento è disponibile qui.

On 5 October 2016, the United Kingdom notified the Council of the European Union, in accordance with Article 3(1) of the Protocol (No 21) to the Treaties on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, that it intends to take part in the adoption and application of the proposed regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (the recast Brussels II regulation). A similar communication has been made by Ireland.

Il 5 ottobre 2016, il Regno Unito ha reso noto al Consiglio dell’Unione europea, in base all’art. 3, par. 1, del Protocollo (n. 21) allegato ai Trattati relativo alla posizione del Regno Unito e dell’Irlanda circa lo spazio di libertà, sicurezza e giustizia, che intende prendere parte all’adozione e all’applicazione del regolamento sulla competenza giurisdizionale, il riconoscimento e l’esecuzione delle decisioni in materia di matrimoniale e di responsabilità genitoriale, e sulla sottrazione internazionale di minori (regolamento Bruxelles II rifuso, di cui vedi qui la proposta). Una analoga comunicazione è stata fatta dall’Irlanda.

The Research Center for Transnational Commercial Dispute Resolution at EBS Law School will host a lecture on extraterritoriality in transnational regulation. Professor Dr. Hannah L. Buxbaum, John E. Schiller Chair in Legal Ethics, Maurer School of Law, Indiana University Bloomington, USA, will talk about the special problem of private enforcement in this context.

Background: In 2000, the European Community filed a lawsuit against RJR Nabisco (RJR) in U.S. federal court, alleging violations of the U.S. Racketeer Influenced and Corrupt Organizations Act (RICO). In 2016, the litigation came to a close. The Supreme Court held that RICO does apply to certain forms of foreign conduct – however, it concluded that RICO’s private cause of action does not extend to claims based on injuries suffered outside the United States, and therefore denied the European Community any recovery. The effect of this decision, which builds on other recent decisions of the Court, is to constrain quite significantly the application of U.S. regulatory law in cross-border cases. 

The talk will explore the extraterritorial application of domestic regulatory law as a tool of transnational regulation. In particular, it will address the special challenges created when it is private plaintiffs, rather than state agencies, that seek to apply that law.

The Lecture will be held on 18 October 2016 at 6.30 p.m. in Lecture Room “Sydney” at EBS Law School in Wiesbaden. For further information see here.

We are looking forward to seeing you.

Thank you Cozen O’Connor for alerting me. California’s Senate Bill 1241 was signed into law at the end of September. It will apply to employment contracts entered into, modified, or extended on or after 1 January 2017.

The Bill will feature in a forthcoming article that I am co-authoring with Jutta Gangsted. I have not (yet) studied the preparatory work in detail however the Bill immediately calls for comparative analysis with the EU’s’ approach to this particular ‘protected category’: what is a labour (employment) contract; how does ‘primarily resides and works in California’ compare with ‘habitually carries out his work’ and ‘domicile’; when exactly is a contract ‘modified’ (on this see for the EU, Nikiforidis). The starting point of both the California and the EU rules is the same: employees cannot be considered to really consent to either choice of law or choice of court hence any clause doing same will be subject to mandatory limitations.

Geert.

On 8 September 2016, AG Bot delivered his opinion in case C-484/15, Ibrica Zulfikarpašić v Slaven Gajer. He concluded as follows.

(1)      The concept of ‘judgment’, within the meaning of Article 4(1) of Regulation (EC) No 805/2004 creating a European Enforcement Order for uncontested claims, must be interpreted as meaning that an enforcement title such as a writ of execution issued by a notary based on an authentic document constitutes a ‘judgment’ within the meaning of Article 4(1) of Regulation No 805/2004, provided that the notary with power to issue that writ adjudicates, in the exercise of that specific function, as a court, which requires him to offer guarantees as to his independence and impartiality and to decide on his own authority by a judgment which, first, was or may be subject to an exchange of arguments before being certified as a European Enforcement Order and, second, may be challenged before a judicial authority. It is for the referring court to determine whether notaries satisfy all of those conditions, particularly those relating to independence and impartiality.

(2)      Article 6(1) of Regulation No 805/2004 must be interpreted as meaning that notaries who satisfy the conditions laid down in order to be classified as a ‘court’ constitute the ‘court of origin’ within the meaning of Article 4(6) and Article 6(1) of that regulation and therefore have the power to certify as European Enforcement Orders the writs they issue which have become enforceable in the absence of opposition from the debtor.

L’avvocato generale Bot ha presentato l’8 settembre 2016 le sue conclusioni relative alla causa C-484/15, Ibrica Zulfikarpašić v Slaven Gajer. A suo avviso, la Corte dovrebbe statuire quanto segue.

(1)      La nozione di “decisione giudiziaria” ai sensi dell’articolo 4, punto 1, del regolamento n. 805/2004 che istituisce il titolo esecutivo europeo per i crediti non contestati, deve essere interpretata nel senso che un titolo esecutivo quale un mandato di esecuzione emesso da un notaio in base a un atto autentico costituisce una “decisione giudiziaria” a norma della menzionata disposizione se il notaio competente a rilasciare detto mandato statuisce in qualità di giudice nell’esercizio di tale specifica funzione, il che presuppone che egli offra garanzie di indipendenza e imparzialità e statuisca con poteri propri mediante una decisione che, da un lato, ha costituito o può costituire l’oggetto di una discussione in contraddittorio prima di essere certificata quale titolo esecutivo europeo e, dall’altro, può essere oggetto di ricorso dinanzi a un’autorità giudiziaria. Spetta al giudice del rinvio verificare se il notaio soddisfi tutte le suddette condizioni, in particolare quelle relative all’indipendenza e imparzialità.

(2)      L’articolo 6, par. 1, del regolamento n. 805/2004 deve essere interpretato nel senso che il notaio che soddisfi le condizioni per essere qualificato come “giudice” costituisce il “giudice di origine” ai sensi dell’articolo 4, punto 6, e dell’articolo 6, par. 1, di tale regolamento ed è, quindi, competente a certificare come titolo esecutivo europeo il mandato che ha rilasciato e reso esecutivo in mancanza di opposizione del debitore.

The Interdisciplinary Association for Comparative and Private International Law (IACPIL) with support of the Faculty of Law at the University of Vienna is hosting a conference organized by Professor Dr Bea Verschraegen and Dr Florian Heindler on international banking transactions involving consumers.

The conference (in German language) will take place on 24 October 2016 in Vienna at the Vienna University, Faculty of Law.

Speakers are:

Professor Dr Peter Mankowski, University of Hamburg
Professor Dr Dietmar Czernich, Innsbruck
Professor Dr Georg Kodek, Vienna University of Economics and Business and Austrian Supreme Court
Private-Docent Dr Judith Schacherreiter, Vienna
Professor Dr Gerald Spindler, University of Göttingen
Dr Florian Heindler, Bregenz
Welcome address by Prof Dr Paul Oberhammer, University of Vienna
Moderation and conclusive remarks by Prof. Dr. Bea Verschraegen, University of Vienna, Prof Dr Verica Trstenjak, University of Vienna, Dr Konrad Koloseus, Vienna, Dr Heinz Löber, Vienna
The programme can be downloaded here.
For additional questions and registration, please contact Ms Sandra Muckenhuber.

Estonia has recently joined the Rome III Regulation (EU) No. 1259/2010 on enhanced cooperation in the area of the law applicable to divorce and legal separation, increasing the number of participating Member States to seventeen. The Decision of the Commission of 10 August 2016 has been published in (2016) OJ L 216/13. Before, Lithuania and Greece had already joined the original fourteen participating Member States. Contrary to some dire forecasts made at the time when the Rome III Regulation was adopted, this instrument has turned out to be rather successful, being now in force in a clear majority of Member States. Rome III shall apply to Estonia from 11 February 2018. Article 3 of the said Council’s decision contains specific transitional provisions, in particular with regard to choice-of-law agreements.

The Italian Government has adopted, on 4 October 2016, the draft text of three decrees implementing Law No 76 of 20 May 2016, on registered partnerships. One of these decrees is specifically concerned with private international law. It will be finally adopted by the Government, once examined by the Committees for Justice of the Italian Senate and Chamber of Deputies. The text (in Italian) may be found here.

Il 4 ottobre 2016 il Consiglio dei Ministri ha approvato, in sede di esame preliminare, i decreti attuativi della legge 20 maggio 2016 n. 76, recante la regolamentazione delle unioni civili tra persone dello stesso sesso e disciplina delle convivenze. Con uno di questi decreti il Governo si appresta ad esercitare la delega contemplata al comma 28, lett. b), della legge, che prefigura la “modifica” e il “riordino” delle norme in materia di diritto internazionale privato riguardanti le unioni. Il testo del decreto, attualmente all’esame delle Commissioni Giustizia di Camera e Senato, è disponibile a questo indirizzo.

The Academy of European Law (ERA) will host a conference on the changes which will be brought about by Brexit with regard to the UK’s status under the Brussels Ia, Rome I & Rome II Regulations and the impact of those changes on commercial dispute resolution in London during the transitional period and afterwards. The seminar is organized by Dr Angelika Fuchs (ERA) in cooperation with the Bar Council, the European Circuit and the Hamburgischer Anwaltverein. The event will take place on 10 November 2016 in London and will be followed by a reception.

Key topics will be:

• the fate of prorogation clauses in favour of English courts
• cross-border enforceability of judgments
• consequences for choice of law agreements
• the future of London as a legal hub

The full conference programme is available here.

The speakers are:

• Barbara Dohmann QC, Barrister, Blackstone Chambers, London
• Alexander Layton QC, Barrister, 20 Essex Street, London
• Matthias Lehmann, Professor at the University of Bonn
• Ravi Mehta, Barrister, Blackstone Chambers, London
• Hugh Mercer QC, Barrister, Essex Court Chambers, London
• Michael Patchett-Joyce, Barrister, Outer Temple Chambers, London

For further information, please see the conference website. Registration forms are available here.

On Friday, 7 October 2106, the Institute of Advanced Legal Studies at the University of London will host a half-day conference on Changes and challenges in cross-border litigation after the Brexit referendum. Designed to give speakers and attendees the opportunity to reflect on topics that are or could be affected by ‘Brexit’ for better or worse, the focus of the conference will be on areas of law that are relevant to commercial law such as choice of law, dispute resolution, banking resolution and cross border securities. A comparative viewpoint will be taken to include perspectives from Scotland and England and other European legal systems. The objective is to invite fresh approaches to legal solutions as they have been manifested in European Union legislation that may benefit from rethinking in the light of the June 2016 referendum on the UK’s EU Membership. Registration is possible and requested via the conference website.

The Programme reads as follows:

Introductory Remarks: Prof. Andrew Dickinson, University of Oxford, tbc – “The future direction of private international law in the UK” 

Keynote Speaker: Prof. Giesela Ruehl, University of Jena – “Choice of law and choice court clauses after the EU Referendum”  

Prof. Sophia Tang, University of Newcastle – “Future Private International Law and Judicial Cooperation: Different Models” 

Dr Maren Heidemann, Visiting Fellow, IALS – “Identities in EU PIL – an outdated social model?”  

Dr Lorna Gillies, University of Strathclyde – “Some observations on intra-UK rules post-Brexit” 

Prof. Gerard McCormack, University of Leeds – “Insolvency litigation after Brexit”

Dr Jonathan Fitchen, University of Aberdeen – “Post-Brexit recognition and enforcement of UK civil and commercial judgments in the European Union: problems and challenges” 

Dr Mukarrum Ahmed, University of Aberdeen – “BREXIT and English Jurisdiction Agreements: The Post-Referendum Legal Landscape

It is important at the outset to clarify terminology. A variety of statements, papers and position papers on JASTA, include the doctrine of ‘State immunity’ to either reject or support the Act. The Max Planck Encyclopedia of Public International Law, P-T Stoll (2011) defines State Immunity as:

“State immunity protects a State and its property from the jurisdiction of the courts of another State. It covers administrative, civil, and criminal proceedings (jurisdictional immunity), as well as enforcement measures (enforcement immunity). It reflects the sovereign equality of States as a main pillar of the contemporary international legal order. State immunity is closely related to but distinct from diplomatic immunity and the immunity of heads of States as well as the immunity of international organizations”.

This definition already shows the many levels of ‘immunity’ and the potential for confusion. The immunity at stake in JASTA is jurisdictional immunity. At the core of this immunity lies its procedural character. Immunity from jurisdiction does not mean that the subject enjoying it, is not bound by the law. States are evidently bound to apply international law. They and their agents and representatives are also bound to apply local law. Immunity from jurisdiction simply means that States cannot be pursued by the ordinary courts and tribunals of other States.

State immunity is seldom included in Treaties. It is considered to be part of customary international law. One or two Treaties have tried to codified it (e.g. the 1972 Basel Convention; and the United Nations Convention on Jurisdictional Immunities of States and Their Property, adopted on 2 December 2004) however these Treaties do not have many signatories. Anglo-Saxon jurisdictions such as the United States and the United Kingdom have a purpose-made Act that specifies how State immunity (and its limited exceptions) are to be applied on their soil. Civil law countries tend not to have such Act.

The existence of jurisdictional immunity of the State was confirmed by the International Court of Justice in its judgment of 3 February 2012 in Germany v Italy. Here, the ICJ noted (at 56)

Although there has been much debate regarding the origins of State immunity and the identification of the principles underlying that immunity in the past, the International Law Commission concluded in 1980 that the rule of State immunity had been “adopted as a general rule of customary international law solidly rooted in the current practice of States” (Yearbook of the International Law Commission, 1980, Vol. II (2), p. 147, para. 26).

The Court considers that the rule of State immunity occupies an important place in international law and international relations. It derives from the principle of sovereign equality of States, which, as Article 2, paragraph 1, of the Charter of the United Nations makes clear, is one of the fundamental principles of the international legal order. (at 57)

And ibidem

Exceptions to the immunity of the State represent a departure from the principle of sovereign equality.

‘Sovereign equality’ lies at the core of the principle of State immunity. In one of the pivotal early cases on the doctrine, The Schooner Exchange v McFaddon (1812), Justice Marshall of the United States Supreme Court emphasised the functional character of the principle. Other States sovereigns, their bodies and their agents need to be unencumbered in the pursuit of their mission. Just as the home nation expects its sovereign and its representatives to be treated in such way in other nations.

National courts in ordinary are not equal to the sovereign’s status and often diplomatic missions, which is exactly why those activities should not be hampered by law suits having to be entertained in local courts.

It may at first sight seem as if the doctrine of State immunity, like many century old concepts, surely ought not to stand in modern society. In 1951, Professor Sir Hersch Lauterpacht QC called State immunity an essentially insignificant and artificial problem (Lauterpacht, 1951). He supplemented his thoughts with a proposal to all but abolish the immunity of foreign States before domestic courts. In 1988, Professor (now emeritus) Christoph Schreuer published a volume on ‘recent developments’ in State immunity (Schreuer, 1988) in which he demonstrated that, defying Sir Hersch’s predictions, State immunity continued to exist. Now, nearly 30 years after that latter volume and a full 65 years following prof Lauterpacht’ s article, State immunity continues to exercise legislators and the judiciary worldwide, with increased attention to the citisens’ (including corporations) rights  of access to justice.

The boundaries and implications of State immunity are more than ever challenged. States and State extensions (public private partnerships; autonomous public undertakings; privatised utilities with public interest duties; State-funded and /or State run corporations…) play an increasingly relevant role in today’s integrated global economies.

Privatisation, outsourcing, and the general trend in many jurisdictions to downsize the government apparatus, means that in recent years more than ever before, boundaries between ‘the State’ and ‘the private sector’ have become increasingly blurred. Yet in litigation, both at the jurisdictional and at the enforcement stage, the conceptual difference between State parties involved in litigation, and ‘commercial’, private parties, continues to exist.

The increasing presence of ‘the State’(in the broad sense) in general economic life has led to a need for renewed statutory and judiciary response to issues as diverse as vulture funds litigation involving sovereign debt, enforcement of arbitral proceedings against States (and similar entities), …

Italian and Belgian courts were among the first to distinguish, in the application of a principle of sovereign immunity, between States acting iure imperii, and acting iure gestionis. The difference being that in the latter, the State pursues commercial activities just like companies and individuals and, the theory goes, they should therefore not enjoy immunity from jurisdiction.

The limited exceptions to state immunity such as in the case of acta iure gestionis may suggest that State immunity faces un unstable path. In 2012, as noted, the International Court of Justice (ICJ) supported state immunity by ruling that Germany could benefit from the principle to avoid paying damages for war crimes and violation of ius cogens (Germany v. Italy). A year later, the European Court of Human Rights (ECtHR) was less favourable by stating that an absolute interpretation of the principle violates article 6 of the European Convention on Human Rights (ECHR) (Oleynikov v. Russia). However that latter case concerned the iure gestionis exception: The case concerned a Russian national who complained about the refusal by the Russian courts to examine his claim concerning the repayment of a loan to the Trade representation of North Korea. The Court held that the limitation of Mr Oleynikov’s right of access to court had pursued the legitimate aim of promoting good relations between States through the respect of national sovereignty. However, it concluded that the Russian courts had failed to examine whether the nature of the transaction underlying the claim was of a private law nature and to take into account the provisions of international law in favour of restrictive immunity.

The point about State immunity from jurisdiction is that it operates blindly. It can only fulfil its function if it is entirely blind to the merits of the underlying case. Except if the case might conceivably involve commercial activities of the State concerned, a court should simply not entertain the case at all. This is all the more relevant in cases which involve topical international relations issues, such as in particular the fight against international terrorism. By lifting that procedural bar, JASTA makes sovereign States, including those of the European Union, subject to the full weight of American civil procedure, including pre-trial discovery, trial by jury, attorneys fees etc. Exactly the kind of distraction which Justice Marshall would have called an unjustified and unhelpful complication in Sovereign States pursuing their business, as States.

A unilateral change to the theory and practice of sovereign immunity such as proposed by JASTA, in my view does not reflect international law on the issue. It would undermine the very foundation of international diplomacy and law. I believe European nations would be well advised to protest against it, and to protest loudly.

There is no such thing as ‘sovereign immunity-light’. From the moment the principle is eroded, even for what seems a good or justified cause, it is damaged beyond repair.

Geert.

Excuse the attempt at pun in the title (which readers may have even missed. ‘Green’ v carte ‘Blanche’. It’s Thursday, and these are busy weeks). Apologies also to the readers who are new to the debate. The legality of support schemes for renewable energy  EU law has occupied mine and others’ mind for a little while now. One may want to refer eg to my paper on the Vindkraft et al judgment or to various postings on this blog. Specifically, for the latter, my post on the AG’s Opinion in Essent 2.0, case C-492/14., judgment issued today.

Bot AG had opined, very very reluctantly, that the Court’s case-law meant that Flanders could indeed reserve the benefit of the free distribution of electricity produced from renewable energy sources solely to generating installations directly connected to the distribution systems located in Flanders, thereby excluding generating installations located in other Member States.

The Court itself has now distinguished its own case-law: the EU has not harmonised the national support schemes for green electricity; this means that it is possible in principle for Member States to limit access to such schemes to green electricity production located in their territory. However the Court’s sympathy is now limited to schemes that support producers only. Green energy support schemes, whose production costs seem to be still quite high as compared with the costs of electricity produced from non-renewable energy sources, are inherently designed in particular to foster, from a long-term perspective, investment in new installations, by giving producers certain guarantees about the future marketing of their green electricity (at 110, with reference to Vindkraft).

However it is not the purpose of the Flemish scheme to give direct support to producers of green electricity. Rather, the free distribution of green electricity constitutes a financial advantage conferred primarily on the supplier of such electricity, which may, in certain circumstances, depending notably on the sale price which the consumer is charged by the supplier for his electricity, to a certain extent and indirectly also benefit the consumer (at 112).

Such a support mechanism offers no certainty that the economic advantage thus obtained for suppliers will ultimately actually and essentially be required to benefit producers of green electricity, particularly the smallest local generating installations which the Flemish Region claims to have wanted to support, which are not both producers and suppliers (at 113).

The Court is not game to assist the AG with his call for an explicit recognition of the potential to use discriminatory measures within the context of mandatory requirements (the implications of Cassis de Dijon). That is a pity, but not a surprise.

Overall, the Court’s judgment is a welcome safeguard to its more open-ended sympathy for renewable energy support schemes. Those who challenge such schemes in future, know what to do. They need to show that there is no certainty that the economic advantage obtained for suppliers will ultimately actually and essentially be required to benefit producers of green electricity, as opposed to distributors or consumers.

Next-up: a reversal of T-351/02 Deutsche Bahn?

Geert.

Thank you Govert Coppens for alerting me to the PCIA award‘s publication. I had reported earlier on this case in which  the Canadian owner of an eco-tourist facility in Barbados sued the Government of Barbados for an alleged breach of the full protection and security provision (among other provisions) in the Canada- Barbados bilateral investment treaty. Peter Allard argues in his claim that Barbados breached its treaty obligations by failing to enforce its domestic environmental laws, which he alleges led to the environment being spoilt and a loss of tourist revenues at his eco-resort.

The Tribunal is careful not to phrase the case as a pioneering case or a case in any way anything but run of the mill. This is evident from its very consideration (at 53) that ‘underlying the claims is a fundamental factual disagreement as to whether the Claimant has suffered loss or damage as a result of any actions or inactions of Barbados.’

This subsequently leads the Tribunal into what is effectively peer review of parties’ opposing expert reports on variety in fish and bird species, salinity, the health of crabs, etc., coming down in favour of Barbados: no convincing case of deterioration was made by claimant. One must bear in mind that the burden of proof lies with the latter. Next the Tribunal concluded that, even if it had found that there was a degradation of the environment at the Sanctuary during the Relevant Period (which it did not), it would not have been persuaded that such degradation was caused by any actions or inactions of Barbados.

The Tribunal further found that, being aware of the environmental sensitivities of the Sanctuary, Barbados took reasonable steps to protect it (at 242). It formulates Barbados’ BIT duties here as being a duty of care, not strict liability. It then undertook due diligence of the steps Barbados had taken to address known environmental concerns for the area and concluded (at 249) that ‘Barbados’ approach in addressing the Sluice Gate and general pollution issues at the Sanctuary as part of its governance of the entire area does not fall short of what was appropriate and sufficient for purposes of the duty of due diligence required by Article II(2)(b) of the BIT.‘

This tribunal was clearly not in a law-making mood but that arguably does not matter. The analysis it undertakes unequivocally and matter of factly establishes that countries’ indifference (quod non in casu) to take steps necessary to contain and remedy environmental degradation are a clear breach of BITS’ core requirements.

Geert.

By an individual application, the Turkish Constitutional Court for the first time examined an allegation of violation of rights secured under the Turkish Constitution in the proceedings before the Turkish courts in relation to the 1980 Hague International Child Abduction Convention. The Court decided by majority that the applicant’s right to respect for family life, which is guaranteed under Art 20 of the Constitution, was violated.

Burcu Yüksel, post-doctoral researcher at the University of Aberdeen and manager of the EUPILLAR project has written an article on this topic. It is published in International Family Law Journal, issue 3 of 2016.

A short version of the article is available here.