In the wake of the CJEU’s controversial judgment in H Limited (Case C-568/22), which appeared to open a wide backdoor into the European Area of Justice through an English enforcement judgments (surprisingly considered a ‘judgment’ in the sense of Art. 2(a), 39 Brussels Ia by the Court), international law firms had been quick to celebrate the creation of ‘a new enforcement mechanism‘ for non-EU judgments.
As the UK had already completed its withdrawal from the European Union when the decision was rendered, the specific mechanism that the Court seemed to have sanctioned was, of course, short-lived. But crafty judgment creditors may quickly have started to look elsewhere.
In a paper that has just been published in a special issue of the Journal of Private International Law dedicated to the work of Trevor Hartley, I try to identify the jurisdictions to which they might look.
In essence, I make two arguments:
First, I believe that the CJEU’s unfortunate decision can best be explained by the particular way in which foreign decision are enforced in England, i.e. through a new action on the judgment debt. Unlike continental exequatur proceedings, this action actually creates a new, enforceable domestic judgment, albeit through proceedings that closely resemble the former. It follows, I argue, that only judgments that result from a new action based on the judgment debt (rather than a mere request to confirm the enforceability of the foreign judgment) can be considered ‘judgments’ in the sense of Art. 2(a) and the Court’s decision H Limited (which also requires the decision to result from ‘adversarial proceedings’). Among many reasons, I find such a limited reading easier to reconcile with the Court’s earlier decision in Owens Bank (Case C-129/92) than a wider understanding of the decision.
Second, I believe that several European jurisdictions still offer enforcement mechanisms through which third-state judgments could realistically be transformed into European judgments (clearing both the requirement of creating a new judgment and resulting from adversarial proceedings). This applies to Ireland and Cyprus (but not Malta) as well as to the Netherlands (through its so-called verkapte exequatur) and Sweden.
The full paper is available here; a preprint can also be found on SSRN.
The third issue of the Journal of Private International Law features a special issue in honour of Professor Trevor Hartley.
It provides as follows (with other research articles):
Jacco Bomhoff, Uglješa Gruši? & Manuel Penades Fons, “Introduction to the special issue in honour of Professor Trevor Hartley”
Jacco Bomhoff, Uglješa Gruši? & Manuel Penades Fons, “Professor Trevor C Hartley’s Bibliography”
Jacco Bomhoff, “Law made for man: Trevor Hartley and the making of a “modern approach” in European and private international law”
This article offers an overview and an interpretation of Trevor Hartley’s scholarship in the fields of private international law and EU law. It argues that Hartley’s work, beginning in the mid-1960s and spanning almost six decades, shows striking affinities with two broader outlooks and genres of legal discourse that have roots in this same period. These can be found, firstly, in the approach of senior English judges committed to “internationalising” the conflict of laws in the post-war era; and, secondly, in the so-called “legal process” current of scholarship that was especially influential in American law schools from the late 1950s onwards. Reading Hartley’s writings against these backgrounds can help illuminate, and perhaps to some small extent complicate, two labels he himself has given to his own work: of a “modern approach”, in which “law is made for man, not man for the law”.
Adrian Briggs, “What remains of the Brussels I Regulation in the English conflict of laws?”
The paper argues that whether we are concerned with retained or assimilated EU laws, or with rules of UK law made as close copies of EU laws, initial encouragement to interpret them as though they were still rules of EU law is coming to be, and should be, replaced by a cooler realisation that, as they no longer function in English law as cogs in a great European legal construction, they should be reassessed and repurposed to serve the purposes of domestic law. That will mean, for good or ill, that the tangible and intangible effect of the Brussels I Regulation on English law is less, and will come to be much less, than some had supposed.
Hans van Loon, “A view from the Hague”
This article highlights the crucial role of Trevor Hartley as the principal author of the Explanatory Report of the 2005 Hague Choice of Court Convention. His exhaustive and crystal-clear explanations, for example on the Convention’s sophisticated rules on intellectual property and its relation to the Brussels I Regulation, are a lasting, indispensable help to its correct interpretation and application. They even shed light on some aspects of the 2019 Hague Judgments Convention. The article also recalls Trevor Hartley’s essential role in the European Group for Private International Law, of which he has been an original member since 1991, most of the time as the only representative of a common-law legal system. Lastly, this contribution praises Trevor Hartley’s exceptional scholarly and pedagogical qualities, as evidenced notably by his widely used International Commercial Litigation.
Linda Silberman, “Trevor Hartley: champion for the Hague Choice of Court Convention”
This article, in tribute to Professor Trevor Hartley, discusses the debate between Gary Born and Professor Hartley about whether countries should ratify the Hague Choice of Court Convention. It also explains how that debate contributed to the conclusions reached by a New York City Bar Committee that was asked by the United States State Department for its views on ratification of the Convention.
Alex Mills, “Assessing the Hague Convention on Choice of Court Agreements 2005”
Almost twenty years after the adoption of the Hague Choice of Court Convention 2005, it may be an appropriate moment to reflect on and assess its legacy to date. This article, part of an issue paying tribute to the work of Professor Trevor Hartley, notes a number of different ways in which the legacy of the Convention may be evaluated, particularly appreciating the important role of the Explanatory Report co-authored by Professor Hartley. It argues that the Convention should not be judged merely based on the (admittedly limited, but perhaps growing) number of state parties, but also taking into account its wider influence in a number of different respects which may cast a more positive light on its achievement. These include the importance of the Convention to the Hague Conference on Private International Law, the soft power of the Convention, and the role of the Convention in preserving the enforceability of UK judgments based on exclusive jurisdiction agreements in European Union Member States notwithstanding Brexit.
Andrew Dickinson, “Anti-suit injunctions – beyond comity”
This short article considers a theme emerging from Trevor Hartley’s writing on the topic of anti-suit injunctions – the significance of the existence of an international treaty that regulates the circumstances in which the States concerned may or must assert, and may or must decline, jurisdiction with respect to the subject matter of the dispute. It examines, in particular, recent case law extending the reach of the European Union’s prohibition on anti-suit injunctions within the Brussels I regime, and the place of anti-suit injunctions within the framework of the Hague Choice of Court Convention.
Verónica Ruiz Abou-Nigm, “Iconic asymmetries of our times: “super Highways” and “jungle tracks” in transnational access to justice”
Drawing from Hartley’s “Multinational Corporations and the Third World: A Conflict-of-Laws Analysis” where he exposes the “unequal fight” between powerful multinational corporations and the people and communities in “the third world”, suggesting that this is partly a consequence of the deficits of legal infrastructures therein, this brief contribution dwells on the global systemic impact of channelling legal proceedings justiciable in the Global South (GS) to courts in the Global North (GN). It takes a private international law and sustainable development perspective and draws attention to the rhetoric and narratives of interdependence between the “super highways” and the “jungle tracks”- the illustrations used by Hartley. The main argument taken forward in this paper is that to realise private international law’s contribution to SDG 16 (peace, justice and strong institutions) responsivity is necessary in jurisdictional decision making in this context to enhance access to justice for all in the GS.
A dispute litigated simultaneously in two different jurisdictions wastes time and resources, and risks inconsistent judgments. In March 2024, the Hague Convention on Private International Law’s Working Group on matters related to civil and commercial jurisdiction released its third iteration of draft provisions on parallel proceedings. These provisions represent the groundwork (and one chapter) of a long-awaited international instrument that addresses the assumption and declining of jurisdiction. This article canvasses the proposal’s successes and failures in securing the continuance of litigation in a single forum. To assist, this article selects the example of Australia, against whose judicial practice the compatibility of the Working Group’s proposal is tested. This exercise identifies fundamental inconsistencies between the two schemes. Those (potentially insurmountable) concerns for judicial practice, alongside bureaucratic stagnation in Australia’s policy-making appetite in this area must, it is argued, be balanced against the strong normative influences for Australia’s accession to such an agreement. This invites concern for the acceptance of the proposal, and the broader future of the Jurisdiction Project as a whole.
Tobias Lutzi, “What remains of H Limited? Recognition and enforcement of non-EU judgments after Brexit: Journal of Private International Law”
In its controversial decision in H Limited, the Court of Justice held that an English confirmation judgment, transforming two Jordanian judgments into an English one, constituted a judgment in the sense of Articles 2(a) and 39 Brussels Ia and, as such, qualified for automatic recognition and enforcement in all Member States. The decision has been heavily criticized for seemingly violating the rule against double exequatur and potentially opening a backdoor into the European Area of Justice. As the particular door in question has already been closed with the UK’s completed withdrawal from the EU, though, crafty judgment creditors will have to look to other Member States. This paper will make an attempt at identifying those jurisdictions to which they might look. For this purpose, it will first argue that for an enforcement decision to fall under Chapter III of the Regulation, two requirements must be fulfilled: It must be a new decision on the judgment debt (rather than a mere declaration of enforceability) and it must have come out of adversarial proceedings. The paper will then look in more detail at a selection of jurisdictions that might fulfil these two requirements.
For anyone without a date for Valentine’s Day, we are happy to advertise the following ELI event on de-judicialisation in family and succession matters:
With competences in family and succession matters increasingly moving from courts to other authorities – such as notaries, civil status officers, child protection agencies, judicial officers, advocates, and even private parties – ELI’s Extra-Judicial Administration of Justice in Cross-Border Family and Succession Matters project aims at developing an outline of a harmonised European concept of courts, building on the approach of the Court of Justice of the EU in its recent case law, to ensure a harmonised application of EU instruments to such actors in Member States (for more information on the project, click here). As the trend of ‘de-judicialisation’ continues to grow, the project’s Dissemination Conference offers a valuable opportunity to discuss its implications and to present and reflect on recommendations developed by the ELI to address this shift.
The event will take place on 14 February 2025 from 09:00–18:00 CET at the University of Vienna (Small Ceremonial Hall (Kleiner Festsaal)) and will be streamed online.
ELI will be able to issue a certificate of attendance, when requested, to participants.
This report was written by Carlos Santaló Goris, postdoctoral researcher at the University of Luxembourg
Recent developments on the application of the EAPO Regulation
On 3 December 2024, the conference ‘European Account Preservation Order: Practical Challenges and Prospects for Reform’ took place at the University of Luxembourg, organized by Prof. Gilles Cuniberti (University of Luxembourg). The conference also served as an occasion to present the book ‘European Account Preservation Order – A Multi-jurisdictional Guide with Commentary’, published by Bruylant/Larcier. The book was co-edited by Dr. Nicolas Kyriakides (University of Nicosia), Dr. Heikki A. Huhtamäki (Huhtamäki Brothers Attorneys Ltd), and Dr. Nicholas Mouttotos (University of Bremen), and offers a comprehensive overview on the application of the European Account Preservation Order (‘EAPO’) at the national level. It contains a report for each Member State where the EAPO Regulation applies, addressing specific aspects of the EAPO procedure that depend on domestic law.
The conference was structured into two panel discussions. The first panel focused on the specific issues regarding the application of the EAPO Regulation identified by practitioners with first-hand experience with this instrument. The second panel discussion explored the potential reform of the EAPO Regulation and which specific changes should be implemented to improve its application. This report aims to offer an overview of the main highlights and outputs of the presentations and discussions of the conference.
First panel discussion: the use of the EAPO application in the practice
The first panel was composed of Dr. Laurent Heisten (Moyse & Associates Law Firm, Luxembourg), Alexandra Thépaut (Étude Calvo & Associés, Luxembourg), and Lionel Decotte (SAS Huissiers Réunis, France) and moderated by Dr. Elena Alina Ontanu (University of Tilburg). This first panel aimed to explore specific issues in the application of the EAPO Regulation from the practice perspective. The discussion was opened by Dr. Laurent Heisten, who indicated that the EAPO is way more complex than the Luxembourgish national provisional attachment order, the saisie-arrêt. He highlighted that the Luxembourgish saisie-arrêt has more lenient prerequisites than the EAPO. In his view, that might explain why creditors often opt for the saisie-arrêt instead of the EAPO.
The complexity of the EAPO compared to the Luxembourgish saisie-arrêt was also remarked by Ms. Alexandra Thépaut. However, she also acknowledged that the EAPO presents some advantages against the Luxembourgish national equivalent procedure. In particular, she referred to the certificate that banks have to issue immediately after the implementation of an EAPO (Article 28). This is something that does not occur with the Luxembourgish saisie-arrêt. Another advantage of the EAPO she referred to is the possibility of obtaining information about the debtors’ bank accounts (Article 14). The Luxembourgish saisie-arrêt also lacks an equivalent information mechanism.
During the discussion, Prof. Gilles Cuniberti intervened to indicate that using the EAPO could be less costly than relying on equivalent domestic provisional measures. He refers to a specific case in which the creditor preferred to apply for an EAPO in Luxembourg instead of a domestic provisional attachment order in Germany. The reason was that in Germany, the fee for applying for a national provisional measure would be in proportion to the amount of the claim, while in Luxembourg, there is no fee to obtain an EAPO.
A second recurrent issue identified by the panellists was the use of standard forms. In this regard, Mr. Lionel Decotte highlighted while standard forms can seem practical in a cross-border context, they are rather complicated to fill in. Ms. Alexandra Thépaut mentioned finding particularly complex the section on the interest rates of the EAPO application standard form.
Second panel discussion: the future reform of the EAPO Regulation
The second panel focused on the potential reform of the EAPO Regulation. The panellists were Prof. Gilles Cuniberti, Dr. Carlos Santaló Goris, and Dr. Nicolas Kyriakides, and it was moderated by Dr. Nicholas Mouttotos. Prof. Gilles Cuniberti explored the boundaries of the material scope of the EAPO Regulation. He first advocated suppressing the arbitration exception. He explained that it had been adopted by a political decision which was not submitted to the discussion of the expert group. This was most unfortunate, as the rationale for excluding arbitration from the Brussels I bis and other judgment regulations (the existence of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards) was inexistent concerning a remedy belonging to enforcement per se, which was always outside of the scope of the Brussels I bis Regulation.
Prof. Gilles Cuniberti also defended making available the EAPO Regulation in claims regarding matrimonial and succession matters, both expressly excluded from its scope. In his view, there is no reason for these two subject matters to be excluded as the Succession and Matrimonial Property Regimes Regulations, again, only apply to jurisdiction and enforcement of judgments (and choice of law), but do not offer any remedy to attach bank accounts. Lastly, he advocated expanding the use of the EAPO to provisional attachment of financial instruments. This is a potential reform of the EAPO Regulation expressly foreseen in Article 53.
Dr. Carlos Santaló Goris focused on the reform of the EAPO Regulation from the creditors’ perspective. He observed that national case law on the EAPO shows that creditors with an enforceable title encounter many difficulties satisfying the EAPO’s periculum in mora. This is due to the strict interpretation that courts have of this prerequisite in light of Recital 14 of the Preamble. He also mentioned that there is a pending preliminary reference on the interpretation of the EAPO’s periculum in mora before the European Court of Justice (C-198/24, Mr Green).
Regarding the creditor’s security, he stated that the vague criteria used to calculate the amount of the security is also a source of divergences on how the amount of the security is established from one Member State. He provided the example of Germany, where courts often require 100% of the amount of the claim. This percentage contrasts with other Member States, such as Spain, where the amount of the security represents a much lower percentage of the amount of the claim. Additionally, he also suggested reforming the EAPO to transform it into a true enforcement measure. In his view, creditors with an enforceable title should not only have the possibility of obtaining the provisional attachment of the funds in the debtors’ bank accounts but also the garnishment of those funds.
Finally, Dr. Nicolas Kyriakides explored how to foster the use of the EAPO Regulation across the EU. In his view, it would be necessary to expand the use of the EAPO Regulation to purely domestic cases. He referred to the case of the European Small Claims Procedure and how this instrument served as an inspiration for some national legislators to introduce equivalent domestic procedures. In his view, when judges and practitioners use these equivalent domestic procedures, indirectly they become familiar with the EU civil proceedings on which the equivalent domestic procedure was modeled. This is a way of integrating the EU civil proceedings into the legal practice. Therefore, when judges and practitioners have to apply the EU civil procedures, they already know how to do it. This can result in a more efficient and effective application of these EU instruments. On a second level, Dr. Nicolas Kyriakides identified the legal basis that the EU legislator might have to adopt such kinds of measures. He considered that the EU could invoke Article 81 (Judicial cooperation in civil and commercial matters), and Article 114 (Harmonization for the Internal Market) of the Treaty on the Functioning of the European Union could serve to harmonize domestic procedural rules within the boundaries of the principles of subsidiarity, proportionality, and procedural autonomy.
The panelists’ presentations were followed by an open discussion with the audience. One of the issues that was addressed during this discussion was the use of the IBAN to determine the location of the bank accounts. Prof. Gilles Cuniberti expressed his concern about the use of the IBAN since nothing prevents a bank from opening an account with an IBAN that does not correspond to the Member State where the account is effectively held.
Waiting for the Commission’s report on the EAPO Regulation
Following Article 53(1) of the EAPO Regulation, the Commission should have elaborated a report on the application of the EAPO by 18 January 2024. This conference offers a glimpse into what might eventually appear reflected in that report. The EAPO Regulation seems still far from being an instrument often relied on by creditors who try to recover a cross-border claim. The conference, which combined a practical and academic analysis of the EAPO regulation, served to identify some of the problems that might be preventing the EAPO from being perceived by creditors as an efficient tool to secure cross-border claims. Initiatives like this conference can help prepare the ground for designing a more effective EAPO procedure.
The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on Thursday 30 January 2025 at 14:30 (Mexico City time – CST), 21:30 (CET time). The topic of the webinar is: From the Old to the New Private International Law: Contexts, Objectives, Methods and Practice and will be presented by HE Ambassador Mario J. A. Oyarzábal (in Spanish).
The details of the webinar are:
Link: https://us02web.zoom.us/j/83362977786?pwd=VsniAolvT9vCNnbjVl4FdbAqXkOX9E.1
Meeting ID: 833 6297 7786
Password: AMEDIP
Participation is free of charge.
This event will also be streamed live: https://www.facebook.com/AmedipMX
This submission written by Celeste Hall, JD Candidate at the University of Pittsburgh School of Law and Global Legal Scholar.
The legal news has been awash lately in the recognition and enforcement of investment arbitration awards by U.S. courts. Most of the press is on the long-running and still-unfolding saga regarding Spain (see here and here). And a new decision recognizing an award against Zimbabwe was just issue at the end of December, as well. Here, however, we would like to add to the news with the recent decision recognizing an investment arbitration award against Mexico in United Mexican States v. Lion Mexico Consolidated.
Like most investment arbitrations, the decision tells a sordid tale. Lion Mexico Consolidated (LMC) is a Canadian company which provided financing to a Mexican businessman, Mr. Hector Cardenas Curiel, to develop real estate projects in Nayarit and Jalisco, Mexico. Cardenas’ company failed to pay on the loans, and LMC tried for years to obtain payment, all to no avail. Cardenas then began what was described as a “complex judicial fraud” to avoid payment, including a forgery and a subsequent lawsuit in a Jalisco court to cancel the loans. LMC was never informed of the suit and therefore, never appeared. The Jalisco Court issued a default judgment discharging the loans and ordering LMC to cancel the mortgages; Cardenas then arranged for an attorney to act fraudulently on LMC’s behalf to file and then purposefully abandon the appeal. LMC only learned of the entire scheme when they attempted to file their own constitutional challenge and were rejected. The Mexican Courts refused to allow LMC to submit evidence of the forgeries, so LMC brought a NAFTA Chapter 11 arbitration against Mexico for its failure to accord Lion’s investments protection under Article 1105(1) of NAFTA.
In the arbitration, Mexico argued that Article 1105(1)(b) only applies to investments, and because LMC is an investor, it could not seek relief under Article 1105(1). The arbitral tribunal disagreed and awarded LMC over US$ 47 million in damages. In the U.S. courts, Mexico petitioned to vacate the Award, and LMC cross-petitioned to affirm it.
Mexico conceded that the DC Circuit’s power to vacate an arbitral award is limited: as long as the tribunal “interpreted” 1105(1) the Court must confirm the award even if serious interpretive error was committed. Mexico attempted to skirt this issue by claiming that the Tribunal did not “interpret” anything. Instead, in Mexico’s view, they simply ignored the literal meaning of investments of investors by granting relief to Lion.
The Court was not impressed by this argument. It held that “[t]he Tribunal addressed Mexico’s interpretation of Article 1105(1) head on, employed common interpretative tools to reach a different conclusion, cited authorities in support of its reading, and explained its reasoning. By any definition of the word, the Tribunal interpreted Article 1105(1). Because the Court can’t second-guess that interpretation, the Court DENIED Mexico’s Petition to Vacate the Arbitral Award, and GRANTED LMC’s Cross- Petition for Confirmation, Recognition, and Enforcement of the Arbitral Award.”
Additionally, the Court denied a motion to intervene filed Hector Cardenas Curiel. Cardenas knew that the arbitral case hinged upon his fraud but did not pursue intervention at the arbitral stage. The Court found that Cardenas’ attempt to intervene at this stage was “too little too late”, and Cardenas did not meet the requirements for intervention under Federal Rule of Civil Procedure 24(a)(2) or 24(b).
This decision is important because it follows a long line of cases giving deference to arbitrators in investment treaty cases; when they interpret the governing treaty and decide cases thereunder, their decisions will not be second-guessed by U.S. courts later.
As posted earlier here, the conference organizers and editors of the JPIL are welcoming submissions for the 20th Anniversary Conference of the Journal of Private International Law, to be held in London 11–13 September 2025.
Proposals including an abstract of up to 500 words can be send to JPrivIL25@ucl.ac.uk until 17 January 2025.
More information can also be found here.
An ERA online seminar on Migrants in European Family Law will take place on 6-7 February 2025. For more information, click here. The programme is available here.
As stated by the organisers:
“This online seminar addresses complex, practical legal issues at the interface between European family and migration law. It will address issues related to the portability of the personal status of migrants, in particular the recognition of marriage and divorce.
We will discuss the protection of migrant children in Europe, care and guardianship of unaccompanied minors, the frictions between family law and migration law in the case of child abduction and the structuring of return procedures.
The seminar will also present the recent case law of the European Court of Human Rights (ECtHR) on family and migration law, including the right to family reunification.”
Early bird registration ends on 13 January 2025.
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