Droit international général

The CJEU has been very generous with airline passengers when it comes to applying the rules on jurisdiction in the Brussels I bis Regulation, especially with regard to indemnity for cancelled or delayed flights.

In Rehder v Air Baltic, it had famously ruled that the passenger can actually choose between the place of departure and the place of arrival when bringing a claim against the airline. Later decisions have extended this choice to cases of combined flights, with the CJEU ruling that the passenger can bring the claim against the airline at the place of departure of the first leg or the place of arrival of the last leg, provided that both legs of the flight have been booked together (see for instance Flightright v Iberia, Air Nostrum and my previous post on EAPIL).

The claim in JW et al. v LOT also concerned a combined flight. However, the passenger had brought the claim neither at the place of departure (in Warsaw) nor at the final destination (on the Maldives) but rather at the place of an infamous stopover (Frankfurt am Main). This choice seems surprising given that both the passenger as well as the operating airline were domiciled in Warsaw. The idea might have been that the delay at the root of the action occurred at this place, but it would still have been more practical to sue in Warsaw.

As it turned out, it was also legally unwise to sue at the stopover, since the CJEU actually rejects the jurisdiction of the courts there. The Court rules that the place of performance of service contracts in the sense of Article 7(1)(b) of the Brussels I bis Regulation is where the “the main provision of services is to be carried out”. In its previous case law, the CJEU had considered only the place of departure and the final destination as such points. While the Court acknowledges that this list is a “non-exhaustive illustration” (see para 23), it balks at including the stopover in it.

Exactly why is difficult to tell. Objectively, it can hardly be denied that many of the essential flight services are performed at the stopover. Among them are the boarding of the passengers, their reception by the crew and their disembarkation as well as the transport of luggage. Nevertheless, the Court had already mentioned in Rehder that “places where the aircraft may stop over also do not have a sufficient link to the essential nature of the services resulting from that contract” (Rehder para 40).

This obiter dictum has now been turned into a binding ruling in JW et al. v LOT.

Apparently, the Court wants to restrict the possible places where suits against airlines can be brought. It also invokes, to this effect, the objectives of proximity and of the sound administration of justice and the need for predictability of the competent tribunal (JW et al. v LOT, paras 25 and 26). However, a suit at the place of the stopover is not completely unforeseeable for the airline, especially where the delay occurred there, such as in the present case. Nor would it run against the objectives of proximity and the sound administration of justice if the court there were to hear the dispute.

It remains to be seen whether this case law will also be applied to flights with the place of departure and final destination in third countries and a mere stopover in the EU. It needs to be borne in mind that these flights also fall under the purview of the Passenger Regulation as long as they are operated by an EU airline (see Article 3(1) of the Flight Compensation Regulation). In such cases, the Court may find it convenient to offer the passenger a jurisdiction at the place of the stopover and not only at the airline’s headquarters or place of statutory seat, which could be in a different Member State.

— Thanks to Verena Wodniansky-Wildenfeld for her help in preparing this post.

The UK Ministry of Justice opened this week (2 February 2022) a consultation on whether the UK should sign and ratify the Singapore Convention on Mediation 2018. The consultation closes at 23:59 on 1 April 2022. A Consultation document (with questions to the public) is available at https://www.gov.uk/government/consultations/the-singapore-convention-on-mediation

The Court of Justice delivered two days ago (3 February 2022) its judgment in Case C‑20/21 (JW, HD, XS v LOT Polish Airlines), which is about Article 7(1)(b) Brussels I bis :

« The second indent of Article 7(1)(b) of Regulation (EU) No 1215/2012 […] must be interpreted as meaning that, in respect of a flight consisting of a confirmed single booking for the entire journey and divided into two or more legs on which transport is performed by separate air carriers, where a claim for compensation, brought on the basis of Regulation (EC) No 261/2004 […] arises exclusively from a delay of the first leg of the journey caused by a late departure and is brought against the air carrier operating that first leg, the place of arrival for that first leg may not be classified as a ‘place of performance’ within the meaning of that provision ».

Source : https://curia.europa.eu/juris/document/document.jsf?docid=253283&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=1413659

The European Commission has launched a public consultation on the prospect of an EU-wide protection for vulnerable adults, i.e., persons aged 18 or more who are unable to protect their interests because of an impairment or insufficiency of their personal faculties.

In the document presenting the initiative, the Commission notes that vulnerable adults, together with their legal representatives, “currently face multiple barriers when they move abroad, buy or sell properties, or just manage their bank account in another Member State”. This is so, “because the rules governing cross-border cases (private international law rules) differ from one Member State to another”.

Actually, none of the legislative measures enacted  so far by the Union on the basis of Article 81 TFEU deals with the support that vulnerable needs may need to access to exercise their legal capacity.

The aim of the consultation is to “gather evidence on the problem and its consequences and to give all interested parties the opportunity to share their views on the possible policy options”.

The deadline for contributing to the consultation is 29 March 2022.

The Scientific Council of the European Association of Private International Law has approved a proposal for the creation of a Working Group charged with drafting a response to the consultation on behalf of the Association.

The members of the group are Pietro Franzina (co-chair), Estelle Gallant, Cristina González Beilfuss (co-chair), Katja Karjalainen, Thalia Kruger, Tamás Szabados and Jan von Hein.

The Working Group plans to hold a webinar in the coming weeks in order to publicly present a preliminary draft and collect the views of experts and stakeholders.

Further details will be made available in the Group’s dedicated page.

For information: pietro.franzina@unicatt.it.

The CJEU held yesterday in C-20/21 LOT Polish Airlines, on the place of performance (hence creation of jurisdiction in an application for flightdelay compensation) of a flight consisting of a confirmed single booking and performed in several legs by two separate air carriers. That the claim came within Article 7(1)’s gateway for contracts is a result of CJEU flightright. The Court also held in that case that both the place of departure of the first leg of the journey and the place of arrival of the last leg of the journey were forum contractus.

In the case at issue, jurisdiction is sought for the place of landing of the first leg of the journey. In CJEU Zurich Insurance, on multimodal transport, place of dispatch was added as forum contractus, with the CJEU refraining from holding explicitly whether other legs of the journey could count as such forum (Tanchev AG had opined they should not). In current case, the CJEU would seem to confirm my feeling that in Zurich Insurance it implicitly sided with a limitation of fora. Indeed it holds that the place of arrival of the first leg is not forum contractus under A7(1), however, there is a caveat: [24]:

the referring court does not indicate the elements of the contract which could justify, with a view to the efficacious conduct of proceedings, the existence of a sufficiently close link between the facts of the dispute in the main proceedings and its jurisdiction.

The CJEU’s dictum is formulated in more absolute terms:

The second indent of [A7(1) BIa] must be interpreted as meaning that, in respect of a flight consisting of a confirmed single booking for the entire journey and divided into two or more legs on which transport is performed by separate air carriers, where a claim for compensation, brought [under the flightdelay Regulation 261/2004] arises exclusively from a delay of the first leg of the journey caused by a late departure and is brought against the air carrier operating that first leg, the place of arrival for that first leg may not be classified as a ‘place of performance’ within the meaning of that provision

However given the caveat [24] it is not to be excluded that contractual terms could distinguish the finding of lack of forum contractus.

Geert.

EU Private International Law, 3rd ed. 2021, 2.399 ff.

#flightdelay Regulation, place of arrival of first flight is no 'place of performance' granting jurisdiction under A7(1) Brussels Ia #CJEU C‑20/21 LOT Polish Airlineshttps://t.co/5R4YKF3ShL

— Geert Van Calster (@GAVClaw) February 3, 2022

The Société de législation comparée is organising, in partnership with the French Conseil supérieur du Notariat, the universities of Nîmes, Strasbourg and Lyon and with the Institut des Usages (Montpellier), an international symposium dedicated to the Certificat de coutume.

The importance of the subject is major. Statement or written certificate on the content of a foreign law rule, the Certificat de coutume is subject to a heterogeneous practice both in terms of its establishment and its processing.

Ignored by many jurists, its reliability is often called into question due to a double insufficiency that it may conceal: with regard to the law attested when it is issued by a public authority, with regard to the impartiality when it is issued by a private person.

However, these criticisms are not insurmountable. In addition to the combination with other means of establishing the content of the foreign law rule in question, the Certificat de coutume does not avoid obliterate any contradictory discussion and the freedom of interpretation of the authority before which it is produced. The liabilities associated with the Certificat de coutume, whether that of the drafter, the counsel of the parties or the notary using such a certificate, constitute a formidable safeguard against tendentious approaches.

Above all, we must not ignore the virtues of empiricism, which could – in these times of debates regarding a future codification of French private international law – reveal important and good practices to be considered de lege ferenda.

The real added value of this project therefore lies in the desire to lift the veil on the Certificat de coutume, which currently constitutes a blind spot in private international law. Its name is certainly known to all, but its legal system still appears to be embryonic. The ambition of the symposium is to do constructive work and to offer concrete proposals, fruit of a collective reflection, bringing together the essential players in this field.

The symposium will be held in French on 12 April 2022 at the Amphitheater of the French Higher Council of Notaries (60 boulevard de la Tour-Maubourg – Paris, 7th).

Prior registration is required before April 7, 2022 by sending an email to: emmanuelle.bouvier@legiscompare.com

Conference validated as continuing education for lawyers.

Programme and description in French: https://www.legiscompare.fr/web/Certificat-de-coutume-Pratiques-en-droit-des-affaires-internationales-12-avril

The Programme is as follows:

CERTIFICAT DE COUTUME

Practices in international business law

Scientific direction

Gustavo Cerqueira, professor at the University of Nîmes

Nicolas Nord,  Secretary General of the International Commission on Civil Status

Cyril Nourissat, professor at Jean Moulin University – Lyon 3

Opening / 8:45 a.m.

Me David Ambrosiano, president of the Conseil supérieur du notariat        

Me Pierre-Jean Meyssan, 2nd vice-president of the CSN, in charge of legal affairs

 

Introduction / 9:00 a.m.

Certificat de coutume: historical and functional aspects

Bertrand Ancel, professor emeritus at the University of Paris II Panthéon Assas

 

I. Establishment of the certificat de coutume / 9:30 a.m.

under the chairmanship of Bernard Haftel, professor at the Sorbonne Paris Nord Univ.

9:30 a.m. The purpose of the certificate

Determination of the purpose of the certificate

Gilles Vercken, lawyer at the Paris Bar

 

Attestation of uses

Pierre Mousseron, professor at the University of Montpellier

Kevin Magnier-Merran, lecturer at the University of Lorraine

 

Articulation of the sources of foreign law

Gustavo Cerqueira, professor at the University of Nîmes

 

Coffee break

10:50 a.m. The writer of the certificate

The plurality of actors

Nicolas Nord, Secretary General of the ICCS

 

The challenges of choosing an editor

Karlo Fonseca Tinoco, lawyer at the São Paulo Bar

 

11:30 a.m. The certificate method

Developing the certificate – comparative approaches

Alejandro Garro, professor at Columbia University, NY

 

Editor’s discretion

Cyril Nourissat, professor at Lyon 3 University

 

II. The processing of the certificat de coutume / 2:00 p.m.

under the chairmanship of Laurence Usunier, professor at CY Cergy Paris Univ.

2:00 p.m. The interest of the certificate for the parties

Jacques-Alexandre Genet, lawyer at the Paris Bar

 

2:20 p.m. The value of the certificate for the authorities

Jean-Luc Vallens, honorary magistrate, former Pr. assoc. at Unistra

Louis Degos, arbitrator, managing partner KL Gates LLP – Paris

Pierre Tarrade, notary, rapp. general of the 115th congress of notaries of France

 

3:20 p.m. Certificate distortion control

Sylvaine Poillot-Peruzzetto, SE Advisor at the Court of Cassation

 

Coffee break

III. Certificat de coutume Responsibilities / 4:00 p.m.

under the chairmanship of Etienne Farnoux, professor at Unistra

4:00 p.m. The editor’s responsibility

Thibault de Ravel d’Esclapon, lecturer at Unistra

 

4:20 p.m.  The responsibility of the council of the parties

Olivier Berg, lawyer at the Paris Bar

 

4:40 p.m. The liability of the notary using a certificate

Marc Cagniart, first vice-president of the Chamber of Notaries of Paris

 

Conclusion: Perspectives de lege ferenda / 5:00 p.m.

Pascal de Vareilles-Sommières, professor at the University of Paris I

 

 

 

 

 

 

 

 

Marc Schmitz, President of the International Union of Judicial Officers (UIHJ) and Patrick Gielen, Chairman of the joint appointment commissions of the Bailiffs, have edited a book, published by Bruylant, on service of judicial and extrajudicial documents in Europe (La signification des actes judiciaires et extrajudiciaires en Europe). It aims at preparing legal professionals to the recast of the Service Regulation (announced here).

The European Union of Judicial Officers (UEHJ) gathered a panel of experts to propose a first analysis of the main changes provided by the Regulation (EU) 2020/1784 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters and which will enter into force on 1 July 2022.

It is worth mentioning that the European Commission, through its e-Justice service, offers an unpublished analysis (in French and English) of the secure and reliable decentralised computer system, known as e-CODEX, which is to be set up to facilitate the electronic exchange of data between Member States (recently mentioned here).

Covered topics include: European Case Law on Regulation (EC) No 1393/2007 of 13 November 2007; Service Regulation: Implementation, Applications and Belgian Interpretations; The new Regulation (EU) 2020/1784 presented to practitioners; The e-Codex and the European platform for the transmission of documents.

Contributors include: Marc Schmitz, Patrick Gielen, Guillaume Payan, Léonard Maistriaux, Mathieau Chardon, Nicolau Cristian, Serba, Dragos, Koit Haldi

Full table of contents here and more information here.

This post was written by Johan Meeusen, who is a professor at the University of Antwerp and a Member of the Scientific Council of EAPIL. The post was posted first on the site of GEDIP.

Introduction

The judgment of the Court of Justice of the European Union (CJEU) in the Pancharevo case (CJEU 14 December 2021, V.M.A./Stolichna obshtina, rayon ‘Pancharevo’, C-490/20) was eagerly awaited. A few years ago, in Coman (judgment of 5 June 2018, C-673/16), the Court had obliged Romania on the basis of Article 21(1) TFEU to recognise, solely for residence purposes, the same-sex marriage that its national Coman and his American partner Hamilton had contracted in Belgium. In Pancharevo, the Court was confronted with the – perhaps even more sensitive – issue of same-sex parenthood, again in the context of the mobility rights that Union citizens derive from Article 21(1) TFEU, interpreted in the light of fundamental rights on the one hand, and considerations of national identity and public policy of the Member State concerned on the other.

Facts

V.M.A. is a Bulgarian national and K.D.K. is a United Kingdom national. Both women have lived in Spain since 2015 and were married in Gibraltar in 2018. In December 2019, V.M.A. and K.D.K. had a daughter, S.D.K.A., who was born and resides with both parents in Spain. Her birth certificate, issued by the Spanish authorities, refers to V.M.A. as ‘Mother A’ and to K.D.K. as ‘Mother’ of the child. V.М.А. applied to the Sofia municipality for a birth certificate for S.D.K.A. to be issued to her, the certificate being necessary, inter alia, for the issue of a Bulgarian identity document. However, the Sofia municipality instructed V.M.A. to provide evidence of the parentage of S.D.K.A., with respect to the identity of her biological mother, as the Bulgarian model birth certificate has only one box for the ‘mother’ and another for the ‘father’, and only one name may appear in each box. After V.М.А. replied that she was not required to provide the information requested, the Sofia municipality refused the application for a birth certificate. The reasons given for that refusal decision were: the lack of information concerning the identity of the child’s biological mother and the fact that a reference to two female parents on a birth certificate was contrary to the public policy of the Republic of Bulgaria, which does not permit marriage between two persons of the same sex.

V.M.A. brought an action against that refusal decision before the Administrativen sad Sofia-grad (the Administrative Court of the City of Sofia, Bulgaria). That court states that, notwithstanding the fact that S.D.K.A. does not have a birth certificate issued by the Bulgarian authorities, she has the Bulgarian nationality under Bulgarian law. The court has doubts, however, as to whether the refusal by the Bulgarian authorities to register the birth of a Bulgarian national, which occurred in another Member State and has been attested by a birth certificate that mentions two mothers and was issued by the competent authorities of the latter Member State, infringes the rights conferred on such a national in the Treaty provisions on Union citizenship and the Charter of Fundamental Rights of the European Union (hereinafter: the Charter). The Bulgarian authorities’ refusal to issue a birth certificate is, after all, liable to make it more difficult for a Bulgarian identity document to be issued and, therefore, to hinder that child’s exercise of the right of free movement and thus full enjoyment of her rights as a Union citizen. The Bulgarian court therefore refers four questions to the Court of Justice for a preliminary ruling. These questions seek to ascertain whether EU law obliges a Member State to issue a birth certificate – in order for an identity document to be obtained according to the legislation of that State – for a child, a national of that Member State, whose birth in another Member State is attested by a birth certificate that has been drawn up by the authorities of that other Member State in accordance with the national law of that other State, and which designates, as the mothers of that child, a national of the first of those Member States and her wife, without specifying which of the two women gave birth to that child. If the answer is in the affirmative, the referring court asks whether EU law requires such a certificate to state, in the same way as the certificate drawn up by the authorities of the Member State in which the child was born, the names of those two women in their capacity as mothers.

Judgment

The Court answers the questions referred for a preliminary ruling in a fairly short judgment which, in line with and with frequent reference to its earlier Coman judgment, is characterised by a functional approach designed to ensure that the Union citizens concerned can exercise their rights of free movement without requiring Bulgaria to recognise same-sex parenthood for wider purposes, let alone to incorporate it into its legislation, or to issue a birth certificate to that effect itself.

On basis of the findings of the referring court, which it says alone has jurisdiction in that regard, the Court considers that S.D.K.A. has Bulgarian nationality and hence is a Union citizen. It confirms that a Union citizen who has made use of his or her freedom to move and reside within a Member State other than his or her Member State of origin may rely on the rights pertaining to that status, including against his or her Member State of origin. This also applies to Union citizens who were born in the host Member State of their parents and who have never made use of their right to freedom of movement. Relevant in this regard is the right to move and reside provided for in Article 21(1) TFEU and Article 4(3) of Citizens’ Rights Directive 2004/38, which requires Member States to issue to their own nationals an identity card or passport stating their nationality in order to enable them to exercise this right. The Bulgarian authorities are therefore required to issue to S.D.K.A. an identity document, regardless of whether a Bulgarian birth certificate has been drawn up for her.

Next, the Court recalls its consideration in Coman that the rights which Union citizens enjoy under Article 21(1) TFEU include the right to lead a normal family life, together with their family members, both in their host Member State and in the Member State of which they are nationals when they return to the territory of that Member State. In more concrete terms, since the Spanish authorities lawfully established that there was a parent-child relationship, biological or legal, between S.D.K.A. and her two parents, V.M.A. and K.D.K., the latter must, therefore, be recognised by all Member States as having  the right to accompany that child when her right to move and reside freely within the territory of the Member States is being exercised. Accordingly, the Bulgarian authorities are required, as are the authorities of any other Member State, to recognise that parent-child relationship for the purposes of permitting S.D.K.A. to exercise without impediment, with each of her two parents, her right to move and reside freely within the territory of the Member States as guaranteed in Article 21(1) TFEU. To that end, V.M.A. and K.D.K. must have a document which mentions them as being persons entitled to travel with that child. In this case, the authorities of the host Member State, Spain, are best placed to draw up such a document, which may consist in a birth certificate. The other Member States are obliged to recognise that document.

According to the Court, that does not detract from the competence of the Member States with regard to a person’s status. After all, it is established case law that each Member State must comply with EU law when exercising its competence. In addition, the obligation to issue an identity card or a passport to S.D.K.A. and to recognise the parent-child relationship between her and her two mothers does not undermine the national identity or pose a threat to the public policy of Bulgaria, since it does not require Bulgaria to provide, in its national law, for the parenthood of persons of the same sex, or to recognise, for purposes other than the exercise of the rights which S.D.K.A. derives from EU law, the parent-child relationship between herself and the persons mentioned on the birth certificate drawn up by the Spanish authorities.

Referring to the interpretation by the European Court of Human Rights of Article 8 of the ECHR and to the relevant provisions of the Convention on the Rights of the Child, the Court considers lastly that it would be contrary to Articles 7 and 24 of the Charter to deprive S.D.K.A. of the relationship with one of her parents when exercising her right to move and reside freely within the territory of the Member States or for her exercise of that right to be made impossible or excessively difficult in practice on the ground that her parents are of the same sex.

In the final paragraphs of the judgment, the Court examines the hypothesis that S.D.K.A. is not of Bulgarian nationality and sees in this no reason to rule otherwise. K.D.K. and S.D.K.A., irrespective of their nationality, must be regarded by all the Member States as being, respectively, the spouse and the direct descendant within the meaning of Article 2(2)(a) and (c) of Directive 2004/38 and, therefore, as being V.M.A.’s family members. They are thus ‘beneficiaries’ within the meaning of the Citizens’ Rights Directive (cf. Art.3(1)) with the derived right of free movement and residence attached to that status.

In the light of the foregoing, the Court rules that the provisions of EU law under examination must be interpreted as meaning that, in the case of a child, being a minor, who is a Union citizen and whose birth certificate, issued by the competent authorities of the host Member State (in this case, Spain), designates as that child’s parents two persons of the same sex, the Member State of which that child is a national (in this case, Bulgaria) is obliged (i) to issue to that child an identity card or a passport without requiring a birth certificate to be drawn up beforehand by its national authorities, and (ii) to recognise, as is any other Member State, the document from the host Member State that permits that child to exercise, with each of those two persons, the child’s right to move and reside freely within the territory of the Member States.

Comments

In Pancharevo, the Court guarantees the freedom of movement and the fundamental rights of Union citizens in a way that, on the one hand, accommodates their personal and family interests and, on the other hand, respects both the competence of the Member States regarding the status of the person and the societal sensitivities – in this case, Bulgarian – involved. The judgment is remarkable for several reasons.

Firstly, this case provides an excellent illustration of the conflict between the claims of mobile Union citizens, who do not want to be restricted in their cross-border activities, and the different values and legislation of the Member States. Pancharevo is the logical next step after Coman and shows once more that the status and family law of the Member States, at least as regards its choice-of-law aspects, can no longer be seen as separate from the impact of EU law.

Secondly, the Court ensures continuity with its ruling in Coman. In the latter ruling, the Court did not oblige Romania in any way to introduce same-sex marriage or to give general recognition to the same-sex marriage contracted by a Romanian or a Union citizen in another Member State. On the contrary, the Court stressed several times that it was only a question of recognition ‘solely for the purpose of granting a derived right of residence to a third-country national’ (in that case, the American spouse of the Romanian Coman). The Court continues this strictly functional approach in Pancharevo. As such, the Court explicitly states that, since EU law does not affect the competence of the Member States regarding the status of persons, ‘the Member States are thus free to decide whether or not to allow marriage and parenthood for persons of the same sex under their national law’ (paragraph 52). Furthermore, the Court’s interpretation of the obligation of Member States to recognise the civil status of persons established in another Member State systematically relates to the right to freedom of movement and, precisely for that reason, does not pose a threat to the public policy or the national identity of Bulgaria: it is merely a question of recognising the filiation of the child ‘in the context of the child’s exercise of her rights under Article 21 TFEU and secondary legislation relating thereto’ (paragraph 56). Hence, as the Court adds, that does not mean that Bulgaria is required ‘to provide, in its national law, for the parenthood of persons of the same sex, or to recognise, for purposes other than the exercise of the rights which that child derives from EU law, the parent-child relationship between that child and the persons mentioned on the birth certificate drawn up by the authorities of the host Member State as being the child’s parents’ (paragraph 57).

Thirdly, it is also noteworthy that, in paragraph 57, the Court does not refer (solely) to the right of the Union citizen to move and reside freely, but more widely to ‘the exercise of the rights which that child derives from EU law’. The Court, which used similar wording in Coman, does not elaborate on this, and the question therefore remains to what extent the aforementioned ‘functional’ approach will remain tenable in the future. Will it really be possible for Romania, in the wake of Coman, to limit the effects of the recognition of the marriage to the residence status of Coman’s American husband Hamilton? Will this couple not want to (and be allowed to?) invoke their marriage status, which is recognised for the purposes of residence, for other legal purposes in Romania as well – tax, filiation, relational aspects of property, inheritance law, etc. – on the grounds that a refusal to do so also infringes the right to freedom of movement and residence and/or the right to private and family life guaranteed by the Charter? And can the same happen in the aftermath of Pancharevo, where, moreover, the rights of the child, protected by Article 24 of the Charter, are at stake? Will the impact of EU law on the recognition of parentage effectively be limited to the provision of an identity document and the recognition of the foreign birth certificate for the purpose of exercising the right to freedom of movement? In fact, even before Pancharevo, the Commission had already planned a legislative initiative in 2022, based on Article 81(3) TFEU, aimed at the mutual recognition of parenthood between Member States in accordance with the motto stated by Commission President von der Leyen in her ‘State of the Union’ of 16 September 2020: ‘If you are parent in one country, you are parent in every country’.

Fourthly, it is noteworthy that the Court briefly discusses the situation where, if checks so should reveal, it would appear that S.D.K.A. does not have Bulgarian nationality. In this case, it relies on V.M.A.’s Bulgarian nationality and categorizes her partner K.D.K. and daughter S.D.K.A. as, respectively, spouse and direct descendant within the meaning of Article 2(2)(a) and (c) of the Citizens’ Rights Directive 2004/38. The latter are then ‘beneficiaries’ within the meaning of the Directive and enjoy derived rights of movement and residence. The Court adds to this that ‘a child, being a minor, whose status as a Union citizen is not established and whose birth certificate, issued by the competent authorities of a Member State, designates as her parents two persons of the same sex, one of whom is a Union citizen, must be considered, by all Member States, a direct descendant of that Union citizen within the meaning of Directive 2004/38 for the purposes of the exercise of the rights conferred in Article 21(1) TFEU and the secondary legislation relating thereto’ (paragraph 68). In this respect, the Court follows the line taken in Coman, which combined recognition of the competence of the Member States in relation to personal status with a (partially) autonomous interpretation of the concept of ‘spouse’ used in Article 2(2)(a) of Directive 2004/38, in the sense that it refers to a person who is a person joined to another person by the bonds of marriage regardless of their sex. Pancharevo also recognises, on the one hand, the substantive competence of the Member States, but, on the other, gives a specific Union law interpretation to the concept of ‘direct descendant’ used in the same directive: the relationship referred to in Article 2(2)(c) of the directive is not necessarily based on a biological relationship. Thus, if parentage has been validly established in an official birth certificate of a Member State, more traditional conceptions of biological kinship between parent and child in the host Member State cannot preclude the status of the latter as ‘direct descendant’. On this last point, the Court follows the path it had already set in SM (judgment of 26 March 2019, C-129/18).

Last but not least, Pancharevo will undoubtedly stimulate the debate among conflicts scholars on the precise significance of the so-called ‘recognition method’ as an alternative choice-of-law method. As was the case with Coman as well, the Court in Pancharevo interprets EU law but its judgment profoundly impacts the recognition of personal status from the perspective of conflict of laws as well. While the Court’s approach is characterized by a functional, hence cautious approach, an essential question is whether this restraint is really tenable, given the far-reaching impact of both EU free movement and fundamental rights law… The significance of Pancharevo for EU conflict of laws in particular will be further examined by GEDIP. The group currently discusses a European codification of the general part of private international law, working inter alia in that context on the recognition of situations validly established abroad. The sub-group which examines the latter issue obviously will take into account the CJEU’s judgment in Pancharevo when preparing its report for the next GEDIP meeting, scheduled to take place in Oslo in September.

Conclusion

With its purposive interpretation of Union citizenship, invariably described as ‘destined to be the fundamental status of nationals of the Member States’, the Court of Justice ensures the mobility of Union citizens. In a diverse European Union based on the protection of fundamental rights, in which the personal status of the individual still is a competence of the Member States, this implies openness to diversity. With its balanced and well-founded Pancharevo judgment, in which the functional recognition of the parentage relationship and the broad interpretation of the concept of ‘direct descendant’ stand out, the Court ensures both the effectiveness of the rights of Union citizens, including the protection of fundamental rights, and respect for the competence and national identity of the Member States. Nevertheless, it is clear that with its judgments in Coman, SM and now Pancharevo, the CJEU has embarked on a progressive path, with openness to diversity and new family forms, for the benefit of mobile Union citizens.

Introduction

The case arises from a a long-running family dispute of the parties over the distribution of assets left by their late brother in the USA.  Z. is the sister, and M. the brother of the deceased. Over the course of several years, the parties entered into a series of agreements with an eye towards efficiently dividing the assets and providing for the effective management of the properties and businesses included in the estate. All attempts to settle the dispute amicably failed. Eventually, the case was decided in favour of Z. by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The efforts of M. to vacate the award failed. As a next step, Z. sought recognition and enforcement of the US award in Greece. First and second instance courts decided in favour of Z. Upon second appeal (cassation) of M., the Supreme Court ruled that the Athens Court of Appeal failed to examine two grounds of appeal raised by M. The case was sent back to the appellate court [Supreme Court nr. 635/20.5.2021]

Stage 1: USA

The parties entered into an agreement known as the “U.S. Agreement,” which set out a process for: (1) an accounting of the affairs of the . . . [U.S. Companies] during the relevant time period leading to a report detailing [an] auditor’s findings; (2) . . . [setting] a period in which the Parties would ‘confer amicably and in good faith to agree on the amount of any distributions or payments that should be made in order to’ realize the objective of equal distribution of the assets or their proceeds and of the earnings of the assets in the relevant period; (3) [and making] a determination as a result of this process as to ‘the extent to which [either Party] has received a disproportionate share of prior income or other distributions in respect of [the U.S. Companies] and the amount of such excess benefit.

The U.S. Agreement further provided that, if the parties failed to agree on the amount of the Party Distribution by way of the auditor’s report, “the amount of the D. Distribution, the P. Distribution, the T. D. and/or the Party Distribution as applicable shall be determined by an arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules,” subject to confirmation by any court having appropriate jurisdiction.

The audit contemplated in the U.S. Agreement was never completed, and the parties were unable to come to reach an agreement on the amount of the Party Distribution. After several years of litigation in both federal and state courts, Z. instituted the subject arbitration in 2009. The arbitration panel issued its Final Award on March 20, 2014, finding in favor of Z. in the amount of approximately $10.8 million, inclusive of approximately $4.8 million of prejudgment interest.

1. filed a petition to vacate the Final Award on June 16, 2014, and on August 29, 2014, he filed the instant motion in support of that petition. The Petitioner’s Arguments for Vacatur were the following:
2. a) Failure to Determine the U.S. Company Distributions.
3. b) Manifest Disregard of the Law and Agreement – “Redefining” the Term “Received”.
4. c) Award of Prejudgment Interest as Exceeding Authority.

The Southern District Of New York decided that the Petitioner’s motion to vacate the arbitration panel’s Final Award is denied and Respondent’s cross-motion to confirm the award is granted.

Stage 2: Greece

The application to recognize and enforce the US award was granted by the Athens Court of 1st Instance [nr. 443/2018, published in: Epitheorissi Politikis Dikonomias (Civil Procedure Law Review) 2017, 643 et seq, note Kastanidis]. The appeal against the first instance court was dismissed [Athens Court of Appeal 5625/2018, unreported]. The final appeal was successful. The Supreme Court ruled that the appellate court did not examine two cassation grounds:

1. No reference is made in the judgment of the Athens CoA in regards to the lack of an arbitration agreement, as evidenced by points 1-9 of the US Agreement, which refer to an arbitral determination, not an award.
2. No reference is made in the judgment of the Athens CoA in regards to the excess of authority by the arbitrators.

As a result, the Supreme Court reversed the judgment of the Athens CoA, and ordered Z. to pay the costs of the proceedings.

Comments

An issue that was not examined by the Supreme Court was the conduct of M. during the arbitral proceedings, and the grounds invoked for vacating the AAA award. There is no evidence that M. challenged the authority of the arbitration panel to issue an award. In addition, the arguments for vacatur do not challenge the panel’s authority, save the award of Prejudgment Interest under (c), which was dismissed by the Greek instance courts as contrary to the principle of non-revision on the merits.

The question has been addresses by legal scholarship as follows:

One issue that is not dealt with in the Convention is what happens if a party to an arbitration is aware of a defect in the arbitration procedure but does not object in the course of the arbitration. The same issue arises in connection with jurisdictional objections that are raised at the enforcement stage for the first time. The general principle of good faith (also sometimes referred to as waiver or estoppel), that applies to procedural as well as to substantive matters, should prevent parties from keeping points up their sleeves [ICCA Guide to the NYC, 2011, p. 81].

The Federal Arbitrazh (Commercial) Court for the Northwestern District in the Russian Federation considered that an objection of lack of arbitral jurisdiction that had not been raised in the arbitration could not be raised for the first time in the enforcement proceedings; The Spanish Supreme Court said that it could not understand that the respondent “now rejects the arbitration agreement on grounds it could have raised in the arbitration” [ICCA Guide to the NYC, 2011, p. 82]

It is generally accepted that the party resisting enforcement of the award may, under certain circumstances, be barred from raising a defense under Article V(1)(c) in the exequatur proceedings. Preclusion may, in particular, occur if the party resisting enforcement has taken part in the arbitral proceedings without objecting to the jurisdiction or competence of the arbitral tribunal when it had the opportunity to do so [Wolff/(Borris/Hennecke), New York Convention, Second Edition, 2019, p. 340 nr. 257].

Conclusion

It is not entirely clear whether the judgment of the Athens Court of Appeal did in fact fail to take into account the grounds aforementioned. As mentioned above, the judgment has not been published in the legal press. However, the extracts reproduced in the ruling of the Supreme Court allow the reader to have some doubts. In any event, the case will be re-examined by the Court of Appeal, and most probably, will end up again before the Supreme Court…

From 7 to 13 February 2022, Università degli Studi, Milan and the European Court of Arbitration organize, in cooperation with Comitato Italiano dell’Arbitrato, the Milan-based international law firms Bonelli Erede and DLA Piper, with the support of the Centre of Research on Domestic, European and Transnational Dispute Settlement, the Milan Arbitration Week which, through various events, deals with domestic arbitration, international commercial arbitration and arbitration in the field of international investment.

All the information is available at this link: https://www.transnational-dispute-management.com/news/20220207.pdf

Brill launched a new Journal, The Italian Review of International and Comparative Law, which is managed by a group of professors from the University of Naples and the Scuola Superiore Sant’Anna in Pisa. The aim of the Journal is to publish contributions on International law, private International law, EU law and comparative law. In this regard, see the recently launched a call for papers on “The European Union and International Arbitration”.

Due to the ‘semaine blanche’, February is usually a short month at the Court of Justice. However, several PIL-related activities are worth noting this particular February. They start this Thursday with the judgment in C-20/21, LOT Polish Airlines. A chamber of three judges (Rodin, Bonichot, Spineanu-Matei) will decide on the request by the Regional Court, Frankfurt am Main, addressing jurisdiction under Article 7(1), of the Brussels I bis Regulation:

Must Article 7(1)(b) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters be interpreted as meaning that the place of performance, within the meaning of that provision, in respect of a flight consisting of a confirmed single booking for the entire journey and divided into two or more legs, can also be the place of arrival of the first leg of the journey where transport on those legs of the journey is performed by two separate air carriers and the claim for compensation brought on the basis of Regulation (EC) No 261/2004 arises from the delay of the first leg of the journey and is brought against the operating air carrier of that first leg?

An advocate general’s opinion was deemed not necessary.

A public hearing in case C-646/20, Senatsverwaltung für Inneres und Sport, will take place on Tuesday 8th. The request focuses on Regulation Brussels II bis. The main proceedings concern the question of whether a private divorce granted in Italy further to concurring statements by the spouses before the civil registrar can be recorded in the German register of marriages without any additional recognition procedure.

The Bundesgerichtshof is asking the Court of Justice two short, straight-forward questions:

1. Is the dissolution of a marriage on the basis of Article 12 of Decreto Legge (Italian Decree-Law) No 132 of 12 September 2014 (‘DL No 132/2014’) a divorce within the meaning of the Brussels IIa Regulation?
2. If Question 1 is answered in the negative: Is the dissolution of a marriage on the basis of Article 12 of DL No 132/2014 to be treated in accordance with the rule in Article 46 of the Brussels IIa Regulation on authentic instruments and agreements?

The reporting judge is M. Safjan, for the Grand Chamber (Lenaerts, Bay Larsen, Arabadjiev, Prechal, Regan, Rodin, Jarukaitis, Ilešič, Bonichot, Safjan, Kumin, Arastey Sahún, Gavalec, Csehi, Spineanu-Matei). After the hearing, Advocate General Collins will announce the date of publication of his opinion.

Two days later (10 February), the Court will hand down the judgment in the case of C-595/20, ShareWood Switzerland, on the interpretation of the Rome I Regulation. The requesting court is the Austrian Oberster Gerichtshof:

Is Article 6(4)(c) of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations to be interpreted as meaning that a contract for the purchase of teak and balsa trees between an undertaking and a consumer, which is intended to confer ownership of the trees, which are then managed, harvested and sold for profit, and which includes for that purpose a lease agreement and a service agreement, is to be regarded as ‘a contract relating to a right in rem in immovable property or a tenancy of immovable property’ within the meaning of that provision?

Once again M. Safjian is the reporting judge, sitting with judges Jääskinen and Gavalec. The preliminary ruling will be taken without opinion.

On the same day, a chamber composed by judges Prechal, Passer, Biltgen, Wahl and Rossi (reporting), will rule on C-522/20, OE. The referring court – the Oberster Gerichtshof, Austria, acting as Court of Cassation in a matter of divorce- has asked the following to the Court in Luxembourg:

1. Does the sixth indent of Article 3[(1)](a) of Council Regulation (EC) No 2201/2003 of 27 November 2003 infringe the prohibition of discrimination in Article 18 TFEU on the ground that it provides, as a precondition to the jurisdiction of the courts of the State of residence, depending on the nationality of the applicant, for a shorter period of residence than the fifth indent of Article 3[(1)](a) of Council Regulation (EC) No 2201/2003 of 27 November 2003?
2. If the answer to Question 1 is in the affirmative: Does that infringement of the prohibition of discrimination mean that, based on the fundamental rule laid down in the fifth indent of Article 3[(1)](a) of Council Regulation (EC) No 2201/2003 of 27 November 2003, a period of residence of 12 months is required for all applicants, irrespective of their nationality, in order to rely upon the jurisdiction of the courts in the place of residence or is it to be assumed that a period of 6 months’ residence is the precondition for all applicants?

Among other, the applicant submits that under fifth and sixth indents of Article 3[(1)](a) of Regulation No 2201/2003 (Brussels II bis), jurisdiction for divorce proceedings is established for nationals of the forum State after just 6 months’ residence in that State, whereas nationals of other Member States must have been resident for at least 1 year; that this is unequal treatment solely on grounds of nationality and therefore infringes Article 18 TFEU.

No advocate general’s opinion has been asked for.

Finally, on 24 February Advocate General Szpunar will deliver his opinion in the case of C-501/20, M P A, giving us his views on habitual residence, forum necessitatiss and denial of justice in family matters. The request to the Court comes from the Audiencia Provincial of Barcelona; it relates to divorce proceedings of spouses who happen to be employees of the European Commission in its delegation in Togo. At stake are as well the dissolution of the matrimonial property regime, the determination of the regime and procedures for exercising custody and parental responsibility over the minor children, the grant of a maintenance allowance for the children and rules for the use of the family home in Togo. The interpretation requested affect the Brussels II bis Regulation, Regulation No 4/2009, and Article 47 of the Charter of Fundamental Rights of the European Union.

The questions are:

1. How is the term ‘habitual residence’ in Article 3 of Regulation No 2201/2003 and Article 3 of Regulation No 4/2009 to be interpreted in the case of the nationals of a Member State who are staying in a non-Member State by reason of the duties conferred on them as members of the contract staff of the European Union and who, in the non-Member State, are recognised as members of the diplomatic staff of the European Union, when their stay in that State is linked to the performance of their duties for the European Union?
2. If, for the purposes of Article 3 of Regulation No 2201/2003 and Article 3 of Regulation No 4/2009, the determination of the habitual residence of the spouses depended on their status as EU contract staff in a non-Member State, how would this affect the determination of the habitual residence of the minor children in accordance with Article 8 of Regulation No 2201/2003?
3. In the event that the children are not regarded as habitually resident in the non-Member State, can the connecting factor of the mother’s nationality, her residence in Spain prior to the marriage, the Spanish nationality of the minor children and their birth in Spain be taken into account for the purposes of determining habitual residence in accordance with Article 8 of Regulation No 2201/2003?
4. If it is established that the parents and children are not habitually resident in a Member State, given that, under Regulation No 2201/2003 there is no other Member State with jurisdiction to decide on the applications, does the fact that the defendant is a national of a Member State preclude the application of the residual clause contained in Articles 7 and 14 of Regulation No 2201/2003?
5. If it is established that the parents and children are not habitually resident in a Member State for the purpose of determining child maintenance, how is the forum necessitatis in Article 7 of Regulation No 4/2009 to be interpreted and, in particular, what are the requirements for considering that proceedings cannot reasonably be brought or enforced or prove impossible in a non-Member State with which the dispute is closely connected (in this case, Togo)? Must the party have initiated or attempted to initiate proceedings in that State with a negative result and does the nationality of one of the parties to the dispute constitute a sufficient connection with the Member State?
6. In a case like this, where the spouses have strong links with Member States (nationality, former residence), is it contrary to Article 47 of the Charter of Fundamental Rights if no Member State is considered to have jurisdiction under the provisions of the Regulations?

The case has been entrusted to Judges Prechal, Passer, Biltgen, Wahl, and Rossi (reporting).

The 35th Annual Survey of Choice of Law in the American Courts (2021) has been posted to SSRN. The authors of this year’s survey owe an enormous debt to Symeon Symeonides who has, over the past three decades, provided an extraordinary service by authoring the previous thirty annual surveys. Having now finished our first survey, we are all the more impressed with his work. Thank you Symeon — and thank you all for reading.

John Coyle (University of North Carolina School of Law)
William Dodge (University of California, Davis School of Law)
Aaron Simowitz (Willamette University College of Law)

The appeal in The Public Institution for Social Security v Banque Pictet & Cie SA & Ors [2022] EWCA Civ 29 has been dismissed. I reviewed the first instance judgment here. I conclude that review writing ‘Those criticising the intensity of jurisdiction squabbles will find ammunition in this 497 para judgment.’ The Court of Appeal judgment is another 152 paras and as Andrew Dickinson also notes, Carr LJ, too, is critical: [12]

There will of course be cases where a novel and/or complex point of law needs to be debated fully and decided and, as foreshadowed above, this litigation raises some new, albeit relatively short, legal issues. Further, the sums involved are substantial and the allegations made are serious. However, these features did not create a licence to turn a jurisdictional dispute into an extensive and essentially self-standing piece of litigation. The costs incurred below ran to many, many millions of pounds: the interim payment orders in respect of the Respondents’ costs amounted to £6.88 million against a claimed total of some £13.5 million.

The issues on appeal are listed [41] ff and they of course reflect the discussion I summarised in my post on the first instance findings. I list them below and summarise the Court’s findings.

Article 23 formal requirements (involving Banque Pictet and Mr Bertherat only):

i) For the purposes of the requirement in Article 23(1)(a) that a jurisdiction agreement must be in or evidenced in writing, was the Judge right to conclude that it was unnecessary for the GBCs containing the EJCs (‘exclusive jurisdiction clauses, GAVC) actually to have been communicated to PIFSS?

ii) If so, was the Judge right to find that Banque Pictet did not have the better of the argument that the GBCs were communicated to PIFSS prior to 2012?

Lady Justice Carr is right in my view e.g. [67] that CJEU authority does not require material communication of GTCs etc which contain EJCs. Rather, the judge needs to establish ‘real consent’,  in the spirit of the Raport Jenard with a rejection of excessive formality.

Article 23 material validity (involving all Pictet and Mirabaud Respondents (save for Pictet Asia, Pictet Bahamas and, for the avoidance of doubt, also Mr Amouzegar and Mr Argand)):

i) Was the Judge right to conclude that the “particular legal relationship(s)” in connection with which the EJCs were entered into for the purpose of Article 23 was the totality of the legal relationships between the parties forming part of the banker/customer relationship between them?

ii) Was the Judge right to conclude that the relevant Respondents had the better of the argument that the disputes relating to (a) the Pictet/Mirabaud bribery claims; (b) the Pictet/Mirabaud accessory claims “ar[o]se out of” those “particular legal relationship(s)”?

The term ‘material validity’ is employed both in first instance and at the Court of Appeal although it is not quite correct; what is really meant is what Henshaw J called the ‘proximity’ requirement: which ‘disputes’ ‘relate to’ the matters covered by the EJCs? Here, Carr LJ sides eventually [98] with the judge mostly as a matter of factual analysis: neither CJEU Apple nor CDC require a restrictive approach where parties have formulated the EJC very widely. The judge carefully considered the wording of the clause and on contractual construction was right to find that the disputes at issue fell within it.

Scope of EJCs (as a matter of the relevant domestic law) (involving all Pictet and Mirabaud Respondents (save for Pictet Asia and Pictet Bahamas and again, for the avoidance of doubt, Mr Amouzegar and Mr Argand)):

i) Was the Judge right to find that PIFSS had the better of the argument that, on the true construction of the relevant EJCs, the disputes relating to the wider accessory claims fell outside the scope of the applicable EJCs?

ii) (Mr Mirabaud only): Was the Judge right to conclude that PIFSS had the better of the argument that claims against Mr Mirabaud relating to events after 1 January 2010 fell outside the scope of the relevant EJCs?

This issue relates to whether the EJCs, as a matter of construction under Swiss (or Luxembourg) law – which the judge had discussed obiter, did not extend to cover the wider accessory claims. [101]: in summary the relevant parties suggest that, having correctly recognised that what was alleged by PIFSS were unitary schemes arising out of continuing courses of conduct, the Judge was then wrong to conclude that they did not have the better of the argument that the wider accessory claims also fell within the EJCs.

Carr LJ deals rather swiftly with these discussions, again I feel finding mostly that the judge’s analysis was mostly factual (albeit seen from the viewpoint of Swiss and /or Luxembourg law) and not incorrect.

Article 6: (the number of Respondents to whom the Article 6 challenge is relevant will depend on the outcome of the appeals on the issues above, but on any view the issue of principle arises in relation to Mr Amouzegar and Mr Argand):

i) Was the Judge right to conclude that, for the purpose of Article 6, the Court was not required to consider solely the risk of irreconcilable judgments between the claim against the anchor defendant and the claim(s) against the proposed Article 6 defendant(s) but rather was permitted to consider other relevant circumstances including, in particular, the risk of irreconcilable judgments between the claims sought to be made against the proposed defendant and other claims in other member states?

ii) Did the Judge apply the test correctly in relation to each relevant Respondent?

This I find is the most important part of the judgment for it is in my view the one which most intensely deals with a point of law. Readers may want to refer to my earlier post for a summary of the A6 (Lugano) issues. The judge had found against A6 jurisdiction, also following Privatbank‘s ‘desirability’ approach. Parties upon appeal argue [110] that the Judge’s interpretation results in exclusive jurisdiction clauses having practical effects well beyond the scope of their application, with the collateral effect of conferring on them a “gravitational pull” which is inconsistent with the proper interpretation of A23 Lugano. PIFSS submits that it undermines the drive for legal certainty that motivates the strict approach to A6 identified in the authorities. They also suggested (in oral submission) that for A6 purposes only actual, and not merely potential, proceedings are properly to be taken into account. 

The CA however [112] confirms the relevance of future as well as extant claims and generally supports the flexible approach to A6. Carr J concedes [131] that this approach can be said to give “gravitational pull” to A23 and suggests ‘(t)here is nothing objectionable about that, given the respect to be accorded to party autonomy.’

I do not think this is correct. Including broadly construed ‘related’ claims in choice of court would seem to deny, rather than protect party autonomy: for if parties had really wanted to see them litigated in the choice of court venue, they ought to have contractually include them.

The issue of desirability per Privatbank is not discussed and therefore remains open (compare EuroEco Fuels).

Forum non conveniens: Pictet Asia and Pictet Bahamas:

i) Depending on the outcome of the issues above, was the Judge right to conclude that PIFSS had not shown that England was clearly the appropriate forum for the resolution of the claims against Pictet Asia and Pictet Bahamas?

Here the swift conclusion [143] is that the judge’s finding that PIFSS had not shown that England was clearly the proper forum is unimpeachable.

A lot is riding on this jurisdictional disagreement.  Permission to appeal to the Supreme Court was refused by the CA but may still be sought with the SC itself.

Geert.

EU Private International Law, 3rd ed. 2021, big chunks of Chapter 2.

 

Choice of court and anchor defendants, Lugano Convention, Brussels Ia.
Appeal dismissed. For the 1st instance judgment see https://t.co/7d1LGpleY4
Public Institution for Social Security v Banque Pictet & Ors [2022] EWCA Civ 29 (26 January 2022)https://t.co/WvbXbk1o59

— Geert Van Calster (@GAVClaw) January 26, 2022

The new issue of International & Comparative Law Quarterly (Volume 71, Issue 1) is out. Some of articles concern directly or indirectly questions of private international law. Their abstracts are provided below.

The whole issue is available here. Some of articles are published in open access.

F. Rielaender, Aligning the Brussels Regime with the Representative Actions Directive

European private international law has long been recognised as improperly set up to deal with cross-border collective redress. In light of this shortcoming, it seems unfortunate that the private international law implications of the Representative Actions Directive (Directive (EU) No 2020/1828) have not yet been addressed coherently by the European legislator. This article examines to what extent the policy of promoting collective redress can be supported, even if only partially, through a reinterpretation of the jurisdictional rules of the Brussels Ia Regulation. Furthermore, it discusses which legislative measures need to be adopted to better accommodate collective redress mechanisms within the Brussels regime.

M. Risvas, International Law as the Basis for Extending Arbitration Agreements Concluded by States or State Entities to Non-Signatories

This article explores the role of international law in relation to the extension of arbitration agreements contained in contracts concluded by States (or State entities) with non-signatory State entities (or States). As contract-based arbitrations involving States or State entities are on the rise, identifying the legal framework governing which parties are covered by the relevant arbitration agreements is of practical importance. The analysis demonstrates that international law forms part of the relevant law, alongside other applicable laws including law of contract, law of the seat and transnational law, concerning the extension of arbitration agreements concluded by States or State entities to non-signatories. Previous analyses have neglected the role of international law by not distinguishing contract-based arbitrations involving private parties from contract-based arbitrations involving States or State entities. Public international law recognises that arbitration agreements can be extended to non-signatories on the basis of implied consent, or abuse of separate legal personality and estoppel. Therefore, foreign investors can rely on international law to extend arbitration agreements to non-signatories in arbitrations conducted under investment contracts concluded by States or State entities, even if the relevant domestic law is agnostic or hostile to this. This has significant legal, and practical, importance.

T. Hartley, Basic Principles of Jurisdiction in Private International Law: The European Union, the United States and England

This article consists of a comparative study of the basic principles underlying the rules of jurisdiction in private international law in commercial cases in the law of the European Union, the United States and England. It considers the objectives which these rules seek to achieve (protection of the rights of the parties and respect for the interests of foreign States) and the extent to which these objectives are attained. It takes tort claims, especially in the field of products-liability, as an example and considers which system has the most exorbitant rules. It suggests explanations for the differences found.

Giovanni Zarra (University of Naples) authored a book titled Imperativeness in Private International Law – A View from Europe, with Springer/T.M.C. Asser Press.

This book centres on the ways in which the concept of imperativeness has found expression in private international law (PIL) and discusses “imperative norms”, and “imperativeness” as their intrinsic quality, examining the rules or principles that protect fundamental interests and/or the values of a state so as to require their application at any cost and without exceptions.

Discussing imperative norms in PIL means referring to international public policy and overriding mandatory rules: in this book the origins, content, scope and effects of both these forms of imperativeness are analyzed in depth. This is a subject deserving further study, considering that very divergent opinions are still emerging within academia and case law regarding the differences between international public policy and overriding mandatory rules as well as with regard to their way of functioning.

By using an approach mainly based on an analysis of the case law of the CJEU and of the courts of the various European countries, the book delves into the origin of imperativeness since Roman law, explains how imperative norms have evolved in the different conceptions of private international law, and clarifies the foundation of the differences between international public policy and overriding mandatory rules and how these concepts are used in EU Regulations on PIL (and in the practice related to these sources of law).

Finally, the work discusses the influence of EU and public international law sources on the concept of imperativeness within the legal systems of European countries and whether a minimum content of imperativeness – mainly aimed at ensuring the protection of fundamental human rights in transnational relationships – between these countries has emerged.

The book will prove an essential tool for academics with an interest in the analysis of these general concepts and practitioners having to deal with the functioning of imperative norms in litigation cases and in the drafting of international contracts.

The table of contents can be accessed here.

Annexes A and B to the insolvency Regulation list, respectively, the national insolvency proceedings and national insolvency practitioners (as notified by Member States) to which that Regulation applies. They have been replaced by Regulation (EU) 2021/2260 of 15 December 2021.

The new Annexes are operative as of 9 January 2022

The reasons for the amendment are explained given in Recital 2 of the Regulation:

In October 2020, the Netherlands notified the Commission of recent changes in its national insolvency law which introduced a new preventive insolvency scheme, as well as new types of insolvency practitioners. That notification was followed in December 2020 by notifications from Italy, Lithuania, Cyprus and Poland relating to recent changes in their national law which introduced new types of insolvency proceedings or insolvency practitioners. Following the submission by the Commission of its proposal for an amending Regulation, further notifications were received from Germany, Hungary and Austria relating to recent changes in their national law which introduced new types of insolvency proceedings or insolvency practitioners. Subsequently, Italy clarified the date of entry into force of its new provisions on insolvency and restructuring which it had notified to the Commission in December 2020, and notified an amendment to a previous notification. Those new types of insolvency proceedings and insolvency practitioners comply with.

Neither Ireland nor Denmark are taking part in the adoption of the Regulation. Accordingly, they are not bound by it or subject to its application.

The second issue of 2021 of Giustizia Consensuale (published by Editoriale Scientifica) has just been released and it features:

Silvia Barona Vilar (Professor at the University of València) Sfide e pericoli delle ADR nella società digitale e algoritmica del secolo XXI (Challenges and Pitfalls of ADR in the Digital and Algorithmic Society of the XXI Century; in Italian)

In the XX century, dispute resolution was characterized by the leading role played by State courts: however, this situation has begun to change. With modernity and globalization has come the search of ways to ensure the ‘deconflictualisation’ of social and economic relations and solve conflicts arising out of them. In this context, ADR – and now ODR – have had a decisive impulse in the last decades and are now enshrined in the digital society of the XXI century. ADR mechanisms are, in fact, approached as means to ensure access to justice, favouring at the same time social peace and citizens’ satisfaction. Nevertheless, some uncertainties remain and may affect ADR’s impulse and future consolidation: among such uncertainties are the to-date scarce negotiation culture for conflict resolution, the need for training in negotiation tools, the need for State involvement in these new scenarios, as well as the attentive look at artificial intelligence, both in its ‘soft’ version (welfare) and its ‘hard’ version (replacement of human beings with machine intelligence).

Amy J. Schmitz (Professor at the Ohio State University), Lola Akin Ojelabi (Associate Professor at La Trobe University, Melbourne) and John Zeleznikow (Professor at La Trobe University, Melbourne), Researching Online Dispute Resolution to Expand Access to Justice

In this paper, the authors argue that Online Dispute Resolution (ODR) may expand Access to Justice (A2J) if properly designed, implemented, and continually improved. The article sets the stage for this argument by providing background on ODR research, as well as theory, to date. However, the authors note how the empirical research has been lacking and argue for more robust and expansion of studies. Moreover, they propose that research must include consideration of culture, as well as measures to address the needs of self-represented litigants and the most vulnerable. It is one thing to argue that ODR should be accessible, appropriate, equitable, efficient, and effective. However, ongoing research is necessary to ensure that these ideals remain core to ODR design and implementation.

Marco Gradi (Associate Professor at the University of Messina), Teoria dell’accertamento consensuale: storia di un’incomprensione (The Doctrine of ‘Negotiation of Ascertainment’: Story of a Misunderstanding; in Italian)

This article examines the Italian doctrine of ‘negotiation of ascertainment’ (negozio di accertamento), by means of which the parties put an end to a legal dispute by determining the content of their relationship by mutual consent. Notably, by characterizing legal ascertainment as a binding judgment vis-à-vis the parties’ pre-existing legal relationship, the author contributes to overcoming the misunderstandings that have always denoted the debate in legal scholarship, thus laying down the foundations towards a complete theory on consensual ascertainment.

Cristina M. Mariottini (Senior Research Fellow at the Max Planck Institute Luxembourg for Procedural Law), The Singapore Convention on International Mediated Settlement Agreements: A New Status for Party Autonomy in the Non-Adjudicative Process

The United Nations Convention on International Settlement Agreements Resulting from Mediation (the ‘Singapore Convention’), adopted in 2018 and entered into force in 2020, is designed to facilitate cross-border trade and commerce, in particular by enabling disputing parties to enforce and invoke settlement agreements in the cross-border setting without going through the cumbersome and potentially uncertain conversion of the settlement into a court judgment or an arbitral award. Against this background, the Convention frames a new status for mediated settlements: namely, on the one hand it converts agreements that would otherwise amount to a private contractual act into an instrument eligible for cross-border circulation in Contracting States and, on the other hand, it sets up an international, legally binding and partly harmonized system for such circulation. After providing an overview of the defining features of this new international treaty, this article contextualizes the Singapore Convention in the realm of international consent-based dispute resolution mechanisms.

 

Observatory on Legislation and Regulations

Ivan Cardillo (Senior Lecturer at the Zhongnan University of Economics and Law in Wuhan), Recenti sviluppi della mediazione in Cina (Recent developments in mediation in China; in Italian)

This article examines the most recent developments on mediation in China. The analysis revolves around, in particular, two prominent documents: namely, the ‘14th Five-Year Plan for National Economic and Social Development and Long-Range Objectives for 2035’ and the ‘Guiding Opinions of the Supreme People’s Court on Accelerating Steps to Motivate the Mediation Platforms of the People’s Courts to Enter Villages, Residential Communities and Community Grids.’ In particular, the so-called ‘Fengqiao experience’ ? which developed as of the 1960s in the Fengqiao community and has become a model of proximity justice ? remains the benchmark practice for the development of a model based on the three principles of self-government, government by law, and government by virtue. In this framework, mediation is increasingly identified as the main echanism for dispute resolution and social management: in this respect, the increasing use of technology proves to be crucial for the development of mediation platforms and the efficiency of the entire judicial system. Against this background, the complex relationship becomes apparent between popular and judicial mediation, their coordination and their importance for governance and social stability: arguably, such a relationship will carry with it in the future the need to balance the swift dispute resolution with the protection of fundamental rights.

Angela D’Errico (Fellow at the University of Macerata), Le Alternative Dispute Resolution nelle controversie pubblicistiche: verso una minore indisponibilità degli interessi legittimi? (Alternative Dispute Resolution in Public Sector Disputes: Towards an Abridged Non-Availability of Legitimate Interests?; in Italian)

This work analyzes the theme of ADR in publicity disputes and, in particular, it’s understood to deepen the concepts of the availability of administrative power and legitimate interests that hinder the current applicability of ADRs in public matters. After having taken into consideration the different types of ADR in the Italian legal system with related peculiarities and criticalities, it’s understood, in the final part of the work, to propose a new opening to the recognition of these alternative instruments to litigation for a better optimization of justice.

 

Observatory on Jurisprudence

Domenico Dalfino (Professor at the University ‘Aldo Moro’ in Bari), Mediazione e opposizione a decreto ingiuntivo, tra vizi di fondo e ipocrisia del legislatore (Mediation and Opposition to an Injunction: Between Underlying Flaws and Hypocrisy of the Legislator; in Italian)

In 2020, the plenary session of the Italian Court of Cassation, deciding a question of particular significance, ruled that the burden of initiating the mandatory mediation procedure in proceedings opposing an injunction lies with the creditor. This principle sheds the light on further pending questions surrounding mandatory mediation.

 

Observatory on Practices

Andrea Marighetto (Visiting Lecturer at the Federal University of Rio Grande do Sul) and Luca Dal Pubel (Lecturer at the San Diego State University), Consumer Protection and Online Dispute Resolution in Brazil

With the advent of the 4th Industrial Revolution (4IR), Information and Communication Technology (ICT) including the internet, computers, digital technology, and electronic services have become absolute protagonists of our lives, without which even the exercise of basic rights can be harmed. The Covid-19 pandemic has increased and further emphasized the demand to boost the use of ICT to ensure access to basic services including access to justice. Specifically, at a time when consumer relations represent the majority of mass legal relations, the demand for a system of speedy access to justice has become necessary. Since the early ’90s, Brazil has been at the forefront of consumer protection. In the last decade, it has taken additional steps to enhance consumer protection by adopting Consumidor.gov, a public Online Dispute Resolution (ODR) platform for consumer disputes. This article looks at consumer protection in Brazil in the context of the 4IR and examines the role that ODR and specifically the Consumidor.gov platform play in improving consumer protection and providing consumers with an additional instrument to access justice.

In addition to the foregoing, this issue features the following book review by Maria Rosaria Ferrarese (Professor at the University of Cagliari): Antoine Garapon and Jean Lassègue, Giustizia digitale. Determinismo tecnologico e libertà (Italian version, edited by M.R. Ferrarese), Bologna, Il Mulino, 2021, 1-264.

The new issue of the Revue Critique de Droit International Privé (4/2021) is out. It contains four articles and numerous case notes.

The editorial by Horatia Muir Watt (Sciences Po), Dominique Bureau (University of Paris II) and Sabine Corneloup (University of Paris II) will soon be available in English on Dalloz website (Autour de l’enfant. Interpréter les signes : retour au calme ou déraison du monde ?).

In the first article, Etienne Pataut (University of Paris 1, Sorbonne Law School) discusses the (changing) role of effectiveness in nationality matter (Contrôle de l’État ou protection de l’individu ? Remarques sur l’effectivité de la nationalité).

Effectiveness of nationality seems to be changing. Its traditional role, in the matter of conflicts of nationalities and the international opposability of nationality, seems indeed contested and effectiveness does not seem in a position to oppose the more attentive consideration of the subjective rights of individuals. Conversely, this concern could reinforce the consideration of effectiveness when it makes it possible to demonstrate the existence of a link between the individual and the State which could lead to a challenge to a measure of deprivation of nationality. This development could bear witness to a profound change in the nationality itself.

In the second article, Sabine Corneloup (University of Paris II) analyses the parallel application of the 1980 Hague Child Abduction Convention and the 1951 Geneva Refugee Convention in the context of a recent decision of the UK Supreme Court (Demande de retour d’un enfant enlevé et principe de non-refoulement des réfugiés : lorsque la Convention de La Haye de 1980 rencontre la Convention de Genève de 1951).

Over the past years, there has been an increase in the number of applications for a return of abducted children within families applying for asylum. The parallel application of the 1980 Hague Child Abduction Convention and the 1951 Geneva Refugee Convention may prove to be problematic. Whereas the objective of the former is to ensure the child’s prompt return, the latter establishes the fundamental principle of non-refoulement to the State from which the refugee fled. In France, no case law has emerged so far, making the decision rendered by the UK Supreme Court on 19 March 2021 in G v. G even more interesting, not only as a source of inspiration, but also for the parts raising strong concern. In summary, the Supreme Court ruled that a child named as a dependant on her parent’s asylum request has protection from refoulement pending the determination of that application so that until then a return order in the 1980 Hague Convention proceedings cannot be implemented. In the relationships between two EU Member States, the conflict of the rationales underpinning the regulations Brussels II and Dublin III appears less acute as, in principle, the asylum applicant has no fear of persecution in any of these countries, but difficulties of articulation exist nevertheless, as the recent decision of the Court of Justice of 2 August 2021 in A v. B demonstrates.

In the third article, Rachel Pougnet (Bristol & Manchester Universities) examines a recent decision of the UK Supreme Court in the field of deprivation of nationality (La déchéance de nationalité devant la Cour suprême du Royaume-Uni : déférence judiciaire et sécurité nationale).

For the third time in ten years, the UK Supreme Court has been confronted with a deprivation of nationality order issued by the UK government. In this “Begum” decision of February 2021, the Supreme Court decided that Shamima Begum should not be allowed back into the country to conduct her appeal against the deprivation of her citizenship. The Court enshrined wide deference to the executive on national security grounds. Indeed, the court granted a wide margin of appreciation to the government when exercising its discretion to implement a deprivation order, due to the proximity of the measure with national security interests. In “Begum”, the Supreme Court also put the right to a fair trial on balance with security arguments.

In the fourth article, Christelle Chalas (University of Lille) analyses several rulings of the French Cour de Cassation in the specific context of international child abductions within Franco-Japanese families (La convention de La Haye du 25 octobre 1980 à l’épreuve de l’enlèvement international d’enfants franco-japonais).

This post was contributed by François Mailhé, who is Professor at the University of Picardy – Jules Verne.

On 17 November 2021, the French Cour de cassation rendered a decision making a reference for a preliminary ruling to the European Court of Justice on the regime of res judicata under the Brussels Ibis Regulation. Readers of the blog will recall that the Cour de cassation had already made a reference on the same issue a few months ago (see the report of this decision of 8 September 2021 of Fabienne Jault Seseke here). The purpose of this post is to share some views on the various methods the Court may follow in its answer, as illustrated by but not limited to this November reference (and possibly for a joined cases decision), and what is at stake behind them.

Background

The case is simple. A decade ago already, a Luxembourger company, Recamier, sued for tort a former member of the board, Mr “Z”, based on an alleged misappropriation of assets. The claim was eventually rejected on appeal, in January 2012. Whatever the reality of the facts, Luxembourg law knows the principle of non additionality and this claim could only be based on contractual liability, not on tort.

One month later, Recamier followed up with the suit by seizing a French court, where Mr Z was domiciled. It was based, in line with that Luxembourger decision, on a contract claim. Still, before that court and in a long series of five decisions afterwards (the Cour de cassation was first seized after the first appeal decision for a problem of motivation), the dispute focused on the preclusive effect, the res judicata of that Luxembourger decision. For the defendant, claimant was barred to act in France for the same claim, even changing the legal basis. This is what this 17 November 2021 Cour de cassation decision was concerned with.

How come res judicata could be opposed to the contractual claim, when only an action in tort was decided in Luxembourg? This has to do with the Cesareo decision of the Cour de cassation (Plenary Assembly) of 7 July 2006. Under French law, the res judicata effect is indeed conditioned to the identity of the claims, an identity verified in the three classical elements : parties, cause and subject-matter, with the “cause” being understood as the arguments raised by the claimant in support of his claim. But, where before 2006 these arguments were both arguments of facts and law, the Cesareo decision restricted them to factual arguments only. In other words, a claimant may not bring a new suit on the same facts for the same purpose even if he changes the legal basis for it. Recamier was therefore, under this case-law, barred from claiming liability from Mr Z on the basis of contract law if it had already tried it before, even if only in tort.

The problem now unfolds : why applying French law, the law of the State where recognition is sought, to the effect of a Luxembourger decision? Should not one apply Luxembourg law, the law of the State of origin? Or, as its effect is here based on Article 33 Brussels I (Article 36 Brussels I bis), a European notion of res judicata? This is what the Cour de cassation wondered, and what it forwarded to the ECJ.

But the preliminary question could not be avoided : the precedents on the issue are not conclusive, and the issue actually begs for more than one, or rather more than one layer of questions, because before choosing the solution, the ECJ will have first to choose the method for finding it: conflict rule, autonomous notion or something else?

Precedents

This is not the first time the ECJ will have to characterize the elements of res judicata.

We should start by excluding as precedents those cases dealing with the identity of the claims in lis pendens situations. This case-law has been made to anticipate conflicts of decisions precisely in a context of diversity of national res judicata regimes. Its understanding of an identity of claims therefore embraces more than it specifies.

Instead, it seems more fruitful to turn towards those case where the Court had to handle the regime of the foreign judgment. It was the issue in Hoffmann (ECJ, 4 February 1988, Case 145/86), Apostolides (ECJ, 28 April 2009, Case C-420/07) and Gothaer (15 November 2012, Case C-456/11) with different perspectives.

In Hoffman and Apostolides, the Court quoted the Jenard Report, considering judgments must be acknowledged the “authority and effectiveness accorded to them in the state in which they were given”. But both decisions also added to that quote by allowing the law of the State of enforcement to reframe or even refuse these effects according to its own standards. The solution is even less certain that the two decisions did not exactly phrase any general solution, but rather specific exceptions. What is more, or rather less helpful for Recamier is that those decisions were concerned with the substance of a foreign judgment, an issue quite different from res judicata which deals with a procedural effect of the judgment, independently from its substance.

Gothaer is more interesting, since it precisely intends to create such an effect. Asked whether a Belgian judgment on competence (more exactly on the effect of the validity of a forum selection clause) could prevent the issue to be discussed anew in Germany, the Court answered it should, considering that “[the] requirement of the uniform application of European Union law means that the specific scope of that restriction must be defined at European Union level rather than vary according to different national rules on res judicata”. The Court even went further than AG Bot’s opinion in providing a regime for such an effect, aligning it to that of the decisions of the General Court of the ECJ. It justified the solution by considering it defines the “concept of res judicata under European Union law”. But the scope of that case may limit its interest, as it seems related to competence decisions alone.

Overall, those precedents do not definitely choose between conflict rules and autonomous notions of substantive rules. It will be one of the issues the ECJ will therefore have to decide upon.

First Method: A Conflict of Laws Rule

It must be noticed that the Cour de cassation actually asks the ECJ if it wants to create an ad hoc European conflict of laws rule. This is, by itself, an interesting opportunity. Seldom has the ECJ taken the chance to forge a new conflict rule (see e.g., though, and very implicitly, CJEU, Civil service tribunal, 14 oct. 2010, Mandt), since most conflict of laws issues it has encountered were submitted to conflict rules of the forum (now generally covered by a European rule, Rome I and II especially). Creating such an ad hoc conflict rule would be a very interesting move by the ECJ, both as it would be a sound solution and as it would give another dimension to the court’s case-law (in line with the EU favour for this kind of legislation those two last decades).

But, as often, the problem would lie in the choice of the connecting factor. Both those proposed by the Cour de cassation have serious claims to be applied. The law of the country of origin is probably the law the claimant (who is the one primarily concerned by res judicata) contemplated during the proceedings there since the possibility to restart proceedings in another country later on was simply not in his interest. Reciprocally, it is as true to say that res judicata is an effect that concerns the legal system, more than individual decisions. This is actually the usual solution given in common PIL by French case-law. The legislation on res judicata aims at preventing litigation to restart before a new court, so that it is this second court, and second judicial system, which is most concerned with it (it actually only mirrors the variety of rationale for the recognition of a foreign judgment, see Cuniberti, Le fondement de l’effet des jugements étrangers, Collected Courses of the Hague Academy of International Law, vol. 394). Some even offer to distinguish the issues within the res judicata regime to have each governed by one of those laws or by the law of the claim (in French again, see Peroz, La réception des jugements étrangers dans l’ordre juridique français, LGDJ 2005).

The exact analysis could therefore be that, somehow, the effect should be governed by both law of origin and law of recognition (by analogy, this is the approach followed by both Hoffman and Apostolides).

As a consequence, accepting the idea that both laws should have a say in the matter, the question differs. It is not so much about defining a correct conflict rule than, quite simply, a matter of deciding on the relevance of the limits imposed upon the effects of a foreign decision. Here, the obvious question is whether the very specific French solution may be applied to a Luxembourger decision. This is where uniform European substantive rules have more relevance.

Second Method: An Autonomous Notion of res judicata

The general phrasing of the decision in Gothaer, together with the generality of the regime of the General Court decisions it is referring to, could be considered as offering all national court decisions a res judicata effect similar to that of the decisions of the General Court of the ECJ.

This would clearly be disastrous. As developed elsewhere (“Entre Icare et Minotaure. Les notions autonomes de droit international privé de l’Union », in Le droit à l’épreuve des siècles et des frontières, Mélanges en l’honneur du professeur Bertrand Ancel, LGDJ/Iprolex 2018, p. 1137), creating European autonomous notions is not innocuous. Words in European texts may refer to situations of facts which definition can be given autonomously at the European level, but it is an entirely different thing when such a word actually relates to a notion which is itself governed by a whole regime. A good example is the Coman case (ECJ, 5 June 2018, C-673/16). In this famous case on the notion of “spouse”, it was proposed that the Court develop an autonomous notion of “marriage” to have all spouses (same-sex or not) benefit the same rights of free movement within the EU despite prohibiting national laws. But such a “autonomous” notion would have actually been very fragile, since it would not have masked that the validity and otherwise general effects of marriages must be verified according to national laws, and that any such notion of “autonomous marriages” would risk offering dual situations to the spouses: they could be married “autonomously” and unmarried nationally. Marriage is a national notion because it covers national regimes ; creating an autonomous “marriage” would be like tailoring a jacket for a ghost.

Instead, in Coman, the ECJ wisely decided to refrain from doing so, and only refused to member State the possibility to prevent recognizing foreign marriages on the basis of gender of the spouses. It is therefore not the notion of marriage itself which is autonomous, but only, for purposes of EU law, that part of its regime relating to the condition of gender. The Court decided to limit the freedom of the States to impose their views for the necessities of free movement ; the same, actually, that is done for public policy or overriding mandatory provisions exceptions.

Res judicata, while it is not as sensitive as a person status, poses the same problem : it is not limited to characterizing a situation but also opens legal effects. Behind the universally admitted principle, it meets practice with a variety of regimes adapting to different situations and (national) political choices : the origin, type, content, wording, status of the decision may vary its effect, not even mentioning, of course, its procedural status as means of defence (Barnett, Res judicata, estoppel, and foreign judgments : the preclusive effects of foreign judgments in private international law, OUP 2001).

If the court doesn’t want to engage into tailoring a conflict of laws rule, it is therefore safer in this Recamier case to keep to a minimalist approach such as in Coman (and actually, also such as in Hoffman again): deciding whether, under Article 33, the French Cesareo case-law may be attached to a foreign judgment which law does not know any equivalent.

Third Method: Evaluating the Conformity of the French Cesareo Case-law with the objectives of Article 33 of the Regulation

It is customary for the Court to rephrase questions for them to be more abstract, so let’s try it : may a State consider inadmissible claims already brought before another member State court when those claims would be admissible in that other State because they were based on another legal ground?

To that very specific question, no overarching EU principle seems, prima facie, at stake. It may therefore be of help to understand the aim of that case-law. Its very purpose, according to a common opinion in France, is to reduce the influx of cases brought before the French courts, already struggling with a very heavy caseload. It could therefore be considered a legitimate objective for a country regularly sanctioned for the length of its procedures.

But the argument brought forth by the decisions themselves is, on a free translation, that “it is incumbent on the claimant to present, at the time of the first application, all the pleas in law which he considers to be relevant to the claim”. This stresses out that, according to French law, the claimant has some kind of a duty to gather all the legal grounds for his claim in the first instance. How may such an obligation be justified when the law of that first instance didn’t provide it? This is especially true of a situation where that first decision may also have an impact on competence, forbidding to go back to this first State to pursue an otherwise perfectly legitimate claim and pushing claimant in a catch 22 situation.

In the case the Court of Justice would decide to narrow the issue down to that very specific point, it should probably lean, therefore, towards a negative answer.

Conclusion

As a conclusion, one may say a stable conflict of laws rule would be preferable for predictability (and from the perspective of the policy of the Court). Perhaps a bold Court could pose a conflict rule (probably in favour of the law of origin, as the Jenard report seems to call for) with some limitations (in favour of the law of the country of recognition, as Hoffman had already announced on another issue). It calls for longer discussions elsewhere, but the ECJ’s decision is its own and the core issue may be dealt with at lower cost. At least Gothaer seems a precedent not to follow on this issue.

This has been a long post, with more issues than answers probably. I confess this is work in progress and here were only some thoughts about it, but I hope they will provide food for those of the readers of the blog.