Droit international général

The latest issue of the Dutch Journal on Private International Law (NIPR) has been published.

Editorial

M. Zilinsky / p. 629-630

Article

E.N. Frohn & I. Sumner, Protecting vulnerable adults across borders: where do we stand? / p. 631-649

Abstract

The first meeting of the Special Commission to review the practical operation of the 2000 Hague Convention took place from 9-11 November 2022, after writing this publication. In preparation for this meeting, a questionnaire was send to the Member States of the Conference. One of the questions addressed to the non contracting states of the 2000 Convention was of that state is considering joining the 2000 Convention. The Netherlands replied that there is no urgent need to become a contracting party, pointing out that the rules of the treaty are applied in practice.

This article concerns the Hague Convention of 13 January 2000 on the International Protection of Adults in relation to the Dutch standard practice of anticipating application of this Convention. Furthermore, this article will provide information on the European view regarding the international protection of vulnerable adults.

Case note

K.J. Krzeminski, Actio iudicati onder de Brussel I-bis Vo: een open deur of een geopend ‘achterdeurtje’? HvJ EU 7 april 2022, ECLI:EU:C:2022:264, NIPR 2022, 288 (J/H Limited) / p. 650-659

Abstract

In J v. H Limited, the CJEU has held that a decision rendered by an EU Member State court on the basis of a third country judgment (actio iudicati) may, under certain circumstances, qualify as a ‘judgment’ within the meaning of Article 2(a) Brussel I-bis Regulation, thereby opening the door to EU-wide recognition and enforcement. This article explores the implications of the decision for cross-border enforcement, in particular of judgments rendered in Dutch proceedings on the basis of Article 431(2) of the Dutch Code of Civil Procedure.

In the case Rzecznik Praw Dziecka and Others, C-638/22 PPU, a Polish court asks the Court of Justice in essence whether, in accordance with the Brussels II Regulation and The 1980 Hague Convention on the Civil Aspects of International Child Abduction, a Member State may provide for the possibility of an appeal in cassation (in practice: a third judicial instance) involving a stay of enforcement of a final return order on a simple application by one of the public entities entitled to lodge such an appeal.

AG Emiliou states from the outset that this question calls for a negative answer. His Opinion explains why this is the case.

A summary of the facts of the case reported here case has been already posted online by Marta Requejo Isidro so I am happy to refer to her contribution.

The urgency of the matter has compelled the Court to submit the case, at the request for the referring court, to the urgent preliminary ruling procedure provided for in Article 107 of the Rules of Procedure of the Court of Justice.

I might add that the provision of national law that made the aforementioned stay of enforcement possible entered into force on 24 June 2022 and the request for a preliminary ruling has been brought before the Court of Justice already on 13 October 2022.

Concerning the preliminary question itself, in his Opinion, AG Emiliou recognizes that the 1980 Hague Convention and the Brussels II bis Regulation do not unify the procedural rules applicable to return applications based on that Convention. Those issues are left to the procedural law of the Member State where a request for a return order is made (point 52).

Nevertheless, the competence of the Member States has its limits. For AG Emiliou, those limits are not respected by the Polish provision in question.

Advocate General argues that by adopting the provision in question, the Polish legislator has exceeded the limits of its competence: he has rendered the return proceedings ineffective. Furthermore, in doing so, the legislator has also limited the fundamental right to respect for family life and the fundamental right to an effective remedy of the parent requesting the return, despite there being no compelling justification for such limitation and the negative consequences it entails (point 54).

All those aspects are addressed in a detailed manner in the Opinion, so there is still a lot to unpack.

The Opinion is available here (so far only in French).

On 20 January 2023, the University of Strasbourg will host a conference on the private international law aspects of the Digital Market Act (DMA) and the Digital Services Act (DSA) organised by Etienne Farnoux, Nicolas Gillet, Kansu Okyay and Delphine Porcheron.

This conference is structured in two parts. The first part will be dedicated to general presentation of the new regulations. The second will address specific topics in private international law.

Speakers include Frédérique Berrod, Stéphanie Carre, Tobias Lutzi, Yves El Hage and Nurten Kansu Okyay.

The conference will be held both in site and online. The full program and details about the location and registration can be found here.

Aukje A.H. Van Hoek (University of Amsterdam) has posted The Declaratory Judgment – Between Remedy and Procedural Technique on SSRN.

The abstract reads:

This contributions discussed a very technical issue of private international law that turned out to be crucial in several class actions held in the Netherland regarding torts committed in common law countries: Should the question whether courts in the Netherlands can issue a purely declaratory judgment on the tortiousness of certain behaviour or the liability of the defendant be considered to fall under the lex causae (the declaration being considered as a type of remedy), or rather be governed by lex fori (as being a procedural issue)? The author prefers a classification as procedural, but acknowledges that the case law on this issue doesn’t fully support this outcome. The question lost some of its relevance under the new law on class actions, but is still pertinent.

The paper was published in the Liber Amicorum Monika Pauknerová (Wolters Kluwer CR 2021).

As part of the UNIDROIT Project on Digital Assets and Private Law, UNIDROIT has launched a Public Consultation to solicit comments and feedback on a set of Draft Principles and Commentary which have been prepared by its Working Group over the course of 7 sessions between 2020-2022. These Principles have been drafted to provide guidance to legislators, judges, practitioners, and the industry involved in the digital asset economy with regard to issues of private law. This includes issues regarding the definition of a digital asset, the importance of control, matters related to transfer of digital assets, custody relationships, conflicts of law, secured transactions, enforcement, and insolvency. The text contains a detailed introduction which explains what the Principles seek to do. UNIDROIT now looks for comments. All the relevant information can be found on this page. All comments should be provided using this online form. The Secretariat is seeking wide distribution of the consultation.

A disappointing judgment was issued just before end of year 2022, when the Court, unlike its Advocate General Kokott, held that the ambient air quality Directives do not directly grant a right to compensation in the event of an infringement of the limit values.

In Case C-61/21 Ministre de la Transition écologique and Premier ministre, the CJEU essentially insisted ‘Frankovich’ liability (the power for individuals to claim compensation, on the basis of EU law, of EU Member States when the latter fail properly to implement EU law; Such liability is subject to three conditions: namely that the rule of EU law infringed is intended to confer rights on them, that the infringement of that rule is sufficiently serious and that there is a direct causal link between that infringement and the damage suffered by those individuals) can only be extended to cases where the EU secondary law at issue, grants individual rights.

The Court held however that even though [54] the air quality Directives impose clear and precise duties which the Member States need to achieve, these are aimed at protecting the environment and public health as a whole, not individuals’ right to health and environmental protection [55].

Some might see in this reasoning a strict schism suggested by the Court between the collective enjoyment of public health and a healthy environment on the one hand, and the individual availability of same. I do not think though that this is what the Court had in mind, rather, one assumes, an ambition to cap the amount of cases that might otherwise reach the CJEU.

The Court then directs individuals to the national level, so as to obtain if necessary a court order forcing the authorities to draw up relevant plans (a route confirmed by Case C‑404/13 Client Earth) and it of course confirms that national law may be more generous [63].

The unfortunate consequence of the judgment is that there will not be a level playing field for individuals when it comes to employing the right to compensation for infringement of EU law, and of course an encouragement of a certain amount of forum shopping.

Geert.

The third issue of the Belgian Revue de droit international privé / Tijdschrijft voor international privaatrecht is now available online. The issue contains a selection of ECHR, CJEU, and Belgian national case law posing various problems of private international law.

The ECHR selected cases concern the application of Article 8 ECHR on the right to family life and matters of filiation by surrogacy, the recognition and enforcement of a decision for the return of a child, an international adoption at which the biological father was opposed to, and Article 6 ECHR on access to a fair trial in relation to the application of the 1970 Hague Taking of Evidence Convention.

The CJEU case law selection makes reference to:

• the choice of court clause in the framework of the 2007 Lugano Convention (C-358/21, Tilman);
• the notion of ‘unaccompanied minor’ and the marriage of a minor refugee on the territory of Belgium that does not recognise such a marriage (C-230/21, X v Belgium);
• the recognition of an extrajudicial divorce decision based on an agreement between the spouses before a civil registrar (C-646/20, Senatsverwaltung für Inneres und Sport);
• the employment protection mechanism under Brussels I-bis Regulation (C–604/20, ROI Land Investments);
• the responsibility of an airline company under the 1999 Montreal Convention for bodily injure (post-traumatic stress disorder) suffered by a passenger during an emergency evacuation of an aircraft (C-111/21, BT v Laudamotion);
• the EU trademark protection according to Regulation (EU) 2017/1001 (C-256/21) KP v TV);
• the enforcement in another Member State of an arbitral award for damages based on a bilateral investment treaty (C-333/19, Romatsa);
• the application of Regulation (CE) 261/2004 to delays related to a flight between two airports situated in a third country (c-561/20 Q, R and S v United Airlines);
• the application of Article 7(2) Brussels I-bis Regulation in a collective action for damages against the grandparent company of a daughter insolvent company (Dutch ‘Peeters-Gatzen’ action) for restoring recovery opportunities for creditors (C–498/20, ZK v BMA);
• the clarification of the notion of pending lawsuits within the meaning of Article 292 Solvency II Directive for a winding-up decision abroad on an insurance compensation claim (C–724/20, Paget Approbois);
• the protection against the effects of the extraterritorial application of legislation adopted by the US against Iran concerning commercial relations with certain Iranian undertakings (C-124/20, Bank Melli Iran); and
• the effects of a European certificate of succession and its certified copy valid for an ‘unlimited’ period issued on the application of one of the two heirs concerned by the proceedings (C-301/20, UE and HC v Vorarlberger Landes- und Hypotheken-Bank).

The selection of the Belgian national case law contains several Court of Cassation decisions:

• one (Cour de Cassation, arrêt du 15 septembre 2022) assesses the jurisdiction of Belgian courts over an alleged tort and localisation of damages within the framework of Article 5(3) of the 2007 Lugano Convention in a claim involving UEFA and URBSFA regarding rules of the Financial Fair Play Regulation as contrary to EU public policy (Articles 101 and 102 TFEU). For this case several questions were sent for interpretation of the CJEU in a preliminary ruling regarding the application of Article 5(3) of the 2007 Lugano Convention in relation to a concerted practice of establishing the price of the tickets for football games and the loss of opportunities for football agents to conclude deals or their conclusion under less attractive conditions, the places where these damages take place, and whether reparation can be claimed from the national association (URBSFA) as jointly liable with UEFA;
• the second selected decision (Cour de Cassation, arrêt du 20 mai 2022) deals with the interpretation of the habitual residence of a child and parental responsibility within the framework of Article 8(1) Brussels II-bis Regulation and Article 5 of the 1996 Hague Convention in a case involving a Ukrainian mother and wife of a Belgian citizen who after a forth months stay in Ukraine with the couple’s two children refuses to return to Belgium;
• the third Court of Cassation case (Hof van Cassatie, arrest van 28 April 2022) poses an issue of international competence under Article 1 Brussels I-bis Regulation or Article 1 European Insolvency Regulation (Regulation 1346/2000) with regard to a decision in a Dutch insolvency procedure; and
• the forth selected decision (Cour de Cassation, arrêt du 3 juin 2021) concerns a situation requiring to determine whether the Belgian lex fori is applicable for reasons of urgency and public policy if the content of the provisions of the foreign law (i.e. Nigerian law) regarding the Muslim custom of Djerma as a regime of separation of financial assets of a couple following divorce or repudiation cannot be clearly proven before the Belgian court given the evolutive nature of the practice.

In addition, a number of Court of Appeal decisions were selected. These concern:

• a decision by the Brussels Court of Appeal (arrêt du 3 février 2022) on a case involving a paternity dispute in which the father declared a child to be his own and the alleged conflict of the Guinean law that does not allow the mother to subsequently contest the paternity with Article 22bis of the Belgian Constitution which gives priority to the highest interest of the child and Article 62(1) of the Belgian Code of Private International Law regarding the consent of the child Belgian national who has her habitual residence in Belgium;
• two decisions of the Court of Appeal of Liege. One (arrêt du 22 juin 2021) regards the application of the Brussels II-bis Regulation, Rome II Regulation and Regulation on matrimonial Regimes on the law applicable and competence regarding a divorce procedure for two Belgian nationals who married in Turkey. The other (arrêt du 20 janvier 2021) concerns matters of parental responsibility involving the application of Brussels II-bis Regulation and the 1996 Hague Convention on parental responsibility and protection of children.

Together with these a number of first instance decisions were selected for the interesting issues that they raise related to recognition of marriages celebrated abroad, name status and rectification of a foreign certificate of birth, maintenance, and choice of jurisdiction clause with regard to Article 25 and 8 of the Brussels I-bis Regulation.

The last part of the review is dedicated to EU and national legislative developments. This issue addresses the Decision (EU) 2022/1206 concerning the accession of the European Union to the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (2019 Hague Judgments Convention), the Belgian Law putting into application the Regulation (EU) 2019/1111 on the on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast), the Belgian Law of 20 July 2022 on the status and supervision of brokerage firms, and the European Commission Proposal of 7 December 2022 for a a Regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood (COM(2022)695 final).

One recent article on private international law was published today in International and Comparative Law Quarterly:

A Chong, “Characterisation and Choice of Law for Knowing Receipt”

Knowing receipt requires the satisfaction of disparate elements under English domestic law. Its characterisation under domestic law is also unsettled. These in turn affect the issues of characterisation and choice of law at the private international law level, as knowing receipt sits at the intersection of the laws of equity, restitution, wrongs and property. This article argues that under the common law knowing receipt ought to be considered as sui generis for choice of law purposes and governed by the law of closest connection to the claim. Where the Rome II Regulation applies, knowing receipt fits better within the tort rather than unjust enrichment category and the escape clause in Article 4(3) of the Regulation ought to apply.

La sustracción internacional de menores en el espacio jurídico europeo (International Child Abduction in the European Union), a monograh by PIL Assistant Professor Maria González Marimón (University of Valencia), has just been released by the Spanish publishing house Tirant Lo Blanch.

The book covers the landscape of sources in force the European Union, in an area characterized by the confluence of instruments of different origin and scope, some of which have recently undergone relevant changes.

It claims that a redefinition of the legal framework and of the interfaces among instruments is needed in order to adapt to new societal patterns as well as to currently prevailing values, in particular to the central role of children rights and to the principle of their best interests.

In addition, after a thorough, critical analysis of the novelties of Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast) (Brussels II ter Regulation), it argues that the opportunity has been lost of getting rid of the “overriding mechanism” under Article 29 of said Regulation.

The author has kindly provided the following summary of the contents and main thesis of the book:

International child abduction provides a paradigmatic example of the complexity of cross-border cases involving children. The profound societal changes of recent decades (the consolidation of different family models, the preponderance of a children rights-centered approach to the detriment of a parents’ rights-centered paradigm) are prompting to rethink and to reshape the legal framework of child abduction.

The EU traditional response to international child abduction can indeed be described as a complicated and fragmented body of legal sources: judges and practitioners in the field needed (and need) to have in mind the EU rules on the matter together with those of the 1980 Hague Convention, and, punctually, also the 1996 Hague Convention. The EU legislator, aware of the complexity and practical difficulties of the Brussels II bis rules on international child abduction, has tried to improve and refine them in the recast Regulation of 2019 . The obvious first sign of improvement is the completely new Chapter III, focused on international child abduction. This shift in the structure of the Regulation is accompanied by a welcomed explanation of its relationship to the 1980 Hague Convention. Also regarding the return procedure, the Brussels II ter Regulation introduces some (albeit not far-reaching) developments for its functioning in practice.

A further group of rules in the new Regulation reflects the EU legislator’s  commitment to adapting international child abduction rules to new social realities while pushing the children’s rights to the forefront. In this regard, worth noting provisions are the ones related to the age of the child; to reinforcing the child’s right to express his or her views in return proceedings; to the new faculty granted to the courts to guarantee the contact of the child with the parent requesting return; to the promotion of the child’s “safe return”; or to fostering ADR mechanisms to solve the disputes.

In contrast to the progresses alluded to, the EU legislator has missed the opportunity to do away with the very much questioned so-called “overriding mechanism”. Following this special procedure, the last word in relation to the return of a wrongfully removed or retained child is given to the court having jurisdiction under the Regulation; its decision prevails over any non-return previous one adopted by the court of another Member State pursuant to Article 13 of the 1980 Hague Convention. In principle, this priority is reinforced by the elimination of the exequatur requirement, without any ground of refusal of the return decision.

To the extent the “overriding mechanism” has been a source of headaches for legal operators and practitioners, it was legitimate to claim it should be dropped, and regrettable that it has not. A comparison of the respective case law of the CJEU and the ECtHR adds relevance to the matter. In the event of exceptional circumstances questioning the convenience of enforcing the privileged decision (i.e., the one of the court competent according to the Regulation), the Luxembourg Court has reacted backing up the system. By contrast, the ECtHR’s case-law on international child abduction supports a more substantive approach by recalling the need to assess the best interests of the child concerned in each particular case.

The awareness of the Strasbourg case law had led to the conviction that, in order to achieve the European legal integration objective while simultaneously protecting each individual child, a model flexible and predictable at a time was of the essence. In this regard, abolishing the exequatur for all decisions on parental responsibility, but maintaining certain safeguards at the enforcement procedure so as to allow for the assessment of the best interests of the child in the individual case, would strike a delicate, but adequate, balance between the free movement of judgments and the best interests of each child.

In fact, this is precisely the subtle equilibrium reflected in the Brussels II ter Regulation. In spite of retaining the privileged regime for return decisions resulting from the “overriding mechanism”, the Regulation actually tries to temper one of its most controversial aspects identified in practice, namely the automatism of the model, which had proven too rigid. Two are the ways to this aim: first, the possibility of modification and revocation of the certificate; secondly, a new cause of suspension – and even refusal – of the enforcement, in the event of an exceptional change of circumstances linked to the best interest of the child.

The amendment of the old “overriding mechanism” has great relevance from the perspective of the debate between the elimination of exequatur, on the one hand, and the adequate protection of children’s fundamental rights and of the best interests of the child when enforcement is seized, on the other. The new Regulation gives room to the evaluation of the judge in the requested Member State. By doing so, it can be said that the EU legislator deconstructs the model of abolition of the exequatur “in absolute terms”. Still, despite its foreseeable advantages, the system is not free of doubts regarding its future application: divergent doctrinal and jurisprudence interpretations are to be expected; also, there is a risk of abuse in the practice of the already mentioned cause for suspension (or even refusal) at the enforcement stage.

In conclusion, notwithstanding the continuity of the “overriding mechanism”, and, we insist, the lost opportunity to do away with it, the new international child abduction rules strike a better balance in the allocation of competences between the Member State with competence on the substance of the matter and the Member State in which the child is wrongfully located. It equally achieves a better compromise in relation to the assumption of the principle of the best interests of the child, and the interplay between the child’s immediate return and its exceptions. We will see whether the new rules, coupled with the reinforcement of communication and cooperation between the authorities involved, lead to strengthen the climate of trust among the judiciary of the Member States, and, in the end, to a better protection of children in EU cross-border cases.

In Oxford University Innovation Ltd v Oxford Nanoimaging Ltd [2022] EWHC 3200 (Pat) Daniel Alexander KC in a lengthy judgment eventually held for the University in a dispute on the validity of the University’s contractual terms claiming intellectual property over research students’ work. The case is of interest to the blog in that it contrasts the consumer provisions in the ‘Brussels (conflict of laws) regime’ with those of substantive consumer law.

[8] The thrust of ONI’s case is that Oxford’s approach to allocation of the commercial fruits of research is unfair to DPhil students and, more particularly, unfair to Mr Jing, the young researcher, in the circumstances of the case. More specifically it is said that Oxford’s policies are unfairly weighted in favour of the University and senior academics, who may have contributed less to the detail of the work than more junior researchers or inventors.

Applicability or impact of consumer protection legislation on terms relating to intellectual property rights of students is core to the case. The Unfair Terms in Consumer Contracts Regulations 1999/2083 – UTCCR are derived from the European Directive on Unfair Terms in Consumer Contracts 93/13, the ‘Unfair Consumers Terms Directive’ UCTD, which is retained EU law and the CJEU authority on same is retained EU case law [240] . They only apply to contracts between a “consumer” and a “seller or supplier”. Was Mr Jing such a ‘consumer’?

UK courts regularly made recourse to Brussels  Convention and later Brussels Ia cases in the absence of much CJEU UCTD authority. The judge correctly holds [242] that one must be cautious with such approach pro inspiratio, as indeed I have also pointed out on this blog before, and discusses ia CJEU Benincasa, Gruber, Schrems, Milivojevic, albeit not CJEU Reliantco, and the UK cases of Standard Bank v Apostolakis, AMT Futures v Marzillier and Ang v Reliantco. In the discussion on whether the Brussels case-law has an impact on the UCTD, he refers ia to Weco Projects. [288] he points out that when later CJEU authority did interpret the term ‘consumer’ in the UCTD directly (eg Karel de Grote), it made fairly little reference to Brussels authority. [306] he decides the UCTD approach to ‘consumer’ is ‘more expansive’ and ‘not as strictly’ as under the Brussels regime and [310] rejects Oxford’s submission that it is necessarily the right approach to this case under the UCTD to adopt the framework of analysis of dual-purpose contracts of the Brussels Convention/Regulation case law. This also includes [320] a different approach to the burden of proof.

[410] the final conclusion is that a ‘DPhil student is normally entitled to be treated as a consumer under the UCTD and that it does not matter for this purpose whether the student is undertaking that educational qualification with a view to her career, profession and/or professional advancement’  and [425] that ‘Oxford has not shown that Mr Jing’s circumstances were such that it would be wrong to treat him as a consumer in entering into the DPhil Contract he did.’ However eventually [639] the terms were not judged to be ‘unfair’.

Many of the issues raised are new and one imagine permission to appeal may have been sought.

Geert.

EU private International Law, 3rd ed. 2021, 2.231 ff.

1/2 Interesting IPR, research students case
651 para judgment on terms re intellectual property which @UniofOxford, other universities may validly agree with degree students relating to the fruits of their work.
Refers ia to EU consumer protection law (unfair contract terms)

— Geert Van Calster (@GAVClaw) January 3, 2023

The French Committee of Private International Law has launched the 8th edition of the Committee’s Doctoral Dissertation Award.

Eligible PhD dissertations are those written in French and defended between 15 January 2022 and 7 January 2023.

The application procedure is explained here.

The deadline for submissions is 1 March 2023.

On Friday, January 20, 2023, the University of Strasbourg (France) will host a conference on the PIL aspects of the Digital Market Act (DMA) and the Digital Services Act (DSA), organized by Etienne Farnoux, Nicolas Gillet, Kansu Okyay and Delphine Porcheron.

The conference is structured in two parts. The first will be dedicated to general presentation of the new regulations. The second will address specific topics in private international law.

Full Programme:

14h00 : Propos Introductif
Delphine Porcheron, Maître de conférences à l’Université de Strasbourg – CDPF
et Etienne Farnoux, Professeur à l’Université de Strasbourg – DRES

1re session – Présentation générale des règlements et étude du conflit de lois
Présidence : Delphine Porcheron, Maître de conférences à l’Université de Strasbourg – CDPF

14h10 : Présentation du règlement DMA
Frédérique Berrod, Professeure à Sciences Po Strasbourg – CEIE

14h30 : Présentation du règlement DSA
Stéphanie Carre, Maître de conférences HDR à l’Université de Strasbourg – CEIPI

14h50 : Scope of the regulations and conflicts of laws
Tobias Lutzi, Professeur à l’Université de Augsburg

15h10 : Questions et échange avec la salle

15h30 : Pause

2e session – Les règlements et le contentieux
Présidence : Etienne Farnoux, Professeur à l’Université de Strasbourg – DRES

16h00 : Le contentieux devant les juridictions étatiques
Yves El Hage, Maître de conférences à l’Université Lyon 3 – CREDIP

16h20 : Les modes extrajudiciaires de règlement des litiges
Nurten Kansu Okyay, Maître de conférences contractuelle à l’Université de Strasbourg – CEIE

16h50 : Conclusions
Delphine Porcheron, Maître de conférences à l’Université de Strasbourg – CDPF
Etienne Farnoux, Professeur à l’Université de Strasbourg – DRES

17h00 : Clôture

The conference will be held both in site and online. The full program and details about the location and registration can be found here.

In a post published on this blog in 2022, I addressed the relationship between private international law (PIL) and strategic climate change litigation, focusing on claims brought or supported by children and youth applicants. In those disputes, where plaintiffs are mostly seeking to hold States accountable for the violations of international and/or constitutional law, private international law was bound to have very little, if anything, to contribute.

However, in the same blog post, I also pointed at some developments in the “underworld” of climate change litigation, hinting to the emergence of new court strategies, whereby climate activists (not necessarily children or youth) direct their claims towards big transnational corporations, following in the footsteps of Milieudefensie et al. v. Royal Dutch Shell plc.

“Private” claims of this kind are bound to speak the language of PIL, at least in cases where a foreign element is involved.

Recent developments in the field of climate change litigation confirm this trend. The Four Islanders of Pari case borrows the ordinary tools of private law (tortious liability) in order to hold a foreign transnational corporation accountable for its overall CO2 emissions. This case is particularly interesting for two reasons. First, owing to its timing and the kind of damage alleged by the applicants, this case fits in a wider context of litigation, which is presently involving (or trying to involve) several international bodies and tribunals, thus evidencing a certain complementarity of action, or at least a commonality of end-goals, between private and public international law (A). Second, from the specific standpoint of PIL, this case differs from its predecessors (notably from Luciano Lliuya v. RWE AG) for being beyond the scope of application of EU PIL, the conflict of laws issues raised therein being governed by domestic (Swiss) PIL (B).

It is probably not incorrect to read the Four Islanders of Pari case as one small piece of a bigger puzzle, consisting of a fully-fledged courtroom fight against sea level rise, ie one of the most immediate consequences of climate change. Unsurprisingly, this fight is presently carried out primarily by low-lying insular States and their inhabitants: owing to their specific conformation, these islands (mostly situated in the Pacific area) are particularly vulnerable to the short-term effects of climate-change on sea levels, which are exposing them to the risk of recurrent flooding, fresh water salinization and, eventually, (total or partial) disappearance by the year 2050, or sooner.

Against this backdrop, a group of small insular States (eventually supported by a group of like-minded States) have promoted, or is seeking to promote, initiatives before two major international tribunals. In October 2022, a group of States led by Vanuatu announced the preparation of a draft Resolution, intending to prompt the UN General Assembly to seek an advisory opinion from the ICJ “on the obligations of States in respect of climate change”.

The text of the Draft Resolution was circulated among all UN member States at the end of November 2022, with a view to putting it to a vote in early 2023. In parallel with these developments, on 12 December 2022, the Commission of Small Island States on Climate Change and International Law (representing Barbuda, Tuvalu and Palau) has submitted another request for an advisory Opinion to a different international tribunal, the ITLOS.

In both cases, the advisory Opinions seek to clarify the climate change-related legal obligations placed upon States by a rich body of public international law, including the UN Charter, the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, the UN Framework Convention on Climate Change, the Paris Agreement, the UNCLOS, and rules of general international law, such as the duty of due diligence, the rights recognized in the Universal Declaration of Human Rights, the principle of prevention of significant harm to the environment. For evident reasons, a special emphasis is placed on the protection of the marine environment, on the specific vulnerability of Small Island developing States and on the interests of future generations.

Although non-binding, such advisory Opinions may entail authoritative statements of law with legal effects (see ITLOS, Maritime Delimitation in the Indian Ocean, paras. 202-205) and carry great legal weight and moral authority, thus contributing, in their way, to the elucidation and development of international law (ICJ). They could be, in particular, a preliminary step in the quest for greater accountability of international actors vis-à-vis the protection and the restoration of a viable (marine) environment.

Besides the actions undertaken directly by States, the inhabitants of small Pacific islands have been equally active before  judicial or quasi-judicial international bodies.

Among the first initiatives undertaken under the aegis of the International Covenant on Civil and Political Rights (ICCPR), there is a communication to the UN Human Rights Committee (UNCHR) filed in 2015 by a citizen of Kiribati. Claiming that climate change had turned its place of origin in an “untenable and violent environment” , which forced him and his family to migrate, the author of the Communication contested New Zealand’s decision to deny the refugee status. While unsuccessful on the merits (the UN Committee found the denial issued by New Zealand’s authorities was not clearly arbitrary and did not amount to a manifest error or a denial of justice), this initiative is still producing systemic effects for climate asylum-seekers worldwide (see, for example, a recent judgment of the Italian Court of Cassation, quoting the View adopted by the UNHRC).

More recently, a group of Islanders of the Torres Strait filed another Communication with the UNHRC, alleging the violation, by Australia, of a number of ICCPR provisions. They put forth, in particular, Australia’s failure to adopt adequate adaptation measures to protect their lives and way of life, their homes and their culture against the threats posed by sea level rise. In September 2022, the UNCHR found a violation of Article 17 (right to private and family life) and of Article 27 (protection of minorities) of the ICCPR. It ordered the respondent State to pay adequate compensation for the harm suffered by the plaintiffs and to conceive and implement effective measures to secure the communities’ continued safe existence on their respective islands, in meaningful consultations with the communities’ members.

Most interestingly for the readers of this blog, however, public international law has not been the only weapon brandished by the inhabitants of small island States in the fight against rising sea levels.

Within the framework of this broader effort to counter the effects of climate change, small State islanders have not neglected the “private side” of court litigation, ie the disputes between private entities before national (civil) courts.

In August 2022, four residents of the island of Pari (Indonesia) introduced a request for conciliation before the Justice of the Peace of the Canton of Zug (Switzerland). This is a preliminary step mandated by the Swiss Civil Procedure Code for pursuing a civil action (Article 198 Swiss CCP).

The claim is directed towards Holcim, a corporation established in Switzerland and specialized in cement-production activities. Holcim figures among the so-called Carbon Majors, ie the hundred or so companies that account for more than 70% of global greenhouse gas emissions since the dawn of the industrial age (see also here). More specifically, the plaintiffs are trying to establish a direct correlation between Holcim’s significant pro-rata contribution to such emissions (0.42% of global industrial CO2 emissions since 1750: source) and the adverse effects suffered by the local ecosystem on Pari Island. For these purposes, these plaintiffs are supported by a wide transnational networks of NGOs, whose alliances straddle the North-South divide [HEKS/EPER (Switzerland); ECCHR (Germany); Walhì (Indonesia)].

Reporting on this case is rather difficult, as no procedural documents have been made available to the general public yet. The analysis below is based on the information provided by the website dedicated to the case, which does not, however, provide for a comprehensive summary of the complaint. As mentioned above, this case is interesting for two main reasons: the type of relief sought by the claimants and the PIL issues raised therein.

According to what we presently know about the case, four Indonesian claimants “are demanding justice on behalf of the island of Pari, which is facing imminent ruin, and are taking Holcim to court”. The income and subsistence of these plaintiffs is highly dependent on fishing and tourism, ie activities that are severely affected by the rise in sea levels, which has reached a 20 cm increase globally and which threatens the very existence of the island over the next 30 years (see here).

Holcim is asked, inter alia, to “provide proportional compensation for the climate-related damage the plaintiffs have already suffered in Pari Island”. The claim is therefore based, in all probability, on the general rule on civil liability, likely interpreted in the light of international human rights law. Claims of this kind, based on extra contractual liability or a general duty of care, are not new to climate change litigation against States (see, for example A Sud v Italy) or private corporations (Milieudefensie et al. v. Royal Dutch Shell plc or Luciano Lliuya v. RWE AG). However, according to the database of the Sabin Center for Climate Change Law, the Swiss case “is novel and unprecedented ” as it combines compensation (the Lliuya approach) and reduction of GHGs (the Milieudefensie approach).

In fact, in addition to the demand for compensation, the action brought by the four islanders of Pari seeks to compel Holcim to cut CO2 emissions by 43% by 2030, compared to 2019 figures (or to reduce their emission according to the recommendations of the climate science in order to limit global warming to 1.5°C) and to contribute towards adaptation measures on Pari Island. This reference to the 1.5° threshold (set by the Paris Agreement) is an obvious hint of that the case is partly based, or at least relies on, obligations defined by public international law. It thus evidences a certain “confluence” of public and private international law. This request for injunctive relief additionally serves to highlight the commonalities that exist between the Four Islanders of Pari case and the claims advanced by the litigation directed towards States in varied fora around the globe (see again this post).

While being the first case of this kind in Switzerland, the Four Islanders of Pari closely reminds of the German Luciano Lliuya v. RWE AG. Therein, a Peruvian farmer (supported by the NGO Germanwatch) is suing a German electricity company based on its estimated contribution to global industrial greenhouse gas emissions since the beginning of industrialization. These emissions, it is contended, have contributed to the melting of mountain glaciers near Huaraz, and to the correlated rise in the water level of a glacial lake located above his town. As a consequence, his property is currently threatened by floods.

There is, however, an important difference between the two cases. While Lliuya falls within the scope of application of the Brussels I bis and the Rome II Regulations, the Four Islanders of Pari will be entirely governed by the 1987 Swiss Act on PIL (SwAPIL). This vouches for some caution in assessing the translatability to the latter of the “lessons” thus far learned from the former.

The first lesson derivable from Lliuya is that establishing jurisdiction in this kind of cases is a relatively straightforward matter, based on the widely accepted principle of actor sequitur forum rei. Suing in the place of domicile of the defendant under Article 4 of the Brussels Ibis Regulation, as interpreted in Owusu, guarantees access to a (European) forum. The same conclusion seems to apply, prima facie, within the different framework of the SwAPIL. Its Article 2, which functionally corresponds to Article 4 of Regulation 1215/2012, does not enable the seized court to exercise any discretion in deciding whether or not to hear the case (see Goldwin p. 137, a contrario). Pragmatically, the fact that (economically disadvantaged) third state plaintiffs might be required to pay court fees or warranties in order to access the local forum should not be particularly problematic from the standpoint of the right to a court, in cases where litigation is supported by external funding through NGOs or by other means (eg crowdfunding).

The progression of Lliuya before German courts additionally shows that jurisdiction is particularly important as it indirectly determines the applicable procedural law, governing fundamental issues such as the admissibility of the action or the justiciability of the claim. Moreover, in cases like Lliuya or the Four Islanders of Pari, other procedural issues such as the burden of proof, the means and the standard of evidence will play a pivotal role in determining the chances of failure or of success of the action. This means that the choice of forum remains a cornerstone in the litigation strategy of climate change cross-border cases.

Concerning the applicable law, the SwAPIL does not provide for a specific conflict of law rule for environmental damage, along the lines of Article 7 Rome II. As well known, the latter sets out a policy-oriented rule of conflict empowering the person(s) seeking compensation for damage, who is given the choice between the law of the State where the event giving rise to the damage occurred and the law of the State in which the damage occured.

From the standpoint of PIL, the determination of the applicable law might indeed be the major point of contention in the Four Islanders of Pari case, in the light of the very different choice made in this respect by the Swiss legislator. Article 133 SwAPIL provides, at its 2nd paragraph, that where the parties to the dispute are not habitually resident in the same State, torts are governed by the law of the State where the tort was committed (l’État dans lequel l’acte illicite a été commis/das Recht des States…in dem die unerlaubte Handlung begangen worden ist/ il diritto dello Stato in cui l’atto è stato commesso). However, when “the result” occurred in another State, the law of such state applies if the tortfeasor should have foreseen that the result would have occurred there. (English translation provided by Dutoit, p. 595). Therefore, SwAPIL seems to contemplate the well-known alternative between place of the event giving rise to damage and place of the damage, similarly to EU PIL, but it does not confer any choice upon the alleged victim. Conversely, the foreseeability clause set out by the second part of Article 133 SwAPIL, 2nd paragraph, raises a new problem in terms of burden of proof, in relation to which Swiss legal scholarship is divided (Dutoit, p. 595-6).

Unfortunately, as the procedural documents of the Four Islanders of Pari case have not been made available online, it is impossible to properly assess the precise petitum and to determine whether, and to what extent, the tort alleged by the Islanders is Distanzdelikt, or even a ubiquitous tort. There are many factual elements that might be relevant in this respect, such as the place where Holcim is headquartered (as the place where the main decisions in terms of environmental sustainability and green policies are taken); the concrete places (likely scattered around the world) in which Holcim is undertaking its material production activities; and Indonesia, as the place where the specific damage alleged by the plaintiffs materialized (provided that this was foreseeable by Holcim). The possibility of triggering the escape clause under Article 15 SwAPIL must also be taken into account (ie. the application of the law of the State with which the case presents “a much closer” connection). It would be interesting to know whether, in concreto, the plaintiffs are pleading for the applicability of Swiss or a foreign law.

The Four Islanders of Pari case is still at its very initial stage and deserves to be monitored closely in the near future. Its very existence confirms, however, that private international law is becoming and will become increasingly important in strategic climate change litigation, when this is directed towards private companies such as the Carbon Majors. In a way, disputes of this kind may be seen as complementary to the initiatives undertaken under the aegis of public international law by particularly affected States. There is, in particular, a commonality of objectives, despite the obvious difference in both legal petita and remedies brought before national and international courts.

Another interesting lead to be followed in the future concerns the role played by PIL in cases brought by EU-based claimants against EU-based corporations, based on allegations of false or misleading advertisement. Cases of this kind, which are mushrooming throughout the world’s jurisdictions, may seem purely domestic at a first glance. However, the fact that plaintiff and defendant are, in most cases, domiciled/established in the same State does not exclude, as such, the possibility that the “affected market” may extend beyond national borders, especially where the defendant is a big transnational corporations operating worldwide.

An example of such cases might be the recent FossielVrij NL v. KLM, where a group of environmental organizations is suing (in the Netherlands) the national airline KLM, owing to its ‘Fly Responsibly’ advertisement campaign (which is based on allegedly false claims of “climate neutrality” or “CO2ZERO”).

The (unofficial English translation of the) application is regrettably very concise as concerns the reasoning on jurisdiction and (especially) applicable law. It merely states  that “since both [the applicant] and KLM have their registered offices in the Netherlands, the Dutch court is competent to take cognizance of this dispute. As a result, Dutch law will also apply to the claims of Fossil Free against the defendant”.

While acknowledging, in the application, the wide reach of the Fly Responsibly campaign (here, § 179 : “The campaign will be rolled out worldwide on 13 December in a number of vital, fast-growing markets, the UK, Norway, Sweden, Germany, the US, Canada, Brazil and China”), implemented through TV ads, physical ads at Schiphol Airport, online “banner” ads on KLM websites, marketing emails and targeted ads on social media platforms (here, § 183), the application does not elaborate further on the relationship between the specific claim, the Rome II Regulation and the several options opened under its Article 6.

Cases of this kind also deserve to be closely followed by the private international lawyer.

The University of Coimbra will host, on 27 and 28 January 2023, a conference in English on the Brussels II ter Regulation.

The speakers include Antonio Fialho, Cristina González Beilfuss, Dário Moura Vicente, Geraldo Rocha, João Gomes de Almeida, Maria dos Prazeres Beleza, Paula Távora Vitor, Philippe Lortie, Pietro Franzina, Rosa Lima Teixeira, and Samuel Fulli-Lemaire.

Chandra Gracias, Dulce Lopes, Helena Mota, Rui Dias and Rui Moura Ramos will serve as discussants.

For further information, including the full programme, see here.

The monthly program of the Court of Justice of the European Union regarding private international law, as of today, is as follows.

On 12 January 2023, Advocate General  Emiliou will deliver his opinion in case C-638/22 PPU, Rzecznik Praw Dziecka e.a., on the suspension of a Hague return decision. A hearing had taken place last December. The related entry in the blog offers a summary of the facts and reproduces the questions before the Court of Justice.

Two hearings are scheduled for the same day. The first one, in case C-87/22, IT, concerns child abduction. The Regional Court of Korneuburg (Austria), asks the Court the following

1. Must Article 15 of [the Brussels II bis Regulation] be interpreted as meaning that the courts of a Member State having jurisdiction as to the substance of the matter, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, may request such a court to assume jurisdiction even in the case where that other Member State has become the place of habitual residence of the child following wrongful removal?
2. If Question 1 is answered in the affirmative: Must Article 15 of [the Brussels II bis Regulation] be interpreted as meaning that the criteria for the transfer of jurisdiction that are set out in that article are regulated exhaustively, without the need to consider further criteria in the light of proceedings initiated under Article 8(f) of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction?

The children V and M were born in Slovakia; like their parents, they have Slovakian nationality. Under Slovak law, the two parents have joint custody of the two children. Both parents work in Bratislava. After the children were born, the family initially lived in Slovakia and moved to Austria in spring 2014. Since 2017, the kids have been attending school in Bratislava. They speak only a few words of German. Their mother tongue is Slovak and they communicate with their parents and grandparents in that language.

The parents separated in January 2020. Since July 2020, the children have been living with their mother in Bratislava.

At the same time as an application for return under Article 8(f) of the 1980 Hague Convention, which had been brought before the Okresný súd Bratislava I (District Court Bratislava I), the father applied to the District Court, Bruck an der Leitha (Austria), for the transfer of custody of both children to him alone. In the alternative, he asked for the granting to him of primary care of the children with joint custody being retained, as well as for the transfer of temporary custody to him alone until the custody proceedings have been concluded, claiming in essence that the mother had endangered the welfare of the children by unlawfully removing them from Austria to Slovakia. He submits that she had pulled the children out of their social integration.

The mother opposed the father’s applications for custody and raised the plea of lack of international jurisdiction on the ground that the children had been habitually resident in the Slovak Republic throughout the period in question. They attended school, had their medical appointments and engaged in their recreational activities in that country, and it was only for meals and overnight stays that the children stayed in the house in Hainburg an der Donau, where they had not been socially integrated.

By order of 4 January 2021, the District Court, Bruck an der Leitha, refused the father’s application on the ground of lack of international jurisdiction. By order of the Regional Court, Korneuburg, sitting as the court ruling on appeals on the merits, of 23 February 2021, the appeal brought by the father against the order of 4 January 2021 was upheld and the contested order was amended to the effect that the mother’s plea of lack of international jurisdiction was rejected. That decision of that court was confirmed by order of the Oberster Gerichtshof (Austrian Supreme Court) of 23 June 2021.

On 23 September 2021, the mother applied to the District Court, Bruck an der Leitha, for it to request a court in the Slovak Republic, to assume jurisdiction in accordance with Article 15(5) of Regulation 2201/2003, or, in the alternative, to fulfil the request of its own motion in accordance with Article 15(1)(b) and 15(2)(b) of that regulation, on the grounds that, in addition to the return proceedings under the 1980 Hague Convention before the District Court Bratislava I, and before the District Court Bratislava V, several sets of proceedings were pending before courts of the Slovak Republic, which had been instituted by both the father and the mother, and those courts had already taken extensive evidence and the courts of the Slovak Republic were for that reason better placed to rule on the parental responsibility for the two children. The father opposed the mother’s application.

By the order now being contested, the District Court, Bruck an der Leitha, requested the District Court Bratislava V, in accordance with Article 15(1)(b) of the Brussels II bis Regulation to assume jurisdiction in the proceedings concerning the custody of the two children and the father’s right of access to his children. The father has appealed against that order. The mother requests that the appeal be dismissed. Moreover, she requests that the matter be brought before the Court of Justice for an interpretation of Article 15 of the Regulation.

The second hearing corresponds to case C-832/21, Beverage City Polska, a request from the Oberlandesgericht Düsseldorf (Germany) on the interpretation of Article 122 of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark, in conjunction with Article 8(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the enforcement of judgments in civil and commercial matters (Brussels I bis). In the litigation on the merits,  the applicant has taken the view that there is an infringement of its EU trade marks and brought an action against four defendants before the Landgericht Düsseldorf (Regional Court, Düsseldorf), for injunctive relief throughout the European Union and – later limited to acts in Germany – for information, the disclosure of accounts and a declaration of liability for damages. The third and fourth defendants argued, inter alia, that there is a lack of international jurisdiction over the action brought against them. The court refers the following question to the Court of Justice:

Are claims ‘so closely connected’ that it is expedient to hear and determine them together to prevent irreconcilable judgments, within the meaning of Article 8(1) of the [Brussels I bis Regulation], where, in infringement proceedings for infringement of an EU trade mark, the connection consists in the fact that the defendant domiciled in a Member State (here, Poland) supplied the goods which infringe an EU trade mark to a defendant domiciled in another Member State (here, Germany) whose legal representative, against whom infringement proceedings have also been brought, is the anchor defendant, if the parties are connected to each other only through the mere supply relationship beyond which there is no legal or factual connection?

None of the cases has been assigned to the Grand Chamber, therefore the hearings will not be broadcast.

Colleagues at the University of Heidelberg are organising this conference on 20 Januari 2023 at the

Auditorium of the Neue Universität at Heidelberg University, Universitätsplatz 1, 69117 Heidelberg.

Simultaneous interpretation will be provided in German, English and French.

Background:

The European Succession Regulation (Reg. 650/12) is due for evaluation ten years after its entry into force in August 2015 (Art. 82 Reg. 650/12).

The European Commission must submit its report on the application of the European Succession Regulation by 18 August 2025.

The upcoming evaluation gives an opportunity to reflect on various questions in light of the practical experience gained so far. Although the European Succession Regulation has proven successful in practice, there are many open questions which the ever-growing body of European Court of Justice case-law has not yet answered. These questions fuel a lively debate, both internationally and within the Member States. Hence, the outcome of the evaluation process is not predictable and the German view is only one of many that will contribute to the political decision-making process. Contrasting national views must be reconciled.

The first findings of a pan-European study on the experiences and expectations of legal practice with regard to Reg. 650/12 are now available. The study (MAPE Successions) is carried out by the Council of the Notariats of the European Union (C.N.U.E.) with the cooperation of the German Federal Chamber of Notaries (Bundesnotarkammer).

This study is an opportunity to map out the future objectives of the discussion on the evaluation of Reg. 650/12 from the perspective of academia and legal practice. At the same time, the conference provides a broad circle of legal practitioners with the opportunity to feed their experiences and insights into the reform process and discuss with renowned stakeholders.

Participation is free, but registration is required by 5 January 2023: notareg@igr.uni-heidelberg.de

Programme:

1 p.m. Welcome reception with lunchtime snack

2.15 p.m. Welcoming address and introduction

Prof. Dr. Christian Baldus, Heidelberg

2.30 p.m. The European Succession Regulation in the System of European Private International and Procedural Law: More “Brussels-Rome 0” after the Revision?

Prof. Dr. Martin Gebauer, Tübingen, Judge at the Higher Regional Court of Stuttgart

3.15 p.m. Presentation of the MAPE Successions study: What do practitioners expect from the revision of the European Succession Regulation?

Notary Christian Schall, LL.M. (Edinburgh), Marktheidenfeld

4 p.m. Questions and discussion

4.15 p.m. Coffee break

4.45 p.m. The European Succession Regulation in German judicial practice

Dr. Carl-Friedrich Nordmeier, Judge at the Regional Court of Frankfurt

5.30 p.m. Panel discussion followed by questions from the audience: European experiences with the application of the European Succession Regulation

Presenter: Notary Dr. Thomas Raff, Ludwigshafen

France, Maître de conférences HDR Paul Klötgen, Nancy

Luxembourg, Notary Anja Holtz, Esch-sur-Alzette

Poland, Notary Tomasz Kot, Krakow, Vice President of the Polish Chamber of Notaries (Krajowa Rada Notarialna)

Portugal, Notary Prof. Sofia Henriques, Lisbon

Sweden, Attorney Ulf Bergquist, Stockholm

Spain, Notary Dr. Isidoro Calvo Vidal, A Coruña

7 p.m.Closing remarks

Notary Dr. Andrea Stutz, Konstanz, Vice President of the Chamber of Notaries of Baden-Württemberg

7.15 p.m. End of conference

In a judgment of 7 September 2022, the French supreme court for private and criminal matters (Cour de cassation) addressed several issues arising out of applications to declare enforceable judgments wrongfully filed under the Brussels I Regulation.

While the Brussels I bis Regulation does not provide for a declaration of enforceability of judgments anymore, the Succession and Matrimonial Property Regulations still do.

In 1997, the European Commission granted € 132,000 to an agency for local democracy in Croatia to offer training to local officials. With the grant came various reporting obligations to the Commission within 18 months. The individual who received the grant did not comply with them. The European Commission sued him in Croatian courts and obtained in April 2012 a judgement from a Croatian court ordering restitution of the monies.

As the debtor had relocated in France, the Commission sought to enforce the Croatian judgment in France under the Brussels I Regulation. It obtained a certificate from the Croatian court in 2014, and, in 2015, a declaration of enforceability of the judgment from an officer of a French court.

The debtor appealed to the court of appeal of Colmar (France), which declared the application for a declaration of enforceability inadmissible, on the ground that it fell outside of the scope of the Brussels I Regulation.

It is not always easy to navigate the rules on the scope of EU regulations, including, it seems, for the European Commission itself…

Croatia acceded to the European Union and to the Brussels I Regulation in 2013. In this case, therefore, not only had the proceedings been initiated before Croatia acceded, but the judgment had also been rendered the year before.

The transitional provisions in the Brussels I Regulation (Article 66) provide that, for the rules on recognition and enforcement of judgments to apply, the judgment should, at the very least, have been made after the entry into force of the Regulation, depending, in particular, on whether the Lugano Convention applied before the entry into force of the Regulation (Article 66(2)).

An interesting question was that of the powers of the French Court of Appeal. The first instance French authority had declared the Croatian judgment enforceable on the basis of the Brussels I Regulation. The power of the Court of Appeal was defined by Article 45(1) of the Regulation, which provides:

The court with which an appeal is lodged under Article 43 or Article 44 shall refuse or revoke a declaration of enforceability only on one of the grounds specified in Articles 34 and 35. (…)

As most readers will know, the grounds in arts 34 and 35 do not include that the judgment did not fall within the scope of the Regulation. Indeed, the Cour de cassation recalled that the CJEU ruled in Case C-139/10 (Prism Investments BV) that a declaration of enforceability could only be revoked on the grounds in Articles 34 and 35.

Interpreted literally, this would mean that a court of appeal could not review the first instance decision in so far as it would have found wrongly that the regulation applied.  As Adrian Briggs wrote in his treatise on Civil Jurisdiction and Judgments, Article 45(1) should “not be taken completely seriously”.

The Cour de cassation rules that Article 45 should be interpreted as limiting the power of the court of appeal to the verification of the existence of a ground in Articles 34 and 35 and the applicability of the regulation (the court suggests that this also flows from the case law of the CJEU).

While it seems clear that the court of appeal should have the power to review the applicability of the Regulation, it is unclear whether this should be considered as mandated by Article 45. If the Regulation does not apply, Article 45 should not either. The remedy should thus be, rather, that the action seeking a declaration of inadmissibility under the Regulation should be declared as inadmissible, for the Regulation would not apply.

After the European Commission was reminded about the date Croatia acceded to the EU, it logically decided that it would thus seek to enforce the Croatian judgment under the French common law of judgments.

The debtor, however, argued that the judgment of the Court of appeal dismissing the first action under the Brussels I Regulation was res judicata, and that the European Commission could not relitigate the case under a different regime.

Under French law, res judicata extends to all arguments which could have been raised in the first proceedings. This, in effect, means parties to French proceedings are under an obligation to raise immediately all possible arguments in support of their claim. In this case, the European Commission would only be given one chance to demonstrate its mastery of the law of foreign judgments.

The Cour de cassation, however, rules that, in the context of an appeal under Article 43 of the Regulation, the European Commission could not have made any argument under the French common law of judgments. As a result, the judgment of the court of appeal should not prevent the Commission from making these arguments in a new action.

By: Naimeh Masumy (Swiss International School) naimehmasoomy@gmail.com

Following the decision of the English Court of Appeal in Lenkor Energy Trading DMCC v Puri[ 2021] EWCA Civ 770, in which the Court of Appeal upheld the enforcement of the Dubai court’s judgment concerning a dishonored cheque, the Ministry of Justice Issued a letter, urging the Dubai courts to enforce judgments of the English courts under the principle of reciprocity.

Background: The evolving nature of enforcing a foreign judgment in the UAE

Whether a foreign judgment can be enforced in the UAE depends on the jurisdiction that the judgment was issued and the nature of the respective judgment.  Generally, the enforcement of foreign judgments in the UAE is governed by statutory regimes.  Under UAE Law, the enforcement of foreign judgments is governed by Cabinet Decision No. 57/2018 on the Regulations of Federal Law No. 11/1992 on the Civil Procedure Code (as amended).

Article 85(2) of the Cabinet Resolution sets out a few requirements for the enforcement of foreign judgments.  In particular, Article 85(2) of the Cabinet Resolution provides, amongst other things, the following conditions:

• Finality: The Article explicitly mentions that the judgments need to be final and conclusive, as well as consistency with the law of that foreign state;
• Inconsistency of judgments with domestic judgments: The second requirement is that the enforced judgment and/or order does not conflict with a judgment previously issued by the UAE Courts;
• No violation of public policy or morality: Additional common requirement stipulated under Article 85 (2) is that the foreign judgment should not involve anything that potentially violates public order or morality.

Additionally, the UAE is a party to a number of treaties facilitating the reciprocal enforcement of judgments.  The most relevant are the GCC Convention for the Execution of Judgments, Delegations and Judicial Notifications 1996 ( GCC Convention). The UAE has also entered into bilateral treaties for the reciprocal recognition and enforcement of foreign judgments, including treaties with India, China, and France.  However, in the absence of a treaty between the UAE and England for the mutual recognition of civil judgments, the Dubai Courts of Cassations demonstrated proclivities so far to decline to enforce a civil judgment from English Courts.  A cogent example is the Ruling of No. 269 of 2006, wherein the UAE Court of Cassation refused to enforce a civil judgment from English Courts.  Similarly, the English Courts were reluctant to enforce UAE Court Judgments.

However, there has been a discernable shift in the existing legal framework of the UAE, particularly in relation to the foreign judgments issued in the common law jurisdictions.  As discussed, the enforcement of foreign judgments in the UAE are only governed by the statutory regime and the bilateral agreement; thus the common law principles such as reciprocity did not historically play a vital role in the enforcement of foreign judgment.  However, the recent decision of the English High Court propelled a shift in the legal approaches adopted by the UAE domestic courts.  The decision of the Lenkor Energy Trading DMCC v Puri [ 2021] EWCA Civ 770 reinforced the UAE Ministry of Justice to issue a Directive, confirming that in the absence of a treaty for mutual recognition of judgments, the Lenkor decision has established the principle of reciprocity required for enforcement of an English Court judgment in the UAE.

Implications of the Directive

This directive can be regarded as a welcome development in the enforcement of English Court judgments in the UAE.  Further, the Directive will potentially enhance the confidence of parties that seek to resolve their disputes in an English Court where the counterparty might be located in the UAE or has some tangible asset in the UAE.  Finally, the Directive facilitates the enforcement of arbitration awards rendered by foreign jurisdictions in the UAE.

Cornwall Renewable Developments Ltd v Wright, Johnston & Mackenzie LLP [2022] EWHC 3259 (Ch) is the appeal against [2022] EWHC 441 (Ch) which I flagged here. The jurisdictional challenge concerns the allocation of jurisdiction within the UK. However by statutory instruction in the Civil Jurisdiction and Judgments Act 1982 (CJJA), account must be taken of the Brussels Regime and CJEU authority on same.

The question is essentially what the ‘place of performance of the obligation in question’ is for legal advice, in this case provided by a Scottish law firm with no place of business yet near-inevitably some dual qualified Scots-E&W lawyers, introduced by an intermediary to an England (Cornwall in fact)-based client viz a development in Cornwall. I have before flagged the difficulty of the ‘obligation in question’ part of the question in light of the unclear, if any, remaining authority of CJEU De Bloos (an issue which unfortunately will not be entertained soon by the CJEU now that the Sao Paolo Panels case has been withdrawn).

Of note (as the judge also does [75] is that the CJJA does not in relevant section have the benefit of the additional clarification in Brussels Ia’s Article 7(1)b: ) ‘for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be:…in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided;’, although in the case of legal services essentially submitted by phone and e-mail, this might have created its own discussion as the judge’s discussion here also shows.

The result is exactly the kind of rigmarole which forum contractus often leads to, with the principles listed by Smith R [45] ff. The judge confirms [63] after consideration that the first judge was not wrong (this is an appeal, not a de novo assessment) to conclude that the principal “obligation in question” was to provide advice and agreements to the Claimant for negotiation and execution by parties in England, with the intention that they would satisfy Cornwall Council’s planning rules so that planning permission would be granted, and the development could proceed; and that the place where this obligation was to be performed, despite research etc being done from Scotland, was indeed England.

The judgment is (probably too, for a jurisdictional issue) lengthy and I am sure one can find fault with some of the applications of the authorities yet all of this emphasises the urgent need for law firms to include choice of court in their standard retainer agreements.

Best wishes for 2023!

Geert.

Forum contractus ('courts for place of performance of the obligation in question') for intra-UK conflicts, inspired by Brussels regime
What is that place for legal advice?

Cornwall Renewable Developments v Wright Johnston & Mackenzie [2022] EWHC 3259 (Ch)https://t.co/etoIhjqmgg https://t.co/bIx8L143pb

— Geert Van Calster (@GAVClaw) January 3, 2023

On Tuesday, January 10, 2022, the Hamburg Max Planck Institute will host its 29th monthly virtual workshop Current Research in Private International Law at 11:00 a.m. – 12:30 p.m. (CET). Guangjian Tu (University of Macau) will speak, in English, about the topic

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.