Droit international général

On 23 June 2015, the European Parliament and the Council of the European Union reached a compromise concerning the amendment of Regulation N0 861/2007, establishing the European Small Claims Procedure.

The text of the amending Regulation, as contemplated by the compromise, may be found here. The actual legislative measure will be formally adopted in the coming months.

Under the reformed Regulation, the European Small Claims Procedure will apply to “civil and commercial matters in cross-border cases … where the value of a claim does not exceed EUR 5000 at the time when the claim form is received by the court or tribunal with jurisdiction, excluding all interest, expenses and disbursements”. The current ceiling is 2000.

In five years’ time the Commission shall present a report on the operation of the Regulation, including an evaluation as to whether a further increase of the threshold above. On the same occasion, the Commission will look into the possibility of extending the scope of the European Small Claims Procedure so as to “facilitate access to justice for employees in cross-border employment disputes with their employer, in particular to claims for remuneration”.

The amended Regulation, though less innovative than the Commission had originally proposed, will have an impact on a number of practical issues raised by the application of the existing rules, including issues relating to the court fees charged to claimants (fees will have to be proportional to the value of the claim, but there will be no fixed cap) and the payment of such fees (Member States will be under an obligation to accept electronic payments).

Videoconferencing and, more generally, the use of remote communications technology, will be encouraged, although the Member States will not be under a legal duty to make the relevant equipment available to courts and litigants.

It has not yet been mentioned on this blog that Volumes 10 and 11 of the Munich Commentary on the German Civil Code (Münchener Kommentar zum Bürgerlichen Gesetzbuch), are now available in their sixth edition (2015). A standard German language treatise on both German and European private international law the new edition contains a detailed article-by article analysis of the Rome I, II and III Regulations (by Abbo Junker, Munich; Dieter Martiny, Hamburg/Frankfurt an der Oder); Ulrich Spellenberg, Bayreuth; Peter Winkler von Mohrenfels, Rostock), the Hague Protocol on Maintenance (Kurt Siehr, Hamburg/Zurich), the European Succession Regulation (Anatol Dutta, Regensburg), and the Hague Conventions on the Protection of Children and Adults (by Kurt Siehr, Hamburg/Zurich; Volker Lipp, Göttingen).

The sixth edition is the first edition that has been edited by our co-editor Jan von Hein (Freiburg/Germany). Jan is the successor to Hans-Jürgen Sonnenberger (Munich) and has contributed to the commentary himself with a completely new section on the general principles of European and German private international law.

Further information is available on the publisher’s website.

In Goldman Sachs v Novao Banco SA, the High Court first of all had to consider the scope of the Brussels I Regulation on the issue of ‘civil and commercial’.  This issue came up following the restructuring of a Portuguese Bank and the role of the Portuguese Central Bank, under its statutory powers, in the transfer of liabilities to a Bridge Bank, ‘Novo Banco’. [For the facts of the case see the judgment itself and see also Christopher Bates’ review, which first alerted me to the case. Mr Bates also reviews the issue of mutual recognition under the Bank Recovery Directive].

Hamblen J (soon to move to the Court of Appeal) in my view justifiably rejected Novo Banco’s arguments that the claim was not civil and commercial, given the statutory intervention of the Central Bank. With reference to the traditional line-up of CJEU precedent (see most recently Fahnenbrock, absent from the High court’s judgment; and Sapir, which does feature heavily) he held that the nature of the claim, in spite of the factual intervention of the Central Bank, is one in debt, which is a claim based on private law rights conferred by the relevant Facility Agreement and a civil and commercial matter. A novation of the Facility Agreement would not change the nature of that claim; nor does a statutory transfer.

Having decided that the claim falls under the Regulation, the High Court subsequently had to decide whether Novo Banco was subject to the choice of court, in favour of the English court, part of the Facilities Agreement. As this is a transfer of claims and not a contractual chain, Refcomp does not apply (Hamblen J did not refer to it). The matter needs to be decided by the lex causae, here the lex contractus: English law. Upon consideration of the various arguments, the High Court held that the choice of court clause had so been transferred together with the original claims.

Finally, the Court rejected a stay on ‘case management’ grounds (see Jong and Plaza for earlier applications).

The case shows how some of the core considerations of Brussels I can create a lot of argument, indeed.

Geert.

 

Mark Edwin Burge, Associate Professor of Law, Texas A&M University School of Law, has published a highly interesting article on the relationship between party autonomy and legal culture, providing new insights on the success (or failure) of legal transplants in choice of law: “Too Clever by Half: Reflections on Perception, Legitimacy, and Choice of Law Under Revised Article 1 of the Uniform Commercial Code”, 6 William & Mary Business Law Review 357 (2015).

The abstract reads as follows:

“The overwhelmingly successful 2001 rewrite of Article 1 of the Uniform Commercial Code was accompanied by an overwhelming failure: proposed section 1-301 on contractual choice of law. As originally sent to the states, section 1-301 would have allowed non-consumer parties to a contract to select a governing law that bore no relation to their transaction. Proponents justifiably contended that such autonomy was consistent with emerging international norms and with the nature of contracts creating voluntary private obligations. Despite such arguments, the original version of section 1-301 was resoundingly rejected, gaining zero adoptions by the states before its withdrawal in 2008. This Article contends that this political failure within the simultaneous overall success of Revised Article 1 was due in significant part to proposed section 1-301 invoking a negative visceral reaction from its American audience. This reaction occurred not because of state or national parochialism, but because the concept of unbounded choice of law violated cultural symbols and myths about the nature of law. The American social and legal culture aspires to the ideal that ‘no one is above the law’ and the related ideal of maintaining ‘a government of laws, and not of men.’ Proposed section 1-301 transgressed those ideals by taking something labeled as ‘law’ and turning on its head the expected norm of general applicability. Future proponents of law reform arising from internationalization would do well to consider the role of symbolic ideals in their targeted jurisdictions. While proposed section 1-301 made much practical sense, it failed in part because it did not—to an American audience—make sense in theory.”

The full article is available here.

The Court of Pécs, in Hungary, has recently submitted several questions to the ECJ concerning the interpretation of Regulation No 593/2008 on the law applicable to contractual obligations and Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, respectively the Rome I and Brussels I Regulations (case C-222/15, Hőszig Kft. v Alstom Power Thermal Services).

The requests concerning the Rome I Regulation relate to the fact that the contract that forms the basis of the main proceedings features a choice of law clause to which one of the parties did not consent.

The relevant provision, here, as indicated in Article 3(5) of the Rome I Regulation, is Article 10.

Article 10(1) provides that “the existence and validity of a contract, or of any term of a contract, shall be determined by the law which would govern it under this regulation if the contract or term were valid”. However, under Article 10(2), “a party, in order to establish that he did not consent, may rely upon the law of the country in which he has his habitual residence if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1”.

The first question raised by the referring court concerns the meaning of the expression “if it appears from the circumstances”. In particular, the court seeks to determine whether the assessment contemplated by Article 10(2) “must cover the circumstances of the conclusion of the contract, the subject-matter of the contract and the performance of the contract”. Furthermore, referring to the case where the relevant circumstances actually demonstrate that consent to the law applicable pursuant to paragraph 1 would not be a reasonable effect of the behavior of the party, the request seeks to determine whether the validity of the contractual clause at hand must then be determined “pursuant to the law of the country of habitual residence of the party who made the reference”.

Secondly, the Hungarian court wonders whether the court has discretion in evaluating if, under the circumstances that must be taken into account, consent to the law applicable pursuant to Article 10(1) was not a reasonable effect of the party’s behaviour.

The third question posed by the court is whether, once a party makes reference to the law of the country in which he has his habitual residence in order to establish that he did not consent, the court must consider this law in the sense that, by virtue of it, and because of the circumstances mentioned, “the consent of that party to the law chosen in the contract was not reasonable conduct”. If this is the case, the court also asks whether the examination of the circumstances carried out in order to determine if there are reasonable grounds to believe that consent was not given “covers the circumstances of the conclusion of the contract, the subject-matter of the contract and the performance of the contract”.

Finally, the court raises a question concerning Article 23(1) of the Brussels I Regulation, now corresponding to Article 25(1) of Regulation No 1215/2012 (Brussels Ia). Under this provision, the parties may agree to confer jurisdiction on a court of a Member State to settle any disputes between them, as long as these concern a particular legal relationship. Jurisdiction shall lie with the chosen court unless the agreement is null and void as to its substantive validity under the law of the Member State of the designated court. The choice of court agreement must meet the formal requirements set forth in the same provision.

In this connection, the request is meant to clarify whether the designation of the court must be specific or, if it is sufficient that the wish or intention of the parties can be deduced unequivocally from the wording, since Recital 14 of the Brussels I Regulation (now Recital 19 of the Brussels Ia Regulation) provides that party autonomy should be respected, subject to the exclusive grounds of jurisdiction, and to the limits stated in the field of protected contracts, where only limited autonomy is allowed.

In particular, having regard to this recital, the court asks whether “a clause conferring jurisdiction, included in the standard contract terms of one of the parties”, under which they stipulate that their disputes concerning validity, performance or termination of the order “are to be subject to the exclusive and final jurisdiction of the courts of a specific Member State”, namely, the court of Paris, could be considered “sufficiently precise, given that the wish or intention of the parties in relation to the designated Member State can be deduced unequivocally from its wording”.

Prof. Dr. Dr. h.c. mult. Jürgen Basedow, LL.M. (Harvard), Director of the Max Planck Institute for Comparative and International Private Law, Hamburg, has published a revised and updated version of the widely read and well-received lectures given by the author during the 2012 summer courses of the Hague Academy of International Law (on the first edition, see the post by Gilles Cuniberti here). This superbly written and well-researched book is a must-read for anyone interested in the paradigm shifts that private international law has undergone in recent decades. The abstract provided by the publisher reads as follows:

“This book endeavours to interpret the development of private international law in light of social change. Since the end of World War II the socio-economic reality of international relations has been characterised by a progressive move from closed to open societies. The dominant feature of our time is the opening of borders for individuals, goods, services, capital and data. It is reflected in the growing importance of ex ante planning – as compared with ex post adjudication – of cross-border relations between individuals and companies. What has ensued is a shift in the forces that shape international relations from states to private actors. The book focuses on various forms of private ordering for economic and societal relations, and its increasing significance, while also analysing the role of the remaining regulatory powers of the states involved. These changes stand out more distinctly by virtue of the comparative treatment of the law and the long-term perspective employed by the author.”

Further information is available on the publisher’s website here.

The Society of Trust and Estate Practitioners (STEP), in cooperation with the Swiss Association of Trust Companies (commonly abbreviated as SATC, not to be confused with an American TV sitcom), is organising an international conference in Lausanne (Switzerland) on recent experience and current trends under the Hague Convention on the Law Applicable to Trusts and on their Recognition of 1985. The event will take place on 3 November 2015; the conference language will be English.

According to the flyer, the conference “will consider how in thirty years since the conclusion of the Hague Trust Convention the trust has become more widely accepted and trust service providers have greater opportunities, in many countries, including Switzerland. The speakers will demonstrate how the trust is playing a full and positive role in the world of wealth management and fiduciary services in Switzerland, as well as cover recent international trust law developments and jurisprudence. The ambitious program features distinguished speakers from the judiciary, academia, the Swiss government, regulatory and the financial services world and promises to be an extraordinary conference.”

The full programme and details on registration are available here.

On 18 August 2015, the German Federal Supreme Court referred the following questions relating to the interpretation of Article 5 No. 1 of the Brussels I Regulation to the CJEU (my translation):

1. Must Art. 5 No. 1 lit. a) of the Brussels I Regulation be interpreted as covering a claim for compensation under Art. 7 of the EU Air Passenger Regulation against an airline that is not the contracting partner of the passenger but operates the flight by way of a codeshare agreement with the passenger’s contracting partner?

2. If Art. 5 No. 1 Brussels I Regulation applies: In case of a flight connection consisting of several flights without any meaningful stay at the connecting airports, is the place of departure of the first flight the place of performance within the meaning of Art. 5 No. 1 lit. b) Brussels I Regulation, if the flights are operated by different airlines by way of a codeshare agreement and if the claim for compensation is directed against the airline that operates the – severely delayed – second flight?

The facts of the underlying case are straightforward: The claimant booked a flight with Air France from Stuttgart to Helsinki via Paris. The flight from Paris to Helsinki was operated by Finnair by way of a codeshare agreement with Air France. The flight from Paris to Helsinki was delayed by three hours and twenty minutes. Therefore, the claimant sought compensation from Finnair under the EU Air Passenger Rights Regulation – and brought an action against Finnair in Stuttgart. The Court of First Instance (Amtsgericht) and the Regional Court (Landgericht) both rejected the claim for lack of jurisdiction. The Federal Supreme Court (Bundesgerichtshof), in contrast, wasn’t so sure, and, therefore, referred the above questions to the CJEU.

The press release of the Federal Supreme Court is available here (in German).

On 17 August 2015 the European Succession Regulation has entered into force. It provides for uniform rules on the applicable law as well as recognition and enforcement of decisions in matters of succession. It also creates a European Certificate of Succession that enables person to prove his or her status and rights as heir or his or her powers as administrator of the estate or executor of the will without further formalities.

More information is available on the European Commission’s website.

A volumious book on the International Protection of Adults, edited by Richard Frimston, Alexander Ruck Keene, Claire van Overdijk and Adrian Ward, has just been published (Oxford University Press, 2015).

The blurb reads:

Increasing numbers of people have connections with one country, but live and work in another, frequently owning property or investments in several countries. People with lifelong or subsequently developed impairments of capacity move cross-border or have property or family interests or connections spread across different jurisdictions. This new work fills a gap in a specialist market for a detailed work advising lawyers on all the considerations in these situations.

The book provides a clear, comprehensive, and unique overview of all relevant capacity and private international law issues, and the existing solutions in common law and civil law jurisdictions and under Hague Convention XXXV. It sets out the existing law of various important jurisdictions, including detailed chapters on the constituent parts of the UK, Ireland, Jersey, the Isle of Man and the Hague 35 states; and shorter chapters on 26 Non-Hague states and those within federal states, including coverage of the United States, several Australian and Canadian states, and a number of other Commonwealth jurisdictions. Containing a number of helpful case studies and flowcharts, the book draws upon the expertise of the editors in their respective fields, together with detailed contributions from expert practitioners and academics from each relevant jurisdiction.

Furhter information is available here.

A volumious book on the International Protection of Adults, edited by Richard Frimston, Alexander Ruck Keene, Claire van Overdijk and Adrian Ward, has just been published (Oxford University Press, 2015).The blurb reads:

Increasing numbers of people have connections with one country, but live and work in another, frequently owning property or investments in several countries. People with lifelong or subsequently developed impairments of capacity move cross-border or have property or family interests or connections spread across different jurisdictions. This new work fills a gap in a specialist market for a detailed work advising lawyers on all the considerations in these situations.

The book provides a clear, comprehensive, and unique overview of all relevant capacity and private international law issues, and the existing solutions in common law and civil law jurisdictions and under Hague Convention XXXV. It sets out the existing law of various important jurisdictions, including detailed chapters on the constituent parts of the UK, Ireland, Jersey, the Isle of Man and the Hague 35 states; and shorter chapters on 26 Non-Hague states and those within federal states, including coverage of the United States, several Australian and Canadian states, and a number of other Commonwealth jurisdictions. Containing a number of helpful case studies and flowcharts, the book draws upon the expertise of the editors in their respective fields, together with detailed contributions from expert practitioners and academics from each relevant jurisdiction.

Furhter information is available here.

By Polina Pavlova, research fellow at the MPI Luxembourg.

July, 21st 2015 has marked another important step in the private enforcement of competition law in Europe. Only two months after the long awaited preliminary ruling in the case CDC Hydrogen Peroxide (C-352/13) was delivered on May, 21st, the Amsterdam Court of Appeal seems to be the first one to apply the new ECJ case law on jurisdiction in cartel damage cases. Its judgment (accessible here in Dutch and German) dealt with compensation claims against members of the sodium chlorate cartel and applied the recently established ECJ principles even before the referring court itself (the Dortmund District Court) could render a judgment on its jurisdiction.

Background of the case is the bundled enforcement of the claims of damaged customers in the aftermath of the Decision of the EU Commission from June, 11th 2008 fining a number of undertakings for their participation in a sodium chlorate cartel operating EEA wide. Following this decision, Cartel Damage Claims, a special purpose vehicle based in Brussels, started buying off claims of the cartel victims and filed a suit against several cartel members before the District Court of Amsterdam. The latter accepted jurisdiction with a judgment from June, 4th 2014: a judgment which was subject to scrutiny and eventually confirmed by the Amsterdam Court of Appeal.

The application in the appeal proceedings questioned the jurisdiction of the Dutch courts over a cartel member seated in Finland. The Amsterdam judges confirmed the decision of the lower court according to which, since one of the co-defendants in the first instance proceedings was seated in the Netherlands, jurisdiction can be based on ex-Article 6 (1) of the Brussels I Regulation. Transposing the reasoning of the ECJ in CDC Hydrogen Peroxide – issued in a parallel scenario – to the proceedings at hand, the Court of Appeal considered the EU jurisdictional rule on joint defendants applicable. The close connection between the claims in the sense of ex-Article 6 (1) and in particular the same situation of fact and law – a requirement well established in ECJ case law – was deemed fulfilled: Following CDC Hydrogen Peroxide, the national appellate court decided that the commitment of a continuous competition law infringement sanctioned by the Commission’s Decision was sufficient to create an identical factual and legal background of the cartel damage claims. In addition, the court clarified that a company which has been held responsible for the cartel by the Commission can serve as an anchor defendant for the purposes of ex-Article 6 (1) even where the latter is a parent company of a cartel member and has not directly participated in the infringement.

Finally, the Amsterdam Court of Appeal (upholding the first instance decision) confirmed that the standard jurisdiction and arbitration clauses contained in the supply agreements between the cartel members and their customers do not apply to cartel damage claims. As far as the evoked jurisdiction agreements were concerned, the appellate court applied the reasoning of the ECJ in CDC Hydrogen Peroxide relating to the interpretation ex-Article 23 (para 70 f.). The disputes were qualified as deriving from a competition law infringement previously unknown to the customers and not from the multiple contractual relationships between suppliers and customers as such. They could thus not be covered by the standard wording of a jurisdiction clause regulating the contractual relation of the parties. Regarding the arbitration agreements, the court saw no reason to deviate from the aforementioned interpretation.

The appeal of the Finish cartel member was thus dismissed.

It is interesting to note that in this judgment the national Court of Appeal merely confirms what the Amsterdam District Court had already decided in 2014, long before the ECJ rendered its CDC Hydrogen Peroxide ruling. Even though the lower court did not await the judgment of the ECJ, its result seems to fall completely in line with the now EU-wide binding principles formulated by the Luxembourg judges. This demonstrates that the ECJ case law now simply prescribes what private enforcement friendly jurisdictions were doing anyway.

What is perhaps more intriguing, is to observe where the national court went even one step further than the ECJ in completely transposing the considerations on the material scope of the choice-of-court clauses to the other type of dispute resolution clauses at issue, i.e. the arbitration agreements. This was motivated by the sole consideration that there are no reasons to judge differently in this regard. While this might be a welcome interpretation, the issue of the applicability and interpretation of arbitration clauses was left untouched by the ECJ ruling (see para 58, particularly evident in comparison to the Advocate General’s opinion in the CDC Hydrogen Peroxide proceedings which dealt extensively with the issue, see there at para 118 ff.). Nevertheless, the equal treatment of the two types of (standard) dispute resolution clauses as regarding their scope seems to be common before Member State courts. This feature might prove to broaden the actual effect of the CDC Hydrogen Peroxide case law beyond its explicit scope (see e.g. the judgment of the District Court of Helsinki from of the July, 4th 2013, also concerning the Hydrogen Peroxide cartel). It remains to be seen how other jurisdictions will see the application of arbitration clauses in cartel damage cases.

The mentioned proceedings are only instances of a much broader landscape of private enforcement of cartel damage claims in the EU conducted to a great extent by special vehicles such as CDC. It seems that the Dutch jurisprudence might be, once again, setting an example on how international jurisdiction in competition law damage cases is to be dealt with by member state courts.

 

 

 

This post has been written by Ester di Napoli.

On 16 July 2015, the European Court of Justice (ECJ) rendered its judgment in the case of A v. B (C-184/14), clarifying the interpretation of Regulation No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (the Maintenance Regulation).

More specifically, the ruling regarded the interpretation of Article 3 of the Regulation. This provides, inter alia, that jurisdiction in matters of maintenance lies with “(c) the court which, according to its own law, has jurisdiction to entertain proceedings concerning the status of a person if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties”, or with “(d) the court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties”.

The dispute in the main proceedings concerned the legal separation of two Italians and the custody of their children. These proceedings had been brought by A (the husband) against B (the wife) before the District Court of Milan.

The Court of Milan asserted its jurisdiction in respect of legal separation relying on Article 3(1)(b) of Regulation No 2201/2003 (Brussels IIa), but held that, pursuant to Article 8(1) of that Regulation, it lacked jurisdiction over parental responsibility, as the children were, at the material time, habitually resident in the UK. The Court of Milan further held that, according to Article 3(c) and (d) of the Maintenance Regulation, it had jurisdiction to decide on the issue of maintenance for the benefit of the wife, but not to decide on maintenance for the benefit of the children, since the latter request was not ancillary to proceedings over personal status, but to proceedings concerning parental responsibility.

The case eventually reached the Italian Supreme Court, which decided to request the ECJ for a preliminary ruling. The Supreme Court asked whether, in circumstances such as those described above, a maintenance request pertaining to the child may be ruled on both by the court that has jurisdiction over legal separation or divorce, as a matter ancillary to the proceedings concerning the status of a person, within the meaning of Article 3(c) of that Regulation, and by the court that has jurisdiction to entertain the proceedings concerning parental responsibility, as a matter ancillary to those proceedings, within the meaning of Article 3(d) of that Regulation; or whether a decision on a similar matter can only be taken by the latter court.

Put otherwise, the issue was whether the heads of jurisdiction set out in Article 3(c) and (d) of the Maintenance Regulation must be understood to be mutually exclusive, or whether the conjunction “or” in the provision implies that the courts that have jurisdiction over legal separation and parental responsibility may be both validly seised of an application relating to maintenance in respect of children.

In its judgment, the ECJ begins by observing that the scope of the concept of “ancillary matter” cannot be left to the discretion of the courts of each Member State according to their national law. The meaning of this expression should rather be determined by reference to the wording of the relevant provisions, their context and goals.

The wording of Article 3(c) and (d) indicates that a distinction should be made between proceedings concerning the status of a person and proceedings concerning parental responsibility. In the face of this wording, it cannot be unequivocally established “whether the alternative nature of those criteria means that the applications relating to child maintenance are ancillary only to one set of proceedings concerning parental responsibility, or whether those applications may be deemed ancillary also to proceedings concerning the status of a person”.

As regards the context of the pertinent provisions, the ECJ notes that the above distinction echoes the distinction made by the Brussels IIa Regulation between disputes concerning divorce, legal separation and marriage annulment, on the one hand, and disputes regarding the attribution, exercise, delegation, and restriction or termination of parental responsibility, on the other. The ECJ further notes in this connection, based on Recital 12 of the preamble of the latter Regulation, that the rules on jurisdiction relating to parental responsibility underlie a concern for the best interests of the child, and adds that “an application relating to maintenance in respect of minor children is … intrinsically linked to proceedings concerning matters of parental responsibility”.

The ECJ concludes that “it is vital to take into account, in interpreting the rules on jurisdiction laid down by Article 3(c) and (d) of Regulation No 4/2009, the best interest of the child”, and that the implementation of such Regulation “must occur in accordance to Article 24(2) of the Charter of Fundamental Rights of the European Union”, according to which, in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.

Finally, as regards the goals of the provisions at stake, the Court considers that the main objective of the Maintenance Regulation is to ensure, in this field, the proper administration of justice within the EU. This implies that the court to which jurisdiction is conferred to decide on parental responsibility should be the court that finds itself “in the best position to evaluate in concreto the issues involved in the application relating to child maintenance, to set the amount of that maintenance intended to contribute to the child’s maintenance and education costs, by adapting it, according to (i) the type of custody (either jointly or sole) ordered, (ii) access rights and the duration of those rights and (iii) other factual elements relating to the exercise of parental responsibility brought before it”.

In light of the above, the ECJ concludes that, when the court of a Member State is seised of proceedings concerning legal separation or divorce between the parents of a minor child, and the court of another Member State is seised of proceedings involving matters of parental responsibility over the same child, Article 3(c) and (d) of Regulation No 4/2009 must be interpreted as meaning that “an application relating to maintenance concerning that child is ancillary only to the proceedings concerning parental responsibility, with the meaning of Article 3(d) of that Regulation”.

On 16 July 2015, the European Court of Justice (ECJ) rendered its judgment in the case of A v. B (C-184/14), clarifying the interpretation of Regulation No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (the Maintenance Regulation).

More specifically, the ruling regarded the interpretation of Article 3 of the Regulation. This provides, inter alia, that jurisdiction in matters of maintenance lies with “(c) the court which, according to its own law, has jurisdiction to entertain proceedings concerning the status of a person if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties”, or with “(d) the court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties”.

The dispute in the main proceedings concerned the legal separation of two Italians and the custody of their children. These proceedings had been brought by A (the husband) against B (the wife) before the District Court of Milan.

The Court of Milan asserted its jurisdiction in respect of legal separation relying on Article 3(1)(b) of Regulation No 2201/2003 (Brussels IIa), but held that, pursuant to Article 8(1) of that Regulation, it lacked jurisdiction over parental responsibility, as the children were, at the material time, habitually resident in the UK. The Court of Milan further held that, according to Article 3(c) and (d) of the Maintenance Regulation, it had jurisdiction to decide on the issue of maintenance for the benefit of the wife, but not to decide on maintenance for the benefit of the children, since the latter request was not ancillary to proceedings over personal status, but to proceedings concerning parental responsibility.

The case eventually reached the Italian Supreme Court, which decided to request the ECJ for a preliminary ruling. The Supreme Court asked whether, in circumstances such as those described above, a maintenance request pertaining to the child may be ruled on both by the court that has jurisdiction over legal separation or divorce, as a matter ancillary to the proceedings concerning the status of a person, within the meaning of Article 3(c) of that Regulation, and by the court that has jurisdiction to entertain the proceedings concerning parental responsibility, as a matter ancillary to those proceedings, within the meaning of Article 3(d) of that Regulation; or whether a decision on a similar matter can only be taken by the latter court.

Put otherwise, the issue was whether the heads of jurisdiction set out in Article 3(c) and (d) of the Maintenance Regulation must be understood to be mutually exclusive, or whether the conjunction “or” in the provision implies that the courts that have jurisdiction over legal separation and parental responsibility may be both validly seised of an application relating to maintenance in respect of children.

In its judgment, the ECJ begins by observing that the scope of the concept of “ancillary matter” cannot be left to the discretion of the courts of each Member State according to their national law. The meaning of this expression should rather be determined by reference to the wording of the relevant provisions, their context and goals.

The wording of Article 3(c) and (d) indicates that a distinction should be made between proceedings concerning the status of a person and proceedings concerning parental responsibility. In the face of this wording, it cannot be unequivocally established “whether the alternative nature of those criteria means that the applications relating to child maintenance are ancillary only to one set of proceedings concerning parental responsibility, or whether those applications may be deemed ancillary also to proceedings concerning the status of a person”.

As regards the context of the pertinent provisions, the ECJ notes that the above distinction echoes the distinction made by the Brussels IIa Regulation between disputes concerning divorce, legal separation and marriage annulment, on the one hand, and disputes regarding the attribution, exercise, delegation, and restriction or termination of parental responsibility, on the other. The ECJ further notes in this connection, based on Recital 12 of the preamble of the latter Regulation, that the rules on jurisdiction relating to parental responsibility underlie a concern for the best interests of the child, and adds that “an application relating to maintenance in respect of minor children is … intrinsically linked to proceedings concerning matters of parental responsibility”.

The ECJ concludes that “it is vital to take into account, in interpreting the rules on jurisdiction laid down by Article 3(c) and (d) of Regulation No 4/2009, the best interest of the child”, and that the implementation of such Regulation “must occur in accordance to Article 24(2) of the Charter of Fundamental Rights of the European Union”, according to which, in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.

Finally, as regards the goals of the provisions at stake, the Court considers that the main objective of the Maintenance Regulation is to ensure, in this field, the proper administration of justice within the EU. This implies that the court to which jurisdiction is conferred to decide on parental responsibility should be the court that finds itself “in the best position to evaluate in concreto the issues involved in the application relating to child maintenance, to set the amount of that maintenance intended to contribute to the child’s maintenance and education costs, by adapting it, according to (i) the type of custody (either jointly or sole) ordered, (ii) access rights and the duration of those rights and (iii) other factual elements relating to the exercise of parental responsibility brought before it”.

In light of the above, the ECJ concludes that, when the court of a Member State is seised of proceedings concerning legal separation or divorce between the parents of a minor child, and the court of another Member State is seised of proceedings involving matters of parental responsibility over the same child, Article 3(c) and (d) of Regulation No 4/2009 must be interpreted as meaning that “an application relating to maintenance concerning that child is ancillary only to the proceedings concerning parental responsibility, with the meaning of Article 3(d) of that Regulation”.

As the holiday season now is in full swing, here’s a choice of court and choice of law clause I received. For us all to ponder on the beaches /in the mountains /whatever retreat we’ll find ourselves on:

‘LAW AND JURISDICTION
This agreement is between the holiday-maker (the renter) and the agency or property owner. Booking ltd is acting only as a representative of the agency or owner listed on the voucher and as such can not be held directly responsible for any problems concerned with the booking. The owners of Booking LTd its employees or agents shall not be liable for any damage, loss or personal injury which may be sustained by persons or property at any time during the reserved stay. In the event of controversies arising from the booking of the rental, the Irish Court only can deal with the matter and Irish law only applies. Signing the booking form and making the booking implies that the General Letting Conditions have been understood and have thereby been accepted without reserve and without exception. If any of the conditions of this contract have become invalid or were invalid or if in this contract there should be a gap, the other conditions cannot be contested.

Any and all issues regarding the property, such as damages, injury, etc, shall be a dispute between the owner or agency and the renter of the property. In such cases, with no exceptions, Irish law will apply and the jurisdiction will be the local courts in Ireland.’

Happy holidays. Geert.

Massimo V. Benedettelli, Profili di diritto internazionale privato ed europeo delle società, in Rivista di diritto societario, 1/2015, pp. 35 ss.

1. La dimensione internazionalprivatistica ed europea del diritto delle società. – 2. Criteri guida per il coordinamento tra diritto interno, diritto straniero e diritto europeo in materia societaria. – 3. Il coordinamento internazionalprivatistico secondo il diritto italiano: rinvio tendenzialmente integrale alle valutazioni dell’ordinamento di costituzione della società. – 4. L’influenza del diritto europeo sul coordinamento tra gli ordinamenti degli Stati membri in materia societaria. – 5. L’ambito della giurisdizione italiana in materia societaria. 6. – Il riconoscimento di sentenze, altri provvedimenti e lodi arbitrali stranieri in materia societaria. – 7. Il diritto applicabile in materia societaria. – 8. Le fusioni e le scissioni internazionali. – 9. Il trasferimento della sede sociale all’estero.

Professor Dr. Tim W. Dornis, who teaches law at the Leuphana University (Lüneburg/Germany), has published a very interesting article on the application of the local data theory in European private international law in the Swiss Review of International and European Law (SZIER/RSDIE): Tim W. Dornis, Die Theorie der local data: dogmatische Bruchstelle im klassischen IPR, SZIER/RSDIE 25 (2015), p. 183. The author has kindly provided us with the following English summary:

“Quite often, the applicable law in international torts is not the law of the place where the tortfeasor acted. Indeed, both article 17 of Rome II and article 142 of the Swiss PIL provide for a consideration of “local rules of safety and conduct” instead of an application of the lex causae. Nevertheless, many questions around this so-called local-data doctrine remain unanswered—in particular, the distinction between rules that are “strictly territorial” and rules that are deemed to allow for more “flexibility” is problematic.

An oft-enunciated illustration of the first category is a traffic accident between two German tourists in England. While the German lex domicilii communis may be applied with respect to the liability of the tortfeasor, the English rule of driving on the left side of the street must provide for the standard of conduct. Of course, the tortfeasor cannot claim that he was acting in accordance with German traffic laws while driving his car in England. An example of the second, more flexible category can be found in rules on alcohol limits. These rules are supposed to be more adaptable insofar as parties from the same country are able to ‘carry’ their lex communis with them into a foreign jurisdiction.

If agreement exists—and it does—that considering local data serves lawmakers’ concern for maintaining the local order, this differentiation is questionable. Don’t alcohol limits also promote the safety of local traffic? A closer look at these and other problems reveals that the issue of local data lies at the heart of a debate confronting European choice of law in the Savignian tradition: the discussion on the interrelation between substantive justice and conflicts justice. As this article suggests, a more policy-oriented view allows for modest changes in the categorization of local rules of safety and conduct. This ultimately paves the way for consistent and practically workable results.”

In una ordinanza del 21 luglio 2015, il Tribunale di Milano si è pronunciato sull’individuazione del “luogo di esecuzione” di una decisione agli effetti dell’art. 22 n. 5 della Convenzione di Lugano del 30 ottobre 2007 sulla competenza giurisdizionale e il riconoscimento e l’esecuzione delle decisioni in materia civile commerciale. Tale norma, pressoché identica a quella che si leggeva nell’art. 22 n. 5 del regolamento n. 44/2001 (Bruxelles I) e che ora si ritrova all’art. 24 n. 5 del regolamento n. 1215/2012 (Bruxelles I bis), attribuisce una competenza esclusiva, in materia di esecuzione delle decisioni, ai giudici dello Stato, vincolato dalla Convenzione, “nel cui territorio ha luogo l’esecuzione”.

Nella specie, si trattava di localizzare un’attività esecutiva consistente nell’espropriazione forzata di crediti presso terzi.

La domanda, avanzata da una società svizzera, riguardava un lodo arbitrale emesso in Ticino e dichiarato esecutivo in Italia, recante la condanna di un cittadino italiano residente in Tailandia. Il creditore procedente aveva allora provveduto alla notificazione di un atto di pignoramento al debitore pignorato e ad altri due soggetti debitori di costui, aventi entrambi sede in Italia. Su queste premesse, debitore e terzi sono stati citati a comparire davanti al Tribunale di Milano.

Il giudice adito, rilevata la necessità di verificare la sussistenza della giurisdizione italiana, ha ritenuto di dover fare riferimento alla Convenzione di Lugano del 2007, avendo cura di rilevare che la stessa deve interpretarsi “tenendo debitamente conto” dei principi elaborati dalla Corte di giustizia con riguardo a disposizioni analoghe contenute sia nella Convenzione di Lugano del 1988 (che la Convenzione del 2007 ha provveduto a sostituire), sia nella Convenzione di Bruxelles del 1968 e nel regolamento Bruxelles I.

Riferendosi, dunque, all’art. 22 n. 5 della Convenzione, il Tribunale di Milano ha osservato, innanzitutto, che nel determinare il significato di espressioni dal tenore letterale incerto — quale può essere, appunto, “il luogo di esecuzione di una decisione” — occorre preferire, come emerge del resto dalla giurisprudenza della Corte di giustizia, un approccio autonomo, cioè sganciato dalle categorie dei singoli ordinamenti nazionali, e valorizzare la finalità perseguita dalla norma in questione, presa individualmente e nel contesto in cui è calata.

Tradizionalmente fondata sull’esistenza di un legame particolarmente stretto tra fatti e foro, la giurisdizione esclusiva dovrebbe allora ritenersi sussistente ogniqualvolta tale prossimità riesca, effettivamente, ad attribuire a questo foro una posizione privilegiata per valutare i fatti in causa, poiché, per usare le parole della Corte di Giustizia nella sentenza Sanders, “è chiaro che i giudici cui è riconosciuta competenza esclusiva [ai sensi dell’allora articolo 16 della Convenzione di Bruxelles del 1968] sono quelli meglio situati per dirimere le controversie di cui trattasi”.

La “buona amministrazione della giustizia”, procede il giudice milanese, è poi, innegabilmente, un valore immanente all’intero sistema di Bruxelles e Lugano, oltre che una finalità espressamente attribuita nella giurisprudenza della Corte di giustizia ai titoli di giurisdizione esclusiva.

Su queste basi, il Tribunale ha concluso che, ai fini dell’art. art. 22 n. 5, il luogo dell’esecuzione, in caso di espropriazione forzata di crediti presso terzi, coincida con il “luogo della sede del terzo”.

Nella specie, come detto, i debitori del debitore erano due persone giuridiche aventi sede in Italia, circostanza atta a rendere il foro italiano, stando al Tribunale, la sede maggiormente idonea a garantire un efficiente svolgimento del procedimento, specie sotto il profilo istruttorio.

Nel diritto processuale italiano, infatti, l’espropriazione del credito presso terzi presuppone una verifica incidentale dei rapporti intercorrenti tra il debitore pignorato ed il terzo, la quale, di regola, dovrebbe svolgersi in forma semplificata e meramente documentale (art. 547 del codice di procedure civile, come modificato).

Potrebbe tuttavia rendersi necessario, localmente, il compimento di altre attività istruttorie – nonché la comparizione in udienza – nel caso, non infrequente, di mancanza o contestazione della dichiarazione del terzo, sulla quale il suddetto accertamento è “fisiologicamente” basato.

L’argomento determinante nel ragionamento del giudice è dunque costituito dalla necessità di garantire quella specifica declinazione dell’economia procedurale data dalla “efficacia della prova”. Il rilievo che, nella giurisprudenza europea, tale profilo sia emerso principalmente nella diversa sede dell’interpretazione del foro dell’illecito (come nella sentenza Mines de Potasse d’Alsace o nella sentenza Marinari) nulla toglie alla valenza generale di questa indicazione, derivante dal carattere integrato delle norme giurisdizionali uniformi.

La soluzione adottata per concretizzare il criterio dettato dall’art. 22 n. 5 avrebbe inoltre, secondo l’ordinanza, il merito aggiunto di soddisfare le esigenze di prevedibilità del foro, altro obiettivo dichiarato del regime di Bruxelles e Lugano. La sede del terzo è un dato della realtà oggettiva, per di più dipendente dalla scelta di un soggetto posto in posizione di tendenziale equidistanza rispetto ad entrambe le parti del procedimento esecutivo. Il riferimento a tale circostanza sembra dunque realizzare un duplice vantaggio: in primo luogo, garantisce la disponibilità di un foro prevedibile e certo, ancorato ad un elemento fattuale sottratto a eventuali condizionamenti del debitore pignorato; in secondo luogo, l’individuazione di un tale foro sarebbe resa immediata ed obiettiva, basandosi su una circostanza neutra, indifferente rispetto alla natura del rapporto intercorrente tra debitore pignorato e terzo, spesso ignota al creditore procedente.

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

The second issue of 2015 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features one article and two comments.

In her article Costanza Honorati, Professor at the University of Milano-Bicocca, examines the issue of child abduction under the Brussels IIa Regulation in “La prassi italiana sul ritorno del minore sottratto ai sensi dell’art. 11 par. 8 del regolamento Bruxelles II-bis” (Italian Practice on the Return of the Abducted Child Pursuant to Art. 11(8) of the Brussels IIa Regulation; in Italian).

The vast majority of return applications filed with the Italian Central Authority under the 1980 Hague Convention on the civil aspects of international child abduction concern children who are habitually resident in Italy and have been wrongfully removed to a foreign State (so-called “outgoing cases”). Therefore, it is not surprising that some of the foreign decisions refusing to return a child on the grounds of Article 13(1)b of the Convention were challenged before Italian courts with the special procedure provided under Article 11(8) of the Brussels IIa Regulation. Indeed, Italy stands out as one of the very few EU States that provide some case law on Article 11(8) of the Brussels IIa Regulation. However, it does come as a surprise that in most of these cases Italian courts, after a thorough analysis of the facts, including what was produced in the foreign proceedings, have confirmed the foreign non-return order and dismissed the request for return. In fact, only in a small number of cases the court has found the foreign decision to be ill-founded and has adopted a «trumping» return order. The present article aims at reviewing and analysing both groups of decisions, showing, on one side, how the time factor is often crucial and rightly kept into consideration by the court of habitual residence when deciding for non-return. On the other side, time is of the essence also in cases where the court of habitual residence orders for the children to be returned. When such order is not complied with or enforced in a very short time, it is here assumed that best interest of the child would call for a subsequent review of the decision rendered by the court of the place of the child’s habitual residence.

In addition to the foregoing, the following comments are also featured:

Elisabetta Bergamini, Associate Professor at the University of Udine, discusses status of children in a private international law perspective in “Problemi di diritto internazionale privato collegati alla riforma dello status di figlio e questioni aperte” (Questions of Private International Law Related to the Status of Children and Open Issues; in Italian).

This paper examines the Italian law reforming the status of children (Law No 219/2012), which finally abolished all discriminations between children born in and out of wedlock, and the consequences such abolishment entails at a private international law level. The first part of the paper analyses the reform, its principles and the problems related to the definition of the rules on the unity of the status of the child as “overriding mandatory provisions”. The second part tackles some of the most relevant unsolved problems related to children status, such as the establishment of the parental link in case of medically assisted reproduction, the regime applicable to surrogate motherhood, and the legal vacuums affecting children of same-sex couples. In this regard, particular attention is paid to the Italian case-law, as well as its relationship with the ECtHR and the EU case-law, and to the possible solutions to the non-recognition of the personal status acquired in a foreign country.

Silvia Marino, Researcher at the University of Insubria, tackles choice-of-court agreements in parental responsibility matters in “La portata della proroga del foro nelle controversie sulla responsabilità genitoriale” (The Scope of Choice-of-Court Agreements in Disputes over Parental Responsibility; in Italian).

This article examines two recent judgments of the European Court of Justice concerning choice of forum in matters related to parental responsibility. These decisions offer the opportunity to reflect on the pre-conditions for the validity of the choice of forum clause, i.e. the agreement, the proximity, the interest of the child and the connection with another proceeding, and the relationships between different bases of jurisdiction (habitual residence and forum non conveniens). Analysing the peculiar facts of the cases and the clarifications provided by the ECJ, the article tackles those pre-conditions from a practical and concrete standpoint with a view to understanding when and how the different bases of jurisdiction can be used. Some final considerations are devoted to the concrete range of the choice of the parties.

Indexes and archives of RDIPP since its establishment (1965) are available on the website of the Rivista di diritto internazionale privato e processuale. This issue is available for download on the publisher’s website.

The publishing house C.H. Beck has recently released the “Gedächtnisschrift für Hannes Unberath”. Edited by Stefan Arnold and Stephan Lorenz the volume contains, among others, four German language contributions relating to private international law and international civil procedure:

• Frank Bauer, Art. 59 EuErbVO: Verfahrensrechtliche Kollisionsnorm zur Sicherung des freien Verkehrs öffentlicher Urkunden (pp. 19 ff.)
• Wolfgang Hau, Zivilsachen mit grenzüberschreitendem Bezug (pp. 139 ff.)
• Peter Kindler, Der europäische Vertragsgerichtsstand beim Warenkauf im Lichte der Rechtsprechung des Europäischen Gerichtshofes (pp. 253 ff.)
• Gerald Mäsch, Patrick Battistons Jackettkronen und das Kollisionsrecht, oder: Das Deliktsstatut bei Verletzungen im Rahmen von internationalen  Sportgroßveranstaltungen (pp. 303 ff.)

For more information see the publisher’s website.