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The United Nations Convention on International Settlement Agreements resulting from Mediation (the ‘Singapore Convention’) entered into force on 12 September 2020. However, the Convention has not been signed by the EU or its Member States. What keeps the EU or its member states from signing the Singapore Convention on Mediation? Experts will discuss pertinent aspects of the Singapore Convention on Mediation to create awareness of the Convention and will debate the EU’s position.

Webinar Link
DATE: Friday 18 June 2021 | 11:00 – 13:00 CET Vienna time (17:00 -19:00 GMT+8
Singapore Time)

To access the webinar use this link:

https://vuw.zoom.us/webinar/register/WN_hSFTXym_SrKRCTIsZ7NgLQ
Please email herman.verbist@everest-law.be if you have any questions.

11.00 (CET) Welcome by Sir Michael Burton, President of FICA

11.05 (CET) Roundtable “The reflection process of the European Commission”
• Is the accession to the Singapore Convention an exclusive jurisdiction of the EU or is it a shared competence of the EU and Member States?
• To what extent would the Singapore Convention benefit EU stakeholders?
• Developing mediation policies and practices in Europe.
• The views of States that signed the Singapore Convention.

12.00 (CET) Break

12.05 (CET) Roundtable “What is the impact of the Singapore Convention on the EU laws and policies?”
• Does the Singapore Convention interfere with the EU internal regulatory framework (as REIO)?
• The role of the Hague Convention on Choice of Forum 2005 or the Hague Judgments Convention 2019.

Panellists include:
• Dr Nadja Alexander, Professor at Singapore Management University
• Ms Anna Joubin-Bret, Secretary of UNCITRAL
• Sir Michael Burton, President of FICA
• Mrs Francisca da Silva Dias Van Dunem, Minister of Justice of Portugal & Chair of the Council of Ministers of Justice during the Portuguese Presidency to the Council (tbc)
• Dr Catherine Kessedjian, former Deputy Secretary General of the Hague Conference on Private International Law & Professor emerita at University Panthéon-Assas Paris II
• Mr Bernard Lange, Chairman of INTA, European Parliament (tbc)
• Dr Dr hc Thomas Pfeiffer, Professor at Heidelberg University & Chair of the European Law Institute Special Interest Group on Dispute Resolution
• Mr Didier Reynders, European Commissioner for Justice (tbc)
• Dr Norel Rosner, Legal and Policy Officer, Directorate-General for Justice and Consumers, European Commission
• Ms Natalie Morris-Sharma, former Chair of UNCITRAL Working group II which drafted the Singapore Convention & Deputy Senior State Counsel with Singapore’s Attorney-General Chambers
• Dr Rimantas Simaitis, Chairman of the CEPEJ-GT-MED
• Mr Aleš Zalar, former Minister of Justice of Slovenia and current co-chair of ELI hub in
Slovenia, will be moderating the roundtable.

Participants will be able to raise questions. Participation is free of charge. In cooperation with:

This Thursday, the Court of Justice delivered its judgment in the case ZN, C-280/20, which heavily relies and confirms the judgment in Mahamdia, C-154/11.

The request for a preliminary ruling arouse out of proceedings in which ZN, a Bulgarian national residing in Sofia, brought an action in Bulgaria against the Consulate General of the Republic of Bulgaria in Valencia, submitting that, in Spain, she has been providing services concerning the receipt of documents in files opened at the consulate and the handling of those files.

In these circumstances, the Bulgarian court referred a following question to the Court:

‘Is Article 5(1) of [the Brussels I bis Regulation], in conjunction with recital 3 thereof, to be interpreted as meaning that the regulation applies for the purpose of determining the international jurisdiction of the courts of a Member State to adjudicate in a dispute between a worker from that Member State and the consular service of that Member State in the sovereign territory of another Member State? Or should those provisions be interpreted as meaning that the national jurisdictional rules of the Member State of which both parties are nationals apply to such a dispute?’

In its judgment delivered without Advocate General’s Opinion, the Court interpreted the question as limited solely to the application of the Brussels I bis Regulation as such and not concerning the determination of the jurisdiction (international/territorial, I suppose given the wording of the national jurisdictional rules at hand) of the Bulgarian or Spanish courts (paragraph 40).

In this regard, the Court held, in the first place, that a dispute involving a Consulate General and a person who provides services which do not fall within the exercise of public powers and which do not risk interfering with the security interests of the Republic of Bulgaria, falls within the notion of “civil and commercial matters” within the meaning of Article 1 of the Brussels I bis Regulation (paragraph 28).

In the second place, echoing the doubts of the referring court (see point 50 of the request for a preliminary ruling), the Cour examined whether the dispute at hand has cross-border implications and as such does indeed fully fall within the scope of the Brussels I bis Regulation. Considering that this is indeed the case, it held that a consulate is an ‘establishment’ of one Member State in another Member State and therefore one of the parties to the dispute must be considered to be domiciled or habitually resident in a Member State other than that of the court seised (paragraph 37). Moreover, the Court added that the contracts for the provision of services at issue in the main proceedings have been concluded in Spain and it was in that Member State that the obligations imposed by those contracts have been performed (paragraph 38).

Interestingly, admitting that the international aspect whose existence is a condition for the applicability of the Brussels I bis Regulation, the Court referred itself to its recitals 3 and 26, where the term ‘cross-border disputes’ is employed with no further guidance as to its definition (paragraph 30). In the present judgment the Court did not rely on the legal basis of the Regulation in order to substantiate the requirement of the international aspect, while it may be argued that such approach would also be possible in the light of the considerations pertaining to the Brussels II bis Regulation in the judgment in UD, C-393/18 PPU, paragraphs 38 to 40.

Ultimately, the Court considered that:

“Article 5(1) of the [Brussels I bis Regulation], read in conjunction with recital 3 of that regulation, must be interpreted as meaning that it applies for the purposes of determining the international jurisdiction of the courts of a Member State to hear and rule on a dispute between an employee from a Member State who does not carry out duties involving the exercise of public powers and a consular authority of that Member State situated in the territory of another Member State”.

The judgment can be consulted here.

A short note on the claim form for the collective claim by a group of parents based in The Netherlands against TikTok Technology Limited, domiciled at Dublin, Ireland.  It engages Article 79 GDPR, as well as the consumer section of Brussels Ia. At the applicable law level, it suggests application of Article 6 Rome I (consumer contracts; a logical counterpart of the jurisdictional analysis) and, in subsidiary fashion, Article 4 Rome II, each to suggest application of Dutch law.

I wrote on Article 79 here, and the problems which I signalled have in the meantime surfaced in case-law, as I signalled ia here.  Current TikTok claim however prima facie would seem to be more straightforward under both GDPR, BIa and Rome I – one imagines a possible TikTok’s defence to go towards the meaning of ‘establishment’.

Geert.

Dutch collective claim against #TikTok
Claim form here https://t.co/YhQ8IfXxA8
At jurisdictional level it engages A79 #GDPR (see https://t.co/KBZ4s5diN7) & consumer section BIa
Re applicable law, A6 Rome I, A4 Rome II.
A claim form only, the analysis on both is as yet incomplete. https://t.co/ShOhuQwzP4

— Geert Van Calster (@GAVClaw) June 2, 2021

The Council of the European Union will aim at establishing a general approach on the regulation on assignments of claims on 7 June 2021 in Luxembourg.

The text which should be adopted is an amended version of the 2018 proposal of the European Commission for a Regulation on the law applicable to the third-party effects of assignments of claims, which was adopted by the European Parliament  in 2019 with 24 amendments.

The main features of the new text are as follows.

One of the most debated issues was whether the principle should be that third party effects of assignment of claims should be governed by the law of the habitual residence of the assignor or the law of the assigned claim. The Commission had proposed to retain the former, with certain exceptions.

In line with the Commission proposal, the law of the assignor’s habitual residence received more support than the assigned-claim law as it would lead to more predictability for third parties. The law of the assignor’s habitual residence was deemed suitable for bulk assignments subject to different laws and future claims and consistent with Regulation (EU) 2015/848 (Insolvency Regulation).

The list of exceptions, however, has slightly increased. The law of the assigned claim would apply to a longer list of claims in financial markets, but also to credit claims. This last exception will not doubt be criticised. Recital 27(b) clarifies its scope, which seems extensive:

The third-party effects of assignments of claims arising out of agreements whereby credit is granted in the form of a loan should be governed by the law of the assigned claim. This should include credit claims as defined in point (o) of Article 2(1) of Directive 2002/47, often used as financial collateral within the Eurosystem. In order to facilitate the cross-border assignment of claims arising out of syndicated loans and lending-based crowdfunding on secondary financial markets, the third-party effects of the assignment of claims arising out of syndicated loans and lending-based crowdfunding should also be subject to the law of the assigned claim.

It was also thought that the scope of the instrument should be further clarified and restricted. In particular, three matters are excluded from the scope of the future regulation:

– the transfer of financial instruments, including securities and derivatives;
– the transfer of crypto-assets; and
– the assignment of claims where the claims are not in intangible form but incorporated in a certificate or represented by a book entry.

Franco  Ferrari (New York University School of Law) has published his Hague Lectures on Forum Shopping despite Unification of Law in the Collected Courses of The Hague Academy of International Law (volume 413). 

The abstract reads:

It has often been suggested that forum shopping is “evil” and needs to be eradicated. And it is in this context that one must understand statements by commentators to the effect that the unification of substantive law through international conventions constitutes one way to reach this result. These lectures show not only that the qualification of forum shopping as something that is deplorable is outdated, that the negative attitude vis—à—vis forum shopping seems grounded on outdated preconception and prejudice, and disregards, for example, that critical analysis has demonstrated that forum shopping also has beneficial effects, such as the promotion of ethical representation of one’s client, the protection of access to justice, and the provision of a remedy for every injury.

These lectures also show that the drafting of uniform substantive law convention cannot prevent forum shopping, for many reasons, of which these lectures create a taxonomy. The reasons are classified into two main categories, namely convention-extrinsic and convention-intrinsic reasons. The former category comprises those reasons upon which uniform substantive law conventions do not have an impact at all, and which therefore will continue to exist regardless of the coming into force of any such convention. These reasons range from the costs of access to justice to the bias of potential adjudicators to the enforceability of judgments. These and the other convention-extrinsic reasons discussed in these lectures are and will not be influenced by uniform substantive law conventions.

The convention-intrinsic reasons, on the other hand, are reasons that relate to the nature and design of uniform substantive law conventions, and include their limited substantive and international spheres of application as well as their limited scope of application, the need to provide for reservations, etc. And no drafting efforts will be able to do away with these convention-intrinsic reasons, because they touch upon features of these conventions that are ontological in nature.

The lectures also address another forum shopping reason that cannot be overcome, namely the impossibility to ensure uniform applications and interpretations of the various uniform substantive law conventions. As these lectures show, as long as these conventions are interpreted horizontally, diverging interpretations and applications by courts of different jurisdictions of conventions that need to be drafted using vague language cannot be avoided. This is due mostly to a natural tendency by adjudicators to rely on their domestic legal background and notions when having to resolve problems arising in the context of the interpretation and application uniform substantive law conventions.

It is in light of all of the above that the lectures predict that forum shopping is here to stay.

More details, including the table of contents, can be found here.

Written by Béligh Elbalti (Associate Professor, Graduate School of Law and Politics – Osaka University)

1. Introduction

Assume that you successfully obtained a favourable judgment from a foreign court that orders the losing party to pay punitive damages in addition to compensatory damages. Assume also that, later, you could obtain a partial satisfaction of the amount awarded by the court by way of compulsory execution in the rendering state. Happy with the outcome and knowing that punitive damages cannot be enforced in Japan, you confidently proceed to enforce the remaining part before a Japanese court arguing that the payment you would like to obtain now corresponds to the compensatory part of the award. Could the judgment be enforced in Japan where punitive damages are considered as contrary to public policy? In other words, to what part of the damages the paid amount corresponds: the compensatory part or the punitive part?

This is the question that the Supreme Court of Japan answered in its recent judgment rendered on 25 May 2021.

The present case has already yielded an important Supreme Court decision rendered on 18 January 2019 (decision available here). The main issue that was addressed therein concerned the compatibility of the foreign judgment with the procedural public policy of Japan. The summary below will however be limited to the issue of punitive damages as this was the main issue the Supreme Court has addressed in its decision reported here.

2. Facts:

In 2013, the Xs (Appellees) filed an action with a Californian court seeking damages against the Y (appellant) and several other persons for illegally obtaining their trade secrets and business models. In 2015, the Californian court rendered a default judgment against Y ordering him to pay about USD 275,500, including punitive damages (USD 90,000) and compensatory damages (USD 184,990) as well as other related additional fees. Soon after the decision became final and binding, Xs petitioned for the compulsory execution of the said decision in the US and could obtain partial payment of the awarded damages (USD 134,873). Thereafter, Xs moved to claim the payment of the remaining part (i.e. USD 140,635) by seeking the enforcement of the Californian judgment after deducting the part of the payment already made. Xs argued that the judgment did not violate public policy as the amount they were seeking to obtain in Japan was anyway confined within the scope of the compensatory damages. Y challenged the petition for enforcement, inter alia, on the ground that punitive damages were incompatible with Japanese public policy and therefore had no effect in Japan; accordingly, the payment made in the US should be appropriated to the satisfaction of the compensatory part of the foreign judgment. Thus the question above.

3. Rulings

The first instance court (Osaka District Court) considered that the punitive damages ordered by the Californian court were effectively punitive in nature and as such against public policy and had no effect in Japan. The court then considered that the payment made abroad could not correspond to the payment of the punitive damages part, because this would result in enlarging the scope of the enforcement of the other part of the judgment and consequently lead to a result that did not substantially differ from the recognition of the effect of the punitive award. The court stated that the payment made abroad corresponded to the part other than the punitive portion of the damages. It finally ruled that the enforcement petition was to be admitted to the extent of the remaining amount (i.e. only USD 50,635), after deducting both the payment already made (USD 134,873) and the punitive damages part (USD 90,000).

On appeal, the issue of punitive damages was not addressed by the second Instance Court (Osaka High Court). The Court decided to reject the enforcement of the Californian default judgment on the ground of violation of procedural public policy of Japan because Y was deprived of an opportunity to file an appeal as the notice of entry of judgment was sent to a wrong address. However, unsatisfied with the ruling of the High Court as to whether Y was actually deprived of an opportunity to file an appeal, the Supreme Court quashed the High Court ruling and remanded the case to the same court for further examination. Again, the issue of punitive damages was not raised before the Supreme Court.

Before the Osaka High Court, as the court of remand, the issue of the enforceability of punitive damages was brought back to the center of the debate. In this respect, like the Osaka District Court, the Osaka High Court considered that the USD 90,000 award was punitive in nature and therefore incompatible with public policy in Japan. However, unlike the Osaka District Court, the High Court considered that since the obligation to pay punitive damages in California could not be denied, the payment made abroad through the compulsory execution procedure should be appropriated to the satisfaction of the amount ordered by the Californian court as a whole. Therefore, the since the remaining part (i.e. USD 140,635) did not exceed the total amount of the foreign judgment excluding the punitive damages part (i.e. USD 185,500), the High Court considered that its enforcement was not contrary to public policy. Unhappy with this ruling, Y appealed to the Supreme Court.

The Supreme Court disagreed (decision available here, in Japanese only). According to the Supreme Court, “if payment was made with respect to an obligation resulting from a foreign judgment including a part ordering the payment of monies as punitive damages, which do not meet the requirements of Art. 118(iii) CCP, it should be said that the foreign judgment cannot be enforced as if the said payment was appropriated to the satisfaction of the punitive damages part, even when such payment was made in the compulsory execution procedure of the foreign court” (translation by author).

The Supreme Court considered that the payment made should be appropriated to the satisfaction of the parts of the foreign judgment other than punitive damages. According to the Supreme Court, punitive damages had no effect in Japan and therefore, there could be no obligation to pay punitive damages when deciding the effect of a payment of an obligation resulting from a foreign judgment. The Supreme Court finally agreed with the Osaka District Court in considering that, since there was no obligation on the part of Y to pay punitive damages due to their incompatibility with Japanese public policy, Y’s obligation under the foreign judgment was limited to USD 185,500. Therefore, since Y had already paid USD 134,873 in the compulsory execution procedure in rendering state, Xs were entitled to claim only the difference of USD 50,635.

4. Comments:

The ruling of the Supreme Court is interesting in many regards. First, the Supreme Court reiterated its earlier categorical position on the incompatibility of punitive damages with Japanese public policy. This position is in line with the prevailing opinion in Japan according to which punitive damages are in principle contrary to Japanese public policy due to the fundamental difference in nature (civil v. criminal) and function (compensatory v. punitive/sanction) (For a general overview on the debate in Japan, see Béligh Elbalti, “Foreign Judgments Recognition and Enforcement in Civil and Commercial Matters in Japan”, Osaka University Law Review, Vol. 66, 2019, pp. 7-8, 24-25 available here).

Second, the solution in the present decision can be regarded as a logical consequence of the absolute rejection of punitive damages. In effect, in deciding as it did, the Supreme Court showed its intention to discharge the judgment debtor from his/her obligation to pay punitive damages resulting from a foreign judgment even in the case where a partial payment has been made as a consequence of a compulsory procedure before the foreign court. Indeed, since there can be no obligation to pay punitive damages resulting from a foreign judgment, any payment made abroad should be appropriated to the satisfaction of the parts of the awarded damages other than the punitive portion.

Third, after the first Supreme Court decision on punitive damages, a practice has been established based on which judgment creditors who seek the enforcement of a foreign judgment containing punitive damages, usually, content themselves with the request for the enforcement of the compensatory part to the exclusion of the punitive part of the foreign judgment. (See for example, the Supreme Court judgment of 24 April 2014, available here). For a comment on this case from the perspective of indirect jurisdiction, see Béligh Elbalti, “The Jurisdiction of Foreign Courts and the Recognition of Foreign Judgments Ordering Injunction – The Supreme Court Judgment of April 24, 2014, Japanese Yearbook of International Law, vol. 59, 2016, pp. 295ss, available here). This practice is expected to continue after the present decision as well. However, in this respect, the solution of the Supreme Court raises some questions. Indeed, what about the situation where the judgment creditor initiates a procedure in Japan seeking the enforcement of compensatory part of the judgment first? Would it matter if the judgment creditor shows the intention to claim the payment of the punitive part later so that he/she ensures the satisfaction of the whole amount of the award? More importantly, if the judgment debtor was obliged to pay for example the full award including the punitive part in the rendering state (or in another state where punitive damages are enforceable), would it be entitled to claim in Japan the payment back of the amount that corresponds to the punitive part of the foreign judgment? Only further developments will provide answers to these questions.

In any case, one can somehow regret that the Supreme Court missed the chance to reevaluate its position with respect to punitive damages. In effect, the court ruled as it did without paying the slightest heed to the possibility of declaring punitive damages enforceable be it under certain (strict) conditions. In this regard, the court could have adopted a more moderate approach. This approach can consist in admitting that punitive damages are not per se contrary to public policy, and that the issue should be decided on a case by case basis taking into account, for example, the evidence produced by the judgment creditor to the effect that the awarded amount would not violate public policy (see in this sense, Toshiyuki Kono, “Case No. 67” in M Bälz et al. (ed.), Business Law in Japan – Cases and Comments – Intellectual Property, Civil, Commercial and International Private Law (Wolters Kluwer Law & Business, 2012), p. 743s); or when the amount awarded is not manifestly disproportionate with the damages actually suffered (for a general overview, see Béligh Elbalti, “Spontaneous Harmonization and the Liberalization of the Recognition and Enforcement of Foreign Judgments, Japanese Yearbook of Private International Law, Vol. 16, 2014, pp. 274-275 available here).

In this respect, it is interesting to note that such an approach has started to find its way into the case law in some jurisdictions, although the methods of assessment of compatibility of punitive damages with the public policy of the recognizing state and the outcome of such an assessment differed from one jurisdiction to another (for a general overview, see Csongor I Nagy, Recognition and Enforcement of US Judgments Involving Punitive Damages in Continental Europe, 30 Nederlands Internationaal Privaatrecht 1 2012, pp. 4ss). For example, the Greek Supreme Court has refused to enforce punitive damages but after declaring that punitive damages may not violate public policy if they are not excessive (judgment No. 17 of 7 July 1999, decision available at the Greek Supreme Court homepage). The French Cour de cassation has also refused to enforce a foreign judgment awarding punitive damages, but – again – after declaring that punitive damages were not per se contrary to French ordre public, and that that should be treated as such only when the amount award was disproportionate as compared with the sustained damages (judgment No. 09-13.303 of 1 December 2010, on this case, see Benjamin West Janke and François-Xavier Licari, “Enforcing Punitive Damages Awards in France after Fountaine Pajot”, 60 AJCL 2012, pp. 775ss). On the other hand, the Spanish Supreme Court accepted the full enforcement of an American judgment including punitive damages (judgment of No. 1803/2001 of 13 November 2001; on this case see Scott R Jablonski, “Translation and Comment: Enforcing U.S. Punitive Damages Awards in Foreign Courts – A Recent Case in the Supreme Court of Spain” 24 JLC 2005, pp. 225ss). Finally, the recent extraordinary revirement jurisprudentiel of the Italian Supreme Court deserves to be highlighted. Indeed, in its judgment No. 16601 of 5 July 2017, the Corte Suprema di Cassazione declared that punitive damages could be enforced under certain conditions after it used to consider, as Japanese courts still do, that punitive damages as such were contrary to Italian public policy (on this case see, Angelo Venchiarutti, “The Recognition of Punitive Damages in Italy: A commentary on Cass Sez Un 5 July 2017, 16601, AXO Sport, SpA v NOSA Inc” 9 JETL 1, 2018, pp.104ss). It may take some time for Japanese courts to join this general trend, but what is sure is that the debate on the acceptability of punitive damages and their compatibility with Japanese public policy will certainly be put back in the spotlight of doctrinal discussions in the coming days.

The Court of Justice delivered today its judgment in Case C‑280/20 (ZN v Generalno konsulstvo na Republika Bulgaria v grad Valensia, Kralstvo Ispania), which is about Brussels I bis and an employment contract concluded with a consular representation of the Member State of the employee in another Member State:

“Article 5(1) 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, read in conjunction with recital 3 of that regulation, must be interpreted as meaning that it applies for the purposes of determining the international jurisdiction of the courts of a Member State to hear and rule on a dispute between an employee from a Member State who does not carry out duties involving the exercise of public powers and a consular authority of that Member State situated in the territory of another Member State”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=242028&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=9748919

The Court of Justice delivered today its judgment in case C‑914/19 (Ministero della Giustizia v GN). The judgment is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version):

« L’article 21 de la charte des droits fondamentaux de l’Union européenne et l’article 6, paragraphe 1, de la directive 2000/78/CE du Conseil, du 27 novembre 2000, portant création d’un cadre général en faveur de l’égalité de traitement en matière d’emploi et de travail, doivent être interprétés en ce sens qu’ils s’opposent à une réglementation nationale qui fixe une limite d’âge de 50 ans pour pouvoir participer au concours d’accès à la profession de notaire, dans la mesure où une telle réglementation ne paraît pas poursuivre les objectifs d’assurer la stabilité de l’exercice de cette profession pendant une durée significative avant la retraite, de protéger le bon fonctionnement des prérogatives notariales et de faciliter le renouvellement générationnel ainsi que le rajeunissement de ladite profession et, en tout état de cause, dépasse ce qui est nécessaire pour atteindre ces objectifs, ce qu’il appartient à la juridiction de renvoi de vérifier ».

I reported on the AG’s Opinion in C-913/19 CNP here. The CJEU held on 20 May.

The case essentially queries the application of Section 3 BIa (‘matters relating to insurance’) and Section 2 (the ‘special jurisdictional rules’, in particular contract and tort) in the event of assignment and /or subrogation of claims from the natural person to a professional party. As many of us may have experienced, filing an insurance claim particularly in the automotive sector immediately engages 2, 3 or more distinct businesses: insurance agents, insurers, towing trucks and garages…. The case also discusses whether some of those business may be considered a ‘branch’ of the insurance company on account of their close relationship as experienced by repairers and insureds.

In the case at hand, a road traffic accident occurred in Poland, in which two vehicles collided. The person responsible for the accident had, before that time, taken out a contract for motor liability insurance with Gefion, domiciled at Denmark. The injured party paid to lease a replacement vehicle from the repair workshop to which his damaged vehicle had been entrusted. By way of payment for that lease service arrangement, that person transferred the claim against Gefion to the repair workshop pursuant to a contract for assignment of the claim. Slightly later, pursuant to a new contract for the assignment of claims, the repair workshop assigned that claim to CNP. CNP requested Gefion to pay it the amount invoiced for the lease of the replacement vehicle. That request was sent to the address of Polins, a limited liability company established in Poland,  which represented Gefion’s interests in Poland. Crawford Polska, a company established in Poland and entrusted by Gefion with loss adjustment, then validated the invoice relating to the leasing of the replacement vehicle in part and granted CNP part of the amount invoiced for such lease. In its correspondence, Crawford Polska referred to the possibility of making a claim against it as the entity authorised by Gefion, or directly against Gefion, ‘either under the general provisions on jurisdiction or before the court with jurisdiction for the place where the policyholder, the insured person, the beneficiary or any other person entitled under the insurance contract is resident or established’. CNP then brought an action against Gefion in Poland, citing the information published by Gefion according to which Polins was its principal representative in Poland.  Gefion opposes the subsequent payment order, arguing inter alia that the Polish courts do not have jurisdiction.

Gefion rely in large part on CJEU Hofsoe, which as I noted in my review of UKSC Aspen Underwriting, is not as clear as one might hope. The Court in CNP v Gefion refers again to Hofsoe and Voralberger and zooms in on the professional activities of the corporations involved: [40] no special protection is justified where the parties concerned are ‘professionals in the insurance sector’; [43] CNP recovers claims from insurance undertakings. This precludes  it from being regarded as a party in a weaker position than the other party.

This finding as such arguably has no impact on the authority of Aspen Underwriting, in which the professional party, the Bank, is the named loss payee under the Policy and therefore the “beneficiary” of that Policy.

[46] The Court then confirms that Section 2’s special jurisdictional rules do open up in such circumstances.

As to whether Crawford may be considered a Gefion branch, the Court employs the criteria suggested by the AG (see my review of the opinion) and notes [56] that Crawford has every power to carry out activities involving the loss adjustment and settlement of claims which are binding on the insurer, meaning that Crawford Polska must be regarded as a centre of operations which has the appearance of permanency, such as the extension of a parent body. [57] Whether that centre is materially equipped to negotiate business with third parties, so that they do not have to deal directly with the parent body, is something which the referring court has to verify (and which will therefore determine branch jurisdiction).

Per CJEU Ryanair, [59] Crawford’s role here seems to have been more than just a data hatch: it was an active contributor (in deciding, upon having given such overall authority by Gefion,  only half of the amount claimed would be settled) to the legal situation that led to the dispute in the main proceedings. Therefore provided the aforementioned ‘material equipment’ criterion is met, the dispute is to be regarded as ‘arising out of the operation of the branch’.

All in all a bit more follow-up work to be done by the referring court and, as I noted in my review of the AG’s Opinion, not great publicity for the predictability of jurisdictional rules.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.293 ff, para 2.73 ff.

Sabine Corneloup (Université Paris II Panthéon-Assas) and Jinske Verhellen (Ghent University) have recently posted on SSRN an article titled Providing legal identity for all – A means to empower migrants to exercise their rights, which forms part of the volume SDG 2030 and Private International Law edited by R. Michaels, V. Ruiz Abou-Nigm and H. van Loon to be published by Intersentia. The volume will be an outcome of the project The Private Side of Transforming our World UN Sustainable Development Goals 2030 and the Role of Private International Law. The project, as underlined by its leaders, “aims to raise an awareness of how PIL – with its methods and institutions – is also capable of making a significant contribution in the quest for sustainable development” as defined in UN Sustainable Development Goals 2030. The resulting findings will also be presented in the framework of a conference to be held on 9 to 11 September 2021 at the Max Planck Institute for Comparative and International Private Law in Hamburg.

The abstract of the article reads as follows:

This paper focusses on Target 16.9 of the Sustainable Development Goals (SDGs), which states: “By 2030, provide legal identity for all, including birth registration.” It is a tentative attempt to explore the reciprocal influences between private international law and SDG Target 16.9.

In chapter 1, Target 16.9 will first be presented in itself, before being analyzed in the context of SDG 16 as a whole, as well as in the context of global migration, which also brings other SDGs into the picture and highlights the link to private international law.

The purpose of chapter 2 is twofold: on the one hand, it is to give an overview of existing PIL instruments and methodologies concerning legal identity on a global, regional and national level and, on the other hand, to assess their relevance in a migration context. A survey of the international conventions and EU regulations on private international law will reveal that none of the existing instruments plays a prominent role, if any, in a migration context. Indeed, even though some international conventions and EU regulations contain potentially interesting provisions, none of them has proven relevant, if migration issues such as access to asylum, to a residence permit or to nationality are at stake. At the national level, private international law comes into play in the context of migration, when legal identity is addressed from the perspective of States of destination or States of transit, because then a cross-border element arises.

Chapter 3 takes a different perspective and looks at legal identity issues from the angle of an evolving new global framework according to the SDGs, emphasizing human rights. The question then arises whether this global SDG perspective could improve the situation in the States of origin by promoting and implementing birth registration and consequently impact on legal identity matters in PIL and whether, in its turn, a ‘revitalized’ PIL holds potential to contribute to the further development of the new global framework according to SDG 16.9.

by Mag. Paul Patreider, Institute for Italian Law, Private Law Section, University of Innsbruck, Austria

In November 2020, a team of researchers at the Universities of Verona (I), Innsbruck (A) and Thessaloniki (EL), in cooperation with associations of registrars – EVS[1] and ANUSCA[2] – launched the project “Identities on the move – Documents cross borders (DXB)”, co-financed by the e-justice programme. The project focuses on the use of authentic instruments within the European Union and on the implementation of Regulation (EU) 2016/1191. A first workshop with practitioners and representatives from academia was successfully held on April 30th.

The Regulation was initially meant to simplify the circulation of public documents, favouring the free movement of citizens in a cross-border context and abolishing the need for legalisation. As first responses from registrars,[3] however, show, it finds little application in everyday practice and has remained largely unnoticed in scholarly debates. In order to comprehend the implications and the framework of the Regulation, the project (DXB) investigates the context of national civil status systems and places the Regulation under the strict scrutiny of obligations deriving from the Treaties and, in particular, the Charter of fundamental rights of the European Union. Research is developed by means of a permanent dialogue with registrars. The outcome[4] will be transferred to practitioners and various stakeholders.

To gain a better understanding of the current implementation of the Regulation within national systems and to raise awareness among registrars and legal practitioners, a first workshop was organised by the University of Innsbruck on April 30th.

The event focused on the cross-border region between Italy, Austria and Germany and involved representatives from each country. After an introduction by Prof. Laura Calafà from the University of Verona, who highlighted the general framework of the project, the first session was opened. It dealt with multilingual standard forms issued under the Regulation and tackled hard cases in civil status matters. Public documents covered by Regulation (EU) 2016/1191 and their certified copies are generally exempt from all forms of legalisation and similar formalities (Arts 1, 4). This applies, to a certain extent, also to official translations of authentic instruments.[5] To simplify their circulation and the civil status registration process, (country specific) translation aids were introduced in 2016.[6] Due to their somewhat complex nature and time-consuming processing, these multilingual standard forms remain, however, unsatisfactory. Oliver Reithofer (Bundesministerium für Inneres, Austria[7]) highlighted these aspects from an Austrian point of view. The number of standard forms issued by the Austrian authorities has so far remained very low, especially when compared to documents issued under the ICCS-Conventions.[8]

The second speaker, Giacomo Cardaci (University of Verona, Italy), addressed potential “hard cases” arising from the application of the Regulation. Given that the Regulation itself does not apply to the recognition of legal effects and that the legal terminology differs from Member State to Member State, problems are mainly due to the use of multilingual standard forms and the scope of application[9] of the Regulation. Standard forms for parentage, for example, are currently missing, other facts may not emerge from the translation aids or may not be registered therein (e.g. intersexuality, gender reassignment, maiden name, …). As a result, to ensure the continuity of personal status in private international law, additional documentation is frequently needed when bringing authentic instruments abroad.

During the first round table, participants reflected on the scarce application of the Regulation stressing the fact that it would not affect the application of other international instruments such as the ICCS-Conventions. The latter already provide for clear standard forms with evidential value. Despite the Regulations multilingual standard forms not having similar effects (Art 8(1)), it was proposed that they could be deemed valid certified copies, since they contain information taken from original documents, are dated and signed by a public official.

The second session was opened by a comparison of selected ICCS Conventions and the Public Documents Regulation by Renzo Calvigioni (ANUSCA). Calvigioni went on to identify a number of problematic aspects regarding Regulation (EU) 2016/1191. Registrars face difficulties when confronted with multilingual standard forms as they merely summarise the original public document. The partial translations often do not contain enough information in order to proceed to the registration of a civil status event. It can be difficult to verify if a document is contrary to public policy when certain facts cannot be identified from the standard form (e.g. adoptions, use of reproductive technologies, surrogacy). The need for legalisation (or an apostille) does, however, not necessarily arise in these cases, as the information could be supplemented. Contrary to the objective of simplification of Regulation 2016/1191, additional documentation would need to be attached to the original document. As far as certain ICCS-Conventions are concerned (e.g. No. 16), this would not be the case.[10]

Besides the bureaucratic burden and the economic costs for citizens that wish to obtain public documents and translation aids (subject to two separate fees in Germany), a big concern, shared by Gerhard Bangert (Director of the German Association of Registrars), is related to the authenticity of public documents. So far, the verification process set up in the Regulation relies on the Internal Market Information System (IMI). Where the authorities of a Member State have a reasonable doubt as to the authenticity of a public document or its certified copy,[11] they can submit a request for information through IMI to the authority that issued the public document or certified copy (or to a Central authority[12]). The information should then be made available within the shortest possible period of time and in any case within a period not exceeding 5 or 10 working days (where the request is processed through a central authority). As some registrars noted, delays frequently happen, making the proceedings not always efficient. The topic has been picked up by the EU Commission’s Expert Group as well, with further improvements currently on the way.

Giovanni Farneti (ANUSCA) then illustrated the “European Civil Registry Network (ECNR)”, an EU-funded pilot project finalised in 2011 that worked on a web interface for the (online) exchange of public documents. In the years to come the relevance of electronic public documents will further increase. Some countries, such as Belgium, are currently in a transition period to fully digitalise documents in civil status matters. Regulation 2016/1191 should also cover electronic versions of public documents and multilingual standard forms suitable for electronic exchange. However, each Member State should decide in accordance with its national law whether and under which conditions those public documents and multilingual standard forms may be presented.[13] The topic of digital public documents, unknown to most ICCS-Conventions,[14] was further developed by Alexander Schuster (University of Innsbruck, DXB coordinator). Even though the Regulation does not affect EU legislation in the field of electronic signatures and identification (e.g. eIDAS-Regulation), certain issues can already be identified.[15] The two main aspects pertain to the nature of the document itself (public documents created digitally or digital copies of documents originally issued in paper format) and to the way its authenticity can be ensured. It is still unclear which type of electronic signature is to be used in order for them to be accepted as a valid public document. National systems vary in this regard as Member States decide when an electronic document is valid, despite not complying with eIDAS standards. Therefore, to simplify their circulation and to coordinate family statuses across Europe, it is necessary to investigate how Member State regulate their digital instruments.

Even if – as of now – no extensive statistics exist with regard to the implementation of Regulation (EU) 2016/1191, it seems that it is mostly used in relation to States that are not Parties to the ICCS-Conventions. The multilingual standard forms raise problems for both issuing and receiving authorities.[16] Future developments will focus on the use of digital public documents and their circulation within the European Union. It is the project’s intention to contribute to the implementation and the future improvement of the Public Documents Regulation and to supply possible solutions for the issues posed by it.

[1] Europäischer Verband der Standesbeamtinnen und Standesbeamten e.V. (European Association of Registrars).

[2] Associazione Nazionale Ufficiali di Stato Civile e d’Anagrafe (Italy’s Association of Registrars).

[3] For a detailed report see https://www.identitiesonthemove.eu/ (accessed 1.6.2021).

[4] The two-year project will produce a thorough commentary on the Regulation and several other publications, carry out an EU-wide comparative survey placing the Regulation in the context of everyday and national practice and distribute a multilingual handbook (11.500 copies) offering among other things checklists, solutions to hard cases and country profiles in the appendix. Online and freely accessible electronic resources are meant to enrich the tools in view of widespread dissemination.

[5] Art. 5 ff. Reg. (EU) 2016/1191.

[6] See https://e-justice.europa.eu/content_public_documents-551-en.do (accessed 1.6.2021).

[7] Federal Ministry of the Interior (BMI).

[8] International Commission on Civil Status (Commission Internationale de l’État Civil; CIEC).

[9] E.g. the Regulation could not technically be applied to marriage certificates issued by the Holy See according to Canon law and registered in a Member state as the Vatican is to be regarded as a third state for the purposes of Reg. 2016/1191 (Art 2(3)(a)).

[10] Extracts from civil status records (issued at the request of an interested party or when their use necessitates a translation) prepared according to the aforementioned Convention are accepted without any additional documentation.

[11] Models of documents are currently made available in the repository of IMI. They have to be checked first but are in practice not always sufficient.

[12] Cf https://e-justice.europa.eu/content_public_documents-551-en.do (accessed 1.6.2021).

[13] Rec 9.

[14] Neither Convention (No. 30) on international communication by electronic means signed at Athens on 17 September 2001 nor Convention (No. 33) on the use of the International Commission on Civil Status Platform for the international communication of civil-status data by electronic means signed at Rome on 19 September 2012 have yet entered into force, cf http://ciec1.org/SITECIEC/PAGE_Conventions/mBkAAOMbekRBd0d4VVl3VVRT9gw?WD_ACTION_=MENU&ID=A10 (accessed 1.6.2021).

[15] Art 17(2).

[16] Standardised forms for all Member States could have been introduced but a similar proposition was rejected by Member States during the legislative procedure.

This post was contributed by Fabienne Jault-Seseke, who is Professor at University Paris Saclay (UVSQ), and a member of GEDIP.

On 26 May 2021, the French supreme court for private and criminal matters (Cour de Cassation) issued an important judgment requiring the ex officio application of a European conflict of laws rule. The Court specifically relies on the principles of primacy and effectiveness of EU law to justify the solution, which is different from its traditional doctrine on the application of conflict of laws rules.

The case involves Mienta France and Groupe SEB-Moulinex, a French group, in relation to their activities on the Egyptian market. Groupe SEB-Moulinex granted Intercommerce the exclusive representation and distribution of Moulinex brand products. It also granted Blendex an exclusive licence to use the international Moulinex brands and a licence to manufacture certain products, while lending it moulds and supplying certain components. After these relationships were terminated,  Groupe SEB-Moulinex sued Intercommerce and Blendex for liability for  brutal termination of an established commercial relationship. The group brought also an action for forced intervention against Mienta France. It is alleged that Mienta manufactures, directly or through Blendex, small household appliances which it markets under the Mienta brand on the Egyptian market, in particular through the company Intercommerce. These products are likely to create harmful confusion in the public mind with the Seb group’s own products. It is alleged that these facts constitute unfair competition and parasitism.

The question of the law applicable to the dispute does not appear to have been discussed before the Court of Appeal. The Cour of Cassation therefore decided to set aside the judgment of the lower court for failing to apply ex officio Article 6 of the Rome II Regulation to the issue of unfair competition. It should be noted that the court does not decide here the question of the law applicable to the action for brutal termination of established commercial relations. Article 6 designates the applicable law to unfair competition (law of the country where competitive relations or the collective interests of consumers are affected, or if the act of unfair competition affects exclusively the interests of a specific competitor, the law of the country in which the damage occurs or the law of the country where the person claimed to be liable and the person sustaining damage both have their habitual residence) and specifies also that the law applicable may not be derogated from by an agreement.

The Court refers to two sets of norms to require ex officio application of Article 6. The first is Article 12 of the French Code of Civil Procedure, which states that “the judge shall decide the dispute in accordance with the rules of law applicable to it”. The second are “the principles of primacy and effectiveness of European Union law”. To our knowledge, this combination is used for the first time to justify the authority of a conflict of laws rule. The Cour de Cassation has used it once to ensure the application of the product liability regime established by the 1985 Directive.

More specifically, the Court rules that courts must apply a conflict of laws rule ex officio when it is forbidden to derogate from it. Implicitly, the Court deduces that Article 6 of the Rome II Regulation must be applied because the parties do not have the power to agree on the applicable law. For the first time, it is thus indicated that courts must apply ex officio conflict of laws rule which excludes party autonomy in choice of law.

Placed under the patronage of the principles of primacy and effectiveness of European Union law, the solution is limited to conflict rules of European origin. Nevertheless, one might consider extending it to the whole of French Private international law. First of all, the regime of conflict rules has not been harmonized at European level. Consequently, there is no need to distinguish the European rules from other conflict-of-laws rules. As regards the Rome II Regulation specifically, the foreign law regime ressembles the Arlesian woman, about which one speaks, but that one never sees (see Article 30, 1. I and the lack of any study). Secondly, the proposed solution would be more readable than the one that results today from the criterion of the free availability of rights (libre disponibilité des droits) that the Cour de Cassation usually uses.

The application of Article 6 in the dispute brought by the Seb group is likely to lead to the application of Egyptian law, which will upset those who point out that in matters of unfair competition the law of origin of competitors should prevail over the law of the market (see V. Pironon, Rev. crit DIP 2020. 814). It may be possible to avoid this by establishing that Mienta France has its habitual residence in France and that only the interests of the Seb group are affected. In this case, the judgment of 26 May 2021 will simply have made it possible to refine the regime of the conflict of laws rule. This is already a lot.

This information was provided by Ms Lenka Vysoka, European Commission 

In May 2021, the European Commission launched a public consultation on its initiative on recognition of parenthood between Member States.

This initiative aims to ensure that parenthood, as established in one EU Member State, will be recognised across the EU so that children maintain their rights in cross-border situations, in particular when their families travel or move within the EU. The initiative does not aim to harmonise national laws on the establishment of parenthood.

This survey should help to identify the problems that may currently arise in cross?border situations in the Union where the parenthood of a child established in a Member State is not recognised in another Member State. The survey should also provide an opportunity to all interested parties to give their views on the initiative and its scope.

In June 2021 the CJEU will rule on in two cases of interest for private international law.

On 3 June 2021, the decision on the request for a preliminary ruling from Bulgaria C-280/20, Generalno konsulstvo na Republika Bulgaria, will be delivered by the 8th Chamber (judges N. Wahl, F. Biltgen, J. Passer, with the latter as reporting judge).

The request concerns the action filed by a person who claims to be a worker against the Bulgarian Embassy in Valencia, Kingdom of Spain, for the payment of financial remuneration in respect of unused paid annual leave to which she claims to be entitled under the labour law of the Republic of Bulgaria. The referring court has doubts as to whether it has been seised of a dispute with a ‘cross-border implication’.

The judgment in C-800/19, Mittelbayerischer Verlag, from the Court of Appeal, Warsaw (Poland), will be published on Thursday 17th by the 1st Chamber, with Judge Silva de Lapuerta acting as reporting judge (J.C. Bonichot, R. Silva de Lapuerta, L. Bay Larsen, M. Safjan, N. Jääskinen).

For the record, here are the questions:

1) Should Article 7(2) 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 1 be interpreted as meaning that jurisdiction based on the centre-of-interests connecting factor is applicable to an action brought by a natural person for the protection of his personality rights in a case where the online publication cited as infringing those rights does n contain information relating directly or indirectly to that particular natural person, but contains, rather, information or statements suggesting reprehensible actions by the community to which the applicant belongs (in the circumstances of the case at hand: his nation), which the applicant regards as amounting to an infringement of his personality rights?

2) In a case concerning the protection of material and non-material personality rights against online infringement, is it necessary, when assessing the grounds of jurisdiction set out in Article 7(2) of Regulation [No 1215/2012], that is to say, when assessing whether a national court is the court for the place where the harmful event occurred or may occur, to take account of circumstances such as:

– the public to whom the website on which the infringement occurred is principally addressed;

– the language of the website and in which the publication in question is written;

– the period during which the online information in question remained accessible to the public;

– the individual circumstances of the applicant, such as the applicant’s wartime experiences and his current social activism, which are invoked in the present case as justification for the applicant’s special right to oppose, by way of judicial proceedings, the dissemination of allegations made against the community to which the applicant belongs?

AG Bobek delivered his Opinion on 23 February 2021. He proposed the Court to answer that :

1)  Article 7(2) 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 must be interpreted as meaning that the establishment of the jurisdiction based on the centre of interests does not require that the allegedly harmful online content names a particular person.

2)   However, in order to establish jurisdiction pursuant to Article 7(2) of that regulation, a national court must verify that there is a close connection between that court and the action at issue, thus ensuring the sound administration of justice. In the particular context of online publications, the national court must ensure that, in view of the nature, content, and the scope of the specific online material, assessed and interpreted in its proper context, there is a reasonable degree of foreseeability of the potential forum in terms of the place where the damage resulting from such material may occur.

No other decisions nor Opinions are expected. As for hearings, the one in C-262/21 PPU, A, from the Supreme Court of Finland on the return of the child in application of the Hague Convention, is scheduled for 28 June. In the case at hand, a request had been made for the return to Sweden of a child who has been taken to Finland. The question that arises is whether the removal or retention of a child may be considered to be wrongful where one of the two parents, without the authorisation of the other, has removed the child from the State in which he was habitually resident to another Member State of the European Union after the immigration authority of the State of residence considered that it was in that other Member State that the applications for asylum concerning the child and the parent in question should be examined. I remember having studied myself the interfaces between the Dublin III Regulation and the Brussels II bis Regulation in 2017, although concentrating on the situation of unaccompanied minors seeking asylum (Cuadernos de Derecho Transnacional, open access). The case has been allocated to the 1st Chamber (J.C.  Bonichot, reporting judge ; C. Toader, M. Safjan, L. Bay Larsen, N. Jääskinen), and to G. Pitruzzella as Advocate General.

NoA: The Grand Chamber decision of 15 June 2021 regarding C-645/19, Facebook Ireland e.a., on the GDPR, will certainly be also of interest, even if not directly related to cooperation in civil and commercial matters in cross-border cases.  The request comes from the Hof van beroep te Brussel (Belgium), L.S. Rossi is the reporting judge, and AG Bobek delivered his Opinion last January.

On 24 May 2021, Niger deposited its instrument of accession to the HCCH 1993 Adoption Convention. With the accession of Niger, the Adoption Convention now has 104 Contracting Parties. It will enter into force for Niger on 1 September 2021. More information is available here.

On 4 May 2021, the HCCH participated in the virtual launch of the book Choice of Law in International Commercial Contracts, published by Oxford University Press. The recording of the event is available here.

From 3 to 6 May 2021, the Experts’ Group on the e-APP and New Technologies met via videoconference. The Group discussed the current use of the electronic Apostille Programme (e-APP), and future solutions. It endorsed a set of key principles and good practices for Contracting Parties in the implementation of the e-APP, and invited the PB to develop an online forum to facilitate intersessional discussion and information sharing, including in relation to best practices, between meetings of the Special Commission and the International Forum on the e-APP. More information is available here.

On 10 and 11 May 2021, the Administrative Cooperation Working Group on the 2007 Child Support Convention met via videoconference. The Group continued its work as a forum for discussion of issues pertaining to administrative cooperation, making significant progress on a Draft Statistical Report under the 2007 Child Support Convention. More information is available here.

From 18 to 22 May 2021, the HCCH co-organised a virtual seminar for judges on adoption and the protection of the rights of children and adolescents, in collaboration with the Judiciary Council and the Ministry of Economic and Social Inclusion of Ecuador. More information on the HCCH 1993 Adoption Convention is available here.

On 21 May 2021, the HCCH and the World Intellectual Property Organization (WIPO) launched a questionnaire on the intersection of private international law and intellectual property. The Questionnaire is open for consultation to a wide audience, including Member States of both Organisations, other intergovernmental organisations, non-governmental organisations, practitioners, in-house counsel, academics and other private individuals. Responses will be received until 30 June 2021, after which they will be compiled and analysed, with the results to be submitted to the HCCH’s Council on General Affairs and Policy (CGAP) ahead of its 2022 meeting. More information is available here.

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

I have an article forthcoming on the application of Rome II’s Article 7, ‘environmental damage’ rule. Last week’s widely reported first instance ruling in the Dutch Shell climate case will of course now feature.

I reported on application of A7 in Begum v Maran. There I submit, the Court of Appeal engaged without sufficient depth with the Article. It held against its application. Xandra Kramer and Ekaterina Pannebakker then alerted us to the use of Article 7 in last week’s momentous Milieudefensie v Shell (umpteen) ruling [Dutch version here, English version here], in which Shell by a first instance judge has been ordered to reduce its CO2 emissions. In that ruling, too, the judges leave a lot of issues on Rome II underanalysed. The conclusion  however goes in the opposite direction: the court held A7 is engaged and leads to Dutch law as the lex loci delicti commissi (Handlungsort or ldc).

I have taken the Dutch version of the judgment as the basis for the analysis for the English version is a touch under par when it comes to the finer detail. The Dutch version it has to be said is not entirely clear either on the conflict of laws analysis.

Firstly, Milieudefensie argue that A7 is engaged, and it suggests it opts for Dutch law given the choice left to it by that Article. Whether it does so as lex loci damni (Erfolgort or ld) or lex loci delicti commissi is not specified. It is reported by the courts that in subsidiary fashion Milieudefensie argue that per A4(1)’s general rule, Dutch law is the lex causae: that has to be Erfolgort.  (Lest the court inaccurately reported parties’ submissions here and the argument made under A4 focused on Article 4(3)’s displacement rule) [4.3.1].

The judges further report [4.3.2] that parties were in agreement that climate change, whether dangerous or otherwise, due to CO2 emissions constitutes ‘environmental damage’ in the sense of A7 Rome II (and the judges agree) and that they were in disagreement on the locus delicti commissi. Milieudefensie argue that Shell’s holding policy viz climate change and emissions, dictated from its corporate home of The Netherlands, is that Handlungsort. Shell argue that the place of the actual emissions are the Handlungsorts (plural), hence a Mozaik of applicable laws. (This nota bene has interesting applications in competition law, as I suggest here).

Then follows a rather sloppy reference to Jan von Hein’s note bene excellent review of Article 7 in Calliess; distinguishing of the arguments made by Shell with reference to ia product liability cases; and eventually, with reference to ia the cluster effect of emissions (‘every contribution towards a reduction of CO2 emissions may be of importance’ [4.3.5]) and the exceptional, policy driven nature of A7, the conclusion [4.3.6] that the holding policy is an independent cause of the CO2 emissions and hence imminent climate damage and obiter [4.3.7] that A4(1) would have led to the same conclusion.

The ruling will of course be appealed. It would be good to get the application of Article 7 right, seeing as environmental law is a core part of strategic and public interest litigation.

Geert.

EU Private International Law, 3rd. ed. 2021, Chapter 4, Heading 4.6.3 (4.54 ff).

Jurisdiction is a fundamental aspect of Nigerian procedural law. In Nigerian judicial parlance, we have become accustomed to the principle that the issue of jurisdiction can be raised at any time, even at the Nigerian Supreme Court – the highest court of the land – for the first time.[1] The concept of jurisdiction in Nigerian conflict of laws (often called “territorial jurisdiction” by many Nigerian judges) is the most confusing aspect of Nigerian conflict of laws. This is because the decisions are inconsistent and not clear or precise. The purpose of this write up is to briefly highlight the confusion on the concept of jurisdiction in Nigerian conflict of laws through the lens of a very recently reported case (reported last week) of Attorney General of Yobe State v Maska & Anor. (“Maska”).[2]

In Maska the 1st claimant/respondent instituted an action for summary judgment against the defendant/appellant and the 2nd respondent at the High Court of Katsina State for breach of contract. The 1st claimant/respondent alleged that the defendant/appellant purchased some trucks of maize from the 1st claimant/respondent and promised to pay for it. The 1st claimant/respondent also alleged that the defendant/appellant failed to pay for the goods, which resulted in the present action. It was undisputed that the place of delivery (or performance) was in Kastina State, the 1st claimant/respondent’s place of business, where the defendant/appellant took delivery of the goods. However, the defendant/appellant challenged the jurisdiction of the Kastina State High Court to hear the case on the basis that the contract in issue was concluded in Yobe State, where  it claimed the cause of action arose, which it argued was outside the jurisdiction of Kastina State. On this basis the defendant/appellant argued that the court of Yobe State had exclusive jurisdiction.

The High Court of Kastina State assumed jurisdiction and rejected the argument of the defendant/appellant. The defendant/appellant appealed but it was not successful. The Court of Appeal held that the concept of territorial jurisdiction for breach of contract is based on any or a combination of the following three factors – (a) where the contract was made (lex loci contractus); (b) where the contract is to be performed (lex loci loci solutions);.and (c) where the defendant resides. In the instant case, the place of performance – particularly the place of delivery – was in Kastina State – so the High Court of Kastina State could assume jurisdiction in this case.[3]

Maska adds to the confusion on the concept of jurisdiction in Nigerian conflict of laws. In Maska, the focus was on what it labeled as “territorial jurisdiction for breach of contract” in inter-state matters. In international and inter-state matters, Nigerian judges apply at least four approaches in determining whether or not to assume jurisdiction in cases concerned with conflict of laws.

First, some Nigerian judges apply the traditional common law rules on private international law to determine issues of jurisdiction.[4] This approach is based as of right on the residence and/or submission of the defendant to the jurisdiction of the Nigerian court. Where the defendant is resident in a foreign country and does not submit to the jurisdiction of the Nigerian court, then leave of court is required in accordance with the relevant civil procedure rules to bring a foreign defendant before the Nigerian Court. This is all subject to the principle of forum non conveniens – the appropriate forum where the action should be brought in the interest of the parties and the ends of justice. In Maska, the common law approach of private international law was not applied. If it was applied the High Court of Kastina State would not have had jurisdiction as of right because the defendant/appellant was neither resident in Kastina State nor submitted to the jurisdiction of the Kastina State High Court. In recent times, the common law approach to conflict of laws appears to be witnessing a steady decline among Nigerian appellate judges except for Abiru JCA (a Nigerian Court of Appeal judge) who has vehemently supported this approach by submitting that the concept of territorial jurisdiction in Nigeria is one of the misunderstood concepts of Nigerian conflict of laws.[5]

Second, some Nigerian judges apply choice of venue rules to determine conflict of law rules on jurisdiction.[6] This is wrong. Indeed, some Nigerian judges have rightly held that choice of venue rules are not supposed to be used to determine matters of jurisdiction in Nigerian conflict of laws.[7] Choice of venue rules are used to determine which judicial division within a State (in the case of the State High Court) or judicial division within the Nigerian Federation (in the case of the Federal High Court) has jurisdiction. Choice of venue rules are mainly utilised for geographical and administrative convenience. Unfortunately, it appears that in Maska choice of venue rules were utilised to determine the jurisdiction of the Kastina State High Court in matters of conflict of laws. Order 10 rule 3 of the Kastina State High Court Civil Procedure Rules provides that all suits for breach of contract “shall be commenced and determined in the Judicial Division in which such contract ought to have been performed or in which the defendant resides or carries on business.” Although Maska did not explicitly refer to Order 10 rule 3, it referred to some  previous decisions of Nigerian appellate judges that were influenced by choice of venue rules to determine which court has jurisdiction in matters of conflict of laws.[8] Maska makes the confusion more problematic because it did not cite the wrong choice of venue rules in question (Order 10 rule 3 of the Kastina State High Court Civil Procedure Rules) but wrongly created the impression that this represents the position on Nigerian conflict of laws on jurisdiction.

Third, some Nigerian judges apply the strict territorial jurisdiction approach.[9] This approach is that a Nigerian court cannot assume jurisdiction where the cause of action arose in one State, or another foreign country. I label this approach as “strict” because my understanding of the Nigerian Supreme Court decisions on this point is that based on constitutional law a Nigerian court is confined to matters that arose within its territory, so that one State High Court cannot assume jurisdiction over a matter that occurs within another territory. This approach is also wrong as it ignores the principles of traditional Nigerian common law conflict of laws. It also leads to injustice and unduly circumscribes the jurisdiction of the Nigerian court, which ultimately makes Nigerian courts inaccessible and unattractive for litigation. Nigerian courts should have jurisdiction as of right once a defendant is resident or submits to the jurisdiction of the Nigerian court. In Maska, even if the strict territorial jurisdiction approach was applied, the Kastina State High Court would probably have jurisdiction because the cause of action for breach of contract arose in Kastina State where the defendant/appellant took delivery of the goods.

Fourth some Nigerian judges apply the mild territorial jurisdiction approach.[10] This approach softens the strict territorial jurisdiction approach. This is an approach that has mainly been applied by the Nigerian Court of Appeal probably as a way of ameliorating the injustice of the strict territorial approach applied in some Nigerian Supreme Court decisions. This approach is that more than one court can have jurisdiction in matters of conflict of laws where the cause of action is connected to such States. With this approach, all the plaintiff needs to do is to tailor its claim to show that the cause of action is also connected to its claim. The danger with this approach is that it can lead to forum shopping and unpredictability – the plaintiff can raise the slightest grounds on why the cause of action is connected with its case to institute the action in any court of the Nigerian federation.  The mild territorial jurisdiction approach was applied in Maska because the Court of Appeal held either the Kastina State High Court or Yobe State High Court could assume jurisdiction as the cause of action was connected with both of them.

In conclusion, in very recent times the Nigerian traditional common law principle of conflict of laws (based on English common law conflict of laws without EU influences) on jurisdiction is beginning to witness a steady decline among Nigerian judges and lawyers. The concept of strict territorial jurisdiction, mild territorial jurisdiction, and choice of venue rules appears to be the current norm despite criticism from some Nigerian academics and even a Court of Appeal judge (Justice Abiru).[11] Maska is just another case that demonstrates why the principle of private international law should feature more in the parlance of Nigerian lawyers and judges. I have argued for judicial decisions and academic works in private international law in Africa to be intellectually independent and creative. This means that in Nigeria we should not blindly follow English common law rules. It could be that the common law approach might be an inadequate basis of jurisdiction for Nigerian private international law especially in inter-state matters.  For example in Maska, if the Kastina State High Court had applied the common law private international law rules, it would not have had jurisdiction despite being the place of performance, since the defendant was neither resident nor submitted to the jurisdiction of the court! Should there be a reformulation of the principle of jurisdiction in Nigerian conflict of laws in international and inter-state matters so that it is clear, consistent and predictable? This is a discussion for another day.

[1]Madukolu v Nkemdilim ( 1962) 2 SCNLR 341; Drexel Energy and Natural Resources Ltd v Trans International Bank Ltd ( 2008 ) 18 NWLR (Pt. 1119) 388, 424 – 27, 437 – 38 Dangote General Textiles Products Ltd v Hascon Associates (Nig) Ltd ( 2013 ) 16 NWLR (Pt. 1379) 60, 91; B Apugo & Sons Ltd v Orthopaedic Hospitals Management Board ( 2016 ) 13 NWLR 206, 240. In principle, what can be raised for the first time on appeal is procedural jurisdiction and not substantive jurisdiction as prescribed by the Constitution or enabling statute. This is a point that has been stressed by Abiru JCA in recent cases such as Khalid v Ismail ( 2013 ) LPELR-22325 (CA); Alhaji Hassan Khalid v Al-Nasim Travels & Tours Ltd ( 2014 ) LPELR-22331 (CA) 23 – 25 ; Nigerian National Petroleum Corporation v Zaria ( 2014 ) LPELR-22362 (CA) 58 – 60; Obasanjo Farms (Nig) Ltd v Muhammad ( 2016 ) LPELR-40199 (CA).

[2](2021) 7 NWLR (Pt. 1776) 535.

[3] Attorney General of Yobe State v Maska & Ano (2021) 7 NWLR (Pt. 1776) 535, 548-9.

[4]See generally British Bata Shoe Co v Melikan (1956) SCNLR 321; Nigerian Ports Authority v Panalpina World Transport (Nig) Ltd (1973) 1 ALR Comm 146, 172;  Muhammed v Ajingi  (2013) LPELR-20372 (CA);  Barzasi v Visinoni (1973) NCLR 373.

[5]Muhammed v Ajingi  (2013) LPELR-20372 (CA) 23-5; Foreword to CSA Okoli and RF Oppong, Private International Law in Nigeria (1st edition, Hart, Oxford, 2020); ‘The Concept of Territorial Jurisdiction’ in IO Smith (ed), Law and Developments in Nigeria: Essays in Honour of Alhaji Femi Okunnu, SAN, CON ( Ecowatch Publications (Nig) Ltd , 2004).

[6]See generally the Supreme Court cases of; Dangote General Textiles Products Ltd v Hascon Associates (Nig) Ltd (2013) 16 NWLR (Pt. 1379) 60; First Bank of Nigeria Plc v Kayode Abraham (2008) 18 NWLR (Pt. 1118) 172; Arjay Ltd v Airline Management Support Ltd (2003) 7 NWLR (Pt. 820) 57.

[7]British Bata Shoe Co v Melikian (1956 ) SCNLR 321, 325 – 26, 328; Muhammed v Ajingi (2013) LPELR-20372 (CA);  Zabusky v Israeli Aircraft Industries (2008) 2 NWLR (Pt. 109) 109, 133-6;  Ogunsola v All Nigeria Peoples Party (2003) 9 NWLR (Pt. 826) 462, 480

[8]A.-G. Abia State v. Phoenix Environmental Services Nig. Ltd (2015) LPELR-25702

[9] See the Supreme Court cases of Capital Bancorp Ltd v Shelter Savings and Loans Ltd (2007) 3 NWLR 148; Dairo v Union Bank of Nigeria Plc (2007) 16 NWLR (Pt 1059) 99; Mailantarki v Tongo & Ors (2017) LPELR-42467; Audu v. APC & Ors (2019) LPELR – 48134.

[10]Sarki v Sarki & Ors (2021) LPELR – 52659 (CA).; Onyiaorah v Onyiaorah (2019) LPELR-47092 (CA).

[11]See generally Abiru JCA in Muhammed v Ajingi  (2013) LPELR-20372 (CA) 23 – 25, 25 – 26;  CSA Okoli and RF Oppong, Private International Law in Nigeria (1st edition, Hart, Oxford, 2020) 95-103; AO Yekini, “Comparative Choice of Jurisdiction Rules in Cases having a Foreign Element: are there any Lessons for Nigerian Courts?” (2013) 39 Commonwealth Law Bulletin 333; Bamodu O., “In Personam Jurisdiction: An Overlooked Concept in Recent Nigerian Jurisprudence” (2011) 7 Journal of Private International Law 273.

On 11 May 2021, the Juzgado de lo Mercantil nr. 17 of Madrid has submitted a request for a preliminary ruling to the Court of Justice of the European Union (CJEU) on the interpretation of Articles 101 and 102 TFUE, on the one hand, and of Articles 45, 49, 56 and 63 TFUE, on the other, in the frame of a declaratory claim filed on behalf of European Superleague Company S.L. on 19 April 2021. Readers may recall that inaudita alter parte interim measures were granted the next day.

The Juzgado refers now six questions to the CJEU – maybe a bit over the threshold which separates interpreting EU law and applying it to the case at hand. In a nutshell, the Spanish court is asking whether specific provisions in the bylaws of UEFA and FIFA fall under the prohibition of either Article 101 or Article 102, or both. In case of an affirmative answer regarding the former, the court asks whether the exception in para 3 of Article 101 could nevertheless apply. In case of a positive answer vis à vis Article 102, the equivalent question is whether such a restriction could benefit from an objective justification. In addition, the referring court is asking about the compatibility between the prior authorization FIFA and UEFA require for the establishment of a pan-European club competition, and the free movement of persons, services and capital.

While waiting for the request to be available at the website of the CJEU, I have made the following translation (questions one and two are practically identical in Spanish; I changed a little bit the wording in an attempt to make them more intelligible):

1. Must Article 102 TFEU be interpreted as prohibiting FIFA and UEFA, which have conferred upon themselves an exclusive competence to organize or authorize international club competitions in Europe, an abuse of a dominant position consisting in imposing in their Statutes ( in particular, articles 22 and 71 to 73 of the FIFA Statutes, articles 49 and 51 of the UEFA Statutes, and any similar article contained in the statutes of member associations and national leagues) any third party entity wishing to establish a new pan-European club competition such as the Super League the need to obtain prior authorization, in particular as there is no regulated procedure based on objective, transparent and non-discriminatory criteria, and taking into account the possible conflict of interests that would affect FIFA and UEFA?
2. Must Article 101 TFEU be interpreted as meaning it prohibits FIFA and UEFA, which have granted themselves exclusive competence to organise or authorise international competitions in Europe, to require in their statutes (in particular Articles 22 and 71 to 73 of FIFA’s statutes, Articles 49 and 51 of UEFA’s statutes, and any similar article in the statutes of member associations and national leagues) their prior authorisation for any third party entity to establish a pan-European club competition, such as that at issue in the main proceedings, in particular as there is no regulated procedure thereto based on objective and non-discriminatory criteria, and taking into account the possible conflict of interest that would affect FIFA and UEFA?.
3. Should articles 101 and / or 102 TFEU be interpreted as meaning that they prevent FIFA, UEFA, their member associations and / or national leagues, to threaten with sanctions the clubs participating in the Super League, and / or its players, in light of the deterrence effect such threats can generate? In case sanctions for exclusion from competitions or the prohibition to participate in national team matches are adopted, would they, without being based on objective, transparent and non-discriminatory criteria, constitute a violation of Articles 101 and / or 102 of the TFEU?
4. Are Articles 101 and/or 102 TFEU to be interpreted as incompatible with Articles 67 and 68 of the FIFA Statute, in so far as the latter identify UEFA and its national federations as ‘original holders of all rights arising from competitions… within their respective jurisdiction’, thus depriving participating clubs and any alternative competition organiser of the original ownership of said rights, and assuming the exclusive responsibility for their marketing?
5. If FIFA and UEFA, as entities entrusted with exclusive competence to organise and authorise international football clubs competition in Europe, prohibit or oppose, on the basis of the abovementioned provisions of their statutes, the development of the Super League, must Article 101 TFEU be interpreted as meaning that those restrictions on competition benefit from the exception it provides for, considering that: production is substantially limited, alternative products to those offered by FIFA / UEFA in the market is prevented, and innovation is restricted in that other formats and modalities are prevented, thus potential competition in the market is removed and consumer choices limited? Would such a restriction have an objective justification, so that it could be concluded that there is no abuse of a dominant position within the meaning of Article 102 TFEU?
6. Are Articles 45, 49, 56 and/or 63 TFEU to be interpreted as meaning that a provision such as that contained in the FIFA and UEFA Statutes (in particular under Articles 22 and 71 to 73 of the FIFA statutes, Articles 49 and 51 of the UEFA Statutes and any other similar article contained in the statutes of associations belonging to national leagues) constitutes a restriction of one of the fundamental freedoms enshrined in those provisions, in that it requires prior authorisation of those entities for an economic operator of a Member State to establish a pan-European competition?

The Auto (Order) is available in Spanish here. I would also like to draw attention to the post of 22 April 2021, by Dwayne Bach, in the Kluwer Competition Law Blog, where he makes a first assessment of the situation under EU competition law.

The Department of Juridical Sciences of the University of Bologna, Ravenna Campus, has organized a Summer School on Transnational Jurisdiction: Current Issues In Civil And Commercial Matters, to be held in Ravenna (and online), on July 19-23, 2021.

The Faculty of the Summer School is composed of experts from different jurisdictions, focusing on several aspects of private international and procedural law. The Director of the School is Prof. Michele Angelo Lupoi, who teaches Civil Procedural Law and European Judicial Cooperation at the University of Bologna. The Summer School is aimed at law students as well as law graduates and law practitioners who want to obtain a specialised knowledge in this complex and fascinating area of International civil procedure. The lectures, if the conditions will make it possible, will be held in a blended way, both
in presence and online.

The pre-registration form and the program of the Summer School may be downloaded from this link.

Registration is open until 2 July 2021. The registration fee is 200,00 €. The Bar Association of Ravenna will grant 20 formative credits to lawyers who participate in the Summer School.

The European Association for Family and Succession Law is organizing an international Conference on Minor’s Right to information in EU civil cases: Improving children’s right to information in cross-border civil cases.

The online Conference will take place via Zoom on Thursday, 17th June 2021 (3.00-6.00 pm CEST) and on Friday, 18th June 2021 (10.00 am-6.00 pm CEST). Here is the full programme of the event. Participation is free, online registration is necessary to receive via email the link to the Zoom meeting. The link will be sent shortly before the conference.

The online Conference will present the main results of the EU co-funded research project “MiRI” (“Minor’s Right to Information in civil actions – Improving children’s right to information in cross-border civil cases”, Justice Programme 2014-2020, JUST-JCOO-AG-2018, GA 831608).