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The European Group of Private International Law (EGPIL-GEDIP) has published the minutes (in French) of its 2020 Meeting.

The topics discussed during the meeting included a proposal for a regulation concerning the applicable law to in rem rights, the codification of the general part of EU private international law and the accession of the European Union to the Hague Judgments Convention.

The EGPIL has also published separately a draft proposal for a regulation on the law applicable to rights in rem in tangible assets and Observations on the possible accession of the European Union to the Hague Convention of 2 July 2019 on the Recognition of Foreign Judgments.

Coming up tomorrow – Book Launch: Choice of Law in International Commercial Contracts – 4 May 2021

 

The global PIL community is invited to celebrate the launch of the book “Choice of Law in International Commercial Contracts” (Oxford University Press, 2021). This study provides a definitive reference guide to the key choice of law principles on international contracts, including 60 national and regional reports written by experts from all parts of the world, and a dedicated commentary on the Hague Principles as applied to international commercial arbitration.

When: May 4, 2021 02:00 PM CEST

Where: Online (Zoom-Webinar)

Register here:

https://unilu.zoom.us/webinar/register/WN_ivzYmgFQQkSdUKZCEDRriQ

After registering, you will receive a confirmation email containing information about joining the webinar. The event will also be live streamed via YouTube; the link will be posted five minutes before the start time here.

 

The programme reads as follows:

 

14:00-14:10 – Welcome and acknowledgments | Daniel Girsberger

14:10-14:35 – Overview of the process | Daniel Girsberger and Marta Pertegás

14:35-15:00 – General Comparative Report, with a focus on Art. 3 | Thomas Kadner Graziano

15:00-15:10 – Further general matters | Jan L Neels

15:10-15:15 – Publisher’s address | Andrew Dickinson

15:15-15:20 – Regional perspective: Africa | Jan L Neels and Eesa A Fredericks

15:20-15:30 – Regional perspective: Asia | Yuko Nishitani and Béligh Elbalti

15:30-15:35 – Regional perspective: Australasia | Brooke Marshall

15:35-15:40 – Regional perspective: Europe | Thomas Kadner Graziano

15:40-15:50 – Regional perspective: Latin America | José A Moreno Rodríguez and Lauro Gama

15:50-15:55 – Regional perspective: North America | Geneviève Saumier

15:55-16:05 – HCCH, UNCITRAL and UNIDROIT perspectives | João Ribeiro-Bidaoui, Luca Castellani, and Anna Veneziano

16:05-16:15 – Future plans and concluding remarks | Agatha Brandão and Daniel Girsberger

16:15-16:45 – Q&A

 

More information about the book:

https://global.oup.com/academic/product/choice-of-law-in-international-commercial-contracts-9780198840107?cc=ch&lang=en&#

A 30% discount code will be available for all attendees.

 

In May 2021 the activity of the CJEU regarding PIL will focus on insolvency and civil and commercial matters.

The decision in C- 709/19, Vereniging van Effectenbezitters (first chamber: J.L. Bonichot, L. Bay Larsen, C. Toader, N. Jääskinen, and M. Safjan as reporting judge) will be delivered on May 12th. AG Campos Sánchez-Bordona’s Opinion was published last December. To the first question, once again on Article 7(2) Brussels Ibis Regulation and the Erfolgsort in a case of purely financial damage, he had proposed to drop the approach holding the location of an investment account as the place of the damage, and requiring particular circumstances to concur for jurisdiction to be established at that place. Moreover, he had provided a separate analysis of the fact that the claim had been filed by a Stichting under Article 3:305a Dutch civil code for merely declaratory purposes (the only possibility open at the time). NoA: A similar request for a preliminary judgment is currently pending before the Court, see C-498/20. Recent examples of claim-bundling strategy following the Dutch model, apt to raise (should they get to court) doubts relating to jurisdiction, can be found in the press: see, recently, FAZ.

A second PIL-related decision will be published on May 20. In Case C-913/19, CNP, the referring court asked several questions to the CJEU on section 3 of Chapter II of the Brussels Ibis Regulation and Articles 7(2) and 7(5) of said Regulation. AG Campos Sánchez-Bordona’s Opinion, delivered last January, follows closely the case law of the CJEU on Article 7(5); it additionally analyses its relationship to Articles 145 and 152 of the Directive 2009/138/EC, on the taking-up and pursuit of the business of insurance and reinsurance. The case has been allocated to the third chamber (S. Prechal, N. Wahl, F. Biltgen, J. Passer, L.S. Rossi as reporting judge).

On the same day, the Opinion of AG Campos’s in C-25/20, Alpine Bau, will also be published. Here, the Višje sodišče v Ljubljani (Slovenia) asks the CJEU whether Article 32(2) of Regulation 1346/2000 is to be interpreted as meaning that the rules on the time limits for lodging creditors’ claims, and the consequences of lodging claims out of time under the law of the State in which the secondary proceedings are being conducted, apply to the lodgement of claims in secondary proceedings by the liquidator in the main insolvency proceeding.

No other PIL-related decisions, conclusions or hearings are scheduled so far. Case C-124/20, Bank Melli Iran, might nevertheless be of interest, in that it relates to commercial policies and the protection against the effects of the extraterritorial application of a third State legislation. AG Hogan’s Opinion will be published on May 12th.

The official version of the different agreements concluded in December 2020 between the European Union and the United Kingdom has been published yesterday (30 April 2021) at the Official Journal of the European Union. This version replaces retroactively the one used until now. The official version is available in all official languages of the European Union as well as in English. Please find the English version attached (with the Trade and Cooperation Agreement starting page 12 of the pdf).

brexit-final-version-of-agreeements-and-related-documentsDownload

On 14 April, the Working Group on the Practical Handbook on the Operation of the 2000 Protection of Adults Convention met for the first time. Comprised of experts with experience in the operation or implementation of the 2000 Protection of Adults Convention, the Working Group will meet via videoconference every two weeks, between 14 April and 23 June, in order to continue the development of a draft Practical Handbook on the operation of the Convention. More information on the 2000 Protection of Adults Convention is available here.

On 20 April, the Permanent Bureau announced the launch of the Legal Guide to Uniform Instruments in the Area of International Commercial Contracts, with a Focus on Sales, a joint publication of the Secretariats of UNCITRAL, UNIDROIT and the HCCH. The Legal Guide offers an overview of the principal legislative texts prepared by each organisation and illustrates how these texts interact to achieve the shared goals of predictability and flexibility. It is intended as a user-friendly resource for those interested in the adoption, application, and interpretation of uniform contract law. More information is available here.

On 22 April, the HCCH participated in the online international seminar “The Practical Operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction“, organised by the German Foundation for International Legal Cooperation (IRZ) and the Ministry of Education and Science of the Republic of Kazakhstan. The seminar was attended by more than 100 participants from Germany, Kazakhstan and Turkey. This event was a follow-up to the seminar on the HCCH 1980 Child Abduction Convention held on 9 December 2020. The recording of the seminar is available here.

On 29 April, Professor William Duncan, former Deputy Secretary General of the HCCH, received an honorary doctorate from Trinity College Dublin, the highest form of recognition from the College. This honour follows his Presidential Distinguished Service Award for the Irish Abroad in November 2020 and is a further tribute to Professor Duncan’s life-long contribution to academic research, law reform, and children’s rights both in Ireland and abroad. On behalf of the HCCH, the Permanent Bureau congratulates Professor Duncan on being awarded this prestigious honour.

 

Vacancy: The HCCH is currently seeking a(n) (Assistant) Legal Officer. The deadline for the submission of applications is this Sunday, 2 May 2021 (00:00 CEST). 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.

Professor Yeo Tiong Min, SC (honoris causa) will be delivering the Yong Pung How Professorship of Law Lecture 2021 on Thursday, 6 May 2021, 5:00 to 6:00 pm (Singapore time). The title of the talk is ‘The Changing Global Landscape for Foreign Judgments.’ The synopsis is as follows:

There have been significant advances in the global landscape for the recognition and enforcement of foreign judgments in recent years. The two most significant international developments have been the coming into force in 2015 of the 2005 Hague Convention on Choice of Court Agreements, and the completion in 2019 of the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters. Singapore has responded to the global environment, in bringing the former Convention into force under Singapore law in 2016, and in making extensive amendments to the Reciprocal Enforcement of Foreign Judgments Act in 2019. 2020 also saw the publication of the second edition of the Multilateral Memorandum on Enforcement of Commercial Judgments for Money by the Standing International Forum of Commercial Courts and the Asian Principles for the Recognition and Enforcement of Foreign Judgments by the Asian Business Law Institute. The lecture will review these and other developments and their implications for Singapore law.

The webinar is free of charge. Further details and the link for registration may be found here.

Monika Zalnieriute (University of New South Wales) has posted Data Transfers after Schrems II: The EU-US Disagreements Over Data Privacy and National Security on SSRN.

In the long-awaited Schrems II decision, the Court of Justice of the European Union (CJEU) took a radical, although not an unexpected, step in invalidating the Privacy Shield Agreement which facilitated the European Union – United States data transfers. Schrems II illuminates the long-lasting international disagreements between the EU and USA over data protection, national security, and the fundamental differences between the public and private approaches to protection of human rights in data-driven economy and modern state. This article approaches the decision via an interdisciplinary lens of international law and international relations and situates it in a broader historical context. In particular, I rely on the historical institutionalist approach which emphasizes the importance of time and timing (also called sequencing) as well as institutional preferences of different actors to demonstrate that Schrems II decision further solidifies and cements CJEU’s principled approach to data protection, rejecting data securitization and surveillance in the post-Snowden era. Schrems II aims to re-balance the terms of international cooperation in data-sharing across the Atlantic and beyond. It is the outcome that the US tech companies and the government feared. Yet, they are not the only actors displeased with the decision. An institutionalist emphasis enables us to see that the EU is not a monolithic block, and Schrems II outcome is also contrary to the strategy and preferences of the EU Commission. The invalidation of the Privacy Shield will now (again) require either a reorientation of EU policy and priorities, or accommodation of the institutional preferences of its powerful political ally – the USA. The CJEU decision goes against the European Data Strategy, and places a $7.1 trillion transatlantic economic relationship at risk. Historical institutional analysis suggests the structural changes in the US legal system to address the inadequacies in the Schrems II judgment are unlikely. Therefore, the EU Commission will act quick to create a solution – another quick contractual ‘fix’ – to accommodate US exceptionalism and gloss over the decades of disagreement between the EU and USA over data protection, national security and privacy. When two powerful actors are unwilling to change their institutional preferences, ‘contracting out’ the protection of human rights in international law is the most convenient option.

The paper is forthcoming in the Vanderbilt Journal of Transnational Law.

Advocate General Campos Sánchez-Bordona delivered today his opinion in case C‑301/20 (UE, HC v Vorarlberger Landes- und Hypotheken-Bank AG), which is about the Succession Regulation. The opinion 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 69 du règlement (UE) no 650/2012 […], lu conjointement avec l’article 70, paragraphe 3, de ce règlement, doit être interprété en ce sens qu’il y a lieu de reconnaître les effets de la copie certifiée conforme d’un certificat successoral européen qui était valable lorsqu’elle a été présentée la première fois, mais qui a expiré avant que l’autorité compétente prenne la décision sollicitée.
À titre d’exception, en cas d’indices raisonnables que le certificat successoral européen a été rectifié, modifié, retiré ou suspendu dans ses effets avant la décision de cette autorité, celle‑ci peut exiger la production d’une nouvelle copie ou d’une copie prorogée ».

Source : https://curia.europa.eu/juris/document/document.jsf?docid=240556&text=&dir=&doclang=FR&part=1&occ=first&mode=DOC&pageIndex=0&cid=12509605

Posted at the request of Sahil Verma, Managing Editor, Trade, Law and Development

Special Issue on Trade and Technology: Rebooting Global Trade for the Digital
Millennium
Issue 13.1 | Summer’21

Founded in 2009, the philosophy of Trade, Law and Development has been to generate and
sustain a constructive and democratic debate on emergent issues in international economic law
and to serve as a forum for the discussion and distribution of ideas. In keeping with these ideals,
the Board of Editors is pleased to announce “Trade and Technology: Rebooting Global Trade for the
Digital Millennium” as the theme for its next Special Issue (Vol. XIII, No. 1).

The WTO framework emerged out of the requirement to promote comparative advantages of
countries in the post-Industrial Revolution era. However, the developments that followed via
Ministerial Conferences, Council discussions and Appellate Body Reports have not moved away
from the traditional methods of trading involving brick-and-mortar factories, recognised fiat
currency, etc. With the unstoppable growth in digital innovation and dense proliferation of the
Internet and ICTs, International Economic Law and its framers must go back to the negotiating
table to chalk out a novel framework relevant for the new digital millennium.

E-Commerce emerged as the virtual marketplace connecting consumers to sellers across borders.
Artificial Intelligence (AI) holds enormous potential to solve efficiency deficits in manufacturing,
public health and education. 3D Printing is expected to meet demand shortages of essentials like
hearing aids. Blockchain and Digital Currencies could change payments and banking services as
we know it along with possible implications for trade finance opportunities. This Issue aims to
foster stimulating discussions on what these developments mean for trade as we know it.

In addition to these developments, the COVID-19 outbreak provides strong impetus for
countries to relook their digital trade and investment policies as reliance on digital resources
increase. While some steps have been taken to include digital technologies in regional trade
agreements, a more comprehensive and cohesive framework is yet to emerge in this regard.

Moreover, given the significance of these issues, governments across the world have begun
implementing rules and regulations for data privacy, cyber security, etc. The differences across
regulatory regimes could cause problems as to their interoperability across countries. The impact
of these regulations on the international trade level is yet to be seen.

An illustrative list of areas under the theme that authors could write upon are:

E-commerce
Artificial Intelligence Summer, 2021
Vol. XIII, No. 1
Implications for Trade Facilitation
Blockchain
Data Protection and Security
Competitiveness and Digital Taxation
Digital Divide between Advanced Economies and Developing World
Impact on Investment
Trade Policy
Implications for Gender Equality

These sub-issues are not exhaustive, and the Journal is open to receiving submissions on all
aspects related to Trade and Technology and its impact on the global trading system. This special
issue, currently scheduled for publication in Summer 2021, will provide an ideal platform to
deliberate on such issues related to trade and technology. Accordingly, the Board of Editors
of Trade, Law and Development is pleased to invite original, unpublished manuscripts for the
Special Issue on Trade and Technology: Rebooting Global Trade for the Digital Millennium for publication
as ‘Articles’, ‘Notes’, ‘Comments’ and ‘Book Reviews’.

Manuscripts may be submitted via e-mail or ExpressO.

In case of any queries, please feel free to contact us at: editors[at]tradelawdevelopment[dot]com.

This Thursday AG Campos Sánchez-Bordona delivered his Opinion in an Austrian case pertaining to the interpretation of the Succession Regulation and in particular to its Articles 69 (Effects of the European Certificate of Succession)  and 70 (Certified copies of the Certificate), namely in the case Vorarlberger Landes- und Hypotheken-Bank, C-301/20.

As the Opinion itself clarifies it at its point 2, the Court asked its AG to elaborate only on the third preliminary question, which reads as follows:

Must Article 69 read in conjunction with Article 70(3) of the EU Succession Regulation be interpreted as meaning that the legitimising effect of the certified copy of [an ECS] must be recognised if it was still valid when it was first submitted but expired before the requested decision of the authority, or does that provision not preclude national law if the latter requires the certificate to be valid even at the time of the decision?

According to Article 70(3) of the Regulation, the certified copies issued shall be valid for a limited period of six months, to be indicated in the certified copy by way of an expiry date.

As AG clarifies, the preliminary question seeks to determine the precise moment in relation to which the authority to which the certified copy is presented must verify the validity of this copy (point 25). In principle, two solutions already hinted in the preliminary question seem to be possible for AG: the certified copy has to be valid at the time of its submission to the authority or it has to be valid at the time of the decision (point 26).

However, as AG acknowledges, it has to be first decided whether the Succession Regulation determines itself the moment relevant for the validity of a certified copy or this issue is left for the Member States to decide (point 44).

Ultimately, he concludes that it is the Regulation itself that determines such relevant moment (point 46) and that the legitimising effect of the certified copy of an ECS must be recognized if it was still valid when it was first submitted to an authority, even where subsequently the validity of this certificate has expired (point 63).

This interpretation is accompanied by a caveat to the effect that, by way of exception, if there are reasonable grounds for considering that the ECS has been rectified, modified, withdrawn or suspended as to its effectiveness prior to the adoption of the requested decision, the authority may call for the production of a new certified copy or a certified copy with an extended period of its validity (point 76).

The Opinion can be consulted here (no English version yet).

Cressida Mawdesley-Thomas has overview of the facts and issues in Johnson v Berentzen & Anor [2021] EWHC 1042 (QB) here. Stacey J essentially confirms the conclusions of Tipples J in Pandya.

The case concerns the extent of the ‘evidence and procedure’ exclusion from the Rome II Regulation on applicable law in the event of non-contractual obligations.  For the reasons I outlined in my review of the latter (readers please refer to same), I continue to disagree. With counsel for claimant I would suggest Pandya wrongly interpreted A15(h) Rome II in concluding that the provisions of A15 (‘scope of the law applicable) are to be construed widely , and the evidence and procedure exclusion (not: ‘exception’), narrowly.

Something for the Court of Appeal to look into, I would suggest.

Geert.

EU Private International Law, 3rd ed. 2021, para 4.79 ff.

 

Benedikt Windau, the editor of a fabulous German blog on civil procedural law, www.zpoblog.de, recently interviewed Federal Judge Dr Harmut Rensen, Member of the Tenth Panel of the division for civil and commercial matters at the German Federal Court of Justice (Bundesgerichtshof) on the experiences with video hearings in national an international patent matters in the pandemic. I allow myself to pick up a few elements from this fascinating interview in the following for our international audience:

The Tenth Panel functions as a court of first appeal (Berufungsgericht) in patent nullity proceedings and as a court of second appeal for legal review only (Revisionsgericht) in patent infringement proceedings. In both functions, particularly in its function as court of first appeal, actors from all over the world may be involved, and indeed, Judge Rensen reported about parties and their respective representatives and teams from the USA, Japan, South Korea, the UK, France, Italy and Spain during the last year.

Obviously, the start of the pandemic raised the question how to proceed, once physical hearings on site could no longer take place as before, since particularly in the appeal proceedings parties had usually appeared with several lawyers, patent lawyers, technical experts, interpreters etc., i.e. a large number of people had gathered in rather small court rooms, to say nothing of the general public and media. Staying all proceedings until an expected end of the pandemic (for which we are still waiting) would indeed have infringed the parties‘ fundamental procedural right to effective justice, abstaining from oral hearings and resorting to submission and exchange of written documents instead, as theoretically provided as an option under section 128 (2) German Code of Civil Procedure, would evidently not have been satisfying in matters as complex as patent matters (as well as probably in most other matters).

German civil procedural law allows for video hearings under section 128a (1) German Code of Civil Procedure. It reads (in the Governments official, yet may be not entirely perfect translation): „The court may permit the parties, their attorneys-in-fact, and advisers, upon their filing a corresponding application or ex officio, to stay at another location in the course of a hearing for oral argument, and to take actions in the proceedings from there. In this event, the images and sound of the hearing shall be broadcast in real time to this location and to the courtroom.“ The key word is „permit“. If the court „permits“ the parties etc. to proceed as described, it does not mean that the parties are required to do so. And indeed, parties applied for postponing scheduled hearings instead of going into video hearings. The presiding judge of the court has to decide on such a motion according to section 227 on „changes of date for scheduled hearings“. Section 227 (1) Sentence 1 reads: „Should substantial grounds so require, a hearing may be cancelled or deferred, or a hearing for oral argument may be postponed“. Sentence 2 reads: „The following are not substantial grounds: No. 1: The failure of a party to appear, or its announcement that it will not appear, unless the court is of the opinion that the party was prevented from appearing through no fault of its own“. Is this enough ground to reject the motion in light of the offer to go into video hearings? The Tenth Panel was brave enough to answer this question positively. Further, it was brave enough to overcome the friction between section 128a – permission for video hearings to be decided by the entire bench of the court at the opening of the first hearing – and section 227 (1) – decision about the motion to postpone a scheduled hearing by the presiding judge prior to that hearing. In the interest of progress in e-justice and effective access to justice in times of the pandemic, this is to be applauded firmly, all the more because the Panel worked hard, partly on its own initiative (as the general administration of the court would have been far too slow), to equip the court room with the necessary video technology: several cameras showing each judge and the entire bench, at the same time making sure that no camera reveals internal notes, the same for each party and team. The video conference tool that is currently used is MS Teams (despite all obvious concerns) as being the most reliable one in terms of broadcasting image and sound. The Panel invited to technical rehearsals the day before the hearing and for feed-backs afterwards, in order to improve itself and in order to build up trust, which seemed to have been quite successful. The specific nature of patent proceedings resulted in the insight that the function „screen sharing“ is one of the most helpful tools which will probably continue to be used in post-pandemic times. Sounds to me like examples of best practice. In sometimes rather „traditional“ environments of the German administration of justice, this is not a matter of course.

In relation to sovereignty issues when foreign parties are involved, the Panel takes the view that the territorial sovereignty of a foreign jurisdiction is not affected by a mere permission in the sence of section 128a because the place of the hearings can be considered still as being the locus of the court, i.e. Karlsruhe, Germany. Judge Rensen reported about talks between the Federal Ministry of Justice and its counterparts on the level of the states to the opposite, but as Judge Rensen pointed out, these are ongoing talks amongst ministerial officers, no court decisions or specific legislations that would bind the Panel. Things are cetainly more difficult when it comes to the taking of evidence. The Panel has done this only once so far, apparently within the scope of application of the EU Taking of Evidence Regulation. This case was specific, insofar as the testimony appeared to be entirely in line with and supported by undisputed facts and other testimonies, and these circumstances established a particularly solid overall picture about the point. This is why the Panel held the video testimony to be sufficient, which might mean that in mixed pictures the Panel might tend towards insisting on testimony in physical presence. In general, Judge Rensen supported judge-made progress, as opposed to specific legislation on legal assistance, as such legislation (like the EU legislation, including its latest recast on the matter) might lead to the misconception that such legislation would be required as a matter of principle in all cases to allow video hearings with foreign participants. For this reason, he pleaded for taking this factor into account before reforming section 128a (if at all), as such legislation would not be in sight in relation to a number of third states. At the same time the work of e.g. the HCCH on improving and modernising legal assistance under the HCCH 1970 Convention on the Taking of Evidence may be helpful nevertheless to promote and support video hearings in legal certainty, see e.g. the HCCH 2020 Guide to good practice on the use of video-link under the Hague Evidence Convention, but indeed the approach towards states staying outside these legal frameworks must be considered likewise.

As the dust settles, the consequences of the British departure from the EU are becoming clearer, including those for British parties litigating on the Continent. Two of Germany’s highest courts have recently ordered litigants with a habitual residence in the UK to provide security for the likely costs of the defendants, which the claimants would have to pay under the German loser pays-system. The decision was taken by both the Federal Supreme Court on 1 March 2021 and by the Federal Patent Court on 15 March 2021. Both rulings have been discussed on the Dispute Resolution Germany blog by Peter Bert here and here.

Duty to Provide Security for Costs under German Procedural Law

Although German procedural law in principle envisages the possibility of an obligation to provide security if demanded by the defendant (see e.g. sec. 110 of the German Code of Civil Procedure and sec. 81(6) of the German Patent Code), the requirement for a UK resident claimant to post security for costs had been illegal as long as the UK was part of the EU. Already in 1997, the ECJ outlawed such demands by German courts in case C-323/95, David Charles Hayes and Jeannette Karen Hayes v Kronenberger GmbH. This decision was based on the prohibition of discrimination on the grounds of nationality (today Art 18 TFEU, ex Art 12 TEC).

As a consequence, litigants with a residence in the EU or the wider EEA have been exempted from the requirement to provide security for costs under sec. 110 of the German Code of Civil Procedure. With Britain now having left the EU and the the transition period having expired, it is reasonably clear the exemption no longer covers UK based claimants, who as of 1 January 2021 may need to provide security for costs upfront.

Exceptions to the Obligation to Provide Security for Legal Costs

Sec. 110(2) no 1 of the German Code of Civil Procedure and by reference also sec. 81(6) 1 German Patent Code provides an exception from the claimant’s obligation to post security for costs where “due to international Treaties, no such security deposit may be demanded”. This exception caused the Federal Patent Court to examine more deeply the legal relations between the UK and Germany post-Brexit.

The Court first analyses the Hague Convention on Civil Procedure 1954, which bans   security for costs in Art. 17. This Convention has however not been signed by the UK.

Next, the Federal Patent Court mentions the 1928 Convention Between His Majesty and the President of the German Reich regarding Legal Proceedings in Civil and Commercial Matters. Besides matters such as cross-border service and taking of evidence, the Convention also provides in its Art. 14 that the subjects or citizens of one contracting party “shall not be compelled to give security for costs in any case where a subject or citizen of such other Contracting Party would not be so compelled”. Yet this clause applies only under the proviso “that they are resident in any such territory”, which means the territory of the contracting party where a claim is brought. Since the British claimants in the cases at hand were not resident in Germany, they could not rely on this clause.

The Court further analyses the European Convention on Establishment, which was concluded under the auspices of the Council of Europe in 1955 and binds a number of states, including Germany and the UK. Its Art. 9 and 30 set out exceptions from the requirement to post security for costs. Yet these provisions are limited to natural persons, whereas the claimant in the case discussed was a corporation.

Finally, the Federal Patent Court also discusses the Trade and Corporation Agreement concluded between the EU and the UK on Christmas Eve 2020. Its Art. IP.6 provides for some special rules with regard to the protection of IP rights. But they only cover the “availability, acquisition, scope, maintenance, and enforcement of intellectual property rights” as well as matters affecting the use of intellectual property rights specifically addressed in the TCA. Security for costs is not among them.

Since there was thus no international treaty in the sense of sec. 110(2) no 1 of the German Code of Civil Procedure, the Federal Patent Court decided that the British claimant had to provide security for costs.

The Relevance of the Brussels Convention 1968

Peter Bert discusses in the Dispute Resolution Germany Blog whether the continued applicability of the Brussels Convention 1968, which has been debated various times in this blog, might change the outcome. From my point of view, this is not the case, as the Convention does not address the issue of security for costs but is focused on issues of jurisdiction as well as recognition and enforcement of judgments.

Conclusion

The two German court decisions illustrate the complexity of international litigation post-Brexit. Courts and parties need to deal with a plethora of often dated international conventions concluded before the UK’s accession to the EU. The decisions clearly show the weaknesses of the lack of international agreements and the disadvantages of Brexit for claimants in Germany who are habitually resident in the UK. The situation in other Member States might well be different from Germany’s, possibly giving rise to even further complications.

On Tuesday, May 4, 2021, the Hamburg Max Planck Institute will host its tenth monthly virtual workshop in private international law at 11:00-12:30. Since January of this year, we are alternating between English and German language. Marta Pertegás Sender (Maastricht University) will speak, in English, about the topic Between Global and Regional Private International Law – Seamless Transitions From Regulations to Conventions? The presentation will be followed by open discussion. All are welcome. More information and sign-up here This is the ninth such lecture in the series, after those by Mathias Lehmann in June, Eva-Maria Kieninger in July, Giesela Rühl in September, Anatol Dutta in October, Susanne Gössl in November, Marc-Philippe Weller in December, Macjiej Szpunar in January,  Dagmar Coester-Waltjen in February, Horatia Muir Watt in March, and Burkhard Hess in April.  On June 1 we will host Tania Domej (Zurich University), on July 6 Hannah Buxbaum (Indiana University). Stay tuned! If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de

On 22 April 2021, the Court of Justice of the European Union ruled on the law governing the avoidance of the payment of a contractual obligaton by a third party in Z.M. v. E.A. Frerichs, Case C-73/20 (see the previous reports of K. Pacula and G. van Calster).

Background

The issue arose in the context of the insolvency of a German company, Oeltrans Befrachtungsgesellschaft, in Germany. Oeltrans had made a payment to Dutch company Frerichs, that the liquidator of Oeltrans sought to challenge pursuant to the German law of detrimental acts.

The payment had been made for the purpose of performing a contact concluded between Frerichs and Tankfracht GmbH, a German company which belonged to the same group as Oeltrans. It was accepted that Dutch law governed the contract.

While the payment could be challenged under German law, it could not under Dutch law.

Issue

In principle, it was clear that the law of the insolvency governed any action for challenging detrimental acts (Art 4 – today 7- of the Insolvency Regulation). The only exception is the famous then article 13 (today 16) of the European Insolvency Regulation, which refers to the law governing the relevant act:

Article 4(2)(m) shall not apply where the person who benefited from an act detrimental to all the creditors provides proof that:

–        the said act is subject to the law of a Member State other than that of the State of the opening of proceedings, and

–        that law does not allow any means of challenging that act in the relevant case.

The question was, therefore, whether the law governing the relevant act, the payment, was the law of the contract. Importantly, the detrimental act was not the contract, to which the insolvent debtor was a third party. It was a payment made by a third party for the purpose of performing a contract.

Rationale of Article 13

The issue raised was primarily one of insolvency law, and the judgment rightly focuses on the interpretation of Article 13.

The court repeats that the rationale of the exception in Article 13 is to protect the expectations of the party who contracted with the insolvent debtor. That party, the court explains, cannot foresee that its debtor could become insolvent, and where such proceedings could be opened.

33. A party to a contract who has benefited from a payment made by its contracting partner or by a third party in performance of that contract cannot reasonably be required to foresee that insolvency proceedings may be opened against that contracting partner or that third party and, if so, in which Member State those proceedings will be opened.

Nothing in this rationale is convincing. Any reasonable businessman knows that his contractual partners may become insolvent. And, if this businessman has any knowledge of private international law (unlikely, but his lawyers should), he/they will know that the insolvency proceedings would be opened in the country of origin of that partner, and that the law of that country will apply. The surprise, if any, is the existence of Art. 13, and the remarkable result to which it leads: contract law trumps insolvency law.

Article 13 is more simply a failure of European integration, which prevents the recognition of insolvency proceedings within the EU. There are many other such rules in the Insolvency Regulation. This is the political compromise that the Member States reached when they negotiated the Regulation 20 years ago.

Encouraging Fraud?

It is not for the CJEU to change this political compromise and to delete Article 13 (although the Court has not hesitated to move beyond the political compromise of Member States in other circumstances, when interpeting the Evidence Regulation for instance).

But the Court needs not extend the scope of Article 13 beyond what is necessary and encourage fraud.

In Vinyls Italia (Case C-54/16), the Court had accepted that the parties to a domestic contract could avoid the application of insolvency law by choosing a foreign law to govern their contract and shield it against insolvency proceedings.

In the  present case, the insolvent debtor was asked by another company from the same group to pay under a contract concluded by the other company of the group. This looked very suspicious indeed. Was the goal to put the funds of the insolvent company beyond the reach of its creditors by releasing a company of the same group from one of its debts? Maybe not in this case, but it is now possible to do exactly that in the future.

So it might have been possible to determine the law governing the payment in a more objective way than simply submitting it to the law of a contract that the parties may freely choose (including if it is a domestic contract).

A possible solution could have been to decide that the payment was governed by the law of the place where the payment occurred.

Jan von Hein and Thalia Kruger are the editors of a new volume published with Intersentia on Informed Choices in Cross-Border Enforcement. The European State of the Art and Future Perspectives. The book is dedicated to the functioning of the European Uniform Procedures in eight Member States (Belgium, France, Germany, Italy, Luxembourg, The Netherlands, Poland, and Spain), and is the outcome of the research project financed by the European Commission called Informed Choices in Cross-Border Enforcement (IC2BE).

The blurb of the book reads as follows:

How to choose the most beneficial enforcement regime for cross-border claims of a client? A question considerably complicated by (1) the existence of various European Union enforcement tools and (2) particularities in the national legal systems that impact on the operation and suitability of the various enforcement tools.

This book compares and analyses the practical utility and potential pitfalls of the 2nd generation regulations (European Enforcement Order, European Order for Payment, European Small Claims Procedure and European Account Preservation Order) and their relation to Brussels I-bis. Further, it analyses whether and to what extent all of the 2nd generation EU regulations prove their worth in the cross-border enforcement of claims, and which measures can be recommended for their practical improvement and for achieving greater consistency in European enforcement law.

The work is based on an extensive evaluation of case law (more than 500 published and unpublished), empirical data (150 interviews with practitioners) and literature from eight Member States (Belgium, France, Germany, Italy, Luxembourg, The Netherlands, Poland, Spain) and the Court of Justice of the European Union. It provides an extensive and up-to-date picture of the cross-border enforcement of claims across Europe and is an important resource for academics and practitioners alike.

Additionally, the case law that was used for the analysis can be consulted online in a free access database. This includes the decisions of the Court of Justice of the European Union (here) and the English summaries (and in certain cases also the links to the original decisions) of the judgments of the national courts regarding the four European procedures (here).

More information about the IC2BE project can be found here.

Funded by Elite Network of Bavaria the International Doctorate Programme „Business and Human Rights: Governance Challenges in a Complex World“ (IDP B&HR_Governance) establishes an inter- and transdisciplinary research forum for excellent doctoral projects addressing practically relevant problems and theoretically grounded questions in the field of business and human rights. Research in the IDP B&HR_Governance will focus on four distinct areas:

• Global value chains and transnational economic governance
• Migration and changing labour relations
• Digital transformation
• Environmental sustainability

The IDP’s research profile builds on law and management as the core disciplines of B&HR complemented by sociology, political, and information sciences. Close cooperation with partners from businesses, civil society, and political actors will enable the doctoral researchers to develop their projects in a broader context to ensure practical relevance. The IDP’s curriculum, lasting for eight semesters, aims at contributing to the professional development of independent and critical researchers through a variety of courses, research retreats, colloquia, and conferences as well as the possibility of practical projects.

The IDP B&HR_Governance will include up to twenty doctoral researchers selected through a competitive process and sixteen principal investigators from Friedrich-Alexander-University Erlangen-Nürnberg (FAU), the University of Bayreuth and Julius-Maximilians-University Würzburg (JMU). The IDP involves law, management, sociology, political sciences and information systems.

The IDP B&HR_Governance will offer a comprehensive and innovative curriculum for the doctoral researchers. Its activities will commence on 1 November 2021.

The Acting Spokesperson of the IDP B&HR_Governance is Professor Markus Krajewski.

The IDP includes the following professors:

• University of Erlangen-Nürnberg: Anuscheh Farahat, Klaus Ulrich Schmolke, Patricia Wiater, Martin Abraham, Markus Beckmann, Evi Hartmann, Dirk Holtbrügge, Sven Laumer, Matthias Fifka, Petra Bendel, Sabine Pfeiffer
• University of Bayreuth: Eva Lohse, Thoko Kaime
• University of Würzburg: Isabel Feichtner, Eva Maria Kieninger

 

Call for Applications (12 doctoral research positions) – Deadline 15 June 2021

 

The IDP B&HR invites applications for 12 doctoral research positions (4-year contract) starting 1 November 2021.

Applicants need an excellent university degree at master’s level in a relevant discipline (law, management, sociology, political, or information science) and very good knowledge of English. International, intercultural, and practical experiences will be an asset.

An application comprises the following documents:

• Research proposal (in English, max. 5000 words)
• Curriculum Vitae (CV)
• Letter of motivation (in English, max. 1000 words)
• Writing sample, e.g. published article, thesis or seminar paper.
• Certificates of all university degrees with corresponding transcript of records

Applications must be sent in a single PDF document by 15 June 2021 to humanrights-idp@fau.de

The full Call for Applications can found here.

On Friday, 23 April 2021, we informed our readers about an article on the legal aspects of a possible claim brought by the EU against the pharmaceutical company AstraZeneca. The post could not have been timelier. Today (Monday, 26 April 2021), the Commission announced it has indeed commenced legal proceedings last Friday against AstraZeneca due to vaccine shortages.

The action was brought before the Belgian courts, as is provided for under the contract between both parties and as was predicted in the article authored by Sixto Sánchez Lorenzo.

Stefan de Keersmaecker, a spokesman on health issues for the Commission, said:

The reason indeed being that the terms of the contract, or some terms of the contract, have not been respected and the company has not been in a position to come up with a reliable strategy to ensure the timely delivery of doses.

It is reported that the decision to bring the action was made jointly with all 27 Member States. It is unclear whether this means the Member States have formally joined or merely support the  action. The further developments remain to be seen.

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

 

A. Dickinson: Realignment of the Planets – Brexit and European Private International Law

At 11pm (GMT) on 31 December 2020, the United Kingdom moved out of its orbit of the European Union’s legal system, with the end of the transition period in its Withdrawal Agreement and the conclusion of the new Trade and Cooperation Agreement. This article examines the impact of this realignment on private international law, for civil and commercial matters, within the legal systems of the UK, the EU and third countries with whom the UK and the EU had established relationships before their separation. It approaches that subject from three perspectives. First, in describing the rules that will now be applied by UK courts to situations connected to the remaining EU Member States. Secondly, by examining more briefly the significance for the EU and its Member States of the change in the UK’s status from Member State to third country. Thirdly, by considering the impact on the UK’s and the EU’s relationships with third countries, with particular reference to the 2007 Lugano Convention and Hague Choice of Court Convention.  The principal focus will be on questions of jurisdiction, the recognition and enforcement of judgments and choice of law for contract and tort.

 

S. Zwirlein-Forschner: Road Tolls in Conflict of Laws and International Jurisdiction – a Cross-Border Journey between the European Regulations

Charging tolls for road use has recently undergone a renaissance in Europe – mainly for reasons of equivalence and climate protection. The payment of such road tolls can be organized either under public or under private law. If a person resident in Germany refuses to pay a toll which is subject to foreign private law, the toll creditor can sue the debtor for payment at its general place of jurisdiction in Germany. From the perspective of international private law, such claim for payment of a foreign toll raises a number of complex problems to be examined in this article.

 

T. Pfeiffer: Effects of adoption and succession laws in US-German cases – the example of Texas

The article discusses how adoption and succession laws are intertwined in cases of adoptions of German children by US-parents in post WW2-cases, when Germany still had a contract based system of adoptions. Addressing the laws of Texas as an example, the author demonstrates that, so far, the legal effects of these adoptions have not been analysed completely in the available case law and legal writing. In particular, the article sets forth that, in relation to adoption contracts, Texan conflicts law (like the law of other US States) refers to the law of the adoption state so that the doctrine of a so-called hidden renvoi is irrelevant. Furthermore, in this respect, the renvoi is a partial one only in these cases: Under Texan conflicts law, the reference to the laws of the adoption state is relevant only for the status of being adopted, not for the effects of adoption, e.g. the question to whom the adopted is related; the latter issue is governed by the law of the domicile of the child, which is identical to the adoptive parents’ domicile, at least if this is also the adoptive family’s domicile after the adoption.

Furthermore, the author discusses matters of succession and argues: According to the ECJ’s Mahnkopf decision, a right of inheritance of the adopted child in relation to the biological parents under the laws applicable to the effects of the adoption, as provided for in Texas, has to be characterised as a succession rule, at least if that law provides for a mere right of inheritance, whereas all legal family relations to the biological family are cut off. As a consequence, such a “nude” inheritance right cannot suffice as a basis of succession under German succession laws. Even if one saw that differently, Texan succession conflicts law, for the purpose of succession, would refer to the law of the domicile of the deceased for movables and to the law of the situs for real property. Additionally, even if the Texas right of inheritance in relation to the biological parents constituted a family relationship, this cannot serve as a basis for a compulsory share right.

 

W. Voß: Qualifying Direct Legal Claims and culpa in contrahendo under European Civil Procedure Law

Legal institutions at the interface between contract and tort, such as the culpa in contrahendo or direct claims arising out of contractual chains, typically elude a clear, uniform classification even within the liability system of substantive national law. Even more so, qualifying them adequately and predictably under European civil procedure law poses a challenge that the European Court of Justice (ECJ) has not yet resolved across the board. In two preliminary rulings, the ECJ now had the opportunity to sharpen the borderline between contractual and noncontractual disputes in the system of jurisdiction under the Brussels I bis Regulation, thus defining the scope of jurisdiction of the place of performance of a contractual obligation and, at the same time, of jurisdiction over consumer contracts. However, instead of ensuring legal clarity in this respect, the two decisions rendered by the ECJ further fragment the autonomous concept of contract under international civil procedural law.

 

C. Thomale: International jurisdiction for rights in rem in immovable property: co-ownership agreements

The CJEU decision reviewed in this case note, in its essence, concerns the scope of the international jurisdictional venue for immovable property under Art. 24 No. 1 Brussels Ia-Regulation with regard to co-ownership agreements. The note lays out the reasons given by the court. It then moves on to apply these reasons to the Austrian facts, from which the preliminary ruling originated. Finally, some rational weaknesses of the Court’s reasoning are pointed out while sketching out a new approach to determining the fundamental purpose of Art. 24 No. 1 Brussels Ia-Regulation.

 

F. Rieländer: Solving the riddle of “limping” legal parentage: “Pater est” presumption vs. Acknowledgment of paternity before birth

In its judgment of 5/5/2020, the Kammergericht Berlin (Higher Regional Court of Berlin) addressed one of the main outstanding issues of German private international law of filiation. When children are born out of wedlock, but within close temporal relation to a divorce, the competing connecting factors provided for in Art. 19 (1) EGBGB (Introductory Act to the German Civil Code) are apt to create mutually inconsistent results in respect of the allocation of legal parentage. While it is firmly established that parenthood of the (former) husband, assigned at the time of birth by force of law, takes priority over any subsequently established filiation by a voluntary act of recognition, the Kammergericht held that where legal parentage is simultaneously allocated to the husband by one of the alternatively applicable laws and to a third person by way of recognition of paternity before birth according to a competing law, the (domestic) law of the state of the child’s habitual residence takes precedence. Though the judgment is well argued, it remains to be seen whether the controversial line of reasoning submitted by the Kammergericht will stand up to a review by the Bundesgerichtshof (German Federal Court of Justice). Nonetheless, the decision arguably ought to be upheld in any event. In circumstances such as those in the instant case, where divorce proceedings had commenced, recognition of legal parentage by a third person with the consent of the child’s mother and her husband is to be treated as a contestation of paternity for the purposes of Art. 20 EGBGB. Thus, according to domestic law, which was applicable to the contestation of paternity since the child’s habitual residence was situated in Germany, any possible legal ties between the child and the foreign husband of its mother were eliminated by a recognition of parentage by a German citizen despite suspicions of misuse. All in all, the judgment demonstrates once again the need for a comprehensive reform of German private international law of filiation.

 

Mark Makowsky: The attribution of a specific asset to the heir in the European Succession Certificate

According to Art. 63 (2) lit. b and Art. 68 lit. l of the European Succession Regulation, the European Certificate of Succession (ECS) may be used to demonstrate the attribution of a specific asset to the heir and shall contain, if applicable, the list of assets for any given heir. In the case at hand the ECS, which was issued by the Austrian probate court and submitted to the German land registry, assigned land plot situated in Germany solely to one of the co-heirs. The Higher Regional Court of Munich found, that the ECS lacked the presumption of accuracy, because the applicable Austrian inheritance law provides for universal succession and does not stipulate an immediate separation and allocation of the estate. Contrary to the court’s reasoning, however, Austrian inheritance law does allow singular succession of a co-heir, if (1) the co-heirs agree on the distribution of the estate before the probate court orders the devolution of property and (2) the court’s devolution order refers to this agreement. The presumption of accuracy of the ECS with respect to the attribution of specific assets is therefore not excluded by legal reasons. In the specific case, however, the entry in the land register was not based on the ECS, but on the devolution order of the Austrian probate court, which does not include a reference to a previous agreement of the co-heirs on the distribution of the estate. As a consequence, the devolution order proves that the land plot has become joint property of the community of heirs and that the ECS is therefore inaccurate.

 

R. Hüßtege: Internet research versus expert opinion

German courts have to determine the applicable foreign law by virtue of their authority. The sources of knowledge they rely on are based on their discretionary powers. In most cases, however, their own internet research will not be sufficient to meet the high demands that discretion demands. As a general rule, courts will therefore continue to have to seek expert opinions from a national or foreign scientific institute in order to take sufficient account of legal practice abroad.

 

A.R. Markus: Cross-Border Attachment of Bank Accounts in Switzerland and the European Account Preservation Order

On 18 January 2017 the Regulation on European Account Preservation Order (EAPO Regulation) came into force. It allows the creditor to place a security in a bank account so that enforcement can be carried out from an existing title or a title yet to be created. The provisions of the abovementioned Regulation stand beside existing national provisions with a similar purpose. As a non-EU member state, Switzerland does not fall within the scope of application of the EAPO Regulation and the provisional distraint of bank accounts is thus exclusively governed by national law. The present article illustrates in detail the attachment procedure under the Swiss Debt Enforcement and Bankruptcy Law. Comparative reference is made to the provisions of the EAPO Regulation. Finally, the recognition and enforcement of foreign interim measures, which is often crucial in cross-border cases, will be addressed. The article shows that there are considerable differences between the instruments provided by the Swiss law and those provided by the EU law.

 

J. Ungerer: English public policy against foreign limitation periods

Significantly different from the EU conflict-of-laws regime of the Rome I and II Regulations, the British autonomous regime provides for a special public policy exception in the Foreign Limitation Periods Act 1984, whose design and application are critically examined in this paper. When English courts employ this Act, which could become particularly relevant after the Brexit transition period, the public policy exception not only has a lower threshold and lets undue hardship suffice, it also leads to the applicability of English limitation law and thereby splits the governing law. The paper analyses the relevant case law and reviews the recent example of Roberts v Soldiers [2020] EWHC 994, in which the three-years limitation period of the applicable German law was found to cause undue hardship.

 

E. Jayme: Forced sales of art works belonging to the Jewish art dealer René Gimpel in France during the Nazi–period of German occupation – The Court of Appeal of Paris (Sept. 30, 2020) orders the restitution of three paintings by André Derain from French public museums to the heirs of René Gimpel

The heirs of the famous French art dealer René Gimpel brought an action in France asking for the restitution of three paintings by André Derain from French public museums. René Gimpel was of Jewish origin and lost his art works – by forced sales or by expropriation – during the German occupation of France; he died in a concentration camp. The court based its decision in favor of the plaintiffs on the “Ordonnance n. 45-770 du 21 avril 1945” which followed the London Inter-Allied Declaration of Dispossession Committed in Territories Under Enemy Occupation Control (January 5th 1943).

 

M. Wietzorek: First Experience with the Monegasque Law on Private International Law of 2017

This essay presents the Monegasque Law concerning Private International Law of 2017, including a selection of related court decisions already handed down by the Monegasque courts. Followed by a note on the application of Monegasque law in a decision of the Regional Court of Munich I of December 2019, it ends with a short summary.

José R. Mata Dona (Independent Practitioner and Member of the Brussels and Caracas Bars) and Nikos Lavranos (Guest Professor at the Free University of Brussels and Secretary-General of the European Federation for Investment Law and Arbitration) are the editors of International Arbitration and EU Law, which has been published by Edward Elgar Publishing in the Elgar Arbitration Law and Practice Series.

The blurb reads as follows:

This book examines the intersection of EU law and international arbitration based on the experience of leading practitioners in both commercial and investment treaty arbitration law. It expertly illustrates the depth and breadth of EU law’s impact on party autonomy and on the margin of appreciation available to arbitral tribunals.

 It contains an analysis of the relevance of EU law on the validity of international agreements to arbitrate; consideration of the impact of EU law on challenges, recognition and enforcement of international commercial awards, and the relationship between anti-suit relief, EU law and the New York Convention; a discussion of selected areas of intersection between EU law and international commercial arbitration, including the ECtHR, consumer protection, damages, competition damages, GDPR, commercial agency and others; an introduction to the complex areas in which the EU regime and international investment arbitration laws intertwine, through a review of the development of the EU’s investment policy; an examination of the impact of EU law on specific issues in international investment arbitration including the Energy Charter Treaty, procedural issues (both ICSID and non-ICSID), damages, taxation, and the proposed Multilateral Investment Court; an appraisal of the potential of International Commercial Mediation and its interrelations with EU law.

Contributors include N. Bassiri, G.A. Bermann, A. Blumrosen, C. Brower, L. Capiel, S. Castagna, D. Chochitaichvili, O. Cojo, Q. Declève, M. Feria-Tinta, A.-K. Grill, E. Hay, B.R. Hoebeke, D. Ingle, T. Kalliokoski, S.J. Lamb, E. Martin, D. Overduin, R. Price, F. Rosenfeld, A. San Román Rivera, J.M. Sánchez Pueyo, S.I. Strong, J. Sullivan, I. Van Damme, M.-C. Van den Bossche, O. van der Haegen, P. Wiliński, B. Williams, H. Wöss, P. Živković.

More information is available here.