Droit international général

Private international lawyers and the ECJ are bound by a love-hate relationship: one single judgment delivered by the latter may sometimes give rise to a fully-fledged conference where, at the end of a lively discussions, the former express harsh criticisms, tepid approval or high praise towards the solution shaped by the Luxembourg Court. But while PIL scholars usually tend to dissect every substantive aspect of the Court’s ruling, little attention is usually paid to the ‘procedural’ context in which such decision has been reached. I admit that, before coming to Luxembourg, I myself took little notice of details such as the existence (or lack of) an AG’s Opinion, the reporting judge assigned to the case or the judicial formation having rendered the decision. However, these arguably are important indicators of the way in which a question concerning EUPIL is treated – both procedurally and substantively – by the Luxembourg Court.

Against this backdrop, it could be interesting, if not useful, to take a broader look at the relationship between the ECJ and EUPIL, going beyond the individual judgment and aimed at assessing preliminary rulings on this subject as a systemic phenomenon. The purpose of this analysis is twofold.

Firstly, it serves to disprove the belief – still held dear by some scholars – that PIL issues are ‘merely technical’ in nature. In fact, these are seldom treated as such in Luxembourg, as evidenced by the overwhelming majority of cases assigned to Chambers of five rather than to a Chamber of three. Moreover, since an Opinion of the AG is delivered in more than half of PIL cases, these often raise ‘new questions of law’, in the sense of Article 20 of the ECJ’s Statute. This finding holds true also with respect to instruments – such as the Brussels Regulations – that are of long-standing application in national courts and frequently interpreted in Luxembourg, thus confirming that, in PIL cases, facts and legal rules tend to combine in ever-changing constellations of interactions.

Secondly, the discussion may be useful in view of eventual future reforms of the ECJ’s internal structure and/or working methods. This Institution is presently coming under growing pressure owing to the ever-increasing number of cases introduced before it on a yearly basis. In 2021, this rise was deemed ‘significant’ and affected mostly the Court of Justice (see the Report ‘Year in Review’, p. 28). The reasons behind this surge of cases are, on the one hand, an increase in the appeals brought against rulings of the General Court (ibid, p. 28) and, on the other hand, the ever-growing number of preliminary references filed by national courts (in 2021, they accounted for the largest share (68%) of new cases brought before the Court: Management Report 2021, p. 6). According to President Lenaerts, the Court is currently engaged in ‘a reflection on how to achieve a rebalancing of the workload between the Court of Justice, composed of one judge per Member State, and the General Court, which, since September, has two judges per Member State’ (Report ‘Year in Review’, p. 5). Since the Court has already tackled – at least partially – the ‘appeals problem’ by introducing a filtering mechanism, this further ‘rebalancing’ might include, in theory, the transfer to the latter of some of the functions currently performed by the former, such has the delivery of preliminary rulings, following a sectoral approach limited to certain subject-matters. The question (purely hypothetical at present) as to whether – and to what extent – the field of civil cooperation in civil matters should be touched by this eventual ‘rebalancing’ should be addressed based on said systemic analysis of the relationship between the ECJ and EUPIL. Its aim is to identify trends – if any – in the adjudication of these cases and to decipher their meaning.

The two objectives stated above can be best served with the assistance of empirical legal research. To my knowledge, there is no existing data (institutional or otherwise) that specifically concerns PIL cases brought before the ECJ. The Charts appearing in the following sections are therefore drawn from a repository of cases I compiled myself based on the information which is publicly available on EUR-LEX and Curia, or was made public at the hearing. This repository puts together the requests for preliminary rulings filed and/or decided with respect to EUPIL instruments from January 2015 to August 2022.

For the purposes of this research, ‘EUPIL’ is understood as encompassing the Brussels-Lugano Regime (Regulations 44/2001 and 1215/2012 as well as the Lugano II Convention), the Brussels II Regime (limited to Regulation 2201/2003, since there are presently no cases on Brussels II-ter), the Rome Regulations (593/2008, 864/2007 and 1259/2010); the Succession Regulation and the ‘smaller’ Regulations (EAPO, EPO, EEO, ESC, Service and Evidence I Regulations). The Regulations on matrimonial and registered partnership property issues have been taken into account, but there is currently no request for interpretation concerning them.

The selected time-frame (2015-2022) has been identified based on the (debatable) assumption that the last 7 years could provide for ‘meaningful’ empirical evidence concerning the application of all the above mentioned instruments, including the eldest, the Brussels I Regulation (which still applies to legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded until 9 January 2015).

The numerical labels appearing in the Charts refer not to the number of cases filed with the ECJ, but to the number of preliminary references raised with respect to each instrument (e.g. if one case raised questions concerning two different EUPIL instruments, it was counted twice).

Overall, there are 245 preliminary references concerning EUPIL instruments in the selected timeframe. Unsurprisingly, the Brussels-Lugano regime accounts, alone, for more than 50% of the total references submitted to the ECJ, followed by Reg. 2201/2003 as a far second (12 %). The Rome Regulations, taken together, make up for another 12 % of the total cases.

A closer look at the geographical origin of the preliminary references confirms that EUPIL preliminary references are not equally distributed across the Member States.

National courts in Germany and Austria have indisputably acquired a leading role as triggers of EUPIL case law and of its evolution over the past 7 years. Rather surprising is the data concerning Luxembourg, where the ‘cross-border dimension’ of cases is almost a daily occurrence. This suggests that there is no necessary correlation between the application rate of EUPIL instruments and the number of preliminary references submitted to the ECJ.

Data from the last seven years shows that a generous majority of EUPIL cases commands an Opinion of the AG. The percentages shown in Chart 5, below, are based on aggregated data concerning all EUPIL instruments, as defined above sub A.

In actual truth, there are perceivable sectoral variations, across the several instruments, with this percentage hovering between a maximum rate of 80 % in the Succession Regulation to a minimum of 33% under the EEO Regulation (except, of course, for the 0% rate that characterizes the Evidence and the ESC Regulations). The Charts below give a good idea of such sectoral variations.

Another good indicator of the relative ‘weight’ of EUPIL cases (and of the importance of the legal questions raised therein) is the number of preliminary references that, owing to their difficulty, their importance for Union Law or the particular circumstances surrounding them, are assigned to the Grand Chamber (cf Article 60 of the Rules of Procedure of the Court).

In this respect, it is apparent from the Charts below that the field of EUPIL is characterized by a relatively low number of Grand Chamber cases (6 cases in total over the last 7 years, ie 3 %). As a reminder, these Grand Chamber cases are:

• Concerning Reg. 1215/2012, C-194/16, Bolagsupplysningen, C-59/19, Wikingerhof (the object of an online symposium on this blog, with comments by Matthias Lehmann, Adrian Briggs, Gilles Cuniberti and Peter Mankowski); C-251/20 Gtflix Tv (commented on this blog by Marco Buzzoni);
• Concerning Reg. 44/2001, C-700/20, London Steam-Ship Owners’ Mutual Insurance Association (the object of another symposium on this blog, with comments by Adrian Briggs, Gilles Cuniberti, Antonio Leandro and François Mailhé).
• Concerning Reg. 593/2008, C-135/15, Nikiforidis
• Concerning Reg. 2201/2003, C-646/20, Senatsverwaltung für Inneres und Sport, pending.

The vast majority of cases remains assigned to Chambers of five, which is the ordinary formation of the Court. Chambers of three, which are reserved to cases that are either highly technical in nature or of straightforward solution, are less frequent in EUPIL, accounting for around one quarter of the total cases. These are relatively more common under the Brussels I and Ibis Regulation, possibly because of the existence of a long-standing and well-developed body of case law that may better contribute to the straightforward solution of the case.

Interestingly, there is a certain number of cases assigned to a Chamber of three but decided with the support of an AG Opinion. This may, at first (and only at first), seem like a contradiction in terms. As mentioned above, the Opinion of the AG should, in principle, be delivered solely in cases that raise ‘new questions of law’. In practice, however, it is apparent that Opinions have been asked under other circumstances, presumably to help the drafting of the future judgment, or because different approaches to the solution of a case could easily be envisioned. Hence, it is not inconceivable that a case may be, at once, highly technical in nature – thus justifying the deferral to a Chamber of three – and open to different alternative solutions, calling therefore for the advisory assistance of the AG (as it was the case in C-214/17, where AG Szpunar explicitly evokes the doubts expressed by the referring court concerning two alternative approaches to the solution of the question raised, §21-23). Similarly, a case can present a question which is at the same time highly technical in nature, but ‘novel’ in the sense of Article 20 of the Statute, as it might have been the case in C-555/18, concerning the weight to be attached to the requirement of enforceability for the purposes of the uniform definition of ‘authentic instrument’ under the EAPO Regulation (there was, in that case, a target Opinion by AG Szpunar).

Another and more significant pointer to the ‘novelty’ of the legal questions raised by EUPIL cases is the form taken by the decision finally delivered by the ECJ.

It should be reminded that the ECJ usually rules through judgments (arrêts, in French), but it can exceptionally adopt a ‘reasoned order’ where (a) a question referred to the Court for a preliminary ruling is identical to a question on which the Court has already ruled ; or (b) where the reply to such a question may be clearly deduced from existing case-law ; or (c) where the answer to the question referred for a preliminary ruling admits of no reasonable doubt (Article 99 of the Rules of Procedure). Moreover, where it is clear that the Court has no jurisdiction to hear and determine a case or where a request or an application is manifestly inadmissible, the Court can decide to give a decision by reasoned order without taking further steps in the proceedings (Article 53 (2) Rules of Procedure).

Against this backdrop, the more surprising result is not so much the high number of judgments delivered in EUPIL matters, but rather the extremely low number of Article 99 Orders, even more so with respect to the Brussels I Regulation, which has by now undergone almost two decades of application and interpretations by the Luxembourg Court, and could itself profit from the interpretive rulings previously rendered under the 1968 Brussels Convention according to the 1971 Protocol.

Considering the high recurrence rate of questions concerning the interpretation of certain specific provisions of the Brussels Regulations, such as those dealing with the heads of jurisdiction in contractual matters and torts, consumer contracts and exclusive or prorogated jurisdiction, the low number of Article 99 Orders means, in practice, that the application of such provisions to concrete facts continues to give rise to new scenarios, with respect to which existing case law provides for an answer that is either partial, incomplete or open to further interpretation.

The final aspect considered by this empirical research relates to the (only apparent) lack of internal specialization within the ECJ, in the sense that this Institution is not formally divided into Chambers dedicated to specific subject-matters. Each of the Chambers of the Court, whatever the judicial formation, can in fact hear cases relating to any matter that falls within the jurisdiction thereof. Considering the wide scope of EU law and in the light of the current challenges brought by the inflating number of new cases, this lack of specialization of the Court’s Chambers could be seen as a hindrance to the Institution’s efficiency. Again, this conclusion must be nuanced, if not completely set aside, based on the analysis of the Court’s case law. Despite the lack of institutional specialized Chambers, the Court has developed an internal system for the allocation of cases among reporting judges and AGs which favours, at once, informal specialization and flexibility. Concerning the latter, the internal allocation of cases must be flexible enough to accommodate the contingent organizational needs of an Institution of such size, such as, for example, the need of ensuring an equal distribution of cases and expedited treatment of PPU cases or of avoiding national or other kinds of bias. Concerning specialization, existing case law clearly shows that certain judges and AGs that have been consistently entrusted, over the time, with EUPIL cases.

(***Note of the Author: data about Reporting Judges are incomplete, as this information is not disclosed with respect to cases that have been withdrawn and removed from the register. The Order of the President only mentions the designated AG***)

Obviously, this is not to say that the final decision on the case will reflect exclusively or even predominantly the individual views of these judges. Rather, this decision will always be the result of the collective will emerged from the discussion within the Chamber (of five or of three judges). This informal specialization of the Reporting Judge and of the AGs ensures nonetheless the efficient working of the Institution at the initial stage of the proceedings, concerned with the preliminary analysis of the case geared towards the identification of the appropriate judicial formation and of other procedural needs (eg. the need for further written clarifications or for an oral hearing). It could also favour, over time, a certain consistency in the (procedural and substantive) approach adopted with respect to recurrent issues, thus enhancing the overall coherence of the Court’s case law in EUPIL.

Building on the very successful conferences held in Aberdeen (2005), Birmingham (2007), New York (2009), Milan (2011), Madrid (2013), Cambridge (2015), Rio (2017) and Munich (2019), we are pleased to announce that the Journal of Private International Law will be holding its 9th Conference at the Singapore Management University from 3 to 5 August 2023.

We now invite abstracts for the conference. Please submit an abstract if you would like to make a presentation at the conference and you are willing to produce a final paper that you will submit for publication in the Journal. Abstracts should be up to 500 words in length and should clearly state the name(s) and affiliation(s) of the author(s).

They can be on any subject matter that falls within the scope of the Journal and can be offered by people at any stage of their career, including postgraduate students. Presentation at the conference will depend on whether your abstract is selected by the Editors of the Journal (Professor Jonathan Harris KC of King’s College, London and Professor Paul Beaumont FRSE of the University of Stirling) and the conference organiser (Associate Professor Adeline Chong, Singapore Management University). The subsequent article should be submitted to either of the editors of the Journal before the end of 2023. Publication in the Journal will be subject to the usual system of refereeing by two experts in the field.

There will be a mixture of plenary (Friday) and parallel panel sessions (Thursday afternoon and Saturday morning). Please indicate on the abstract whether you are willing to present in either or are only willing to do so in one or the other. A willingness to be flexible maximises our ability to select your paper.

The Conference will be held in the Yong Pung How School of Law, Singapore Management University. Please see here for up-to-date information on travel requirements to enter Singapore.

Speakers will not be expected to pay a conference fee but will be expected to pay their expenses in relation to their attendance at the conference in Singapore. Details about options for accommodation and the conference dinner on the Friday evening will be made available on the conference webpage . Please send your abstract to the following email address by Friday 16 December 2022: jpil2023@smu.edu.sg.

Today (16 September 2022) the Russian Federation has ceased to be a High Contracting Party to the European Convention on Human Rights (ECHR). This means, inter alia, that applications against the Russian Federation will no longer be entertained by the European Court of Human Rights (ECtHR).

However, the Resolution of the ECtHR of 22 March 2022 clarified that “The Court remains competent to deal with applications directed against the Russian Federation in relation to acts or omissions capable of constituting a violation of the Convention provided that they occurred until 16 September 2022.” To view the full resolution, click here. The news item is available here.

The Russian Federation had ceased to be a member of the Council of Europe on 16 March 2022. See here.

We have previously reported on the increasing interaction between the ECHR and Private International Law. This is particularly so in surrogacy and international child abduction cases. See for example a judgment regarding international child abduction rendered by the ECtHR earlier this year, where no violation of article 8 of the ECHR was found against Russia: Case of P.D. v. Russia (Application no. 30560/19). But see Thompson v. Russia (Application no. 36048/17) where a violation of article 8 of the ECHR was indeed found.

For more information about this interaction, click here.

Undoubtedly, today is a sad day for human rights law.

Olaf Meyer (Frankfurt University of Applied Sciences) edited a book titled Public Policy and Private International Law – A Comparative Guide with Edward Elgar Publishing, part of the Elgar Comparative Guides.

Bearing in mind that the public policy exception in private international law is designed to provide a national backstop in the application of foreign laws, this book provides detailed and practical comparative coverage of the use of public policy in the context of private international law across a number of important jurisdictions spanning three continents. As well as explaining the basic theoretical framework of the public policy exception in private international law, this book drills down into the practical application of such rules, giving an overview of these jurisdictions’ legal and policy stances on current issues including: punitive damages, surrogacy, same-sex marriage, gender-based discrimination, Islamic law, and adoption to name a few. This approach serves to highlight both the differences and the similarities in approach.

Contributors include John F. Coyle, Luís de Lima Pinheiro, Anita Duraković, Pietro Franzina, Andreas Furrer, Florian Heindler, Madina Kassenova, Svenja Langenhagen, Qiao Liu, Peter Mankowski, Ulf Maunsbach, Louise Merrett, Zlatan Meškić, Olaf Meyer, Alberto Muñoz Fernández, Cécile Pellegrini, Réka Somssich, Dirk Trüten, Bea Verschraegen, Wolfgang Wurmnest, Candan Yasan-Tepetaş, Fang Yu, Maciej Zachariasiewicz and Nicolás Zambrana-Tévar.

For further information, see here.

Under the auspices of the EU Justice project E-training on EU Family Property Regimes, shortly known as EU-FamPro, the project partners organise a conference COUPLES’ PROPERTY WITH CROSS-BORDER IMPLICATIONS: Uniting Academic Discussions and Practical Concerns, followed by the seminar on Practical Challenges in the Application of the Twin Regulations. The conference and the seminar are due to take place on 19 September 2022 at the University of Almeria, Spain.

The programme of the event is now available here.

The event will be held in hybrid format. You may join the event via Zoom by clicking on this link.

Some of our readers will be interested to know that University of Rijeka, Faculty of Law announced this year’s call for applications to the Rijeka Doctoral Conference: RIDOC 2022. Receiving applications on any legal or related topic of doctoral research, the conference traditionally hosts at least one session in private international law. Applications should be sent to ridoc@pravri.hr by 5 October. The conference is scheduled for 9 December 2022 in the hybrid format, but hopefully many of the participants will be able to attend onsite.

Georgina Garriga Suau and Christopher Whytock have recently published a paper on SSRN, entitled “Choice of Law for Immovable Property Issues: New directions in the European Union and the United States”.

Building on a comparative assessment of recent developments in US and EU private international law (PIL), the paper address the changing fate of lex rei sitae conflict-of-law rule, which went from being the cornerstone of the PIL regime for issues about immovable property to see its scope of application substantially reduced over the last years.

In the US, the current drafts of the Third Restatement limits the scope of application of the lex rei situs to “core immovable property issues”, to the exclusions of other ancillary matters that were subsumed under this rule according to the First and Second Restatement, such as succession and matrimonial property issues involving immovables, and even issues concerning contracts for the transfer of immovable property interests. Behind the retrocession of this rule lies a different and more holistic approach to the appraisal of the policies underpinning the laws governing matrimonial property regimes, successions and contracts: these are usually not policies about immovables as such, meaning a State other than that where the immovables are located will likely have a stronger interest in having its law applied to these issues, considered as an inseparable whole.

The authors give evidence of a similar trend in EU PIL. Although the lex rei sitae conflict-of-law rule is maintained, in principle, by the Rome I Regulation with respect to contracts relating to a right in rem in immovable property, later on it did not find its way in either the Succession Regulation or the Matrimonial Property Regulation, both axed on the connecting factor of habitual residence.

Similarly, the Registered Partnership Regulation does not adopt the lex rei sitae conflict-of-law rule, even when the issues covered by it arise in relation to immovable property. All these Regulations favour the unity of the applicable law, extending their conflict-of-law rules to the issues that are within their scope regardless of the property’s location and regardless of whether it is characterized a movable or immovable property.

They do, nonetheless, indirectly allow for the “survival” of the lex rei sitae conflict-of-law rule, insofar as they exclude from their scope (and delegate to national PIL) certain core immovable property issues, namely, the nature of rights in rem  and the recording o immovable property rights in a register, including the legal requirements for recording and the effects of recording or failing to record. Such exclusions (which are narrowly interpreted by the ECJ) pose the problem of defining such “core immovable property issues”.

According to the authors, these include, that these issues include, at a minimum, issues about permissible interests in immovable property and about the requirements for and effects vis-à-vis third parties of recording immovable property transfers in immovable property registries. On this point, there is certainly room for enhancing coherence among the several EU Regulations and improving legal certainty as concerns the EU’s understanding of “rights in rem in immovable property”. This challenge is currently being tackled by several academic initiatives, that are briefly discussed by Garriga Suau and Whytock.

The authors conclude that the comparative analysis of EU and US PIL reveals that similar reasons lie behind the “shrinking” scope of application of the lex rei sitae conflict-of-law rule, relating mostly to the objective of avoiding fragmentation a corpus of property in the case of matrimonial property/succession issues, and in those contexts as well as in the context of contractual matters, avoiding the need to characterize issues as involving either immovable property or movable property. Another underlying reason is, in both legal systems, a shift in the interest analysis that underpins the conception of conflict-of-law rules in those matters, which now tends to attach less weight to the sheer location of property, to the benefit of other interests that can usually be better ensured through the application of a law other than the lex rei sitae.

From the intersection of conflict of laws, archaeology, and indigenous studies, this multidisciplinary webinar will explore legal and practical challenges and solutions in repatriating cultural heritage in Australia, China, the EU, and the USA.

Examples include an Australian repatriation project with the Anindilyakwa Land Council and Traditional Owners on Groote Eylandt, the world-wide Return of Cultural Heritage (RoCH) program established by the Australian Institute of Aboriginal and Torres Strait Islander Studies, legal battles in repatriating the Chinese statue of Zh?ng G?ng Z? Sh? (a budda statue with a mummy inside), sovereign immunity issues in recovery of World War II-era stolen art and other heritage, and participation of local communities in protecting and repatriating cultural heritage.

Speakers (listed in the surname alphabetic order):

• Dr. Evelien Campfens, member of the International Law Association Cultural Heritage Law Committee based at Leiden University, the Netherlands, and former director to the Dutch Restitutions Committee for Nazi looted art
• Professor Anne (Annie) Clarke, Chair of Archaeology Discipline and Member of Museum and Heritage Studies Program, the University of Sydney, Australia
• Professor Zheng Xin Huo, China University of Political Science and Law, China
• Professor Charles T. Kotuby Jr., University of Pittsburgh School of Law and Honorary Professor of Law, Durham Law School, the USA and UK
• Mr. Craig Ritchie, an Aboriginal man of the Dhunghutti and Biripi nations and the Chief Executive Officer at the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS), Australia

Moderator:

• Associate Professor Jie (Jeanne) Huang, the University of Sydney Law School and Co-Director of Center for Asian and Pacific Law

Webinar via Zoom: Wednesday 21 September 6.00-7.15 pm (AEST)

Once registered, you will be provided with Zoom details closer to the date of the webinar.

If interested, please register here.

This webinar is jointly presented by the American Society of International Law Private International Law Interest Group, Centre for Asian and Pacific Law and the Center for International Law at the University of Sydney Law School.

The Australian Institute of International Affairs (AIIA) and the Australian Branch of the ILA are pleased to present the 2022 Peter Nygh Hague Conference Internship. The award will support a postgraduate student or graduate of an Australian law school to undertake an internship with The Hague Conference on Private International Law in the Netherlands by providing funds to cover the cost of travel to the Netherlands and a contribution towards living expenses.

Applications for the 2023 Nygh Internship are now open, and will close on 30 September 2022. More information about the award and how to apply is available here, and below.

The Internship

The award will provide a postgraduate student or graduate with the opportunity to work with some of the leading private international law practitioners in the world. With over 80 members (including the European Union) representing all major regions and legal systems, The Hague Conference is a global intergovernmental organisation that aims for the ‘progressive unification’ of the various State private international law rules.

Activities of The Hague Conference are coordinated by a multinational Secretariat – the Permanent Bureau – located in The Hague. The successful intern will work for 5 to 6 months under the direction of the Secretariat, assisting with research, translation and preparation of meetings in accordance with the needs of the lawyers of the Permanent Bureau.

How to apply

Please send a letter of application addressed to the Peter Nygh Hague Conference Internship Board (nygh.internship@internationalaffairs.org.au) or to c/- Ms Nicola Nygh, Resolve Litigation Lawyers, level 18, 126 Phillip Street, Sydney NSW 2000.

The letter should include:

• the applicant’s reasons for applying for the Peter Nygh Hague Conference Internship;
• the benefits which the applicant expects are to be derived from the internship and the contribution which the applicant expects to make to the work of The Hague Conference;
• the applicant’s career ambitions and how the internship will relate to those ambitions;
• a description of the applicant’s current research, if applicable; and
• the dates when the applicant would be available to undertake the internship (Note: The applicant must be available to undertake the internship for 5 to 6 months. The preferred start date is the beginning of January 2023 and the preferred end date is the end of June 2023. The start date, and indeed whether the internship can be undertaken in 2023, may vary depending on what travel restrictions are in place at the time).

The award is for a lump sum amount, and the successful candidate will need to accept the risks and increased costs of travelling during the COVID-19 pandemic, including limited and more expensive flights (in particular into and out of Australia), government restrictions on travel, and quarantine regimes for travellers.

Please also enclose the following:

• the applicant’s up-to-date résumé;
• the applicant’s most recent academic transcript;
• two letters of reference for the applicant (including at least one academic reference), with contact details of referees;
• a copy of research work by the applicant in a field relevant to the work of The Hague Conference; and
• any other proof of the applicant’s legal and linguistic abilities and knowledge. Knowledge of French would be an asset but is not required. Knowledge of any other languages may also be an advantage.

The Hon Dr Peter Nygh AM

The Peter Nygh Hague Conference Internship has been established in memory of the late Hon Dr Peter Nygh AM, a leading international lawyer, former judge of the Family Court of Australia and former President of the ILA (Australian Branch). Dr Nygh began his 25 year association with The Hague Conference as a member of Australia’s delegation in 1975. During this time, Dr Nygh helped to draft the Convention on the Celebration and Recognition of the Validity of Marriages as well as the Convention on the Law Applicable to Matrimonial Property Regimes, work which contributed to his appointment to the Family Court of Australia. After his retirement from the bench, Dr Nygh returned to The Hague Conference and between 1994 and his death in 2002 he contributed in many ways, including serving as co-rapporteur on The Hague ‘judgments project’ from 1996 and representing Australia in the negotiations that led to the Convention on the Protection of Children. In his later years Dr Nygh spent extended periods in The Hague without remuneration or payment of his expenses, yet his work did not go unrecognised. He was awarded the Centenary Medal by the Australian Government as well as the Order of Australia, partly in recognition of his outstanding and longstanding contribution to private international law, and in particular his representation of Australia at The Hague Conference.

The Permanent Bureau of the Hague Conference on Private International Law (HCCH) is offering several three- to six-month legal internships at its office in the Hague from January to June 2023.

The selected interns are expected to conduct research together with the HCCH legal team the following areas of activity of the organisation:

Family and Child Protection Law (at least three interns):

• 2000 Protection of Adults Convention and 2007 Child Support Convention and Protocol
• 1993 Adoption Convention and Parentage / Surrogacy Project
• 1980 Child Abduction Convention (incl. Malta Process and related Working Party on Mediation) and 1996 Child Protection Convention

Transnational Litigation, Legal Cooperation, and Commercial and Financial Law (at least three interns):

• 1961 Apostille Convention (incl. e-APP)
• 1985 Trusts Convention, 2006 Securities Convention and Digital Economy (incl. DLT) Project
• 2005 Choice of Court Convention, 2019 Judgments Convention, Jurisdiction Project, and 2015 Choice of Law Principles
• 1965 Service Convention, 1970 Evidence Convention, and 1980 Access to Justice Convention

The HCCH Internship Programme is open to those currently studying law at the Bachelor, Masters, J.D, and PhD. level and to those who have already been awarded a law degree or Masters.

The intern should speak at least one of the two official languages of the HCCH, English and French. Knowledge of the other official language is an asset. Knowledge of any other languages may also be an advantage.

Prospective applicants should complete an online application form (available here) and submit the following supporting documentation:

1. a letter of motivation (two pages maximum)
2. a curriculum vitae (CV)
3. a transcript of academic records or statement of academic results
4. an academic writing sample (an excerpt of any of your essays or papers in either English or French)
5. at least one letter of recommendation

The applications can be submitted until 18.00 hours (CEST), Friday 23 September 2022.

More information about the internship and the application and selection process can be found here.

QBE Europe SA/NV v Generali Espana De Seguros Y Reaseguros [2022] EWHC 2062 (Comm) is not a surprising judgment of course. I flagged it on Twitter early August and I post it here for the sake of blog completeness.

The judgment grants an urgent anti-suit injunction (ASI) to restrain proceedings brought by the Defendant (Generali) against QBE UK in Spain, and to prevent Generali from commencing similar proceedings against QBE Europe. The proceedings in Spain assert a direct claim against QBE UK under a Spanish statute, by reference to a liability insurance policy. The judgment is exactly the kind of ASI outlawed by CJEU West Tankers and will reinforce the position of London in the arbitration market.

Geert.

Move over CJEU West Tankers….
Anti-suit injunction viz Spanish proceedings granted to protect #arbitration in London. Discusses ia nature of claim in SP proceedings

QBE Europe SA/NV v Generali Espana De Seguros Y Reaseguros [2022] EWHC 2062 (Comm) https://t.co/LwzrDzzNXv

— Geert Van Calster (@GAVClaw) August 1, 2022

This post was contributed by Thomas Mastrullo, who is an Associate Professor of Commercial Law at the University  of Luxembourg. It is the fifth in a series of posts on the French draft code of private international law of March 2022 (the previous posts in the series gave a German perspective and discussed the issues of renvoi, foreign law and the recognition of marriages celebrated abroad). 

Title II of Book II of the French Draft Code of Private International Law is devoted to legal persons.

This Title II is divided into two chapters which deal with two major questions of international company law: the first chapter pertains to the recognition of companies (Art. 85), while the second chapter concerns the conflict-of-law rule in corporate matters, through the determination (Art. 86) and the scope (Art. 87) of lex societatis.

By the rules it proposes, the French Draft PIL Code undoubtedly promotes the modernization of French international company law.

Article 85 of the French Draft PIL Code lays down the principle of recognition in France of the legal personality of companies formed in accordance with the law of a foreign State.

The proposed article 85 reads :

L’existence et les effets de la personnalité morale ou de la capacité juridique des sociétés dont le siège statutaire est situé hors du territoire français et qui ont été régulièrement immatriculées sur un registre public d’un État étranger sont reconnus de plein droit sous réserve de la fraude aux droits des tiers.

The Draft PIL Code thus adopts the liberal theory of incorporation with regard to the recognition of foreign companies: as soon as a company is validly incorporated in a foreign State, where by hypothesis it has fixed its statutory seat or registered office, it must be recognised in French territory.

Such a rule “codifies” the traditional position of French law on this subject. Indeed, since the 19th century, it has been accepted in French law that “la régularité de la constitution selon la loi de l’État d’immatriculation est suffisante pour que la société soit reconnue en France” (M. Menjucq, Droit international et européen des sociétés, LGDJ, “Précis Domat”, 6th ed., no. 58), as long as it is established that the company enjoys legal personality in its State of incorporation (See CA Paris, 30 Apr. 1997, BJS 1997, p. 778, note M. Menjucq). Moreover, the solution adopted by the Draft is in line with the jurisprudence of the CJEU, and in particular with Überseering judgment (see here) according to which:

the refusal by a host Member State to recognize the legal capacity of a company formed in accordance with the law of another Member State in which it has its registered office on the ground (…) constitutes a restriction on freedom of establishment” and, even worst, an “outright negation of the freedom of establishment.

Beyond these general remarks, three points on the text may be underlined.

Firstly, recognition relates to the “existence and effects” of legal personality. This expression refers to the French doctrinal position which defines recognition as “l’admission sur le territoire nationale de l’existence et des effets d’une personne juridique (physique ou morale) étrangère” (L. Lévy, La nationalité des sociétés, LGDJ, 1984, p. 51). This definition gives precedence to the fiction theory of legal personality, considering that, whatever personality a company enjoys abroad, it is not imposed on the State of recognition, which remains free to decide on its existence. We know that other authors, inspired by the reality theory, define recognition more strictly as “l’autorisation accordée par l’État à la société d’exercer une activité sur son sol” (P. Mayer et V. Heuzé, Droit international privé, LGDJ, « Précis Domat », 11th ed., no. 1106 et s.). The approach adopted by the Draft has the merit of grasping the whole issue of recognition in corporate matters: the recognition of the existence of a foreign company as a legal person logically implies the recognition of the effects resulting from this personality… And it is difficult to imagine that a foreign company whose existence is recognised in a State could be outright refused authorization to carry on its business there.

Secondly, the Draft PIL Code pertains to the recognition of the companies’ “legal personality” but also of the companies’ “legal capacity”. A simple legal capacity granted in the foreign State of incorporation is therefore sufficient to recognize a company’s legal personality in France. Indeed, the condition that the company must have legal personality in its State of incorporation in order to be recognized in France is interpreted broadly. Even if it does not have legal personality in its State of incorporation, a company which enjoys a capacity equivalent to that conferred on companies which have legal personality in France may be recognized as a legal person on French territory, as was decided in the case of a German Offene Handelsgesellschaft (see CA Versailles, 14 janv. 1999, BJS 1999, § 97, p. 466, note M. Menjucq).

Thirdly, the Draft PIL Code provides that recognition can be rejected in case of fraud against the right of third parties. This could be the hypothesis of a letter-box company without any effective connection to the State in which it has its statutory seat or registered office. This international company law’s classic limitation is to be welcomed, especially as it is compatible with EU law. Indeed, it follows in particular from the Inspire Art (see here) and Polbud (see here) CJEU’s judgements that fraud against the rights of third parties may constitute a limit on the companies’ freedom of establishment, provided that such fraud is assessed on a case-by-case basis and in a punitive manner (see Th. Mastrullo in Traité de droit du commerce international, M. Menjucq et J. Béguin (dir.), LexisNexis, 3rd ed., no 711). Obviously, the characterisation of fraud will always be based on an assessment of the facts of the case.

The French Draft Code of Private International Law adopts the theory of incorporation and the criterion of the statutory seat or registered office as a connecting factor for determining the lex societatis.

The proposed Article 86 reads :

Les sociétés immatriculées au registre du commerce et des sociétés au titre de leur siège statutaire sont soumises aux dispositions de la loi française.

Les sociétés dont le siège statutaire est situé hors du territoire français sont soumises aux dispositions du droit des sociétés de l’État dans lequel elles sont immatriculées dans un registre public ou, à défaut d’immatriculation, de l’État où est situé le siège statutaire.

The first paragraph uses the unilateralist method, and states the French law’s will to be applicable to companies whose statutory seat or registered office is in France, while the second paragraph contains a bilateral conflict-of-laws rule according to which, when its statutory seat is not in France, the company is ruled by the law of the State where it is incorporated or has its statutory seat.

As the Legal High Committee for Financial Markets of Paris (“Haut Comité juridique de la Place Financière de Paris” – HCJP) which has published a report on the applicable law to companies  (Rapport sur le rattachement des sociétés – see here) on 31 March 2021, the French Draft PIL Code adopts a liberal approach of companies’ connecting factor.

Several arguments may be advanced in support of this proposition.

Firstly, the connecting factor relying the statutory seat or registered office is simpler and, as a consequence, more favorable to legal certainty. Indeed, on the one hand, it eliminates the touchy question of the place of the real seat and, on the other hand, it guarantees respect for the operators’ choice of the law to rule their company. Thus, this connecting factor might reinforce France’s attractiveness. Secondly, the solution is inspired by the comparative private international law which reveals a strong tendency towards the generalization of the incorporation theory or connecting criterion by the statutory seat or registered office. In Belgium, for instance, the connecting criterion by the real seat, which had prevailed since 1873, has been abandoned by the law of 23 March 2019 in favour of the connecting criterion by the statutory seat, the new Article 110 of the Belgian Code of Private International Law now providing that « La personne morale est régie par le droit de l’État où se situe son siège statutaire ». Thirdly, the solution is more suited to the development of EU law which, through the jurisprudence of the CJEU – and in particular the Centros (see here), Überseering (see here), Inspire Art (see here), and Polbud (see here) judgments – and some regulations – such as European Regulation n° 2157/2001 on SE (see here) or Directive (UE) 2019/2121 amending Directive (EU) 2017/1132 as regards cross-border conversions, mergers and divisions (see here), tends to promote the statutory seat or registered office as a connecting factor.

It is regrettable that the proposed Article 86 does not provide for the limit of fraud against the rights of third parties, as it is expressly provided for in relation to recognition. One can think, however, that the limit of fraud could be implemented in order to apply the law of the real seat instead of the law of the statutory seat, either on the basis of Article 85, which rejects the recognition of legal personality’s “effects” in case of fraud against the right of third parties (lex societatis may be considered as one of these “effects”), or on the basis of common private international law, knowing that such a limit is envisaged by European case law (see already above).

Article 87 of the French Draft Code of Private International Law is dedicated to the scope of application of the lex societatis. The inspiration of this text can be found in Swiss law. The aim is to increase the readability and, as a result, the attractiveness of French law. A list of elements falling within the scope of lex societatis is drawn, this list being non-exhaustive as suggested by the use of the French adverb “notamment” (which can be translated by “in particular”).The list of elements falling within the scope of the lex societatis is not surprising and, mostly, “codifies” the French doctrinal positions and case law’s solutions.For example, the assertion that the lex societatis determines the acquisition and loss of the status of shareholder takes up the solution of the famous Royal Dutch judgment of 17 October 1972 (see here), in the same way that the Africatours judgment of 1st July 1997 admitted the application of the lex societatis with regard to the liability of managers towards third parties (see here).

In conclusion, the project seems relevant to meet the challenges created by the development of freedom of establishment in the European Union and to strengthen the competitiveness of French company law.

Florence Guillaume and Swen Riva (University of Neuchatel) have posted Blockchain Dispute Resolution for Decentralized Autonomous Organizations: The Rise of Decentralized Autonomous Justice on SSRN.

For the past twenty years, the use of the Internet has facilitated international commercial relations between people who do not know each other and who are geographically distant. Disputes resulting from e-commerce have undermined the supremacy of state courts, which have proved unable to provide an appropriate response to small claims arising in an international context and raising delicate questions as to jurisdiction and applicable law. The length, cost and complexity of the procedure, as well as the risk associated with the international enforcement of the judgment are deterrent factors that led e-commerce platforms to develop online dispute resolution (ODR).

Thanks in part to the removal of intermediaries, the transfer of cryptocurrencies and other crypto assets using blockchain technology has further facilitated international commercial relations. The decentralized and distributed characteristics of blockchain technology and the pseudonymity of its transactions has led to a new economy growing independently from nation states. This technology has brought an additional degree of complication in the application of private international law (PIL) rules by removing the illusion that online transactions can be linked to the territory of a state. Smart contracts also allow the creation of digital entities that can enter into commercial relations. The first decentralized autonomous organization (DAO) was the source of a resounding dispute between parties with diverging interests, which had to be urgently resolved without any access to state courts or a dispute resolution mechanism. This case revealed the risk of disputes in the blockchain environment and the resulting legal uncertainty, and led to the emergence of various models of blockchain dispute resolution (BDR) mechanisms (BDRs) inspired by the solutions developed in e-commerce.

This chapter deals with the application of PIL rules to the resolution of disputes involving DAOs. The authors first analyze what is a DAO and whether DAOs legally qualify as companies. What is at stake is the legal personality of DAOs and their capacity to conduct legal proceedings. The authors then examine whether disputes involving DAOs may be brought before state courts. This analysis highlights the problems related to the location, pseudonymity, and uncertainty regarding the legal personality of the participants of the blockchain environment, which challenge the jurisdiction of state courts in case of a dispute. The authors then draw on the experience acquired in the field of e-commerce to examine the advisability of setting up alternative dispute resolution mechanisms available to the actors of the blockchain environment. Based on an analysis of existing BDRs, the authors examine whether and how BDRs are likely to avoid a denial of justice and bring legal certainty to disputes related to contractual relationships with DAOs formalized through smart contracts as well as disputes related to the governance of DAOs. The authors find that a BDR decision which can be directly enforced through smart contracts confers effective justice to the actors of the blockchain environment. Finally, the authors address the more delicate issue of the enforcement of a BDR decision on non-crypto assets. This approach shows that a type of justice based on cryptoeconomic incentives challenges the concept of fair justice. This could be an impediment to obtaining the assistance of state authorities for the enforcement of a BDR decision outside of the blockchain environment as this type of decision could be considered contrary to public policy.

The analysis is mostly based on Swiss private international law and major private international law conventions. In this chapter, the authors outline the contours of a new private justice system designed to provide decentralized autonomous justice to the actors of the crypto economy.

The paper is forthcoming in Bonomi and Lehmann (eds), Blockchain and Private International Law (Brill Nijhoff 2022)

Cross-Border Litigation in Central Europe – EU Private International Law Before National Court, is the tile of a collection of essays, edited  by Csongor István Nagy and just published by Kluwer.

Cross-Border Litigation in Central Europe, an indispensable reference book, provides a detailed understanding of the process of seeking justice in cross-border disputes in Central Europe. It is the first of its kind to offer a comprehensive and analytical overview of the judicial practice in the region and to make this case law accessible in English.

The book provides a critical insight into the case law of ten Central European States relating to various fields of EU private international law (general civil and commercial, insolvency, family and succession matters).

The contributions were written by Dora Zgrabljic Rotar, Tena Hosko, Katazyna Bogdzevic, Pavle Flere, Lucia Gandzalova, Justyna Gumula-Kedracka, Monika Jagielska, Elena Judova, Inga Kacevska, Wojciech Klyta, Vadim Mantrov, Gabor Palasti, Magdalena Sobas, Janos Szekely, Dace Trupovniece, Jiri Valdhans, Emod Veress, and Lucie Zavadilova.

Meanwhile, a paper issued from the research on which the book builds has appeared on SSRN. It is authored by Csongor Nagy and is titled EU Choice-Of-Law Rules before Hungarian Courts: Contractual and Non-Contractual Obligations.

The abstract reads as follows:

This article is based on the Hungarian strand of the multiyear CEPIL project carried out with the generous support of the European Commission Directorate General Justice and Consumers. One of the leading considerations behind the CEPIL project was that the value of private international law unification can be preserved only if EU private international law instruments are applied correctly and uniformly, hence, the European endeavours in the field should not and cannot stop at statutory unification but need to embrace the judicial practice and make sure that besides the vertical communication between the CJEU and national courts, there is also a horizontal communication between national courts, authorities and the legal community in general. The purpose of this publication is to contribute to this horizontal communication between Member State courts by providing an analytical insight into the Hungarian case-law on the Rome I and the Rome II Regulations.

Additional information on the edited book, including the table of contents, is available here.

Lydia Lundstedt has prior review of the judgment in CJEU C-399/21 IRnova AB v FLIR Systems AB (who had been business partners in the past) here. Swedish courts are clearly busy referring the private international law elements of patent cases to the CJEU.

Of particular note is that a 3 judge chamber would seem to have ruled out reflexive effect as casually as if it were swatting a fly.

On 13 December 2019, IRnova brought an action before the Patent and Market Court seeking, inter alia, a declaration that it had a better right to the inventions covered by international patent applications, subsequently supplemented by European, US and Chinese patent applications deposited by FLIR in 2015 and 2016, and by US patents granted to FLIR on the basis of those latter applications. In support of that action, IRnova had stated, in essence, that those inventions had been made by one of its employees, meaning that that employee had to be regarded as their inventor or, at the very least, as their co-inventor. IRnova therefore argued that, as the inventor’s employer and thus successor in title, it had to be regarded as the owner of the inventions. However, FLIR, without having acquired those inventions or otherwise being entitled to do so, deposited the applications in its own name.

The court had dismissed jurisdiction viz the Chinese and US patent applications, and the US patents, on the ground, in essence, that it regarded the action concerning the determination of the inventor as being linked to the registration and validity of the patents, and it applied A24(4) BIa reflexively. The Appeals Court referred the issue on reflexive effect to the CJEU, in the following terms:

‘Is an action seeking a declaration of better entitlement to an invention, based on a claim of inventorship or co-inventorship according to national patent applications and patents registered in a non-Member State, covered by exclusive jurisdiction for the purposes of Article 24(4) of [the Brussels Ia Regulation]?’

however the CJEU reformulated [22-24] the case as not concerning reflexive effect at all, rather, enquiring about the scope of the A24(4) gateway.

The Court first of all [25] ff makes a point of confirming its broad reading of the ‘international’ element required to trigger European private international law, referring to CJEU Owusu.

It then [35] would seem to rule out reflexivity in a very matter of factly way (and as Lydia also noted, without AG Opinion):

as has already been pointed out in paragraph 26 of the present judgment, the patent applications at issue in the main proceedings were deposited and the patents concerned were granted not in a Member State, but in third countries, namely the United States and China. As Article 24(4) of the Brussels Ia Regulation does not envisage that situation, however, that provision cannot be regarded as applicable to the main proceedings.

This may have already answered a core question in  BSH Hausgeräte v Aktiebolaget Electrolux .

[36] ff it refers ia to CJEU Hanssen and to the exceptional nature of A24 [39]. It holds that [42]

the main proceedings relate not to the existence of the deposit of a patent application or the grant of a patent, the validity or lapse of a patent, or indeed an alleged right of priority by reason of an earlier deposit, but to whether FLIR must be regarded as being the proprietor of the right to the inventions concerned or to a portion of them.

[47] it refers ia to the fact that fact that

an examination of the claims of the patent or patent application at issue may have to be carried out in the light of the substantive patent law of the country in which that application was deposited or that patent was granted [however it ] does not require the application of the rule of exclusive jurisdiction laid down in Article 24(4) of the Brussels Ia Regulation

Much relevant and surprisingly succinct on the reflexivity issue.

Geert.

EU Private International Law, 3rd ed. 2021, 2.208 and 2.548.

On 9 September 2022, the Max Planck Institute for Procedural Law Luxembourg hosted a conference on the Brussels Ibis Reform, in collaboration with the KU Leuven and the EAPIL.

The Brussels Ibis Regulation is certainly the fundamental reference-instrument of cross-border judicial cooperation in civil matters within the European Union. Since its establishment in 1968, it has been constantly evolving. At present, the European Commission is required to present a report on the application of the Regulation and to propose improvements. Against this background, a Working Group was set up within the network of the European Association of Private International Law (EAPIL) to draft a position paper. The group is led by Burkhard Hess (MPI Luxembourg) and Geert van Calster (KU Leuven). Members of the working group answered a questionnaire, reporting the application and possible shortcomings of the Brussels Ibis Regulation in their respective jurisdictions.

The topics of the conference were based on the 19 reports that were received from 16 working group members and 3 observers. Additional experts presented topics ranging from insolvency proceedings to third state relationships. The aim of the conference is to prepare a position paper. The paper will be presented to the European Commission to advise it on the evaluation process. EAPIL Members are invited to join the Members Consultative Committee (MCC) of the EAPIL Working Group on reforming Brussels Ibis.

After welcome notes by Burkhard Hess (MPI Luxembourg), Andreas Stein (Head of Unit, DG JUST – A1 “Civil Justice”, European Commission European Commission, connected via Video from outside), Gilles Cuniberti (University of Luxemburg/EAPIL) and Geert van Calster (KU Leuven), the first panel, chaired by Marie-Élodie Ancel, Paris, focused on the role and scope of the Brussels Ibis Regulation in European Procedural Law. Dário Moura Vicente, Lisbon, highlighted the Regulation’s indispensable function as a “backbone” of European civil procedural law, reaching far beyond civil and commercial matters into e.g. family law, in order to increase consistency. Room for improvement in this respect was identified, inter alia, for the definition of the substantive scope, in particular in relation to arbitration, the subjective or personal scope, in particular in relation to third state domiciled defendants, and for coordinating the relationships with other instruments such as the GDPR. Following up on the latter aspect, Björn Laukemann, Tübingen, analysed the delineation of the Regulation and the European Insolvency Regulation with a view to annex actions and preventive restructuring proceedings. No imminent need for textual reform was seen for the former, whereas for the latter suggestions for amendments of the Recitals were submitted. Vesna Lazic, Utrecht/The Hague, discussed the controversial judgment of the ECJ in London Steamship that certainly put again on the table the question whether the arbitration exception of the Regulation should be drafted more precisely. Whereas some argued that the large differences in the arbitration laws of the Member States would not allow any unifying approach based on notions of mutual trust, others held that there was some sense in the ECJ’s attempt not to get blocked the Spanish judgments in the UK via arbitration. As to the suggestion of a full-fledged European Arbitration Regulation, one reaction was that this might result in unintended consequences, namely exclusive external competence by the EU on arbitration. Further, the question came up whether in light of the ECJ’s judgment in London Steamship its earlier decision in Liberato should be rectified in the reform. In Liberato, the ECJ held that a violation of the lis pendens rules of the Regulation does not amount to a ground for refusal of recognition whereas in London Steamship the Court held that the lis pendens rules formed part of the fundamental principles of the Regulation to be respected under all circumstances. Speaking of lis pendens, another question in the discussion was whether a backbone instrument like the Brussels Ibis Regulation would or should allow de lege lata transferring certain core elements, such as the rules on lis pendens, to other instruments without any rules on lis pendens, such as the European Insolvency Regulation. The ECJ in Alpine Bau GmbH had rejected the application of Article 29 Brussels Ibis Regulation by way of analogy, as it considered the EIR as a special and distinct instrument of its own kind, so the question was whether analogies from the “backbone” should be encouraged expressly where appropriate in the concrete constellation.

The second panel, chaired by Burkhard Hess, dealt with collective redress. François Mailhé, Picardy, Stefaan Voet, Leuven, and Camelia Toader, Bucharest, discussed intensely the cross-border implications of the new Representative Actions Directive, in particular the potential need for specific heads of jurisdiction, as the Directive was described as subtly seeking to encourage pan-European actions but at the same time leaves a number of options to the Member States. Obviously, this means that provision and allocation of – ideally one-stop – jurisdiction would be of the essence, e.g. by extending the forum connexitatis of Article 8 (1) Brussels Ibis Regulation to connected claimants, possibly even for third state domiciled claimants. However, concerns were formulated that the Brussels Ibis Regulation should not be “politicized” (too strongly). In addition, the importance of other aspects were highlighted such as coordinating and consolidating proceedings, the delineation of settlements and court judgments in respect to court-approved settlements (probably to be characterised as judgments) and the essential role of funding. The overall tendency in the room seemed to be that one should be rather careful with (at least large-scale) legislative interventions at this stage.

The third panel, chaired by Thalia Kruger, Antwerp, focused on third state relations. Chrysoula Michailidou, Athens, discussed potential extensions of heads of jurisdiction for third state domiciled defendants, in particular in respect to jurisdiction based on (movable) property and a forum necessitatis. Alexander Layton, London, focused on the operation of Articles 33 and 34 and reiterated the position that discretion of the court to a certain extent was simply inevitable, also in a distributive system of unified heads of jurisdiction, as it is provided for e.g. in these Articles, in particular by the tool of a prognosis for the chances of recognition of the future third state judgment (“Anerkennungsprognose”) in Article 33(1) lit. a and Article 34(1) lit. b, and by the general standard that the later proceedings in the Member State in question should only be stayed if the Member State court is satisfied that a stay is necessary for the proper administration of justice (Articles 33(1) lit. b and 34(1) lit. c). Further, the question was posed why Articles 33 and 34 would only apply if the proceedings in the Member State court are based on Articles 4, 7, 8 or 9, as opposed to e.g. Articles 6(1) and sections 3, 4 and 5 of Chapter II. The author of these lines observed that relations to third states should be put on a consistent basis including all aforementioned aspects as well as recognition and enforcement of such judgments. Further, need for clarification, e.g. in the respective Recitals, was identified for the question whether there is an implicit obligation of the Member State courts not to recognize third state judgments that violate Articles 24, 25 and the said sections 3, 4 and 5 of Chapter II. This could be framed as a matter of the Member States’ public policy, including fundamental notions of EU law (see ECJ in Eco Swiss on another fundamental notion of EU law as an element of the respective Member State’s public policy). The central point, however, was the suggestion to correct the latest steps in the jurisprudence of the ECJ towards allowing double exequatur, if a Member State’s lex fori provides for judgments upon foreign judgments (see ECJ in H Limited). Options for doing so would be either adjusting the relevant Recitals, 26 and 27 in particular, or the definition of “judgment” or inserting another specific ground for refusal outside the general public policy clause, thereby in essence restating the principle of “no double exequatur” within the mechanics of the Regulation as understood by the ECJ, or limiting the effects of a judgment upon judgments for the purposes of the Brussels system, a method (altering the effects of a judgment under its lex fori) employed by the ECJ in Gothaer Versicherung in respect to other effects of a judgment from a Member State court, or, finally, by introducing an entire set of rules on the recognition and enforcement of third state judgments. In the latter case, all measures would have to be coordinated with the latest and fundamental development within the EU on third state judgments, namely the (prospective) entering into force of the HCCH 2019 Judgments Convention on 1 September 2023. Anyone who is interested in what this Convention could offer should feel warmly invited to participate and discuss, inter alia, the interplay between the Brussels and the Hague systems at the Bonn / HCCH Conference on 9 and 10 June 2023.

The next panel, chaired by Geert van Calster, related to certain points on jurisdiction and pendency to be reformed. Krzystof Pacula, Luxemburg, discussed Articles 7 no. 1 and no. 2 and, inter alia, suggested abstaining from a general reformulation of these heads of jurisdiction but rather opted for concrete measures for improving the text in light of lines of case law that turned out to be problematic. Problems identified were, inter alia, the delineation of the personal scope of Article 7 no. 1 in light of the principle of privity of contracts (“Relativität des Schuldverhältnisses”) and the concurrence of claims under Article 7 no. 1 and no. 2. In this regard, it was discussed whether both of these heads should allow to assume annex competence in regard to each other. Marta Requejo Isidro, Luxemburg, discussed the intricate interplay of Article 29 and 31 and, inter alia, considered increased obligations of the two Member State courts involved to coordinate conclusively the proceedings, for example by inserting certain time limits and, in case only the non-designated court is seized, powers to order the parties to institute proceedings at the designated court within a certain time limit. Otherwise the court seized should decline jurisdiction finally. Victória Harsági, Budapest, discussed the implications of the judgment of the ECJ in Commerzbank in respect to balancing consumer protection with foreseeability when the consumer, after a Lugano Convention State court has been seized with the matter, transferred its domicile to another (Lugano Convention) State, thereby creating the only international element of the case. Burkhard Hess dealt with reforming Article 35 of the Brussels Ibis Regulation after the ECJ in Toto and observed that there was no express hierarchy between measures under that Article and measures by the court of the main proceedings, and the Court did not infer any such hierarchy in its decision. The suggestion, therefore, was to think about introducing express coordination, be it along the lines of Rules 202 et seq. of the 2020 European Model Rules of Civil Procedure, be it along those of Article 6(3) of the 2022 Lisbon Guidelines on Privacy (on these see here and here), be it along those of Article 15 (3) Brussels IIter Regulation. Good reasons for the latter approach were identified, and this led back to the fundamental question to what extent the notion of a coherent “Brussels system” might allow even de lege lata not only to apply concepts from the Brussels Ibis Regulation, the “backbone” of that system, to other instruments by analogy, but also vice versa from the latter instruments to the former.

The last panel started with a submission by Gilles Cuniberti, Luxemburg, to remove Article 43, based on a number of reasons, as the Brussels I Recast aimed at removing “intermediate measures” such as exequatur, which rendered it inconsistent to uphold the intermediate measure foreseen in Article 43 – service of the certificate of Article 53 upon the judgment debtor. This was held to be all the more so, as this measure would primarily protect the debtor, already adjudged to pay, to an unjustifiable degree. Marco Buzzoni, Luxemburg, discussed the adaptation of enforcement titles under Article 54, a provision that was held to be one of the major innovations of the last Recast but turned out to be of little practical relevance. A similar provision had been proposed in the preparatory works for the HCCH 2019 Judgments Convention (February 2017 Draft Convention, Article 9), but was ultimately dropped, as opposed to the 2022 Lisbon Guidelines on Privacy (see its Article 12(2) Sentence 2). Vesna Rijavec, Maribor (unfortunately unable to attend for compelling reasons, but well represented by the chair, Geert van Calster) presented proposals on refining Articles 45(1) lit. c and d, mainly arguing that these should connect to pendency (as had already been proposed by the Heidelberg Report for the Recast of the Brussels I Regulation).

An overall sense of the conference was that no radical revolutions should be expected in the forthcoming Recast, which should be taken as another sign for the overall success of the backbone of the Brussels system, but that there was quite some room for specific and well-reasoned improvements. The conference contributed to preparing these in a truly excellent and inspiring way and in outstanding quality.

The University of Lagos Law Review (“Unilag Law Review”) in its 2022 issue recently published articles on Nigerian law. One of the articles is focused on conflict of laws:

P Oladimeji, “Simplifying the Doctrine of Renvoi under Conflict of Laws”

The doctrine of Renvoi is a topic in Conflict of Laws that posits a stumbling block, more often than anticipated, to students of the academic discourse trying to understand the scope of Conflict of Laws and how the framework of this topic applies in international matters. As such, this paper is an effort by the writer to simplify the tenets of the doctrine of Renvoi, its applicability, and its suppositions as reflected by scholars of English jurisprudence who dealt extensively with the doctrine at the time of its inception in the early 20th century. The paper begins with an introduction to the doctrine of Renvoi and its meaning per Private International Law; and then proceeds to distil the doctrine further by looking at the theories concocted by early scholars of its discourse as to its functionality in law. This paper also looks at the often quoted types of Renvoi and simplifies the difference(s) between these types as much as possible. Following this, the paper analyses the challenges brought to bear by the application of Renvoi in international matters – challenges that have led to rising arguments for and against the application of the doctrine as is.

Thanks to Costanza Honorati and Laura Carpaneto for the tip!

The Practice Guide on the Brussels IIb Regulation (Regulation 2019/1111) has been published on the site of the European Judicial Network in Civil and Commercial Matters (EJN) – scroll to the bottom.

The Guide was written by Boriana Musseva under a contract between the European Commission and Milieu Consulting. It uses the name Brussels IIb (presumably the Commission’s preferred nomenclature) even though some authors also use Brussels IIter. The Guide is still being translated in the other EU languages and will then also be published with the other information that the Commission provides on the European Judicial Atlas.

Here is the direct link to the Practice Guide for the application of the Brussels IIb Regulation.

A volume titled “Cross-Border Litigation in Central Europe: EU Private International Law Before National Courts” and edited by Csongor István Nagy (University of Szeged, Hungary & Center for Social Sciences, Budapest) has recently been published by Kluwer. It was and authored by Katazyna Bogdzevic, Pavle Flere, Lucia Gandzalova, Justyna Gumula-Kedracka, Tena Hosko, Monika Jagielska, Elena Judova, Inga Kacevska, Wojciech Klyta, Vadim Mantrov, Csongor István Nagy, Gabor Palasti, Dora Zgrabljic Rotar, Magdalena Sobas, Janos Szekely, Dace Trupovniece, Jiri Valdhans, Emod Veress, Lucie Zavadilova. The book provides a detailed understanding of the process of seeking justice in cross-border disputes in Central Europe and a comprehensive and exhaustive presentation of the case law in 10 Central European Member States (Croatia, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia, and Slovenia). It is the first of its kind to offer a comprehensive and analytical overview of the judicial practice in the region. More information on the book, its content and contributors is available here.

The book is a product of the multi-year EU-funded CEPIL project (“Cross-Border Litigation in Central-Europe: EU Private International Law before National Courts”, 800789 — CEPIL — JUST-AG-2017/JUST-JCOO-AG-2017), which was based on the cooperation of six universities (University of Szeged, Hungary, Masarykova univerzita, Czech Republic, Sveu?ilište u Zagrebu, Croatia, Universitatea Sapientia din municipiul Cluj-Napoca, Romania, Univerzita Mateja Bela v Banskej Bystrici, Slovakia, Uniwersytet ?l?ski, Poland). The CEPIL project inquired whether EU private international law functions optimally in the Central European Member States to secure a Europe of law and justice and whether EU private international law instruments are applied correctly and uniformly. It analyzed whether national courts deal appropriately with disputes having a cross-border element and whether the current legal and institutional architecture is susceptible of securing legal certainty and an effective remedy for cross-border litigants. More information on the project is available here.

The author of this post is Lydia Lundstedt, who is a Senior Lecturer at the Stockholm University.

In IRnova (C-399/21), decided on 8 September 2022, the CJEU clarified the interpretation of Article 24(4) of the Brussels I bis Regulation. The latter provision confers exclusive jurisdiction “in proceedings concerned with the registration or validity of patents, trade marks, designs, or other similar rights required to be deposited or registered” upon “the courts of the Member State in which the deposit or registration has been applied for, has taken place or is under the terms of an instrument of the Union or an international convention deemed to have taken place”.

In its judgment, the Court ruled that Article 24(4) is to be interpreted as not applying to a dispute, in the context of an action based on an alleged status of inventor or co-inventor, concerning the determination of whether a person is entitled to certain inventions referred to in patent applications filed and patents granted in third countries.

I reported on the facts and the question referred here but a brief synopsis follows.

The Swedish company IRnova AB brought proceedings before the Swedish Patent and Market Court against the Swedish company FLIR Systems AB for a declaration that it was entitled to inventions referred to in certain European, US and Chinese patent applications and certain US patents on the ground that its employee was the true inventor (or co-inventor).

The Patent and Market Court dismissed the part of IRnova’s action concerning the patent applications filed in the US and China and the patent granted in the US. Incidentally, the court retained jurisdiction over the European applications which are governed by the lex specialis rules in the Protocol on Jurisdiction and the Recognition of Decisions in respect of the Right to the Grant of a European Patent.

IRnova AB appealed to the Patent and Market Court of Appeal, which asked the CJEU whether Article 24(4) could be applied to these types of entitlement disputes concerning patents registered and applied for in non-Member States.

The CJEU began by slightly reformulating the referring court’s question to refer to applications filed and patents granted in third States as opposed to non-Member States (paras 22-24). Thereafter, the CJEU established that the dispute had international character and therefore fell within the scope of the BIa Regulation (paras 25-31). Referring to its decision Owusu, C-281/02, the CJEU observed that international character may be based on the subject-matter of the dispute (here the patent applications and the patents) being connected to a third State.

Thereafter, the CJEU answered the question whether Article 24(4) applied to a situation such as the one in the Swedish proceedings. First, the CJEU observed that it follows from the wording of Article 24(4) that it concerns the courts of a Member State of registration and therefore the provision was not applicable to patents applied for and registered in third States (paras 32-35).

Second, the CJEU held that entitlement disputes, including those based on inventorship, are not “concerned with the registration or validity of patents” in the meaning of Article 24(4) (paras 36-49). In this regard, the CJEU recalled that the concept was autonomous and that it must not be given a wider interpretation than is required by its objective (paras 38-39).

The CJEU also recalled its case law in Duijnstee, 288/82 , GAT, C-4/03, and Hanssen Beleggingen, C-341/16 where it held that the rule on exclusive jurisdiction in what is now Article 24(4) is justified by the fact that the courts of the Member State where the patents are applied for or registered are best placed to adjudicate upon cases in which the dispute itself concerns the validity or lapse of a patent, the existence of the deposit or registration or an alleged right of priority by reason of an earlier deposit. It recalled further that an action which merely raises the question of who is the owner of a patent or whether a person has been correctly registered as the owner of a trade mark is not covered by that rule of exclusive jurisdiction because such questions are not closely linked in fact and law to the place where the right has been registered (paras 36-41).

The CJEU stated that the dispute in the Swedish proceedings did not concern these questions but only the question concerning the right to the inventions or to a part of them (para 42).

In this regard, the Court observed first that the question of who owns the inventions, which includes the question of who is the inventor, does not concern the application for an intellectual property right or the right as such, but the object of the right. The CJEU referred to its earlier case law on the justification for Article 24(4) and concluded that it was relevant in a case such as the one in the Swedish proceedings where the question relates only to the entitlement to object of the right, i.e. the invention (para 43).

Thereafter, the CJEU noted that the question of who is the inventor, which the CJEU noted was the sole issue in the Swedish proceedings, is a preliminary question and therefore distinct from that of whether a patent application has been filed or a patent granted. In addition, the CJEU stated that the dispute did not concern the validity an application, but seeks only to establish the right to the inventions themselves. The CJEU stated that the fact that a lack of entitlement to an invention may constitute a ground for refusal of the application is therefore not relevant to the jurisdiction to hear disputes concerning inventorship (paras 44-45).

Lastly, the CJEU stated that the preliminary question of who is an inventor is also distinct from that of the validity of the patent and that latter question was not part of the case in the Swedish proceedings.

The CJEU added that even if the national court was required to examine the claims in the patent applications or patents to determine each employee’s contribution to the invention, this examination does not concern the patentability of the invention.

The CJEU further added that infringement actions also require an in-depth assessment of the protection afforded under the law of the protecting country but that it had previously held that such actions were not covered by the rule on exclusive jurisdiction (paras 46-48).

In my opinion, the CJEU comes to a sensible outcome – the parties should not need to pursue duplicative proceedings in every granting third State with risk that inventorship is decided differently in different states.

The question of inventorship is not closely linked in fact to the state where the patent was applied for or granted as the relevant facts will have taken place where the invention was made, which in this case was most likely in Sweden. Although there is proximity in law to the State where the patent was applied for or granted (the CJEU noted that the Swedish court will likely need to apply US and Chinese law), inventorship disputes are mostly factual disputes concerning who actually came up with the inventive idea, and not the legal value of the parties’ contributions.

If IRnova succeeds with its case on the merits, an interesting question is how it will get the judgment enforced. It can use the Swedish judgment in support of a request before the US and Chinese authorities to persuade them to correct the applicant or owner. An interesting question is whether IRnova can request the Swedish court to order FLIR Systems to transfer the patent applications and patents to it.

Lastly, the decision has significant implications so it is surprising that the CJEU did not obtain a written opinion from the Advocate General. Indeed, the CJEU dealt with the question whether Article 24(4) applies to third States in a rather summary fashion.

The question whether Article 24 in general can be given reflexive effect either as a matter of EU law or national law has been hotly debated in the legal doctrine so I would have expected more than a textual argument to support the CJEU’s conclusion.