Droit international général

The EAPIL blog will report about the conference on The Law of Treaties as Applied to Private International Law in Milan by a dedicated post at the end of each conference day. Please follow us on Twitter (@eapilorg) and LinkedIn for updates as the conference unfolds. Check out our Instagram account, too!

The conference on The Law of Treaties as Applied to Private International Law, under the auspices of the Italian Society of International Law and EU Law (SIDI) and the European Association of Private International Law (EAPIL), has started! Many people are attending in person today’s session. A warm welcome to all from the editors of the blog!

The President of the European Association of Private International Law, Gilles Cuniberti, together with Pasquale De Sena (President of SIDI – the Italian Society of International and EU Law) and Stefano Solimano (Catholic University of the Sacred Heart), started with their welcome address.

The conference has been opened by two general presentations. Catherine Brölmann (University of Amsterdam) presented the rules of public international law relating to treaties and discuss the manner in which, and the extent to which, they can reflect the specificities of the subject-matter of the treaty concerned. Patrick Kinsch (University of Luxembourg) outlined the relevance of the law of treaties to the development and implementation of international conventions in the field of private international law.

The first panel has followed, on The conclusion and entry into force of private international law treaties, chaired by Hans Van Loon (former Secretary-General of the Hague Conference on Private International Law). Presentations were delivered by Jean-Marc Thouvenin (University of Paris Nanterre; Secretary-General of The Hague Academy of International Law) and Antonio Leandro (University of Bari).

Then, in the afternoon, the second panel, chaired by Sergio Carbone (University of Genova, Emeritus), dealt with The observance, application and interpretation of private international law treaties. Luigi Crema (University of Milan), Pedro De Miguel Asensio (Complutense University of Madrid) and Paul Beaumont (University of Stirling) spoke on the topic.

Finally, the third panel was about The amendment and succession of private international law treaties: Catherine Kessedjian (University Paris II Panthéon-Assas, Emerita) moderated a discussion between Jan Wouters (KU Leuven) and Andrea Schulz (German Federal Ministry of Justice).

A lively discussion followed the presentations.

The first day of the conference ended with University’s Studium Musicale of the Catholic University of the Sacred Heart of Milan which offered in the inspiring main hall a performance with music by Saint-Saëns, Bartok, Ravel and Poulenc.

 

Host University: the Catholic University of the Sacred Heart of Milan

Gilles Cuniberti, Pasquale de Sena and Stefano Solimano

Catherine Brölmann and Patrick Kinsch

Hans Van Loon, Jean-Marc Thouvenin and Antonio Leandro

Discussion with the audience

Sergio Carbone, Luigi Crema, Pedro De Miguel Asensio and Paul Beaumont  

Catherine Kessedjian, Jan Wouters and Andrea Schulz 

University’s Studium Musicale: Musical performance

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published. The table of contents is available here. The following abstracts have been kindly provided to us by the editor of the journal.

Th. Pfeiffer, Judicial Presumptions: Finding of Facts or Application of Law? The characterization of so-called factual presumptions in private international law

This article discusses whether so-called factual presumptions and prima facie-evidence rules qualify as substantive or procedural rules for choice of law purposes. Having analyzed typical situations such as rear-end collisions and the use of standard terms as well as provisions in the Rome I- and II-Regulation, differentiated solution is submitted: Factual presumptions and prima facie evidence are to be qualified procedurally, unless they are exceptionally based on a specific substantive rationale and not on fact related judicial experience.

D. Moura Vicente, The Role of the Brussels I-bis Regulation in European Private International Law and the Challenges Facing it

The 1968 Brussels Convention sought to promote mutual trust between Member States in jurisdictional matters by adopting uniform rules on judicial competence in civil and commercial matters, with a view to implementing a principle of automatic recognition of foreign judgments among them. Such rules could however be formulated only in respect of a limited number of subjects, which explains the Convention’s relatively narrow scope of application. Over the half century since the Brussels Convention’s conclusion, both its nature and that of the Regulations that succeeded it have changed substantially. From an instrument originally restricted to patrimonial matters, the Convention and its successor Regulations became the backbone of a system aimed at ensuring the free movement of judgments and judicial cooperation in a broad spectrum of matters. The Brussels I-bis Regulation has provided the conceptual foundations of the other instruments that integrate that system, which at times replicate its notions and rules or simply refer to it, thereby ensuring the system’s coherence. The Regulation has moreover had a modernising effect on the domestic legal systems of its Member States. The Regulation’s referential role in European Private International Law role nevertheless faces significant challenges arising inter alia from certain shortcomings of its substantive and subjective scope of application, as well as of the available heads of jurisdiction under its rules. It is submitted that these challenges, which this paper seeks to identify, call for a limited reform of the Regulation, the opportunity for which is provided by its review as foreseen in Article 79.

A. Dutta, Reform of German private international law for the names of persons

German private international law dedicates much (probably too much) attention to the names of persons. Based on earlier ideas for a European instrument on the law applicable to names and taking into account the current debate on German substantive law, the article argues for at least a unilateral reform of the current German conflict rules, in particular, for replacing nationality by habitual residence as the primary connecting factor and for a new approach to party autonomy.

T. Helms, German Private International Law and Co-Parenthood

German law of descent does not recognise co-parenthood between two women or two men. This article examines the conditions under which co-parenthood is nevertheless accepted in international cases on the basis of German Private International Law.

M. Pika, On the pathway to European arbitration law or to non-European seats?

In Prestige, the CJEU held that judgments confirming arbitral awards under sect. 66(2) English Arbitration Act 1996 are “decisions” for the purposes of Art. 45(1) lit. c Brussels Ibis-Regulation. In addition, the CJEU held that those judgments cannot prevent recognition of an irreconcilable, earlier judgment if the arbitral tribunal (i) disregarded the lis pendens principles of the Brussels Ibis-Regulation and/or (ii) unduly extended the arbitration agreement to third parties. This is the most significant restriction of the Brussels Ibis-Regulation’s carve-out of arbitration matters in Art. 1(2) lit. d ever since the West Tankers judgment.

T. Kindt, The Pechstein-Decision of the German Federal Constitutional Court

In a long-awaited decision on June 3, 2022, the German Federal Constitutional Court annulled the contested Pechstein-judgment of the German Federal Court of Justice from 2016 that had upheld the validity of an arbitration agreement between Germany’s most prominent speed skater and the International Skating Union (ISU) in favor of the Court of Arbitration for Sport (CAS) in Lausanne. The Constitutional Court holds that the Federal Court of Justice failed to attribute sufficient weight to the claimant’s right to a public hearing as part of her fundamental right of access to justice. Considering the imbalance of power in the contractual relationship between individual athletes and international sports federations, a resort to arbitration could only be accepted if the arbitral proceeding lives up to the minimum standards of constitutionally protected procedural safeguards. In the Constitutional Court’s view, this requirement had not been met by the applicable procedural rules of the CAS at the time, given that they did not provide individual athletes with the right to one-sidedly request a public hearing. This paper argues that the Constitutional Court’s decision, despite its laudable intentions, leaves more questions open than it answers (especially with regard to the question of impartiality and neutrality of the CAS), fails to take into account an important trait of the international arbitral system and will likely only be of limited importance for the further reform of sports arbitration.

R. Geimer, Exclusive international Jurisdiction of Germany based on article 25 (1) Brussels I bis-Regulation without an additive prorogation of a local forum

A German Company registered in Mannheim and a Spanish Company registered in Barcelona had prorogated “the civil courts in Frankfurt, Germany” in a International Distributor Agreement (IDA). It was unclear, which Frankfurt was chosen: Frankfurt on the Main or Frankfurt on the Or? The Higher Regional Court of Frankfurt on the Main ruled that Frankfurt on the Main is the prorogated forum arguing as follows: The representatives on the Spanish Company came by plane over the airport Frankfurt on the Main to Mannheim for signing the International Distributor Agreement including the prorogation clause. They did not know anything about Frankfurt on the Or. Therefore also the representatives of the Spanish Company have nominated Frankfurt on the Main as the exclusively competent forum.

L. Hornkohl, Group Liability in EU Competition Law and International Jurisdiction

In Sumal, the ECJ for the first time applied the single economic entity doctrine in private enforcement of competition law towards corporate groups. According to the ECJ, a subsidiary is liable for the cartel violations of the parent company in descending order if the parent and subsidiary are linked by corresponding economic, organisational and legal relationships. Furthermore, the ECJ requires a connection between the economic activity of the subsidiary and the object of the parent’s infringement to transfer liability. The case law in Sumal has severe international and local jurisdictional consequences. Especially concerning EU-wide cartel agreements, the jurisprudence gives claimants the possibility to sue each legal entity belonging to a single economic entity jointly and severally and thus offers huge potential for forum shopping under the Brussels Ibis Regulation.

C. Mayer, (Supposed) Competing paternities in private international law

Time and again, German courts are confronted with cases in which, as a result of the alternative links in Art. 19 Para. 1 EGBGB, several legal systems are applicable to the parentage of a child. This can result in the child being assigned different legal fathers. The German Federal Court of Justice has already had several opportunities to comment on such conflicting paternity situations and to develop basic structures. Its decision to be discussed here regarding a postnatal acknowledgment of paternity, which competes with a presumption of paternity, fits seamlessly into this line of case law, but raises the interesting question as to where newborns have their habitual residence at the time of birth. The Higher Regional Court Brandenburg, on the other hand, had to clarify the more difficult constellation of whether a prenatal acknowledgment of paternity can take precedence over a presumption of parentage resulting from foreign law, although both become effective at the same time at birth.

D. Henrich, Recognition of private divorces

Private divorces are divorces not by judgment but by agreement of the parties. Art. 21 of the Brussels IIa-Regulation prescribes the automatic recognition of all Member States decisions without any procedure being required. Whether this includes the recognition of non-judicial divorces was unclear. The European Court of Justice decided, that whenever a Member State provides a special proceeding for the recognition of a private divorce, the recognition is a question of procedural law. Whenever a civil status officer of a Member State records the agreement of the parties about their divorce and the parties confirm that the procedure has been performed according to the regulations of the Member State, the record is a judgment in the sense of Art. 2 No. 4 of the Brussels IIa-Regulation. Object of the recognition is here not the decision of a court but a special procedure.

P. Scholz, Mandatory Family Protection in Succession and Ordre Public

In almost every jurisdiction today, rules on mandatory family protection qualify the principle of freedom of testation. However, not only the beneficiaries of such laws vary from country to country. Moreover, over time, different systems of mandatory protection have evolved – and they span from fixed shares in the testator’s estate (like in Austria, Germany, or France) to needs-based judicial awards for the testator’s next of kin (like in England or New Zealand). Under the choice of law regime of the EU Succession Regulation, courts in fixed-share systems will eventually have to decide whether the application of needs-based rules is incompatible with the forum’s public policy where such laws do not result in sufficient claims of the disinherited next of kin. On February 2, 2021, Austria’s Supreme Court positioned itself against such ideas. This stands in stark contrast to the decision of the Cologne Higher Regional Court issued just a few weeks afterwards, which the German High Court upheld with a questionable judgement of June 29, 2022.

Membership in the European Association of Private International Law comes with a small burden: the annual fees!

If you’re a member, and have not paid your fees for 2023, please take a moment to do so.

The amount of the fees is reasonable (and has not changed since the Association was created), and the process is rapid and straightforward: you may pay by bank transfer, or use PayPal.

All information is found here.

Thank you!

This short post on Agora v SPA Italiana Lastre ECLI:FR:CCASS:2023:C100265 at the French SC could suffice with referring to para 2.331 of the Handbook. That para asks exactly the question on which the SC has now referred to the CJEU:

The insertion into the Regulation of the lex fori prorogati rule often does not assist. In particular, where parties expressly make choice of court non-exclusive (non-exclusive choice of court), or where they designate a plurality of specifically identified courts, the lex fori prorogati is not immediately ascertainable.[1] Neither is it in the event of so-called ‘unilateral’ or ‘one-sided’ choice of court, which I review below. In my opinion, therefore, at the very least for these cases which are not solved with the new lex fori prorogati rule, parties are best advised to continue to (or start to) make separate and express choice of law for unilateral and non-exclusive choice of law.

[1]               An argument also made by counsel for the defendants in Commerzbank Aktiengesellschaft v Liquimar Tankers Management Inc [2017] EWHC 161 (Comm).

Please refer to François Mailhé’s post who has background to the issues here, referring ia to Banque de Rothschild. Note that Mary Keyes edited a whole volume on asymmetric aka hybrid aka unilateral choice of court.

Like François I do not think the CJEU will entertain all the questions referred. I cannot imagine it finding the very acceptability of unilateral choice of court to be covered by Article 25. That is simply not within the Article’s remit. (The CJEU might make an exception for the issue in those consumer contracts not covered by the protective regime of Brussels Ia, eg pure contracts of transport; here it might refer to secondary EU consumer law on unfair terms).

I do also wonder whether the Court will say anything about recital 20’s odd inclusion of renvoi, and whether parties may take away the uncertainty by designating a specific lex causae for the choice of court clause, and in doing so may also exclude renvoi (the answer to both in my view should be ‘yes’).

Geert.

EU Private International Law, 3rd ed. 2021, 2.331.

Agora v SPA Italiana Lastre

French SC refers to the Court of Justice of the EU on the application of A25 Brussels Ia's lex fori prorogati rule, in the event of hybrid aka asymmetric choice of court

(Effectively referring (2.331) of the 3rd ed of the Handbook). https://t.co/tHJVnTCLii

— Geert Van Calster (@GAVClaw) April 18, 2023

This post was authored by François Mailhé, who is Professor of Private Law at the University of Picardie Jules Verne.

At last !

It has been more than 10 years since the French Cour de cassation decided to declare war on asymmetric forum selection clauses in the Banque de Rothschild case (Cass. fr. civ. 1, 26 September 2012, No. 11-26.022). In the span of those 10 years, no less than 7 judgments were rendered by the Cour de cassation itself. And if it found its rationale in 2015 (Cass. fr. civ. 1, 25 March 2015, No. 13-27.264, ICH), almost each new judgment tested and tried a different angle, a different legal basis. At last, two weeks ago, the Cour de cassation chose the path of wisdom and referred a prejudicial question to the European Court of Justice (Cass. fr. civ. 1, 13 April 2023, No. 22-12.965)! 

Once upon a Time: The Brussels Convention

Let’s remember the surprise most felt at reading the Banque de Rothschild decision in 2012. Even if some French court of appeal decisions in maritime cases had already excluded the clause as “potestative” in the 1990s, paragraph 3 of Article 17 of the Brussels Convention seemed to set them aside as a marginal and wrong stream of cases.

Why “potestative”? Because those clauses characteristically consist of two limbs : one, restrictive, pointing in general to only one court and which binds one party, another, liberal, offering the other party a much vaster choice of forum.

The Brussels convention used to hold a specific rule on such clauses, implicitly accepting such imbalance (Article 17, §3 : “If an agreement conferring jurisdiction was concluded for the benefit of only one of the parties, that party shall retain the right to bring proceedings in any other court which has jurisdiction by virtue of this Convention”), but its existence and the reasons of its disappearance from the texts (uselessness, as it seems…) was progressively forgotten by French courts, who became suspicious of such clauses.

From Potestative to Imbalance

This suspicion grew at the same time as the generalization of the “significant imbalance” test. Starting in consumer law, it later appeared in French business law (today at L. 442-6, I, 2° of the French Commercial Code) and last as a general norm of contractual law for standard form contracts (art. 1171 of the Civil Code). The same concern for imbalance in asymmetric forum selection clauses was clear when the Banque de Rothschild decision set one aside as “potestative” (i.e. to the sole power of one of the parties, a much criticized legal ground) but also later, when the ICH case changed the standard from potestativity to foreseeability, as the Cour expressly refer to imbalance as the justification for this new standard.  

It would be a long reading if this post was to detail all the different phrasings, legal grounds and sometimes even contradictory decisions that the Cour de cassation employed to keep its case-law. One may only refer, in English, to the excellent work of Brooke Marshall, published last month, to study the whole case law in depth. Just to give a hint as to its subtlety (or confusion, depending on the point of view), a clause stating that “the bank is nevertheless entitled to bring an action against the borrower before any other competent court” was set aside for unforeseeability (the ICH case), while a clause that “reserved for Apple the possibility of bringing an action, at its choice, before the Irish courts, the courts of the place where eBizcuss has its registered office or the courts of the countries in which Apple suffered damage” was validated (Cass. 1re civ, 7 October 2015, No. 14-16.898, eBizcuss). 

However, the solution still raised many difficulties. The first is, and will perhaps remain for a long time, its inadequacy to the problem. In the terms of the case law, the “potestative” character first, the “imbalance” second, betrays the fact that the solution aimed primarily at restoring a certain fairness to the clauses, a fairness defended by the Brussels texts for employees, insureds and consumers, but absent for SMEs and other non-consumers, who are often without sufficient jurisdictional protection in the face of these clauses. On this point, one can only hope for a reform of the texts, but this does not yet seem to be part of the debate (see the Study to support the preparation of a report on the application of Regulation (EU) No 1215/2012).

What Legal Basis?

The second difficulty is of source: where to find the normative support of this solution? The Cour has used several bases, some of which are taken from European case law, but none of which is very solid (see e.g. Cass. 1re civ., 3 October 2018, No. 17-21.309. I discussed that in Lexisnexis’ JCP G 2018, 1300: among other things, in my opinion, the ECJ never really required selected forums to be foreseeable as a condition of their validity). 

This difficulty has been deepened by Brussels I bis regulation, introducing a specific rule for such clauses substantial validity: “unless the agreement is null and void as to its substantive validity under the law of that Member State” as stated by Article 25.

A new question arose : was this French case-law the national proposition of a European uniform solution, interpreting Article 25, or could it be a French solution, by extension of the scope of this referral to the national law of the chosen court (provided French courts are chosen)?

And, as a problem never comes alone, the asymmetric nature of the clause made the application of the second limb of the question even more complex : in case asymmetry was a substantive problem to be dealt with by the national law of the chosen court, which court must be taken into account?

Those two questions are asked, at last, by the Cour de cassation in this 13 April decision. A third one completes the package: whether the enforceability of such asymmetric clause (more specifically one which allows one of the parties to choose any objectively competent court) is an issue to be governed by a uniform European rule.

The Questions Referred

From this very debatable French case-law were therefore born three interesting questions.  

First, the ECJ will have to interpret the scope of the substantial validity rule : what is to be governed by uniform European rules, and what may be delegated to national laws? 

Second, in case the ECJ decides for a uniform rule, what is to be the future of asymmetric clauses? Will the Court draw from the old versions of the Brussels convention? Will it be sensitive to problems of imbalance beyond consumer-professional relationships? 

Last, in case the ECJ decides for the inclusion in the scope of Article 25 conflict rule, how to apply this conflict rule, relying on the chosen court, when the clause actually points at several chosen courts or, worse, an undetermined number of courts? 

Three very interesting and important questions were asked. Now it is up to the ECJ to pick up the glove. Let’s hope (perhaps with moderate expectations though) that its answer fits the challenge. 

The Special Interest Group on Family and Succession Law of the European Law Institute invites everyone interested to participate in the webinar titled Application of the EU Succession Regulation in the Member States.

The webinar will present the results gathered during the five webinars on the application of the EU Succession Regulation in the Member States organized in 2022 ( which EAPIL blog covered here).

The webinar will take place on 15 May 2023 between 3 and 5 pm CET.

Attendance is free of charge. A Zoom link will be sent to those who register by sending an e-mail to: zivilrecht@uni-graz.at.

The second issue of the Journal du droit international for 2023 was released. It contains two articles and several case notes relating to private international law issues.

In the first article, Guillaume Payan (University of Toulon) analyses the recent recast of the EU regulation in matrimonial matters, the matters of parental responsibility and on international child abduction (“Brussels II ter”) in the broader context of EU judicial cooperation in civil matters.

The English abstract reads:

As its title indicates, Regulation (EU) 2019/1111 – known as “Brussels II ter” – of 25 June 2019 has three clearly identified sections: marital disunity, parental responsibility and wrongful removal or retention of a child. Within the limits of its scope thus circumscribed, it contains interesting provisions relating to the recognition and enforcement of court decisions and extrajudicial titles. Either classic or innovative, the solutions adopted converge towards the objective of a generalized abolition of the exequatur. While this development, characterized by an intensification of the principle of mutual recognition, is appropriate, it nevertheless appears insufficient with regard to the issues targeted in Regulation (EU) 2019/1111 and, by extension, the objective of creating a genuine European civil judicial area. Although it identifies the contributions of this new text in the light of Regulation (EC) n°2201/2003 – known as “Brussels II bis” – which preceded it, this study provides an opportunity to question the overall consistency of action of the European Union legislator in the field of civil judicial cooperation.

In a second article, Éric A. Caprioli (Avocat à la Cour and  Member of the French UN Delegation in the field of e-commerce) discusses the UNCITRAL Model Law on Electronic Transferable Records (MLETR), since some countries such as France and Germany are currently working on its implementation into national law.

The English abstract reads:

The UNCITRAL Model Law on Electronic Transferable Records (MLETR) has been adopted on July 13, 2017, during the 50th session of the Commission. The purpose of this document is to develop provisions about electronic equivalents of transferable paper records or instruments. This mainly relates to bills of landing, bills of exchange and promissory notes, insurance policies, and warrants. These documents are essential in the financing of international trade. UNCITRAL has used the three general principles of electronic commerce in its instruments since the Model Law of 1996: non-discrimination against the use of electronic means, technological neutrality, and functional equivalence. Two Articles of the MLETR are fundamental. According to Article 10, Electronic Transferable Record (ETR) must meet two main requirements: the document must contain information required by instrumentum (written documents) and use a reliable method. The second one requirement imposes three other requirements: (i) identify the electronic record as the ETR, (ii) render the ETR capable of being subject to control from its creation until it ceases to have any effect or validity; and (iii) retain the integrity of the electronic record. Another key concept, the Article 11 discusses the control of the electronic record, which constitutes the functional equivalent of possession in the paper environment. Indeed, the individual who has the exclusive control over the document will be allowed to request the performance of the obligation or to transfer the document. Therefore, a reliable method must be used to establish the exclusive control over this ETR and identify this person as an individual who has the control. France has launched a transposition process of the MLETR into its national legislation like other countries of G7 (UK, Germany,…).”

The table of contents of the issue can be accessed here.

We are delighted to announce a lecture hosted by Matthias Weller at the University of Bonn in cooperation with ConflictofLaws.net. Professor Amnon Lehavi (Harry Radzyner Law School, Reichman University, Israel) is going to speak on ‘Globalization through the re-codification of property law?’.

The globalization of markets, technology, and interpersonal networks poses a growing challenge for national legal systems. Property law is traditionally considered a “domestic” field of law, not only because of its structural features (such as the in rem or numerus clausus principles), but also because it promotes cultural, economic, and social values. The decision if property law should be globalized also requires a choice among potential globalization strategies (how to do so). This lecture examines four globalization strategies: (1) soft law / private ordering; (2) conflict of laws; (3) approximation; and (4) supranationalism. It does so by comparing three types of assets: land, digital assets, and cultural property – which have all been dramatically affected by current processes of globalization, albeit in diverging ways. It is argued that different strategies of globalization, and corresponding forms of re-codification of national property laws, should be adopted for land, digital assets, and cultural property.

The event will take place on 17 May at 6.30pm at the Senate Hall of the University of Bonn; it can also be joined via Zoom. The flyer can be found here.

As noted earlier on this blog, on 3 May 2023, from 6 pm to 8 pm (MET), the first webinar of the series that has been organised under the title The Future of Cross-Border Parenthood in the EU – Analyzing the EU Parenthood Proposal will take place. The webinar, chaired by Claire Fenton-Glynn, will deal with the following relations: Surrogacy in comparative perspective (Jens Scherpe), and The EU Proposal on Parenthood: What’s in it? Subject matter, scope and definitions (Cristina González Beilfuss).

Those wishing to attend have time until 2 May 2023 at noon (MET) to register. The registration form is available here.

Registered participants will receive the details to join the webinar by e-mail (please note the e-mails with these details occasionally end up in the spam folder).

The form, then, will remain open for registration for the subsequent webinars of the series.

The updated and final version of the program is available here.

Boughajdim v Hayoukane [2022] EWHC 2673 (Fam) is a good case to illustrate qualification as an essential part of the private international law exercise. I had the case as one of the many open windows on my desktop. Despite my tardiness in reporting, I still do so, seeing as it is exam season and students are likely to start grapling with the course materials.

Core question is whether the Petitioner’s (the wife) divorce petition should be allowed to proceed in E&W, based on a marriage that has been recognised by the Moroccans court and registered in Morocco pursuant to legislation designed to provide retrospective recognition of marriage in that jurisdiction. The retrospective element is the result of the (alleged) spouses, of which the husband has dual Moroccan-UK citisenship, becoming aware that the absence of a marriage certificate was precluding an application for British Citizenship for one of their children.

The wife argues that the lex loci celebrationis in this case is Morocco, that the formal validity of the marriage falls to be determined by reference to the local form under Moroccan law and that this court is dealing with a valid foreign marriage, acknowledged as such by a foreign court and affirmed following failed proceedings by the husband for perjury and on appeal. By contrast, the husband contends that a proper analysis of the lex loci celebrationis means that the formal validity of the marriage falls to be determined by reference to the domestic Marriage Acts. In this context, he submits that the Moroccan marriage cannot be recognised as valid in E&W either as to form or as to capacity, the husband submitting in respect of the latter that the law governing questions of capacity is, in any event, the law of the husband’s domicile, under which law the husband did not validly consent to the marriage. Finally, the husband argues, in any event, that in the context of the special character of marriage there are cogent reasons for refusing to recognise the Moroccan marriage on the ground of public policy.

There is a convoluted procedural background to the case which this post does not engage with, for it is not relevant to the outcome of current judgment. (This also includes nb a number of res judicata elements, held [98], arising out of concurrent Moroccan proceedings.  Clearly, whether or nor there was a valid marriage at all is of relevance for all sorts of reasons, including financial ones.

[85] English law [like much of the world, GAVC] distinguishes between the form of the marriage (formal validity), which is governed by the lex loci celebrationis and the questions of capacity to marry to marry (essential validity, aka material or substantive validity). It is well settled that in English PIL the question of the capacity to marry is determined by the law of the party’s antenuptial domicile (Dicey Rule 75; note the contrast with continental Europe which tends to opt for lex patriae). Note however that what part of the validity question is a formal one and what part a substantive one, is not unequivocally clear. In E&W, there is no authority that conclusively answers the question of which system of law will govern the question of consent to marriage, i.e. whether consent is a matter of form governed by the lex loci celebrationis or a matter of capacity governed by the law of domicile.[86]

MacDonald J holds [90]

that the lex loci celebrationis in this case is the Kingdom of Morocco. I am further satisfied, on the facts as I have decided them, that the parties complied with the local form in the lex loci celebrationis sufficient for the court to be satisfied that it is dealing with a valid marriage having regard to the principle of locus regit actum. Further, I am satisfied that the husband has not demonstrated to the satisfaction of the court in this case that grounds exist for refusing to recognise the Moroccan marriage on the basis of public policy. In the circumstances, I am satisfied that the wife’s petition can proceed.

A difficultly is [100] that neither party contends for a marriage ceremony, or any other celebratory event, on an ascertainable date or at an ascertainable place giving rise to a marriage. The wife relies on the operation of a retrospective statute in a foreign jurisdiction as having constituted a valid marriage. There was no ‘marriage ceremony or other similar celebration’: then wat is the locus celebrationis? [105] The existence of a course of conduct by which some but not all of the legal steps necessary to conclude a marriage in a jurisdiction in which a ceremony is not required might, depending on the facts of the case, also assist in identifying whether there is a lex loci celebrationis and its location in a case concerning the operation of retrospective marriage legislation. Here, the judge decides that in 2000, on the balance of probabilities, the husband proposed marriage to the wife in Morocco, that there was an engagement party held, that there was a dowry agreed and paid and that the wife and husband considered themselves to be engaged and were to be married.

[114] ff the judge holds Moroccan formal procedure (including an element of service) following the retrospective Act, was properly complied with.

[139] ff and much more briefly, consent by both parties is established.

Finally [148] the ordre public exception looks at the consequences in England and Wales of recognising the decision of a foreign court that a marriage subsists as the result of retrospective legislation in respect of a British Citizen domiciled in E&W. [149] The Judge holds that the marriage to which the husband now objects arose by operation of law as the result of legal proceedings in respect of which, as the court has found, he was aware, in which he was represented, in which he had the opportunity to make representations and in which he did make, albeit cursory, representations objecting to the relief sought by the wife.

In conclusion, an earlier pronounced stay on the divorce petition was lifted.

A good case to illustrate qualification and its consequences.

Geert.

In May 2023, the Court will decide on C-264/22, Fonds de Garantie des Victimes des Actes de Terrorisme and d’Autres Infractions. The decision is expected on 16 May.

The request for a preliminary ruling from the Tribunal da Relação de Lisboa (Portugal) concerns the interpretation of the Rome II Regulation. It was lodged in April 2022.

A French citizen was hit by a boat at Alvor Beach (Portugal) in 2020; as a result, he suffered serious bodily injuries and underwent a number of medical treatments. He sued in France the Fonds de Garantie des Victimes des Actes de Terrorisme et d’Autres Infractions, in its capacity as the French body which covers, inter alia, compensation due for accidents, claiming compensation for the damage suffered. The parties agreed compensation of EUR 229 480.73.

The civil liability of the boat’s owner was insured by Victoria Seguros, S.A., the defendant in the Portuguese proceedings, where the Fonds de Garantie des Victimes des Actes de Terrorisme et d’Autres Infractions seeks an order that the defendant must reimburse to the applicant the abovementioned amount paid. According to the applicant, Portuguese law should apply in relation to the accident and the obligation to pay compensation, and French law should apply in relation to the rules on the limitation period and the calculation of time limits, as is apparent from Article 19 of the Rome II Regulation. In its defence, the defendant put forward a substantive plea that the claim is time-barred. As regards the merits, it denied many of the facts relating to the accident and claimed that the action should be dismissed.

The national court considers it necessary to decide whether French law is applicable (in accordance with which the limitation period for the right claimed has not expired), or whether, in the alternative, if it is decided to apply Portuguese law, the right has not lapsed either, in view of the date of the last payment to the injured party. In this context, the national court is referring the Court of Justice of the EU the following question for a preliminary ruling:

Is the law applicable to the limitation rules for the right to claim compensation that of the place of the accident (Portuguese law), in accordance with Articles 4(l) and 15(h) of [the Rome II Regulation], or, if the injured party’s place is taken by subrogation, is the ‘law of the third person’ subrogee (French law) applicable in accordance with Article 19 of that Regulation?

The decision will be taken by a chamber of three judges (L.S. Rossi, J.C. Bonichot, O. Spineanu-Matei as reporting judge). The opinion of an advocate general was not requested.

As the series of webinars organised under the title The Future of Cross-Border Parenthood in the EU – Analysing the EU Parenthood Proposal starts this week (Wednesday!), we are pleased to share, for your convenience, the updated and final version of the program.

In the flyer attached you will also find the links for the registration, still open, and also accessible here.

In Autostore Technology AS v Ocado Group Plc & Ors [2023] EWHC 716 (Pat), Claimant AutoStore is a Norwegian company, pioneer in automated warehouse technology. First defendant develops automated systems for use in large scale grocery businesses.  The second defendant is a joint venture between the first defendant and Marks & Spencer. Ocado is a former customer of AutoStore’s.

Ocado’s defences include that the patents were invalid due to prior non-confidential disclosures to two parties based in Russia, including EVS, a company based in St Petersburg, and Russia’s central bank.

‘Matter made available to the public’ is part of the ‘state of the art’ condition for patents (in the UK: s.2(2) of the 1977 Act). It may affect the novelty or obviousness of a patent: Subsections 2(1) and (2) of the Patents Act 1977 (“the 1977 Act”) provide:

“2. (1) An invention shall be taken to be new if it does not form part of the state of the art.

(2) The state of the art in the case of an invention shall be taken to comprise all matter (whether a product, a process, information about either, or anything else) which has at any time before the priority date of that invention been made available to the public (whether in the United Kingdom or elsewhere) by written or oral description, by use or in any other way.”

In support of their case of lack of novelty and inventive step Ocado rely on alleged prior disclosures to the Russian entities which Autostore say were made in confidence and could not therefore be part of the state of the art.

The section of the judgment that is of relevance to the blog (other than the brief reference to the TRIPS agreement [256]), is the qualification of the obligation not to disclose matter to the public, as (non)contractual, and the subsequent application of Rome II.  Hacon J summarises the issues [263] ff

Where a party relies on an express contractual restriction on the foreign disclosure of information, the effect of the alleged contract will be assessed according to the applicable law.  The party asserting the contractual restriction is obliged to plead the existence, the circumstances of formation and the relevant terms of the contract.  An English court seised will apply Rome I to determine which foreign law governs the contract.  The court will then decide whether, according to that law, there was an express term of confidentiality as alleged and whether its effect was to restrict the use of the information in issue.

The position is not so straightforward where it is said that a party in a foreign context was restrained from using information under an obligation that was not contractual – what an English court would recognise as an equitable obligation.

Rome II does not expressly recognise equitable obligations as a separate category. Clearly however they may still qualify as ‘non-contractual’.

[270 ff] Hacon J justifiably rejects Ocado’s assertion that Rome I and II dovetail. It is beyond doubt that not all obligations that are not contractual, must necessarily be covered by Rome II and vice versa.  Likewise, the overall application of Rome II clearly may imply non-contractual obligations that are putative. Meaning for the purposes of the application of Rome II, one may have to pretend for the time being that there are non-contractual obligations at play and that these are covered by Rome II, only for the so identified substantive lex causae to decide that there are not, after all, any non-contractual obligations at play.

Re the alleged disclosures made by the Bank, [276 ff] AutoStore’s primary contention is that the hypothetical breach of the alleged equitable obligation of confidence is correctly categorised as a culpa in contrahendo within the meaning of A12 Rome II, seeking support ia in CJEU Ergo. [286] It argues the respective obligations of confidentiality arose in the context of negotiations (with the Russian companies) which ultimately led to the conclusion of the Distribution Agreement governed by Norwegian law.  Consequently, the same law applies to the obligations of confidentiality.

However upon consideration the judge holds [298] – with much support found in prof Dickinson’s Rome II volume and his contribution on Rome II in Dicey’s 16th ed – that A12 does not apply to the alleged disclosures by the Bank, seeing as in his view A12 does not apply to third parties to the contractual negotiations, even agents of the contracting parties. There were no negotiations between AutoStore and the Bank and AutoStore for its own reasons wanted to ensure that any agreement reached would be with EVS and not the Bank.

Instead, [324] ff, the lex causae is held to have arisen out of an act of unfair competition within the meaning of A6 of Rome II. That is important, for Article 6 does not have an escape clause like Article 4(3).

Here, the judge’s reasoning is under par.

Oddly for instance he holds A6(2) is not engaged ia [335] ‘because the Bank is not a competitor of AutoStore’s’ yet he nevertheless applies A6(1): ‘the law applicable to a putative obligation of confidence on the Bank was the law of the country where competitive relations or the collective interests of consumers are, or are likely to be, affected.’: this is not convincing.

Reference is then made by the judge to CJEU Verein für Konsumenteninformation v Amazon EU Sàrl , CJEU Volkswagen and to Celgard, and to the Mozaikbetrachtung present in particular in the latter case. However he then [351] holds that ‘attention must be paid to the hypothesis posited in this case. It is that the Bank was about to make Bank Bot Designs public or had already done so’, subsequently linking that [353] to the procedural relief Autosore would have hypothetically sought for the potential breach, in, the judge holds, Russia. Conclusion [354]: ‘Of the laws made applicable under art.6(1) of Rome II to apply to the question of confidentiality, the one that would have mattered on the hypothesis raised would have been Russian law.’ That link to procedural relief to me comes out of nowhere.

As for the relationship with EVS, [301] the question arises as to whether AutoStore and EVS contemplated a contractual relationship at the relevant times. The judge [302] holds that a theoretical possibility of the purchase of goods or services or of some other contractual relationship does not suffice to trigger A12: commercial parties are almost constantly on the look-out for such relationships. [322] after having considered the various arguments the judge holds that A12 is engaged vis-a-vis EVS, yet that the putative law of the contract cannot be determined by A12(1), hence requiring the application of A12(2)(a). The applicable law is the law of the country in which damage would hypothetically have occurred, here, it is held, Russia.

Applicable law for both claims having been held to be Russian law, the remainder of the judgment then deals with evidence of that law and the conclusion [396] that the information was disclosed without imposing any obligation of confidence on either EVS or the Bank.

As noted the A6 analysis in my view is appealable. For both the A6 and the A12 analysis it is also a pity and concern to see, once again, the English courts (chicken and egg-wise led of course by counsels’ probable absence of presentation of same) lack of engagement on issues of both acquired and retained EU conflict of laws, with scholarship outside of the UK and /or other than written in English.

Geert.

Equitable obligations of confidence (in context of patent DNI Denial of Infringement): whether covered by retained Rome I or Rome II (or neither)
More on the blog when I find time

Autostore Technology AS v Ocado Group Plc & Ors [2023] EWHC 716 (Pat)https://t.co/ixzMwrPqJH

— Geert Van Calster (@GAVClaw) April 15, 2023

by Claudia Madrid Martínez

 

On 17 March 2023, the Civil Chamber of the Supreme Court of Justice issued a decision whereby it annulled a judgment on appeal and decided the merits of the case, which concerned a bill of exchange issued in Curaçao, binding Venezuelan citizens domiciled in Venezuela.

The interesting thing about this judgment is that the Civil Chamber set aside the reasoning of the court of appeals according to which, since there are no international treaties in force between Venezuela and Curaçao, and there are no rules on bills of exchange in the Venezuelan Act on Private International Law, the Inter-American Convention on Conflicts of Laws concerning Bills of Exchange, Promissory Notes and Invoices should be applied by analogy and, consequently, “the Law of the place where the obligation was contracted” (art. 1), i.e., the Law of Curaçao, should be applied to the bill of exchange.

It should be noted that, on the one hand, the only Conventions in force for Venezuela regarding bills of exchange are the Inter-American Convention on Conflicts of Laws regarding Bills of Exchange, Promissory Notes and Invoices, and the Bustamante Code. On the other hand, the Act on Private International Law does not establish rules on International Commercial Law, since —as stated in the Explanatory Memorandum— this matter must be developed within the Commercial Law itself in accordance with the general principles set forth in the Act on Private International Law.

In addition, Article 1 of the Act on Private International Law provides two tools to integrate the gaps in the Act and, in general, the gaps in the Venezuelan Private International Law system. This rule refers to analogy and to the generally accepted principles of Private International Law.

In the past, case law has admitted the application of treaties in force for Venezuela, but not for the other States involved in a specific case, either by analogy (Supreme Court of Justice, Political Administrative Chamber, judgment of 23 February 1981), or on the understanding that their solutions can be characterized as generally accepted principles of Private International Law (Second Court of First Instance in Commercial Matters of the Federal District and Miranda State, judgments of 29 February  1968 and 12 March 1970). Therefore, in this case, the arguments used by the court of appeal in analogically applying the Inter-American Convention were not erroneous.

The Civil Cassation Chamber, however, had another idea when it understood that the judge of appeal erred in the application of the Law of Curaçao to settle the case. Thus, the Chamber began by reaffirming the existence of “relevant foreign elements, such as the place of issuance of the bill of exchange, i.e., Curaçao, and the domicile of the parties involved in Venezuela”. The latter criterion, in fact, is not a foreign element, since it is located in the forum.

The Chamber then cites Article 1 of the Act on Private International Law, and concludes that there are no treaties in force, applicable to the case since Curaçao has not ratified any of the aforementioned treaties, and proceeds to the application of the domestic rules of Private International Law.

In particular, the Civil Chamber intends to determine, in the first place, the Law applicable to the form of the bill of exchange, which is why it resorts, rightly, to Article 37 of the Act on Private International Law, a rule that governs the form of all kinds of legal acts, which is perfectly applicable to bills of exchange, and also, as is well known, it establishes the locus regit actum principle in an alternative manner. Indeed, the rule allows the judge to choose between the Law of the place of conclusion of the act, which governs the substance of the act, and the Law of the domicile of the person doing the act, or of the common domicile of the persons doing the act.

Under Article 37, the choice of the connecting factor applicable to the specific case will depend on the favor validitatisprinciple, i.e., the judge must determine the Law applicable in order to favor the formal validity of the act. In this case, the Civil Chamber decided to apply the domicile criterion, without explaining why, although, basically, the reason can be intuited from the fact that the judge ended up applying Venezuelan law.

The Civil Chamber then begins its examination of the Law applicable to the merits and, in this regard, “finds it pertinent to bring up the provisions of Article 30 of the Act on Private International Law”, a rule that establishes the Law applicable to international contracts in cases where the parties have not chosen it. The nature of a bill of exchange can certainly be discussed, but it is not a contract.

In any case, the Civil Chamber does not justify its action, that is to say, it does not indicate the reason why a rule governing contracts should be applied to a bill of exchange. However, I do not know if this was consciously done, but it did leave out a series of points that are of great interest in the field of international contracts. Let us see.

The first thing the Chamber does is to identify, in accordance with Article 30 of the Law, the objective and subjective elements of the relationship, in order to determine with which Law the bill of exchange is more closely related and assumes for this purpose —although it does not quote it— the opinion expressed by Professor Fabiola Romero in her work “Derecho aplicable al contrato internacional” (in: Liber Amicorum, Homenaje a la Obra Científica y Académica de la profesora Tatiana B. de Maekelt, Caracas, Facultad de Ciencias Jurídicas y Políticas, UCV, Fundación Roberto Goldschmidt, 2001, Volume I, pp. 203 ss.), understanding that the subjective elements refer to the parties and the objective ones to the relationship itself.

Thus, the Civil Chamber includes in the subjective elements the nationality and domicile of the parties —all located in Venezuela—; and, within the objective elements, the place of subscription of the bill of exchange —Curaçao—, the place of payment —understanding as such the place indicated next to the name of the drawee and located in Curaçao—, and the fact that the bill is intended to be enforced and performed in Venezuela.

Then, in accordance with the last part of Article 30 of the Act on Private International Law, according to which the judge “shall also take into account the general principles of International Commercial Law recognized by international organizations”, the Civil Chamber analyzes such principles. And it does so considering their so-called conflictual function, since in this case they will be used, not to settle the merits, but to search for the Law applicable.

However, the principles sought by the Civil Chamber are contained in international treaties. Firstly, the 1980 Rome Convention on the Law Applicable to International Contracts —now absorbed by the 2008 Rome I Regulation—, which refers to the closest links, but based rather on the questioned criterion of the characteristic performance. Secondly, Article 9 of the Inter-American Convention on the Law Applicable to International Contracts, rule that inspired the solution of Article 30 of the Act on Private International Law.

After reaffirming the application of the Law with which the bill of exchange is most closely connected, the Civil Chamber refers Article 31 of the Act on Private International Law, and understands that “in the event of a dispute regarding the Law to be applied, in the case of a contract or obligation of international origin, in the absence of a choice of Law by the parties or when it is ineffective, the judge shall apply ‘…when appropriate…’, that is, according to the specific case, the Lex mercatoria, which includes the usages, customs and commercial practices of general international acceptance”.

This rule leads the Chamber to consider the UNIDROIT Principles and it decides to apply them on the basis of the so-called negative choice —a discussed solution in the world of arbitration—, admitted by the Preamble of the Principles. Indeed, the Principles may be applied “when the parties have not chosen any law to govern their contract”.

Thus, the Civil Chamber ends up understanding that, in the absence of indication by the parties, in case of a monetary obligation, the place of performance will be “at the obligee’s place of business” (art. 6.1.6[1][a]).

“Now, considering the objective and subjective elements that are directly linked to the referred bill of exchange, as well as the general principles of International Commercial Law accepted by international organizations, the customs and manners of international trade, known as Lex mercatoria, according to Articles 30 and 31 of the Act on Private International Law, it is concluded that the Law applicable to the performance of the bill of exchange shall be the Law of the place of performance, it is concluded that the Law applicable to resolve the merits of the case is Venezuelan Law, given that the parties are Venezuelans, their domicile is in the Bolivarian Republic of Venezuela and the commercial instrument, although signed in Curaçao, is intended to be enforceable in the Bolivarian Republic of Venezuela. It is hereby declared”.

The Civil Chamber applied Venezuelan Law to both the form and the substance of the bill of exchange. But there is more, when deciding on the merits, instead of following the solution of the UNIDROIT Principles and calculating interest according to the Law of the State of the currency of payment (art. 7.4.9), it did so instead “at the rate of five percent (5%) per annum, according to Article 456, ordinal 2° of the Venezuelan Commercial Code… for which the conversion into bolivars must be made at the rate established by the Central Bank of Venezuela for the day of payment, all this through a complementary expert opinion, in accordance with Article 249 of the Code of Civil Procedure and not as erroneously requested by the plaintiff, that is to say, calculated at the legal interest rates that have been fixed for each semester by the Central Bank for Curaçao and St. Martin (Centrale Bank Curaçao en Sint Maarten)” (bold in the original).

There are undoubtedly some noteworthy aspects of this decision that hopefully will be taken into account in the future in cases related to international contracting. Others, such as the characterization of a bill of exchange as a contract, the disregard of the possibility of applying international treaties by analogy or as general principles, and the calculation of interest on an international obligation, denominated in foreign currency, in accordance with Venezuelan Law, could rather be forgotten.

 

Translated by the author from her original post in Spanish.

 

Courts are often required to determine the existence or validity of jurisdiction agreements. This can raise the question of the applicable standard of proof. In common law jurisdictions, the question is not free from controversy.  In particular, Stephen Pitel has argued on this very blog that jurisdiction clauses should be assessed on the balance of probabilities, as opposed to the “good arguable case” standard that is commonly applied (see, in more detail, Stephen Pitel and Jonathan de Vries “The Standard of Proof for Jurisdiction Clauses” (2008) 46 Canadian Business Law Journal 66). That is because the court’s determination on this question will ordinarily be final – it will not be revisited at trial.

In this post, I do not wish to contribute to the general debate about whether the “good arguable case” standard is appropriate when determining the existence and validity of jurisdiction agreements. Rather, I want to draw attention to a particular feature of the English “good arguable case” standard that can cause problems when applied to jurisdiction agreements. The feature is that, in cases where the court is unable to say who has “the better argument”, it will proceed on the basis of plausibility (Kaefer Aislamientos SA de CV v AMS Drilling Mexico SA de CV [2019] EWCA Civ 10, [2019] WLR 3514 at [79]-[80]). Application of this lower standard may lead to unfairness in the treatment of jurisdiction agreements. The party who bears the burden of proof will get the benefit of the doubt that is inherent in the test. However, there is no principled way to allocate the burden. Should it be the party seeking to rely on the agreement, with the result that there is a kind of bias in favour of upholding jurisdiction agreements, or should it be the plaintiff, as was the approach taken recently by the New Zealand High Court in Kea Investments Ltd v Wikeley Family Trustee Limited [2023] NZHC 466?

The High Court in that case had granted an interim anti-enforcement injunction in relation to a default judgment from Kentucky (see Kea Investments Ltd v Wikeley Family Trustee Limited [2022] NZHC 2881, and my earlier post here). Kea Investments Ltd (Kea), a British Virgin Islands company, alleged that the US default judgment was based on fabricated claims intended to defraud Kea. It claimed that the defendants – a New Zealand company, an Australian resident with a long business history in New Zealand, and a New Zealand citizen – had committed a tortious conspiracy against it and sought a declaration that the Kentucky judgment would not be recognised or enforceable in New Zealand. Two of the defendants – Wikeley Family Trustee Limited and Mr Wikeley – protested the Court’s jurisdiction.

The Court set aside the protest to jurisdiction, dismissing an argument that Kea was bound by a US jurisdiction clause. One of the reasons for this was that the jurisdiction clause was unenforceable by virtue of Kea’s allegations of fraud and conspiracy (see here for a more extensive case note). The Court applied the “good arguable case” standard to determine the relevance of the allegations. It relied on the test in Four Seasons Holding Inc v Brownlie [2017] UKSC 80, which sets out the good arguable case standard applicable to “jurisdictional facts” that form the basis for an application to serve proceedings outside of the forum. Gault J considered that, even though the test in Four Seasons was concerned with the different scenario of a plaintiff seeking to establish jurisdictional facts to support an assumption of jurisdiction by the forum court, it was appropriate to apply the test by analogy to the defendants’ application for a stay or dismissal of the New Zealand proceeding by virtue of the US jurisdiction clause (at [44]).

However, the good arguable case test is especially difficult to apply in cases where the court is unable “to form a decided conclusion on the evidence before it and is therefore unable to say who has the better argument” (at Kaefer Aislamientos SA de CV v AMS Drilling Mexico SA de CV [2019] EWCA Civ 10, [2019] WLR 3514 at [79]). In such cases, the good arguable case inquiry is no longer a relative inquiry, and all that is needed is a plausible (albeit contested) evidential basis. It follows that the question of the burden of proof may become determinative.

Gault J considered that it was the plaintiff, Kea, that had to show a plausible evidential basis here. Thus, the Judge considered that Kea had to show “a plausible evidential basis” for its argument that there was no jurisdiction clause: “[t]he test is whether there is a plausible (albeit contested) evidential basis for the claimant’s case in relation to the jurisdiction clause (by analogy with the application of the relevant gateway). It is not whether the defendants have a plausible (albeit contested) evidential basis for their position that the Coal Agreement was executed by Kea” (at [60], see also [63]). In other words, it was Kea who was given the benefit of the doubt inherent in the test, and not the defendants.

It is likely that Gault J’s approach can at least to some extent be explained by reference to the peculiar facts of the case. However, if his approach were adopted more generally, the result would be that in cases of evidential uncertainty that cannot be resolved, the good arguable case inquiry necessarily favours plaintiffs over defendants, and New Zealand jurisdiction agreements over foreign jurisdiction agreements.  This would not be a desirable outcome.

The alternative is that the burden is on the party seeking to enforce the jurisdiction agreement. This seems to be the view adopted by Dicey, Morris and Collins on the Conflict of Laws (16th ed, at [12-093]). However, this approach is problematic too, because it introduces a bias in favour of upholding jurisdiction agreements. In Kaefer, the plaintiffs sought to rely on an English jurisdiction agreement under Art 25 of the recast Brussels Regulation. Commenting on the case, Andrew Dickinson argued that the application of the test of plausibility was not consistent with the scheme of the Regulation, which requires that “the defendant, not the claimant, … be given the benefit of the doubt” (“Lax Standards” 135 (2019) LQR 369). Dickinson pointed to the “significant unfairness to the defendant of being required to defend proceedings before a court other than that of his domicile in the absence of conclusive and relevant evidence that the court has jurisdiction under the Regulation”. I think that the concern is valid more generally. Why should any party – whether it is the defendant or the claimant – be held to a jurisdiction agreement even though there is only a plausible basis for its existence?

It follows that courts should always try to engage in a relative inquiry when determining the existence and validity of jurisdiction agreements. It is likely that this is already occurring in practice, and so perhaps the concerns raised in this post are more theoretical than real. If so, it is in the interest of legal certainty and accessibility that the test be clarified.

This post was written by Sören Segger-Piening, Julius-Maximilians-Universität Würzburg.

It is with a heavy heart that I have to announce the passing of Oliver Remien on 24 April 2023 after a short, severe illness at the age of only 66. He held the Chair of Civil Law, European Economic Law, Private International Law and Litigation as well as Comparative Law at the University of Würzburg from 2001 until his retirement on 1 April 2023. From 1982 to 2000 he had worked as an assistant and research fellow at the Max Planck Institute for Comparative and International Private Law in Hamburg under the supervision of his teacher Ulrich Drobnig. I consider myself lucky to have been Oliver Remien’s student, mentee and friend since 2007.

His work is as multi-layered as it is extensive, which is why the following can only be an incomplete coverage of some of his research priorities.

Early on he pointed out the various dimensions of European private law and benefited from his work as Secretary to the Commission on European Contract Law (Lando-Group) from 1982 to 1990. He repeatedly surveyed, illuminated and advanced the system of internal market law and its implications for private law: fundamentally in his habilitation thesis on Mandatory Law of Contract and the Fundamental Freedoms (2003), most recently in a note on the Thelen Technopark decision of the CJEU.

He made many fundamental contributions to private international law, for example on foreign trade law, overriding mandatory provisions, consumer contracts and the European Succession Regulation. Furthermore, he devoted himself to the “secret king” of conflict of laws: the application of foreign law by domestic courts.

The latter links to his work in the field of international and comparative civil procedure. His ground-breaking and widely acclaimed dissertation on Rechtsverwirklichung durch Zwangsgeld (1992) bears witness to this, as does his recent contribution in the grey area between arbitration and the international jurisdiction regime of the Brussels Ia Regulation.

Of course, he also provided a variety of important impulses in German law, for example with his contribution on the limitation of claims in rem.

During his time at the University of Würzburg, Oliver Remien organised a large number of conferences on important topics in his research areas such as: Modernisation of the Law of Obligations and European Contract Law (2006); The Law of Prescription in Europe (2009); Damages in European Private and Business Law (2010); European Unification of Conflict of Laws (2010, together with Eva-Maria Kieninger); Investment Protection, Arbitration and the Rule of Law in the EU (2017, together with Markus Ludwigs). He was also keen to cooperate with the Law Faculty in Bucharest, as evidenced by a volume on Common European Private Law in Romania (together with Liviu Zidaru), which currently is being printed.

Standing in awe before this comprehensive body of work – which I can only describe inadequately – is accompanied by at least as much admiration for Oliver Remien’s personality: his friendly and open character, his curiosity and his ever-recurring enthusiasm for novelties were outstanding. With Oliver Remien we do not only loose a great European researcher in the truest sense of the word, but also a dear person and friend. He is dearly missed.

My thoughts are with his family and loved ones.

Further to my  post on first view articles for the second issue of ICLQ 2023, the second issue for ICLQ for 2023 was just published. It contains the following conflict of laws article that was not included in the first view articles:

S Camilleri, “Sense and Separability”:

This article explores the doctrine of separability, as understood in particular in the English legal tradition. It does so by reference to the decisions in Sulamérica Cia Nacional de Seguros SA and others v Enesa Engelharia SA and others and ENKA ?n?aat ve Sanayi A.?. v OOO ‘Insurance Company Chubb’ & Ors that explore the relevance of the concept when determining the law applicable to the arbitration agreement. These decisions largely treat the doctrine as irrelevant to the determination of the law governing the arbitration agreement. They do so because of the way in which English law views separability as tied inimically to the concept of enforcement of the arbitration agreement. This is unsurprising given the content of section 7 of the Arbitration Act 1996 and the position of the doctrine of separability as a legal fiction that must be restricted to its defined purpose. Viewed against the potential reform of the Arbitration Act 1996, the author asks whether a broader view of separability can be adopted. The author’s view is that there are cogent and compelling reasons for adopting a broader view, that would promote certainty and consistency in a way that is not best served by the current approach.

 

 

 

The first issue of the Revue critique de droit international privé of 2023 is primarily dedicated to the Restatement Third of Conflict of Laws.

Restatement Third

Lea Brilmayer (Yale) starts the discussion with an article on The (Third) Restatement of Conflicts and “The Ordinary Processes of Statutory Construction”. 

One of the reporters of the Restatement, Kermitt Rooselvet III (UPenn), then offers a short response: Third Restatement and Method : A Response from Kermitt Roosevelt III.

Three articles follow on more specific topics: Maggie Mills, Statutes of limitation and the substance-procedure dichotomy: a missed opportunity; Sarah Quinn, How should a state choose when to apply foreign law? Comparing answers from the American Law Institute’s Third Restatement and Rome II in the European Union; Catherine Lee, A Cross-Border Maze: Remote Work, Employment Contracts, and the Draft Restatement (Third) of Conflict of Laws.

Other articles

The issues contains two other articles and a number of case notes.

In the first article, Christelle Chalas (University of Lille) offers a comparative analysis of protection measures of children wrongfully removed under the 1980 Hague Convention after the judgement of the U.S. Supreme Court in Golan v. Saada (Les mesures de protection de
l’enfant illicitement déplacé et le risque grave de danger : comparaison de l’office des juges américains et européens).

In the second article, Baptiste Delmas (Paris I University) discusses the emergence of exequatur actions in transnational labour law.

The full table of contents can be found here.

Written by Bill Dodge, the John D. Ayer Chair in Business Law and Martin Luther King Jr. Professor of Law at UC Davis School of Law.

In December 2022, Chinese lawmakers published a draft law on foreign state immunity, an English translation of which is now available. In a prior post, I looked at the draft law’s provisions on immunity from suit. I explained that the law would adopt the restrictive theory of foreign state immunity, bringing China’s position into alignment with most other countries.

In this post, I examine other important provisions of the draft law, including immunity from attachment and execution, service of process, default judgments, and foreign official immunity. These provisions generally follow the U.N. Convention on Jurisdictional Immunities of States and Their Property, which China signed in 2005 but has not yet ratified.

China’s draft provisions on immunity from attachment and execution, service of process, and default judgments make sense. Applying the draft law to foreign officials, however, may have the effect of limiting the immunity that such officials would otherwise enjoy under customary international law. This is probably not what China intends, and lawmakers may wish to revisit those provisions before the law is finally adopted.

Immunity from Attachment and Execution

Articles 13 and 14 of China’s draft law cover the immunity of foreign state property from “judicial compulsory measures,” which the U.N. Convention calls “measures of constraint” and the U.S. Foreign Sovereign Immunities Act (FSIA) refers to as measures of attachment and execution. They include both pre-judgment measures to preserve assets and post-judgment measures to enforce judgments. Under customary international law, immunity from attachment and execution is separate from and generally broader than immunity from suit. It protects foreign state property located in the forum state, in this case the property of foreign states located in China.

Article 13 provides that the property of a foreign state shall be immune from judicial compulsory measures with three exceptions: (1) when the foreign state has expressly waived such immunity; (2) when the foreign state has specifically designated property for the enforcement of such measures; and (3) to enforce Chinese court judgments when the property is used for commercial activities, relates to the proceedings, and is located in China. Article 13 further states that a waiver of immunity from jurisdiction shall not be deemed a waiver of immunity from judicial compulsory measures.

Article 14 goes on to identify types of property that shall not be regarded as used for commercial activities for the purpose of Article 13(3). These include the bank accounts of diplomatic missions, property of a military character, central bank assets, property that is part of the state’s cultural heritage, property of scientific, cultural, or historical value used for exhibition, and any other property that a Chinese court thinks should not be regarded as being in commercial use.

Articles 13 and 14 of China’s draft law closely parallel Articles 19-21 of the U.N. Convention. The main difference appears in Article 13(3)’s exception for enforcing court judgments, which is expressly limited to Chinese court judgments and requires that the property “relates to the proceedings.” Article 19(c) of the U.N. Convention, by contrast, is not limited to judgments of the state where enforcement is sought and does not require that the property relate to the proceedings. On first glance, China’s draft law appears to resemble more nearly § 1610(a)(2) of the U.S. FSIA, which is expressly limited to U.S. judgments and requires that the property be used for the commercial activity on which the claim was based.

Upon reflection, however, it appears that China’s limitation of draft Article 13(3) to Chinese court judgments sets it apart from the U.S. practice as well as the U.N. Convention. In the United States, a party holding a foreign judgment may seek recognition of that judgment in U.S. courts, thereby converting it into a U.S. judgment. Because the U.S. judgment recognizing the foreign judgment falls within the scope of § 1610(a), it is possible to attach the property of a foreign state in the United States to enforce a non-U.S. judgment.

It seems that the same is not true in China, which is to say that Article 13(3) cannot be used to enforce foreign judgments. Under Article 289 of China’s Civil Procedure Law (numbered Article 282 in this translation of the law prior to its 2022 amendment), the recognition of a foreign judgment results in a “ruling” (??). The text of Article 13(3), however, is limited to “judgments on the merits” (??), which appears to exclude Chinese decisions recognizing foreign judgments. (I am grateful to my students Li Jiayu and Li Yadi for explaining the distinction to me.) In short, Article 13(3) appears really to be limited to Chinese court judgments, as neither the U.N. Convention nor the U.S. FSIA are in practice.

There are other differences between the U.S. FSIA and China’s draft law. With respect to the property of a foreign state itself, the FSIA requires that the property be used for a commercial activity in the United States by the foreign state—even when the foreign state has waived its immunity—which can be a difficult set of conditions to satisfy. Articles 13(1) and (2) of China’s draft law, by contrast, impose no similar conditions. The U.S. FSIA has separate and looser rules for attaching the property of agencies or instrumentalities of foreign states in § 1610(b), rules that do not require the property to be used for a commercial activity in the United States as long as the agency or instrumentality is engaged in a commercial activity in the United States. And § 1611(b) of the FSIA singles out only central bank and military assets as exceptions to the rules allowing post-judgment attachment and execution, whereas the draft law’s Article 14 additionally mentions bank accounts of diplomatic missions, property that is part of the state’s cultural heritage, and property of scientific, cultural, or historical value used for exhibition.

Service of Process

China’s draft law also provides for service of process on a foreign state. Article 16 states that service may be made as provided in treaties between China and the foreign state or “by other means acceptable to the foreign state and not prohibited by the laws of the People’s Republic of China.” (The United States and China are both parties to the Hague Service Convention, which provides for service through the receiving state’s Central Authority.) If neither of these means is possible, then service may be made by sending a diplomatic note. A foreign state may not object to improper service after it has made a pleading on the merits. Again, this provision closely follows the U.N. Convention, specifically Article 22.

Section 1608 of the FSIA is the U.S. counterpart. It distinguishes between service on a foreign state and service on an agency or instrumentality of a foreign state. For service on a foreign state, § 1608 provides four options that, if applicable, must be attempted in order: (1) in accordance with any special arrangement between the plaintiff and the foreign state; (2) in accordance with an international convention; (3) by mail from the clerk of the court to the ministry of foreign affairs; (4) through diplomatic channels. For service on an agency or instrumentality, § 1608 provides a separate list of means.

Default Judgment

If the foreign state does not appear, Article 17 of China’s draft law requires a Chinese court to “take the initiative to ascertain whether the foreign state is immune from … jurisdiction.” The court may not enter a default judgment until at least six months after the foreign state has been served. The judgment must then be served on the foreign state, which shall have six months in which to appeal. Article 23 of the U.N. Convention is similar, except that it provides periods of four months between service and default judgment and four months in which to appeal.

U.S. federal courts must similarly ensure that a defaulting foreign state is not entitled to immunity, because the FSIA makes foreign state immunity a question of subject matter jurisdiction, and federal courts must address questions of subject matter jurisdiction even if they are not raised by the parties. Section 1608(e) goes on to state that “[n]o judgment by default shall be entered by a court of the United States or of a State against a foreign state … unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.” In other words, courts in the United States are additionally obligated to examine the substance of the claim before granting a default judgment. China’s draft law does not appear to impose any similar obligation.

Foreign Officials

Article 2 of China’s draft law defines “foreign state” to include “natural persons … authorized … to exercise sovereign powers.” Thus, unlike the U.S. FSIA, China’s draft law may cover the immunity of some foreign officials.

The impact of the draft law on foreign official immunity is mitigated by Article 19, which says that the law shall not affect diplomatic immunity, consular immunity, special missions immunity, or head of state immunity. Article 3 of the U.N. Convention similarly specifies that these immunities are not affected by the Convention. What is missing from these lists of course, is conduct-based immunity. Under customary international law, foreign officials are entitled to immunity from suit based on acts taken in their official capacities, and such immunity continues after the official leaves office.

It appears that China’s draft law would govern the conduct-based immunity of foreign officials in Chinese courts and would give them less immunity than customary international law requires. By including “natural persons” within the definition of “foreign state,” the draft law makes the exceptions to immunity for foreign states discussed in my prior post applicable to foreign officials as well. Thus, foreign officials who engage in commercial activity on behalf of a state might be subject to suit in their personal capacities and not just as representatives of the state. This does not make much sense.

Although it appears that China simply copied this quirk from the U.N. Convention, it makes no more sense in Chinese domestic law than it makes in the Convention. Chinese authorities would be wise to reconsider this issue before the law is finalized. They could address the problem by adding conduct-based immunity to Article 19’s list of immunities not affected. Or, better still, they could omit “natural persons” from the definition of “foreign state” in Article 2.

Conclusion

Adoption of China’s draft law on foreign state immunity would be a major step in the modernization of China’s laws affecting transnational litigation. As described in this post and my previous one, the draft law generally follows the provisions of the U.N. Convention and would apply those rules to all states including states that chose not to join the Convention. The provisions of the U.N. Convention are generally sensible, but they are not perfect. In those instances where the U.N. Convention rules are defective—for example, with respect to the conduct-based immunity of foreign officials—China should not follow them blindly.

[This post is cross-posted at Transnational Litigation Blog.]

Save the date

On 19-20 October 2023 a conference on ‘Sustaining Access to Justice: Developments and Views on Costs and Funding’ will be held at Erasmus University Rotterdam. The conference is organised by the project team Affordable Access to Justice, financed by the Dutch Research Council. Confirmed keynote speakers include Rachael Mulheron (Queen Mary University London) and Andreas Stein (European Commission, DG Justice and Consumers, head of unit). More information on the program and registration will follow soon.

Call for papers

For this conference we invite submissions of abstracts from early career researchers and young practitioners.

The conference’s theme: Access to civil justice is of paramount importance for enforcing citizens’ rights. At the heart access to civil justice lies litigation funding and cost management. Yet, over the past decades, access to justice has been increasingly put under pressure due to retrenching governments, high costs of procedure, and inefficiency of courts and justice systems. Within this context, the funding of litigation in Europe seems to be shifting from public to private. Private actors and innovative business models emerged to provide new solutions to the old problem of financial barriers of access to justice. With the participation of policymakers, practitioners, academics and civil society representatives from all over Europe, the conference seeks to delve deeper into the financial implications of access to justice and the different ways to achieve sustainable civil justice systems in Europe. The topics addressed will include the different methods of financing dispute adjudication, particularly in the context of group litigation (third-party funding, crowdfunding, blockchain technologies), public interest litigation, developments in ADR/ODR, and the new business models of legal professionals.

Call for Papers: During the second day of the Conference (20 October) a panel will be organised which is intended to function as a forum for young scholars and young practitioners to present their work in front of a distinguished and broad audience. We particularly invite Early Career Researchers, PhD candidates (at an advanced stage of their PhD), and young practitioners to participate and present their research on the conference’s topics and beyond. While the contributions should fall within the Conference broader topic (costs and funding of civil justice), authors are free to include matters they deem interesting to explore within this context. Proposals can be theoretical, empirical as well as policy oriented. Interdisciplinary approaches and/or a Law & Economics approach are especially encouraged.

Submissions and deadline: Please submit an extended abstract (max 1000 words) in English to dori@law.eur.nl and cordina@law.eur.nl on 7 July 2023 at the latest. Please include your name, affiliation, and a link to your research profile. Submissions will be selected based on quality, originality, interdisciplinarity and the capacity to incite fruitful debates. Accepted submissions will be notified on 30 July 2023 at the latest. The selected participants will be asked to submit their final manuscript in early 2024.

The organisers aim to include the best papers in the conference proceedings, to be published as an edited volume with a reputable publisher. Further details in this regard will be communicated in due time.

Funding for travel and accommodation is available for the selected authors.

The conference venue will be @ Erasmus University Rotterdam – Woudestein Campus. The conference is organised by Erasmus School of Law in the context of the VICI Project ‘Affordable Access to Justice’. More information at: http://www.euciviljustice.eu/.