Droit international général

Lex & Forum Law Review and Sakkoulas Publications SA are organizing an online conference on:

PRESIDING:

Prof. Lia Athanasiou, University of Athens

PRESENTERS:

• Prof. Dan Svantesson, Faculty of Law, Bond University/Australia,

‘Intellectual Property disputes and PIL: A Swedish and Australian perspective’

• Prof. Dr. Marketa Trimble, Samuel S. Lionel Professor of Intellectual Property Law, William S. Boyd School of Law, University of Nevada, Las Vegas, Stanford University

‘The Territorial Discrepancy Between Intellectual Property Rights Infringement Claims and Remedies’

• Prof. Dr. Gerald Spindler, Faculty of Law, Georg-August Universität Göttingen

‘EU Digital Services Act und EU Digital Markets Act and its impact on private international law’

• Dr. Ioannis Revolidis, University of Malta,

‘International jurisdiction on online copyright infringements’

More information available here

FAMIMOVE is an international project co-funded by the European Commission under the JUST-2022-JCOO program. The FAMIMOVE website is now live and may be consulted by clicking here.

The project  aims to improve the protection of migrant children and families by bringing actual practice more in line with EU goals and values, such as the protection of fundamental rights and best interests of the child. It also seeks to provide more effectiveness to EU objectives through a better coordination of instruments in overlapping fields, such as Regulations in private international law in family law matters and migration law rules. The duration of the project is 24 months (from 1 January 2023 to 31 December 2024). For more information, click here.

The Consortium is coordinated by Prof. Marta Pertegás Sender (University of Maastricht) and is comprised of the following partners: Prof. Bettina Heiderhoff (University of Münster), Prof. Costanza Honorati (University of Milano-Bicocca); Prof. Fabienne Jault (University of Versailles Saint-Quentin-en-Yvelines), Prof. Ulf Maunsbach (Lund University), Prof. Orsolya Szeibert (Eötvös Loránd University) and Prof. Jinske Verhellen (Ghent University). Each Partner is further supported by colleagues with expertise in  cross-cutting fields, thus bringing together experts who are representatives from a large range of European regions. More information is available here.

FAMIMOVE (actually, FAMIMOVE 2.0) is a spin-off of an earlier project with the same name, which was very successful and resulted in two insightful documents published by the European Parliament: Children on the Move: A Private International Law Perspective and Private International Law in a Context of Increasing International Mobility: Challenges and Potential.

Any new developments on FAMIMOVE will be published here – stay tuned!

Two relatively new Scandinavian free online law library projects ease the accessibility of older legal writings, which opens new possibilities for researchers. First, the Danish law library project jurabog was launched. Being inspired by that, the similar Swedish project juridikbok.se followed. The two projects are both free and their respective focus are to collect older legal writings and make them available online.

Whereas the Danish project aims at collecting Danish legal writing, the Swedish project collects Swedish legal writings. The collections are general, but content several books on private international law. Even if most of them are in either Danish or Swedish, one can find private international law books written in English.

On the Danish website, one can for instance find Ole Lando’s General Course of 1985 for the Hague Academy (Recueil des Cours) which had the title The Conflict of Laws of Contracts – General Principles. Also, the general course in the same series from 1958 on The Scandinavian Conventions on Private International Law by Allan Philip is found on the website.

The Swedish library contains e.g. Michael Bogdan’s dissertation Expropriation in Private International Law (1975) as well as Stig Strömholm’s dissertation Torts in the conflict of laws (1961).

In the contemporary digital reality, the free Scandinavian law library projects seem to be pioneering by offering an alternative to the paywalls that often delay and hinder research.

As announced on this blog and on the blog of the EAPIL, a series of webinar has been organised under the title The Future of Cross-Border Parenthood in the EU – Analyzing the EU Parenthood Proposal.

This is just a quick reminder for those who also read the EAPIL blog – and a new announcement for those who do not – that registration is open through the form available here.

The programme of the series is as follows:

• 3 May 2023, webinar chaired by Claire Fenton-Glynn: Surrogacy in comparative perspective (Jens Scherpe), and What’s in it? Subject matter, scope and definitions (Cristina González Beilfuss)
• 10 May 2023, webinar chaired by Fabienne Jault-Seseke: The EU Proposal and primary EU law: a match made in heaven? (Susanne Gössl), and The law governing parenthood: are you my father? (Tobías Helms)
• 17 May 2023, webinar chaired by Nadia Rustinova: The mutual recognition of decisions under the EU Proposal: much ado about nothing? (Alina Ontanu), and Who decides on parenthood? The rules of jurisdiction (Maria Caterina Baruffi)
• 24 May 2023, webinar chaired by Steven Heylen: Authentic documents and parenthood: between recognition and acceptance (Patrick Wautelet), and The European certificate of Parenthood: a passport for parents and children? (Ilaria Pretelli)

The series of webinars is organized by Cristina González Beilfuss (Universitat de Barcelona), Susanne Gössl (Universität Bonn), Ilaria Pretelli (Institut Suisse de Droit Comparé), Tobias Helms (Universität Marburg) and Patrick Wautelet (Université de Liège) under the auspices and with the support of EAPIL, the European Association of Private International Law.

Judge François Ancel (Cour de cassation) and Professor Gustavo Cerqueira (University of Nice) are the editors of a book on the Respective Roles of (French) Courts and Parties in the Application of Choice of Law Rules (L’office du juge et la règle de conflit de lois).

The book collects the proceedings of a conference held at the Cour de cassation in May 2021.

A summary of the conference is available on the website of the court in French and in English.

The Commentary on the Brussels II ter Regulation, edited by Ulrich Magnus and the late Peter Mankowski, part of the European Commentaries on Private International Law series published by Otto Schmidt, has recently been released.

The list of authors includes Alfonso-Luis Calvo Caravaca, María-Asunción Cebrían Salvat, Gilles Cuniberti, Stefano Dominelli, Agnieszka Frąckowiak-Adamska, Estelle Gallant, Thomas Garber, Oliver Knöfel, Vesna Lazić, Luís Pietro Rocha de Lima Pinheiro, Ulrich Magnus, Peter Mankowski, Maire Ní Shúilleabháin, Marta Pertegás Sender, Walter Pintens, Ilaria Queirolo, Dimitrios K. Stamatiadis and Spyros Tsantinis.

See here for further information.

The University of Urbino will host on 17 May 2023 a conference on the international aspects of the Digital Services Act (DSA) in a hybrid way.

The speakers include Marie-Elodie Ancel, Basile Darmois, Federico Ferri, Valère Ndior, Edoardo Alberto Rossi, Massimo Rubechi and Maria Isabel Torres Cazorla.

For registration and the full programme, see here.

For further info, write an email at edoardo.rossi@uniurb.it.

The author of this post is Verena Wodniansky-Wildenfeld, University of Vienna.

Since the introduction of the Rome II Regulation, the question whether rules of conduct of non-governmental organisations are to be taken into account in the context of Article 17 of that Regulation has been the subject of extensive discussion.

A recent decision of the Austrian Supreme Court dealt with the impact of the FIS Rules, which are drawn up by the international ski federation (FIS) and contain guidelines to assist in the promotion of skiing and snowboarding (I.1. FIS rules), with regard to Article 17 Rome II. The court held that the FIS Rules can generally fall within the “rules of safety and conduct” defined in Article 17 Rome II. However, this is only the case if the rules at the place of the event causing the damage are not identical to the rules of safety and conduct of the applicable law. Further examination was therefore not necessary, as the FIS rules are used to determine the duty of care in both states: the state where the harmful act was committed and the state of the applicable law. Nevertheless, the ruling contributes to provide clarity on the interpretation of “rules of safety and conduct” and enrich the case law on Article 17 Rome II.

The case at hand concerned the collision of two skiers domiciled in the Netherlands in an Austrian ski resort. Prior to the accident, the plaintiff was on the slope above the defendant when the defendant crossed the plaintiff’s lane without turning to see if any skiers are coming from above. In the following crash, both parties were injured.

The Austrian Supreme Court first found the application of Dutch substantive law under Article 4(2) Rome II to be undebated. Article 4(2) Rome II provides an exception to the law of the place where the damage occurred, as appointed in Article 4(1) Rome II, in favour of the law of the common habitual residence of the person claimed to be liable and the person sustaining the damage. As the place where the damage occurred and the place where the harmful act was committed normally coincide in skiing accidents, the issue of the FIS rules as foreign rules of safety and conduct arises mainly in cases governed by Article 4(2) Rome II.

The further examination was therefore limited to the assessment of the FIS Rules, as the defendant’s conduct could have constituted a breach of Rule 1. According to this rule every skier must behave in a way not to endanger or harm others. The Court holds that the question whether the conduct in question results in liability is governed exclusively by the lex causae determined in Article 4(2), and thus by Austrian law. However, the court confirms the FIS Rules can be taken into account as a rule of conduct and standard of due care. As both Austrian and Dutch law measure the conduct of skiers against the FIS Rules, the latter are in any case taken into account by the application of Dutch law. Thus, no conduct rules foreign to the applicable law needed to be taken into account and their consideration under Article 17 Rome II was superfluous.

Although ultimately the “rules of safety and conduct” at the place of the harmful event were not taken into account, the Supreme Court thus seems to have clarified that for the required standard of care, also norms established by non-state organisations are to be considered under Article 17 Rome II.

While mandatory rules, e.g. of formalised and customary law, distinguishing legal from illegal conduct, are evidently encompassed by Article 17 Rome II, it is debated whether purely private safety and conduct rules can also be considered as “rules” in the understanding of Article 17 Rome II. “Soft law”, such as the FIS Rules of Conduct, is the most prominent example of such standards.

The question of the relevance of the FIS rules to cross-border situations in the context of Rome II has been addressed by other courts before. In a similar case, the Higher Regional Court Munich had assumed that the FIS Rules were to be taken into account as customary law at the place of the harmful event (Austria). However, according to Austrian case law, the FIS Rules cannot be considered customary law in Austria. Moreover, in Austria as in the Netherlands, the FIS Rules of Conduct were never legally codified or given legal force in the form of a decree. The situation, however, differs in European countries. In Italy, for example, the conduct on the ski slopes is prescribed by special law through the third section of the law on safety in skiing (Law No. 363 of 24 December 2003). Also, in Slovenia the obligatory conduct of skiers is regulated by special law (Act No. 110/2002 of 18 December 2002).

There is also controversy in literature as to what significance rules of non-state actors have within the framework of Article 17 Rome II. The key question is whether Article 17 Rome II requires a binding nature of the rule or whether purely factual obedience of rules set by private actors is sufficient.  According to the “local data theory”, a very broad approach is to be taken. As even state law is only taken into account as a matter of fact, a differentiation between the legally or factually binding nature between statutory law and “soft law” created by non-state organizations cannot be justified (Calliess/Renner/v. Hein Art 17, para. 19; Dicey/Morris/Collins CoL 34-069).

A second theory seeks to distinguish between two aspects: The question whether and to what extent non-legal standards of conduct are relevant for the liability shall be assessed exclusively in accordance with the lex causae. Insofar as the lex cause takes recourse to soft law when determining liability, the standards of conduct at the place of the event giving rise to the liability must then be taken into account on a second level (BeckOGK/Maultzsch Art 17 Rn 21; NK-BGB/Lehmann Art 17 para 34).

A third theory considers it neither possible nor necessary for the FIS Rules to be taken into account under private international law per se. Nevertheless, on the level of substantive law, they can serve as an interpretative aid for the liability if the national tort law system provides a general clause for the assessment of the conduct of the tortfeasor (Diehl IPRax 2018, 374)

With the present decision, the Austrian court has not explicitly taken a position on the controversy raised in the literature. Up until now it seemed that the Supreme Court would follow the second theory. In a purely domestic decision, the Supreme Court stated that under Austrian Civil Law, considerable importance to the FIS rules is to be attributed, but only “in applying the general principle that everyone must behave in such a way as not to endanger others.” However, the fact that the Supreme Court does not mention the Dutch sweeping clause and recourse to soft law when determining liability, which would be a necessary precondition for the applicability of the FIS Rules under the second theory, seems contradictory to this approach. The reference in the case at hand to the FIS Rules for assessing the duty of care with regard to Article 17 Rome II without further explanation is therefore rather surprising. For the final act of the ongoing debate, a decision of the CJEU will nevertheless have to be awaited. In any way, whether the FIS Rules are considered under Dutch Law cannot, contrary to the Supreme Court’s judgment, matter in their application under Article 17 Rome II. 

Jürgen Basedow, a giant of private international law (and numerous other disciplines), has died –  suddenly, and completely unexpectedly, on April 6. He was my teacher (though only briefly so in a formal position), my predecessor as director of the Hamburg Max Planck Institute (where he served as director 1997-2017) and my colleague as an emeritus. His (impressive) vita is still visible on the MPI website.

Words fail me, as they have many, and so I will not attempt to write more here. A longer appreciation of his life and work and personality is in preparation. Until then, you may wish to read one or more of the following announcements that I am aware of; please announce in the comments or by email what I may have overlooked.

Also, the Hamburg Max Planck Institute is setting up a virtual book of condolences. Please consider sharing your own appreciation there, even if you have already written them up somewhere else.

RIP.

Longer appreciations:

Corinna Budras at Frankfurter Allgemeine Zeitung

Giesela Rühl at EAPIL

Federico Garau at conflictuslegum

José Carlos Fernández Rozas at his personal blog

Brief online announcements:

Max Planck Institute for International and Comparative Law, Hamburg

Leuphana University

Tbilisi University

Università degli Studi di Pavia

International Academy of Comparative Law

Monopolkommission

Brief appreciations on social media (incomplete)

Vasco Becker-Weinberg, Pejovic Caslav, Axel Halfmeier, Matthias Kurth, Michael Kubiciel, Monopolkommission, Gülüm Özçelik, Mateusz Pilich

The European Commission published on 13 April 2023 a study on the application of Regulation 4/2009 on maintenance obligations. The study, authored by Marion Goubet, Sophie Buckingham,  Cécile Jacob, Michael Wells-Greco and Quentin Liger, consists of a final report and various annexes, including a synthesis report. Details on the operation of the Maintenance Convention in the Member States between 2011 and 2019 are found here.

The final report finds that the majority of stakeholders consider the Maintenance Regulation to be effective in establishing common rules for the recovery of maintenance claims across the EU, but acknowledges that, in response to the challenges and issues raised in terms of practical implementation of the Regulation’s provisions, “certain adjustments could be made were it to be recast”.

The report observes, among other things, that the provisions regarding jurisdiction appear to be fragmented and can thus difficult to apply due to there being multiple possible fora and no hierarchy amongst them. In addition, “certain inconsistencies arise both within the Regulation itself, and when compared to other instruments, including Brussels IIa and Brussels IIa recast”.

Concerning the applicable law, which is to be determined in accordance with the Hague Protocol of 2007, the report highlights the practical difficulties experienced in respect of Article 10, concerning public authorities. One issue, the report notes, “was that the process for a public body to prove permissible representation of a creditor is sometimes lengthy and burdensome”. In addition, “if recovery is already under way for the applicant (not a public body) for unpaid maintenance, a public body can be denied legal aid given that two recoveries from the same debtor are not possible”.

As to recognition and enforcement, the study indicates that challenges have arisen in the enforcement of maintenance decisions that set the amount of maintenance obligations on the basis of a percentage of the salary of the debtor or of the requesting State’s minimum wage, but adds that, in this aspect, “a greater uptake and update of the current non-compulsory standard form on the statement of maintenance arrears created by the EJN could be recommended”. For example, “the form could also include information on how to calculate the maintenance based on the State’s minimum monthly wage”. 

The report also signal that “delays are still encountered to enforce maintenance decisions originating from Member States other than the Member State of enforcement”, which is “partly due to the obligation under Article 41 of the Regulation to afford the same conditions for enforcement in the Member State of enforcement to those decisions originating from another Member State”. In fact, if “criteria that are necessary for enforcement in some Member States are not met, this circumstance explains the delays faced for the enforcement of decisions originating from a Member State other than the Member State of enforcement”. The lack of minimum procedural harmonisation, it is contended, “also encompasses differences in the service of maintenance decisions across Member States, termination of maintenance proceedings and different practices in the recovery of lawful interests”. In the end, “a minimum harmonisation of enforcement procedures of maintenance decisions across Member States could be recommended”, in particular as concerns “the procedures for the location of the income and other financial circumstances of the debtor abroad, the possibility to access some information about the debtor, and the introduction of grounds for the suspension and the termination of the maintenance proceedings”.

Challenges (and proposals aimed to address them) are identified in the report also as regards legal aid and cooperation between authorities.

Various remarks are made concerning the interplay between the Maintenance Regulation an other instruments. It is observed, inter alia, that the Regulation and the 2007 Lugano Convention “are not sufficiently aligned, and their interaction can be complex, especially when it comes to jurisdictions rules such as in the case of choice of court agreements”. If the Regulation were to be revised, “the opportunity could be taken to abide by the 2007 Lugano Convention, especially when dealing with the application of exclusive jurisdiction clauses agreed based on the Convention”. Likewise, the Regulation “could allow the EU second seized court to decline jurisdiction in favour of the first seized non-EU court, thus ensuring the respect of the lis pendens rule of the 2007 Lugano Convention”: a recommendation would be to “draft choice of law rules that leaves less leeway for different interpretations in different States”. 

The report also stresses the benefits that (further) digitalisation in this area would provide.

Determining financial loss has become the neuralgic point of Art 7(2) Brussels Ibis and Art 4(1) Rome II Regulation. By leaving the EU, the UK has not been able to leave the issue behind. It has retained the Rome II Regulation as domestic law. Additionally, it is obliged to keep the place of damage as a criterion for determining jurisdiction under the Brussels Ibis and the Lugano Convention at least for those proceedings that started before 31 December 2020, the end of the implementation period. This means that English courts will need to continue determining the place of financial loss for a while.

Facts

A recent case, Kwok Ho Wan and Others v. UBS AG (London branch), involved a suit against a Swiss bank brought in London by an individual based in Hong Kong and two companies, one from Hong Kong and the other from the British Virgin Islands.

The subject matter was a botched investment made by the first claimant – a prominent exiled billionaire from China – into shares of a Hong Kong company via a third company, also based in Hong Kong. When entering into the investment agreement, Kwok Ho Wan allegedly relied on misstatements by UBS’ London branch – misstatements which were made in Hong Kong. The London branch of the bank had also partly financed a loan to the acquiring company via a financing and security agreements, which were subject to English law and jurisdiction.

When the investment turned south, the London branch exercised its right under the security agreement and sold the shares, resulting in a heavy loss for the claimants. Unhappy about this, they sued the Swiss bank in London.

Legal Issue and Holding

To decide whether it had jurisdiction, the Court of Appeal had to determine where the damage had occurred in accordance with Art 5(3) Lugano Convention 2007 (“Lugano II”). It held that this was in England.

Rationale

The Court of Appeal discusses the case law of the CJEU, in particular the decisions Kronhofer, Kolassa, Universal Music, Löber and VEB. After a thorough analysis, Sir Geoffrey Vos, the Master of the Rolls, writes that

I am not certain that there is any rule that is universally applicable to financial loss cases, as UBS London seeks to establish. The answer will depend on the facts of those cases as the contrast between the outcomes in Kronhofer and VEB on the one hand and Kolassa and Löber on the other hand, demonstrates. It is, in my judgment, dangerous to seek to define the test for where damage occurs in a wide range of financial loss cases, because they are likely to be so fact dependent” [at 45 and 46].

Few observers on the continent will disagree with this sober assessment.

The Swiss bank submitted that the claimants had suffered loss in Hong Kong when they had entered into the investment agreement there. Sir Geoffrey finds this approach “over technical and not appropriate in this case” [at 51]. In his view, it “puts form above substance, and places too much reliance on the shape of the pleadings” [ibid.]. Instead, an autonomous approach to Art 5(3) Lugano Convention would require an answer to “pragmatic questions”, namely where the damage manifested itself and whether there were sufficient connections to London to displace the rule that defendants have to be sued at their domicile.

He finds such connections in the present case because (1) the loss had manifested itself when the shares were sold in London (2) the loan and the security agreements “were founded” there (3) any real loss to the shares “was always likely to be suffered in London”, and (4) the Swiss domicile of the bank had no connection to the transaction “whatsoever”. As a result, the damage would have occurred in London, not in Hong Kong, and the English courts would have jurisdiction.

Assessment

It is hard to follow the arguments of the Court of Appeal. Under Kolassa, Löber and VEB, the place where the shares are listed or offered is decisive, which would be in Hong Kong. One can of course disregard this line of decisions in the present case on the grounds it does not involve issuer liability. Then, one would end up with Universal Music, which refers to the place where the disadvantageous transaction was entered into. But again, this was in Hong Kong! One way or the other, all roads therefore lead to Hong Kong and away from London.

The counterarguments of the Court are hardly convincing: (1) The sale of the shares certainly generated a loss, but this loss already existed before the sale. It would not have impacted jurisdiction if the Swiss bank had sold the shares from the botched investment e.g. in Zurich. (2) The loss resulted from the investment agreement, not from the financing and the security agreement. The fact that the latter are subject to English law and jurisdiction does not change the place of the loss resulting from the investment itself. (3) Where loss was expected to be suffered cannot impact where it was actually suffered. It was not unforeseeable either that the loss already occurred when the investment agreement was signed in Hong Kong. (4) The rule that the defendant has to be sued at the place of his or her domicile (Article 2 Lugano II) is the general rule of the Convention. It applies irrespective of whether the case has any connection to this place.

The interpretation of the Lugano Convention by the Court of Appeal is thus misconceived. While it is understandable that the English judges prefer not let a profitable case go and assume jurisdiction, one can only hope that this case was an outlier and will not be the harbinger of a larger trend of estrangement from the CJEU’s case law.

This post was written by Giesela Rühl.

The European Association of Private International Law mourns the loss of Jürgen Basedow, director emeritus of the Max Planck Institute of Comparative and International Private Law in Hamburg and one of the most influential private international law scholars of our times. He unexpectedly passed away on 6 April 2023 at the age of 73. His untimely and much too early death leaves a painful gap that cannot be filled.

Jürgen Basedow was a giant – physically (he was almost 2 meters tall) and academically. For more than 40 years he shaped discussions in private international law across the board. In numerous contributions, including his groundbreaking 2012 Hague general course on The Law of the Open Society, he provided brilliant legal analyses on a whole range of issues and redefined the frontiers of our discipline. He was also among the first to support the creation of a European association for the systematic study and development of (European) private international law. In particular, he supported the organization of the Berlin conference of 2018, where the idea to establish a European Association of Private International Law gained momentum. He was later among our first members.

Jürgen Basedow’s interest in private international law was born early in his career when he studied law in his hometown Hamburg. It led him to complement his studies through stays in Geneva (Switzerland), Pavia (Italy) and Harvard (USA). And it made him write his PhD on the recognition of divorces obtained abroad. Private International Law was also the focus of his first two professorships at the University of Augsburg and the Free University of Berlin. He was, therefore, a natural – and as it turned out brilliant – choice when the Max Planck Society had to fill the position of a director at the Max Planck Institute for Comparative and International Private Law in Hamburg in 1997. During the 20 years of his tenure, he shaped the profile of the Institute, contributed to its reputation around the world and used its enormous resources to further the study of private international law. Among others he initiated and led two working groups that commented on the European Commission’s proposals for the Rome I and Rome II Regulations. These comments substantially influenced the outcome of the negotiations and the way the two Regulations were eventually adopted.

Private international law, however, was not the only field that was shaped and influenced by Jürgen Basedow. In fact, his scholarship also covered (European) private and economic law, notably competition law, transport law, insurance law and contract law. In all these fields he left an enduring mark through his clear, matter-of-fact, yet visionary approach to law – and his always original ideas. Through the participation in various advisory committees, he also induced actual change in practice. As a member – and as a chairman – of the German Federal Monopoly Commission, for example, he (co-) authored a number of highly important opinions that dealt, among others, with the (de-) regulation of the German railroad market as well as the German energy market.

Those who knew Jürgen Basedow will remember him for many things: his brilliant mind, his originality, his enormous ability to lead and summarize complex discussions, – but also for his kindness and his humor, his work-ethic and his enormous productivity. In fact, when he retired from his position at the Max Planck Institute in 2017, he did not retire from academia. On the contrary: relieved from all administrative burden he became more active than ever, travelled the world and published, among others, a monograph on EU Private Law. At the time of his death, he was working on another monograph on uniform law – a monograph that will now remain unfinished.

With Jürgen Basedow, the Private International Law community – and legal academia as such – loses an intellectual mastermind and a great person who will be dearly missed. His legacy, however, lives on in his writings and in his numerous PhD students of whom many are teaching in Germany and elsewhere. I consider myself lucky to be one of them and will always cherish the many precious moments that I had the privilege to share with him – from our first meeting some 24 years ago in Hamburg to our last encounter in Oxford two weeks before his death.

Our thoughts are with his wife, Gesche, and his sons.

On 20 April 2023, the Court will reply to the following questions from the Tribunal de première instance de Liège (Belgium), lodged on 7 May 2021, in case C-291/21 Starkinvest, on the European Account Preservation Order Regulation:

Does a judgment which has been served, ordering a party to make a penalty payment in the event of breach of a prohibitory order, constitute a decision requiring the debtor to pay the creditor’s claim within the meaning of Article 7(2) of Regulation (EU) No 655/2014 … establishing a European Account Preservation Order procedure?

Does a judgment ordering a party to make a penalty payment, although enforceable in the country of origin, fall within the meaning of ‘judgment’ in Article 4 of Regulation No 655/2014 … where there has been no final determination of the amount in accordance with Article 55 of [the Brussels I bis Regulation]?

A summary of the factual background can be read here. In his opinion delivered on 20 October 2022, AG  Szpunar suggests the court to answer:

Article 7(2) of Regulation (EU) No 655/2014 … establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters must be interpreted as meaning that a judgment which has been served, ordering the debtor to make a penalty payment in the event of breach of a prohibitory order, does not constitute a ‘[judgment] requiring the debtor to pay [the] claim’ within the meaning of that provision, with the effect that the court hearing an application for a European Account Preservation Order sought by the creditor in order to secure payment of the claim relating to that penalty payment must verify the existence and amount of that claim.

The judgement corresponds to a chamber of five judges (S. Prechal, L. Arastey Sahún, N. Wahl, J. Passer, and F. Biltgen as reporting judge).

The decision on C-352/21 A1 et A2 (Assurance d’un bateau de plaisance) is scheduled one week later. The request from the Østre Landsret (High Court of Eastern Denmark) was lodged on 28 May 2021. In the main proceedings it is discussed whether a jurisdiction clause in an insurance contract, under which proceedings must be brought before the courts of the country of the insurance company’s domicile, can be enforced against the policyholder. The question relates to the Brussels I regulation, and reads:

“Must Article 15(5) of the Brussels I Regulation, in conjunction with Article 16(5) thereof, be interpreted as meaning that hull insurance for pleasure craft that are not used for commercial purposes falls within the exception laid down in Article 16(5) of that regulation, and is, therefore, an insurance contract which contains a choice of court agreement departing from the rule laid down in Article 11 of that regulation valid under Article 15(5) of that regulation?”

The deciding chamber is composed by judges T. von Danwitz, A. Kumin (reporting) and I. Ziemele.

On the same day, the Court will render its decision on case C-372/22 CM (Droit de visite d’un enfant ayant déménagé), on Regulation (EC) Nº 2201/2003. The request from the Tribunal d’arrondissement de Luxembourg (Luxembourg) was lodged on 9 June 2022. The national court asks:

1. Does Article 9(1) of [the Brussels II bis Regulation]  apply:

(a)    to an application to modify rights of access as defined by Article 2(10) of that regulation, made by a person granted such rights by a judicial decision which, in the interests of the children, was not to take effect until a future time, but which became final and has the status of res judicata, delivered in the State in which the children were formerly habitually resident more than four months before the application is brought before the court on the basis of Article 9(1);

(b)    so as to exclude, if it does so apply, the general rule of jurisdiction contained in Article 8 of that regulation, notwithstanding that recital 12 of that regulation states that ‘the grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity[; t]his means that jurisdiction should lie in the first place with the Member State of the child’s habitual residence, except for certain cases of a change in the child’s residence …’?

2. If question 1 is answered in the affirmative, does the jurisdiction which thus exists under Article 9(1) of [the Brussels II bis Regulation], which is expressed to be ‘by way of exception to Article 8’of that regulation, preclude the application of Article 15 of the same regulation, which is expressed to apply ‘by way of exception’and where it ‘is in the best interests of the child’?

In the case at hand, CM, the father, and DN, the mother, are the parents of two children born in France in 2009 and 2010. The family resided in the Paris region until 2015, when they moved to Luxembourg. By judgment of June 12, 2020, the Luxembourg District Court fixed the legal domicile and habitual residence of the children with their mother, in France, with deferred effect from August 31, 2020, and granted the father , still residing in Luxembourg, a right of access with regard to the children, according to certain terms and conditions, also with effect from August 31, 2020. The delayed effect of the change of legal domicile and habitual residence was motivated by the concern to allow children to complete their school year in Luxembourg and to affect as little as possible any plans already planned for the summer holidays.

The mother and children actually moved to France on 30 August 2020, in accordance with the judgment of 12 June 2020. On 14 October 2020, the father submitted a request to the Luxembourg District Court to modify the terms and conditions of the access rights. At that point in time, the mother had already lodged an application before the family affairs judge of the Nanterre Judicial Court (France). By judgment of 1 December 2020, the District Court of Luxembourg, in accordance with Article 19(2) of Regulation No 2201/2003, stayed the proceedings until the French court ruled on its international jurisdiction.

By judgment of 17 September 2021, the Nanterre Judicial Court (France) declared itself incompetent to rule on the mother’s claim, essentially on the ground that, in accordance with Article 9 of Regulation No 2201/2003, the father, on the one hand, had lodged its application before the Luxembourg District Court within three months following the legal removal of the children and, on the other hand, had in no way accepted the jurisdiction of the French courts.

By judgment of 3 March 2022, the Court of Appeal of Versailles (France) dismissed the appeal against that judgment lodged by the mother.

The decision corresponds to judges L.S. Rossi (reporting), J.C. Bonichot and S. Rodin.

As of today, no PIL decisions or opinions are to be published in May 2023, nor will any hearing take place. Early June AG Emiliou will deliver his opinion in C-90/22 Gjensidige, on the relationship between the Brussels I bis Regulation and the CMR Convention. On the 22 there will a hearing on C-339/22 BSH Hausgeräte, on exclusive international jurisdiction regarding patents.

The Institute of International Shipping and Trade Law (Swansea University) and UCL Centre for Commercial Law have joined forces to organise a day event on 19 April 2023 at the UCL Faculty of Laws in London. The conference is devoted to a very contemporary topic with the objective of generating debates that can inform policy making and future direction of law and regulation in the green transition of the shipping industry.

Session chairs include Michael Biltoo and Cathal Leigh-Doyle. The list of speakers includes Lia Amaxilati, Lia Athanasiou, Simon Baughen, Gabriel Castellanos, Grant Hunter, Jolien Kruit, Alicia Mackenzie, Aygun Mammadzada, Melis Ozdel, Tristan Smith, Sam Strivens, B. Soyer, Andrew Tettenborn, Vibe Garf Ulfbeck and Haris Zografakis.

For further info on the conference, and in order to book your place, see here.

Readers of this blog are aware that an EAPIL Working Group has been set to reflect on the reform of the Brussels I bis Regulation. A survey has been launched to collect feedback and comments on the proposals included in the Working Group’s preliminary position paper (see further here and here). Those wishing to share their views are invited to take the survey by 15 April 2023.

Participation in the survey is opened to anybody familiar with Brussels I bis, regardless of their membership in the European Association of Private International Law.

The members of the Working Group are eager to know about the opinion of scholars and practitioners both  on the operation of the Regulation and on the improvements proposed by the Group.

All the received input is valuable for the work that is being done in preparation of the Brussels I bis Reform. Warm thanks to those who have already provided their feedback and to those who plan to so in the next few hours!

As announced on this blog, a series of webinar has been organised under the title The Future of Cross-Border Parenthood in the EU – Analyzing the EU Parenthood Proposal to discuss the issues that surround the proposal of the European Commission for a Regulation dealing with the private international law of parenthood (COM (2022) 695 final).

Registrations are now open through the form available here.

Each webinar will start at 6 pm and end at 8 pm, and will focus on two topics, each presented by one expert, who will discuss the content of the proposal and examine the questions and possible improvement it raises. There will be ample room for discussion.

The programme of the series is as follows:

• 3 May 2023, webinar chaired by Claire Fenton-Glynn: The EU Proposal on Parenthood: lessons from comparative and substantive law (Jens Scherpe), and What’s in it? Subject matter, scope and definitions (Cristina González Beilfuss)
• 10 May 2023, webinar chaired by Fabienne Jault-Seseke: The EU Proposal and primary EU law: a match made in heaven? (Susanne Gössl), and The law governing parenthood: are you my father? (Tobías Helms)
• 17 May 2023, webinar chaired by Nadia Rustinova: The mutual recognition of decisions under the EU Proposal: much ado about nothing? (Alina Ontanu), and Who decides on parenthood? The rules of jurisdiction (Maria Caterina Baruffi)
• 24 May 2023, webinar chaired by Steven Heylen: Authentic documents and parenthood: between recognition and acceptance (Patrick Wautelet), and The European certificate of Parenthood: a passport for parents and children? (Ilaria Pretelli)

The series of webinars is organized by Cristina González Beilfuss (Universitat de Barcelona), Susanne Gössl (Universität Bonn), Ilaria Pretelli (Institut Suisse de Droit Comparé), Tobias Helms (Universität Marburg) and Patrick Wautelet (Université de Liège) under the auspices and with the support of EAPIL, the European Association of Private International Law.

Attendance is free, but prior registration is required.

Written by Harshal Morwale, Counsel, Singularity Legal

The precise determination of the laws that will govern different aspects of international arbitration is a crucial matter, given that there could be a substantial divergence between different laws, such as the law of the seat and the substantive law of the contract on the same issue. One such issue is limitation.

The determination of the law applicable to limitation is a complex exercise. The different characterization of limitation as a procedural or substantive issue adds more to the complexity. This issue could not be simpler in India. This post is prompted by a recent decision of the Delhi High Court (“DHC”) in Extramarks Education India v Shri Ram School (“Extramarks case”), which although on domestic arbitration, makes various obiter observations on the nature of limitation and flexibility of parties to contract out of the same.

The aim of this post is to explore how would Indian substantive law of the contract impact limitation period and party autonomy, especially in the context of contracting out of limitation in a foreign-seated international arbitration. It will also look at the legality of limitation standstill agreements to defer the limitation period in the context of foreign-seated arbitration by examining prevailing legal principles together with relevant case laws and through the prism of the decision in the Extramarks case.

The limitation in India is governed by the Limitation Act, 1963 (“Limitation Act”).

The Supreme Court of India (“SC”) and the Law Commission of India have characterised the law of limitation as a procedural law. That being stated, the SC has also proposed a more nuanced approach to classifying law of limitation noting that while limitation is prima facie a procedural law construct, its substantive law characteristics cannot be wholly discounted.

This distinction was affirmed by the DHC in the NNR Global Logistics case, which concerned the enforcement of a foreign award where the seat of arbitration was Kuala Lumpur and the applicable substantive law of the contract was Indian law. Under Indian law, the limitation for the type of cause of action at stake, in this case, was three years as opposed to Malaysian law, where the limitation was six years. The respondent argued that since Indian law is the substantive law governing the contract, and given that the Limitation Act could be substantive law, Indian limitation law would apply. The DHC rejected this contention and held that the law of limitation is procedural, and the issues of limitation would be governed by procedural/curial law governing the arbitration, i.e., the lex arbitri. However, the DHC’s reasoning is suspect insofar as it makes the link between limitation law and procedural law uncritically, discounting the impact or connection of limitation with the remedy, and the substantive law implications therewith.

While the premise that since the arbitral procedure is governed by the lex arbitri and since limitation is generally a procedural law subject, the lex arbitri must govern the limitation might appear fairly straight forward, there exists a degree of tentativeness as to the characterisation of limitation in the context of international arbitration. The recent DHC decision in the Extramarks case makes some interesting observations which could have a deep impact on the mentioned premise.

In the Extramarks case, the issue at stake was the limitation period for filing an application before the High Court for the appointment of the arbitrator, for a purported India-seated domestic arbitration. The DHC held that conceptually, limitation bars a legal remedy and not a legal right, the legal policy being to ensure that legal remedies are not available endlessly but only up-to a certain point in time. The DHC further held that a party may concede a claim at any time; but cannot concede availability of a legal remedy beyond the prescribed period of limitation. In essence, according to the DHC, passing of limitation bars a remedy, which would generally mean that limitation is a procedural law subject. This distinction is in line with the traditional ‘right is substantive and remedy is procedural’ divide that exists in the common law. However, this position is not a settled one and remedy, could, arguably, be governed by the substantive law governing the contract.

Interestingly, the Singapore Court of Appeal in BBA v. BAZ, drew a distinction between procedural and substantive time bars in the context of international arbitration, noting that time bar of remedy is procedural in nature. Simultaneously, it was also observed that choice of seat does not automatically require application of the seat’s limitation period and the applicable substantive law will have to be looked at. Consequently, the principle that limitation is a procedural law issue and subject to lex arbitri cannot be relied on reflexively.

If the position of the DHC in NNR Global Logistics case is contrasted with the position in Extramarks case, acknowledging the difficulties in making substantive and procedural classification vis-à-vis limitation in international arbitration, then the choice of Indian substantive law in a foreign-seated arbitration could potentially mean that the tribunal presiding over in a foreign-seated arbitration with Indian substantive applicable law could potentially be required to engage in the limitation period analysis from the perspective of the seat as well as the Limitation Act and might be confronted with conflicting limitation periods. However, there lacks judicial clarity as to how to resolve the conflict when there is repugnancy in limitation prescribed in the lex arbitri and the Limitation Act, which would more often be the case.

Notably, Schwenzer and Manner argue that choice of substantive law should prevail over choice of seat and lex causae must govern the question of limitation of actions, notwithstanding whether it is classified as substantive or procedural. Indeed, this is the prevalent position in the civil law jurisdictions. However, this argument, if accepted, will have certain repercussions on the party autonomy, especially from an Indian perspective in the context of standstill agreements, as explored below.

A standstill agreement is a contract between the potential parties to a claim to either extend or suspend the limitation period for a fixed time or until a triggering event occurs without acknowledging the liability.

The legality of such agreements is not entirely clear under Indian law. For instance, Section 28 of the Limitation Act expressly bars agreements that limit the time within which a party may enforce its rights. However, the converse, i.e., the possible extension of limitation, is not discussed in the Limitation Act. According to Section 25(3) of the Indian Contract Act, the parties can enter into an agreement to enforce a time-barred debt as long as there is a written and signed promise to pay the debt, essentially acknowledge the debt/liability. However, as noted above a standstill agreement is not an admission or acknowledgement of liability and hence Section 25(3) would not applicable. It has also been noted that the legality of standstill agreements in India is sub-judice before the Madras High Court.

From an India-seated domestic arbitration perspective, in light of DHC’s ruling in the Extramarks case, that a “party may concede a claim at any time; but cannot concede availability of a legal remedy beyond the prescribed period of limitation”, it would mean that limitation standstill agreements would not be valid.

From a foreign-seated arbitration with Indian substantive applicable law perspective, relying on the NNR Global Logistics case, it may be argued that the seat’s procedural law, including limitation law provisions, will apply and as long as limitation standstill agreements are permitted under the lex arbitri, there should not be an issue. However, given that merits of the claim would be anchored in Indian law, if limitation is viewed from a substantive law perspective, the impact of the Extramarks case ruling on the parties’ ability to enter into standstill agreements in foreign seated arbitration with Indian substantive law appears precarious.

Essentially, the legality of standstill agreements in foreign seated arbitration with Indian substantive law faces a critical impediment explored above, i.e., the divide between substantive and procedural classification. One possible view could be that since the parties have already chosen the seat of the arbitration, all procedural law issues will be governed by law of the seat, if, indeed, limitation is treated as a procedural issue. A second, contrary view may be that the legality of a standstill agreement would be tested on the touchstone of Indian law, since the choice of applicable substantive law of the contract is Indian law under which limitation cannot be conceded beyond the prescribed period by consent.

Given that the impact of Indian substantive law on the issue of limitation and standstill agreements is not entirely clear, in light of the Extramarks case, the tribunals might now be required to consider a relatively unique issue of limitation period alongside large number of other considerations in an international arbitration with Indian substantive applicable law.   

In the process of exploring the impact of Indian substantive law of the contract on parties’ freedom to contract out of limitation in a foreign-seated international arbitration, the tensions between procedural law and substantive law in foreign-seated arbitrations vis-à-vis limitation become apparent. The tensions are further compounded by the ruling in the Extramarks case that limitation bars remedy and that the parties cannot contract out of limitation. The exact impact of the Extramarks case on the parties to an international arbitration contemplating standstill agreements remains unclear and the connected issues in this context remain to be seen.

(The opinions of the author are personal and do not represent the opinion of the organisations he is affiliated with.)

On 6 December 2022, the European Court of Human Rights (ECtHR) ruled in the Danish surrogacy case of K.K. and Others v. Denmark.

In a 4–3 judgment, the ECtHR held that Denmark violated the rights enshrined in Article 8 of the European Convention on Human Rights (ECHR), as claimed by  two children born through a commercial surrogacy arrangement in Ukraine, by not recognizing their intended Danish mother as a legal parent. However, the three dissenting judges held that there was no violation of Article 8 in the circumstances. According to the minority, a State must be able to have a policy opposing commercial surrogacy arrangements. They emphasized that Denmark recognized the legal relationship between the father and the children.

In December 2013, twins were born by a surrogate mother in Ukraine after a commercial arrangement. Ukrainian authorities issued birth certificates for the children. In the birth certificates, a Danish wife and husband were registered as mother and father. Upon their return to Denmark, the Danish authorities refused to recognize the Danish woman named in the birth certificate as a legal parent under Danish law, as she had not given birth to the children. The father was recognized, as he indeed was the biological father of the children. Due to their family connection to the father, the twins obtained Danish citizenship.

The woman continued her struggle with the Danish authorities to become registered as mother of the twins. Shortly after the refusal to recognize her as a mother, she was granted joint custody of the children together with the father. To become a legal parent, she applied for adoption of the children as a step-mother. That application was processed in different Danish authorities and court procedures for more than six years. Eventually, the Danish Supreme Court held that adoption would be contrary to Section 15 of the Danish Adoption Act as the Ukrainian surrogate mother had received remuneration.

The woman and the father filed an application to the ECtHR, claiming that their rights to a family life under article 8 of the ECHR had been violated.

The ECtHR found, with smallest possible majority, that Denmark had violated the family rights of the two children who were also applicants in the case. In its judgment, the ECtHR referred to the principles primarily set out in the landmark judgments Mennesson and Paradiso and Campanelli. Those principles, which were effectively summarized in the ECtHR’s 2019 advisory opinion, can be said to indicate that article 8 of the ECHR, read in the light of the principle of “the best interests of the child,” protects the rights of children produced through surrogacy. Non-recognition of a parent-child relationship is therefore a violation of the children’s article 8 rights. Following those principles, the ECtHR held that Denmark did not violate article 8 in relation to the woman by not recognizing a legal parent-child relationship. However, the children’s rights under article 8 were violated by not having their relationship to the intended mother recognized. In its conclusion, the court stressed that it was in the best interests of the children to have the legal relationship recognized.

It is noteworthy that the judgment was a close call for the applicants. Only four of seven judges voted for the judgment. In stark contrast to the majority, the remaining three judges’ joint dissenting opinion was that Denmark had not violated any ECHR rights at all. Emphasizing that there is no consensus within the member states of the Council of Europe on the sensitive matter of commercial surrogacy, the dissenters initially held that there must be a margin of appreciation for states to strike a balance between private and public interests or convention rights. According to the minority, the judgment “practically eliminate[s] altogether, in substance, the margin of appreciation” for foreign commercial surrogacy arrangements. The minority also questioned the majority’s application of the principle of the best interests of the child. In the judgment, it is held that the best interests of the children are “paramount”. For its part, the dissenting opinion states that the best interests of the children shall be a “primary consideration” which is the standard set out in international law.

It is illustrative of the split opinions that the judgment only gathered the narrowest possible majority. For states opposed to commercial surrogacy arrangements, there seems to be very few tools in the toolbox. On the other hand, it is clear how hughly the best interests of the child are valued. For the time being, it seems hard to bridge the differing values underlying the judgment’s majority opinion and the dissenting minority opinion, respectively.

The following information has kindly been provided by Tess Bens, Research Fellow at the Luxembourg Max Planck Institute:

In September 2022, an EAPIL Working Group met for a conference in Luxemburg to discuss the perspectives and prospects of a reform of the Brussels Ibis Regulation. There were panels on the role and scope of the Brussels Ibis Regulation, collective redress, third state relationships, jurisdiction and pendency, and recognition and enforcement. As a result of the conference, Professor Hess and a team of Researchers of the Max Planck Institute Luxembourg published a preliminary Working Paper which put forward 32 proposals for the reform of the Brussels Ibis Regulation.

Parallel to the preliminary Working Paper, a survey was set up to collect reactions and comments on the proposals. By now, over 60 participants from many different Member States have answered the survey. Participation in the survey is open to anybody interested in the reform of the Brussels I bis Regulation, irrespective of whether they are a member of the European Association for Private International Law. Your input is greatly appreciated. Please note that the survey will be open until 15 April 2023.

The following information has kindly been provided by Professor Sarah Green, UK Law Commissioner for commercial and common law:

Thank you for your interest in our project Digital assets: which law, which court?. We would like to draw your attention to an opportunity to join the team, as the Law Commission is currently recruiting for a lawyer or legal academic to lead this project. This is an exciting opportunity to be at the forefront of legal policy development in this cutting-edge and complex area, working with a range of domestic and international stakeholders.

We are ideally looking for specific experience or demonstrable interest in the private international law of England and Wales. This role will ultimately require a good knowledge of conflict of laws, digital assets and electronic trade documents. However, we are also interested in receiving applications from lawyers or academics with different commercial or common law backgrounds, with an interest in law reform and who can demonstrate a capacity to quickly acquire knowledge of complex areas of law.

Details of how to apply, along with the full job description, essential qualifications and other details, are available at this link: Law Commission: Commercial and Common Law Team, Lawyer(Ref: 73409) – Civil Service Jobs – GOV.UK

We would be grateful if you could draw this opportunity to the attention of anyone who might be interested. The role is also potentially available as a secondment opportunity from a business or academic institution. Please note that, due to civil service policies, the candidate must be UK-based.

If you would like to discuss further, please contact:

Laura Burgoyne, Head of the Commercial and Common Law Team
Email:  laura.burgoyne@lawcommission.gov.uk
Telephone: 07793 966 296