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AG Rantos delivered on 23 February 2021 his opinion in case C‑603/20 PPU (SS v MCP), which is about Article 10 Brussels II bis:

“Article 10 of Council Regulation (EC) No 2201/2003 of 27 November 2003 […] must be interpreted as meaning that the courts of the Member State in which a child was habitually resident immediately before his or her wrongful removal or retention retain their jurisdiction to rule on parental responsibility in respect of that child, for an unlimited period of time, in the case where that child is abducted to a non-Member State, including where the child acquires his or her habitual residence in that non-Member State”.

Source: http://curia.europa.eu/juris/document/document.jsf;jsessionid=4F3789D7FC162870CBB1FA7EC0C4CCF2?text=&docid=238087&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=1675407

AG Bobek delivered on 23 February 2021 his opinion in case C‑800/19 (Mittelbayerischer Verlag KG v SM), which is about Article 7(2) Brussels I bis:

“Article 7(2) of Regulation (EU) No 1215/2012 […] 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.

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”.

Source: http://curia.europa.eu/juris/document/document.jsf;jsessionid=4F3789D7FC162870CBB1FA7EC0C4CCF2?text=&docid=238085&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=1675407

Motacus Constructions Ltd v Paolo Castelli SpA [2021] EWHC 356 (TCC)  to my knowledge is the first case post-Brexit that shows how a jurisdictional discussion that might have been settled swiftly under Brussels Ia, leads to a lot more chewing over under 2005 Hague Convention (on choice of court) principles. It may not be ‘important‘ in terms of its impact on authority (this is a first instance judgment; and it may be overly enthusiastic in engaging with the issues) yet it nevertheless is a good illustration of what was left behind.

The Private International Law (Implementation of Agreements) Act 2020 has given the 2005 Convention force of law in the UK.

The ‘Governing Law & Dispute Resolution’ clause (clause 19) of a contract between contractor and subcontractor re a London hotel provided ‘This Agreement shall be governed by and construed in accordance with the laws of Italy’ and for all disputes to ‘submitted to the exclusive jurisdiction of the Courts of Paris, France’. A payment issue ensued and the contractor started classic English construction sector adjudication proceedings despite the aforementioned clause: the Housing Grants, Construction and Regeneration Act 1996 is overriding mandatory law /loi de police /loi d’application immédiate in England and Wales [3]. To address cash flow problems in the construction industry, and the shortcomings of the traditional litigation process in serving the needs of the construction industry, Parliament decided there should be a short-form process of adjudication producing binding, and readily enforceable, decisions [25].

The UK has not made a reservation under Hague 2005 viz contracts in the construction sector  [18] (compare the EU’s reservation viz insurance contracts).

Sub-contractor actively took part, yet declined to make the necessary payment which the adjudicator’s decision had instructed. Adjudication enforcement proceedings were started on 12 January 2021. Sub-contractor challenged the enforcement proceedings, arguing the proceedings could only be commenced in Paris under the choice of court.

Claimant’s case is that the High Court should accept jurisdiction and enforce the adjudicator’s decision, notwithstanding the exclusive jurisdiction clause, in light of the provisions in either A6(c) or A7 Hague 2005. It submits that it would be manifestly contrary to the public policy enshrined in the 1996 Act, or alternatively it would be manifestly unjust, to refuse to enforce an otherwise enforceable adjudicator’s decision in reliance on clause 19 of the contract. In any event, it is argued, the enforcement of an adjudicator’s decision is the enforcement of an interim measure of protection. It falls outside the scope of Hague 2005 and so the defendant cannot rely on its provisions.

A6(c) Hague 2005 provides that a court of a contracting state (in this case the UK) other than that of the chosen court (in this case Paris, France), “… shall suspend or dismiss proceedings to which an exclusive choice of court agreement applies unless – (c) giving effect to the agreement would lead to a manifest injustice or would be manifestly contrary to the public policy of the State of the court seised. 

A7 provides that: “Interim measures of protection are not governed by [the Hague] Convention. [That] Convention neither requires nor precludes the grant, refusal or termination of interim measures of protection by a court of a Contracting State and does not affect whether or not a party may request or a court should grant, refuse or terminate such measures.”

Spiliada, Fiona Trust, The Eleftharia etc. are all discussed in what looks like a bonfire of the CJEU authorities. The impact of Italian law as lex contractus, for the construction of the choice of court clause (under BIa this would have to be French law) is also signalled, but not entertained for this is an application for summary judgment in which, in the absence of proof of Italian law, its contents are presumed to be the same as English law [51].

Hodge J at 54 declines the suggestion of A6(c) ordre public. ‘Manifest’ requires a high burden of proof, no reservation has been made and there is no good reason why the parties should not be held to the bargain that they freely made when they incorporated clause 19 into their construction contract.

At 56 ff however claimant’s arguments on interim measures having been carved out, does lead to success: it is held that an application for summary judgment to enforce an adjudicator’s decision is an interim measure of protection within A7 Hague 2005. ‘The concept extends to any decision that is not a final and conclusive decision on the substantive merits of the case…The function of the adjudicator’s decision is to protect the position of the successful party on an interim basis pending the final resolution of the parties’ dispute through the normal court processes (or by arbitration).’ [57] The summary judgment application before the High Court has that same DNA: ‘What is before this court is not the underlying dispute between these parties but whether an interim procedure and remedy have been followed and granted.’

Interesting. Geert.

And so it has started
Whether choice of EN Court ousted by Paris exclusive jurisdiction clause – Housing Grants, Construction, Regeneration Act 1996
Held: A7 2005 Hague Convention @HCCH_TheHague engaged, interim measures exception
BIa assessment would have been much more succinct https://t.co/FctAia7bqF

— Geert Van Calster (@GAVClaw) February 22, 2021

The Journal for European, Private International and Comparative Law (Zeitschrift für Europarecht, Internationales Privatrecht und Rechtsvergleichung – ZfRV) just released its latest issue. It includes two interesting articles.

The first, published in English and authored by Leszek Bosek and Grzegorz Żmij, is titled “On the CETA’s compatibility with European Union law in light of Opinion No 1/17 of the Court of Justice of 30 April 2019” (ZfRV 2020, p. 248). The summary reads:

The CJEU’s opinion No 1/17 regarding the CETA’s compatibility with European Union law is an important document demonstrating the evolution of the Court’s position when faced with the challenges of the world’s economic globalisation and the effect of various factors related to it on its case law. In our view, the Court of Justice has not sufficiently explained why it has departed from the principal determinations laid down in its Opinions Nos 2/13 and 1/09 and the Court’s judgement in the Achmea case, which were demonstrably in accordance with the line of the Court’s case law consistently defined by its subsequent judgements to date, demarcating in a clear way the fundamental constitutional principles of EU legal and judicial order. In particular, it is hard to accept as satisfactory its contention that the CETA tribunals will not apply or interpret the EU’s or Member States’ law, requiring a uniform interpretation in accordance with the rules laid down in Article 267 of the TFEU, which does not agree with observations from the international investment arbitration practice. The solutions adopted in the CETA seem to be pragmatic, but may raise doubts from the point of view of Article 19 of the TEU and Article 47 of the Charter of Fundamental Rights, and the corresponding guarantees in the constitutions of Member States. Those issues have not been sufficiently tackled by the Court of Justice.

The second article, published in German by Caroline Kohlhaupt, deals with the change of the Consumer Rights Directive’s substantive scope of application through the Omnibus Directive (“Die Änderung des sachlichen Anwendungsbereichs der Verbraucherrechte-RL 2011/83/EU durch die Omnibus-RL (EU) 2019/2161”, ZfRV 2020, p. 276). The summary reads:

The Directive (EU) 2019/2161 brings various amendments to the Consumer Rights Directive 2011/83/EU. When it comes to the material scope of Directive 2011/83/EU, especially the following clarification is substantial: The Directive shall – in principle – also apply where the trader supplies or undertakes to supply digital content which is not supplied on a tangible medium or a digital service to the consumer and the consumer provides or undertakes to provide personal data to the trader.

The post below was written by Serena Forlati, Professor of International Law at the University of Ferrara. It follows a post by Andrew Dickinson which opened an on-line symposium devoted to the fate of the 1968 Brussels Convention. One more contribution will be published on this blog in the coming days.

The symposium follows a lively exchange prompted by a post by Matthias Lehmann (Brexit and the Brussels Convention: It’s All Over Now, Baby Blue?), which attracted comments by Eduardo Álvarez-Armas, Apostolos Anthimos, Gilles Cuniberti, Burkhard Hess, Costanza Honorati, Alex Layton, François Mailhé and Fabrizio Marongiu Buonaiuti.

Readers are encouraged to share their comments to the contributions. Those wishing to submit a full contribution to the on-line symposium are invited to get in touch with Pietro Franzina at pietro.franzina@unicatt.it.

Matthias Lehmann’s post on the possibility to ‘revive’ the Brussels Convention in the relationship between the United Kingdom and EU Member States, and the discussion it triggered, raise a number of interesting issues of both private and public international law.

I intend to offer a few reflections from the latter perspective, and more specifically from the standpoint of the international law of treaties. While termination of the Brussels Convention is regulated by customary international law (see Article 4 of the Vienna Convention on the Law of Treaties of 1969), I will refer to the rules enshrined in the Vienna Convention since the grounds of termination it sets forth largely codify custom (see notably the ICJ Judgment in Gabčíkovo/Nagymaros, paras 46, 99-100, and here also for further references).

Whether the Brexit could revive the Brussels Convention in the relations between the United Kingdom and the EU Member States was already discussed in this blog (see here and here). I tend to rule out such possibility, for the reasons set out by Andrew Dickinson and Burkhard Hess. The picture would however be clearer if one could argue that, before Brexit, the Brussels Convention was no longer applicable as regards Aruba and relevant French overseas territories – as the revival of a treaty that was already completely terminated (cf Article 59 VCLT) would be difficult to conceive. An aspect worth raising in this regard (and I thank Pietro Franzina for pointing it out to me) concerns the impact of the Lugano Convention 2007 on the applicability of the Brussels Convention to such territories. Notably Article 69(7) of the 2007 Lugano Convention stipulates:

Insofar as the relations between the Member States of the European Community and the non-European territories referred to in Article 70(1)(b) are concerned, this Convention shall replace the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, signed at Brussels on 27 September 1968 … as of the date of the entry into force of this Convention with respect to these territories in accordance with Article 73(2).

In discussing this text, the Pocar Explanatory Report (para. 186) characterized the continuing applicability of the Brussels Convention to non-European territories as a ‘problem’ which the 2007 Convention ‘supplied an opportunity to resolve’, thus indicating that a complete termination of the Brussels Convention would be advisable. Still, Article 69(7) did not automatically achieve this result: the Lugano Convention could actually replace of the older instrument only upon completion of the simplified accession procedure under Article 70(1)(b) on behalf of those non-European territories ‘that are part of the territory of [a] Member State or for whose external relations [a] Member State is responsible’. This does not seem to be the case.

More specifically, the French Parliament has authorized the accession to the Lugano Convention on behalf of overseas territories to which the Brussels Convention applies through law No. 2019-983 of 26 September 2019 (see here, and here for the explanatory report); however, apparently the French Government did not follow suit, as no notification of accession is mentioned to date in the repository of the Swiss Government, as depositary of the Lugano Convention; nor is there any record of similar steps being taken by the Netherlands on behalf of Aruba (see here). Article 69(7) of the Lugano Convention and the implementing practice would thus seem to offer no conclusive indication ruling out a revival of the Brussels Convention.

Assuming, for the sake of argument, that the Brussels Convention still regulates the relationship between the UK and the EU, and should the EU challenge the United Kingdom’s claim that it does not apply in its regard, which options would the United Kingdom have under the international law of treaties to terminate a treaty relationship that it deems no longer to meet its interests? None of the grounds of termination discussed in the previous posts would seem to be fully adequate for the purpose.

Firstly, as regards termination on grounds of breach, Matthias Lehmann rightly questions whether the repeal of implementing legislation would as such qualify as a ‘material breach’ of the Brussels Convention. Although this is not straightforward, the repeal, taken together with the notification to the European Council of 29 January 2021, could amount to a ‘repudiation’ of the treaty (see Article 60, para 3(a) VCLT); this notion is understood as ‘encompass[ing] all means by which a party intends to relieve itself from its obligations under a treaty’  (cf here B. Simma, C. Tams, ‘Article 60’, para 16), and this is clearly the intention of the United Kingdom. However, under the rule reflected in Article 60(2)(a) VCLT the United Kingdom’s non-performance could be invoked as a ground for termination only by all the other Parties to the Brussels Convention acting together – most likely through the EU Institutions, in light of the EU’s acquired exclusive external competence in the issue. Should such a consensus exist, it would be much more practical to express it right away – even if only implicitly by accepting the UK’s request to accede to the Lugano Convention, in line with the approach of the other contracting Parties to the latter instrument (see here and here). The possibility for ‘specially affected States’ to individually suspend the Brussels Convention (Article 60(2)(b) VCLT) would seem to raise further difficulties also in light of the EU’s exclusive competence in the matter.

Whether the United Kingdom could invoke a fundamental change of circumstances is also doubtful in my view. I agree that the ‘subjective’ requirement set forth by Article 62 VCLT is met in this case, since membership in the European Union was ‘an essential basis of the consent’ of the United Kingdom to be bound by the Brussels Convention.  However, as Matthias Lehmann notes in his reply of 17 February 2021, it is by no means certain that a renewed application of that instrument would ‘radically […] transform the extent of obligations still to be performed under the treaty’ (Article 62(1)(b) VCLT).

The United Kingdom may be on safer ground in invoking Article 56 of the Vienna Convention, whose paragraph 1 stipulates: ‘A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless: (a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or (b) a right of denunciation or withdrawal may be implied by the nature of the treaty’. Arguably the presumption against withdrawal enshrined in Article 56 can be rebutted in the case of the Brussels Convention (and of the 1978 Luxembourg Convention) by relying on either the intention of the parties or the nature of the treaty in question.

The scope of these exceptions is admittedly ambiguous, and the burden of proving that the situation falls under their scope would fall upon the United Kingdom (see here  T. Giegerich on Article 56, p. 1048, margin note 24). Notably the exception linked to the ‘nature’ of a treaty was the object of much controversy during the negotiations. According to the International Law Commission’s Special Rapporteur Waldock, the category would include ‘commercial and trading’ treaties, that seem much closer to the Brussels Convention than the examples of treaties which in his view ‘shall continue in force indefinitely’, listing treaties establishing boundaries and territorial regimes, treaties of peace, treaties concerning the final settlement of international disputes and multilateral treaties codifying general international law (see under Article 17 in his Second Report on the Law of Treaties, p. 64; on practice subsequent to the adoption of the Vienna Convention see however T. Christakis’ comment to Article 56, para 59).

A further indication as to the possibility to withdraw unilaterally from the Brussels Convention could come from ‘the intention of the parties’, under Article 56(1)(a) VCLT. The silence of the Brussels Convention could arguably be read in light of its nature as an instrument of EC Law, that others have highlighted in this discussion; this would militate in favour of a possibility for the United Kingdom to withdraw unilaterally once its membership in the EU has ceased, without necessarily meeting the requirements for termination in light of a fundamental change of circumstances. Nonetheless, a clear stance by the EU in this respect would be welcome in the interest legal certainty and of the stability of future relations.

French Private International Law (“PIL”) has never been codified despite various proposals of codification in the last century (see for instance here and here). The growing European acquis of PIL and the idea of an European Code of PIL (see for instance here and more recently within the EAPIL here), as well as the numerous codifications in the field within EU Member States have probably contributed to a re-launch of the reflection, in particular among French governement officials.

An expert group has be appointed two years ago under the leadership of Jean-Pierre Ancel (former President of the first Chamber of the French Court of Cassation) to draft a project of French PIL Act.

Against this backdrop, Ludovic Pailler (University of Lyon 3) organises a webinar (in French) titled “Codification of French Private International Law in the European context” (La codification du droit international privé français à l’heure européenne).

It will take place on 18 March 2020, 2 to 5 PM (CET).

The speakers are Jean-François de Montgolfier (Director of the Civil Affairs of the French Ministry for Justice), Marc Cagniart (Notary, SCP Castiglione, Paris), Alain Devers (University of Lyon 3 & Lawyer at the Lyon Bar) and Emmanuel Putman (University of Aix-Marseille).

The program is available here.

Those wishing to attend the webinar may write an e-mail to marie.brossard@univ-lyon3.fr.

Tamás Szabados (Eötvös Loránd University) published Constitutional identity and judicial cooperation in civil matters in the European Union – An ace up the sleeve?, in the Common Market Law Review (vol. 58, February 2021).

The paper discusses the constitutional identity-based arguments in the field of private international law.

He has kindly provided us with an extended abstract :

Constitutional identity has become a fashionable concept that is used by politicians and courts alike. But how does constitutional identity affect private international law?

The use of constitutional identity-based arguments has been primarily examined in the context of EU and domestic constitutional law. Constitutional law discourse has mainly centred around the interpretation of Article 4(2) of the TEU. However, less attention has been devoted to the role and impact of arguments related to constitutional identity on the development of EU private international law. This is notwithstanding the fact that constitutional identity seems to shape the application and creation of private international law rules.

Constitutional identity has a twofold effect on private international law. First, peculiar constitutional norms and values belonging to constitutional identity can be safeguarded through the public policy exception. This opens the door for courts to disregard the otherwise applicable foreign law or to reject the recognition of a foreign situation on the ground that it violates the constitutional identity of the forum state.

Second, arguments based on constitutional identity may be relied on to stay outside the enactment of new private international legislation by the EU. In particular, due to the unanimity requirement laid down by Article 81(3) TFEU, Member States have a strong bargaining power in the area of international family law. This can be well illustrated by the recent adoption of Matrimonial Property Regulation and the Regulation on the Property Regimes of Registered Partners where the opposition of some Member States led to the enactment of these regulations in enhanced cooperation procedure. Staying outside from the adoption of these regulations has been motivated by protecting the domestic concept of family as part of national or constitutional identity. In this way, constitutional identity undoubtedly contributes to the fragmentation of EU private international law.

Nevertheless, constitutional identity can be rarely used as a trump by the Member States in the area of the judicial cooperation in civil matters. There are at least two limits concerning the application of the autonomous private international law rules of the Member States. First, as long as an international legal dispute demonstrates some connection to EU law, Member States must respect the fundamental principles of EU law, in particular the principles of free movement and non-discrimination. Second, even if no such connection exists, the limits stemming from international conventions, such as the ECHR, cannot be ignored.     

The details of the article are available through the journal website here.

Premier Cruises Ltd v DLA Piper Rus Ltd & Anor [2021] EWHC 151 (Comm) is a textbook case for the relationship between arbitration and the Brussels Ia regulation, as well as relevance of lex arbitri on what is within the scope of an arbitration agreement.

Claimant is Premier Cruises Limited (“PCL”), a company originally domiciled in the British Virgin Islands and now domiciled in the Seychelles, which owns or operates two vessels. Defendants are entities within the DLA Piper Group of legal practices. The First Defendant is DLA Piper Rus Limited (“DLA Russia”), an English company with operations in Russia. The Second Defendant is DLA Piper UK LLP (“DLA UK”), an English LLP.  On 29 January 2020 (within the scope of Brussels Ia, therefore, at least as against DLA UK), PCL commenced proceedings against DLA in the Commercial Court claiming damages in contract and/or in tort for professional negligence.

DLA Russia argues the claim is within the scope of its arbitration agreement included in the engagement letter (International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation). DLA UK accepted it was not included in that agreement and applied for a case-management stay.

PCL argue its action against DLA Russia is in respect of advice allegedly given and work allegedly carried out by DLA Russia prior to 26 May 2015 when the Engagement Letter came into force.

At 52, Edward J identified Russian law as both lex contractus and lex arbitri, and held at 138 after hearing the Russian law experts, that upon contractual construction, PCL’s claim was not included in the clause for it was not meant to apply retroactively.

At 147 ff he agreed with PCL that a case-management stay for the claim against DLA UK is not possible given, with reference to Recital 12 BIa, that the arbitration exception is not engaged: ‘The claim made against DLA UK in this action is not one in respect of which PCL and DLA UK have entered into an arbitration agreement [161]; Arbitration is not the principal focus of the English proceedings against DLA UK; the essential subject matter of the claim made against DLA UK does not concern arbitration; and the relief sought in the proceedings is not ancillary to or an integral part of any arbitration process [163] (reference is made to The Prestige].

The claim being within BIa, Owusu rules out a case management stay. The judge should have outright rejected the additional suggestion ([158 juncto [164]) of a temporary stay being within the Owusu confines.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.3.4, para 2.110 ff.

Application for stay in favour of #arbitration proceedings dismissed.
Viz the Rus party, on basis of Russian law principles of construction applicable to arbitration agreements.
Viz the UK party given CJEU Owusu, in casu not displaced by Brussels Ia arbitration exemption. https://t.co/JzqRyVQ6Px

— Geert Van Calster (@GAVClaw) February 9, 2021

The Committee Investigating Intercountry Adoption, has recommended that The Netherlands suspend intercountry adoptions. The interdisciplinary committee considered the history and legal evolution, and did an in-depth investigation into adoptions from five selected countries (Bangladesh, Brazil, Colombia, Indonesia and Sri Lanka). It looked into the consequences for the people involved (adoptees, birth families and adoptive families), the perception in society, the best interests of the child and the right to know one’s origins and identity. It came to the conclusion that there have been too many abuses and that the current system is still open to fraud and abuses. It further stated that the lessons learned should be applied to new methods of family formation such as surrogacy.

For those who do not read Dutch, the Commission issued a press release in English and published an English summary of the report.

The Committee, established by the Minister for Legal Protection, Mr. Sander Dekker, was chaired by Mr. Tjibbe Joustra and further composed of Prof. Dr. Beatrice de Graaf and Mr. Bert-Jan Houtzagers.

POAM (Protection of Abducting Mothers in Return Proceedings) is a research project co-funded by the European Commission. It explores the intersection between domestic violence and international parental child abduction within the European Union. The project is concerned with the protection of abducting mothers who have been involved in return proceedings under the 1980 Hague Abduction Convention and the Brussels IIa Regulation, in circumstances where the child abduction had been motivated by acts of domestic violence from the left-behind father.  POAM examines the usefulness of the Protection Measures Regulation and the European Protection Order Directive in the context of such return proceedings.

The POAM Conference will take place online via Zoom – due to the current global circumstances and, unfortunately, not as initially planned in Munich – on Friday, the 26th March 2021 from 9 a.m. to 1 p.m. (CET).

In the Conference, the POAM research team will present the results of the project and their best practice guide, and invite discussions moderated by external speakers and a panel to engage the participants. Please see the attached POAM Conference Programme for more details.

REGISTRATION: If you are interested in attending the online Conference, please register by email to tatjana.tertsch@jura.uni-muenchen.de

Please also indicate in the email whether you would require a confirmation of participation after attendance. We will provide you with the necessary link for the Zoom Conference a week before the event.

The CJEU’s interpretation of Article 7(2) Brussels Ia with regard to online defamation has long been criticized (including on this blog) for its lack of predictability, especially from the defendant’s point of view. While these concerns could, in many cases, be dismissed as purely academic, Case C-800/19 Mittelbayerischer Verlag seems to put them back on the agenda in a politically somewhat delicate context. AG Bobek’s Opinion on the case has been published today.

As a reminder, the legal framework emerging from the Court’s decisions in Shevill, eDate and Bolagsupplysningen can be summarised as follows: the victim of an alleged violation of personality rights can

• either seize the courts of their centre of interests (which regularly coincides with their domicile) and seek compensation of the entire damage as well as all other remedies,
• or seize the courts of each other Member State in which the content in question has been made available, with compensation being limited to the damage caused through publication in that Member State and ‘indivisible’ remedies such injunctions to rectify or delete not being available (the so-called ‘mosaic’ approach).
  

The case in Mittelbayerischer Verlag concerns the claim of a Polish holocaust survivor living in Poland, who is suing a German local newspaper who published an article on the internet that referred to a Nazi concentration camp in then-occupied Poland, using the phrase ‘Polish extermination camp’. As some readers might remember from a similar affair involving a German public broadcoaster and resulting in the refusal to enforce a Polish judgment by the German Bundesgerichtshof, Polish substantive law considers the use of the term ‘Polish extermination camp’ as an infringement of the personality rights of any Polish survivor of Nazi concentration camps because it could create the impression that those who have been prisoners in these camps may have played a role in their creation or operation.

Unlike the Court of Appeal of Kraków in the 2016 case, the Court of Appeal of Warsaw had doubts as to its international jurisdiction based on Article 7(2) Brussels Ia. While Warsaw clearly constituted the claimant’s centre of interest, the Court wondered if this was sufficient to render it competent for the entire range of remedies sought by the claimant (damages; prohibition to use the term in the future; public apology) given the circumstances of the case. In particular, the Warsaw court pointed out that the claimant did not claim to have personally accessed, let alone understood the article, which had only been online for a few hours; the claimant had also not been personally identified in the article in any way; the defendant, on the other hand, had not directed their article, or any other part of their online presence, to an audience in Poland.

The Warsaw Court of Appeal thus referred the following questions to the CJEU:

1. Should Article 7(2) [Brussels Ia] 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 not 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) [Brussels Ia], 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?’

In his Opinion, Advocate General Bobek (who had also rendered the AG Opinion in Bolagsupplysningen, calling for the abolition of ‘mosaic’ jurisdiction in cases of violations of personality rights) leaves no doubt that he still believes the current approach to Article 7(2) Brussels Ia to be imperfect (paras. 39–44). Yet, he argues that the present case is not the right place for its reconsideration because ‘the sticky issue in this case does not concern international jurisdiction, but rather the substance of the claim’ (para. 43). Thus, he proposes to adopt ‘a narrow and minimalist approach’ (para. 44).

He develops this approach through two steps. First, he explains why he does not believe that the question of whether or not the claimant has been named (or otherwise personally identified) in the publication in question provides a helpful criterion for the establishment of centre-of-interests jurisdiction (paras. 45–57) as there is ‘no visible line in the sand’ (para. 51) but rather

[55] … a fluid, continuum of possible ‘degrees of individualisation’ to be assessed in the light of the infinite factual variety of cases, when looking at a given statement assessed in its context with regard to a particular claimant.

In a second step, AG Bobek then explains that centre-of-interests jurisdiction as established in eDate nonetheless requires a certain degree of foreseeability to be reconciliable with the aims of foreseeability and sound administration of justice as required by Recitals (15) and (16) of the Regulation. He believes that such foreseeability does not depend on the subjective intent of the publisher but rather requires an objective centre-of-gravity analysis (along the lines suggested by AG Cruz Villalón in his Opinion on eDate):

[69] I would also caution against introducing, in essence, ‘a criterion of intent’ to online torts. The subjective intent of the publisher at the time of publication, if indeed discernable, may be used as an indication only. It is, however, not conclusive. Instead, what matters is whether, as deduced from a range of objective ‘items of evidence’, it could reasonably have been foreseen that the information published online would be ‘newsworthy’ in a specific territory, thereby encouraging readers in that territory to access it. Such criteria could include matters such as the subject matter of the publication, the top-level domain of the website, its language, the section in which the content was published, the keywords supplied to search engines, or the website access log.

[70] However, since those considerations apply to the impact side of Bier, that is to say, where the damage occurred, it is indeed logical that they focus on the objective, subsequent impact of a given publication from the point of view of the public, rather than being primarily concerned with the original and rather subjective intentions of a publisher. It is from this perspective that, in line with recital 16 of Regulation No 1215/2012, a clear objective connection between the action and the forum ought to be assessed, which then justifies the seising of jurisdiction, as a counterweight to the virtually unlimited geographical reach of online content.

This culminates in the following proposition:

[73] … [A]t the level of international jurisdiction, the issue of foreseeability ought to be properly characterised as enquiring as to whether a particular statement, in view of its nature, context and scope, could have caused harm to a given claimant within the given territory. It thus relates clearly to foreseeability and predictability of the given forum. It should not be reduced to the question of whether a particular publisher knew or could have known the domicile of a possible victim at the time the material was uploaded online.

Applied to the case at hand

[74] … it is indeed difficult to suggest that it would have been wholly unforeseeable to a publisher in Germany, posting online the phrase ‘the Polish extermination camp of Treblinka’, that somebody in Poland could take issues with such a statement. It was thus perhaps not inconceivable that ‘the place where the damage occurred’ as a result of that statement could be located within that territory, especially in view of the fact that that statement was published in a language that is widely understood beyond its national territory. Within that logic, while it is ultimately for the national court to examine all those issues, it is difficult to see how jurisdiction under Article 7(2) of Regulation No 1215/2012 could be axiomatically excluded.

Although unlike eDate and Bolagsupplysningen, the case has not been assigned to the Grand Chamber, making any proper reconsideration of the two former decisions unlikely, it certainly provides another opportunity for incremental adjustments. The AG’s proposition may just fit that bill.

The Société de législation comparée has published a liber amicorum in honour of Professor Iacyr de Aguilar Vieira entitled (in French): Études en l’honneur du Professeur Iacyr de Aguilar Vieira. This book has been coordinated/compiled by Gustavo Cerqueira and Gustavo Tepedino. More information is available here.

This book may be purchased by clicking here (and here). A more favorable price is available until 8 April 2021. Those who acquire the book now (by way of a “souscription”) may consent to having their name appear at the end of the book.

Contributions are written in French, English, Italian and Spanish and range from commercial law to private international law to law and literature. Please find below the details as announced:

Droit civil, droit des affaires, droit international privé, droit privé comparé, droit du commerce international, littérature et droit, constituent autant de champs d’étude que des passions pour Iacyr de Aguilar Vieira durant son intense et fructueuse activité de recherche et d’enseignement au Brésil comme en Europe.

C’est dans ces domaines que ses élèves, collègues et amis, européens et sud-américains, rendent aujourd’hui un hommage amical à cette universitaire empreinte de liberté.

Arnoldo Wald, Lettre-préface en hommage au Professeur Iacyr de Aguilar Vieira

Danièle Alexandre, Témoignage d’une amitié franco-brésilienne

I – Droit civil et droit des affaires

Guido Alpa, L’applicazione diretta dei diritti fondamentali ai rapporti fra privati

Margarida Azevedo, The evolution of the concept of contractual justice

Rodrigo Octávio Broglia Mendes, Notes on the concept of “economy of the contract”

Geoffray Brunaux, Efficacité et effectivité de la réglementation des activités du commerce électronique

Diogo Leite de Campos, Mónica Martinez de Campos, Le logement familial : (in)saisissable ?

Estelle Fragu, Fernanda Sabrinni, L’imprévu dans le contrat

Laurent Gamet, Les avocats et l’intelligence artificielle. Des outils et des hommes

Nicolas Kilgus, Le droit réel sui generis : entre perspectives et interrogations

Giovanni Lobrano, Dai “mezzi per difendere la libertà” ai modi di costituirla. Per “sbloccare” la dottrina giuridica

Kevin Magnier-Merran, Observations sur la délimitation des usages

Marc Mignot, Le corpus jurisprudentiel issu de l’ordonnance n° 45-770 du 21 avril 1945 sur la nullité des actes de spoliation accomplis par l’ennemi ou sous son contrôle et édictant la restitution aux victimes

Pierre Mousseron, Bernard Laurent-Bellue, Pour un Droit coutumier des sociétés

Cyril Noblot, Clause compromissoire et clause de conciliation préalable obligatoire : exercice de droit comparé interne français

Fabrice Rosa, Le pouvoir de réglementation des personnes privées dans la théorie générale des obligations en droit français

Antonio Saccoccio, Mutuo real, acuerdo de mutuo y promesa de mutuo en derecho romano

Anderson Schreiber, Pour le dépassement de la théorie de l’imprévision (en faveur de l’équilibre contractuel in concreto)

Michel Storck, Les agences de conseil en vote : à la recherche d’une régulation

Gustavo Tepedino, L’efficacia dei diritti fondamentali nelle associazioni: la costituzionalità dei criteri di ammissione differenziati nell’esperienza brasiliana

II – Droit international

Renaud Alméras, Réflexion sur le contrôle par le juge français des décisions étrangères de saisie pénale

Andrea Bonomi, Recognition of foreign judgments in Brazil: some comparative law remarks also in light of the 2019 Hague Judgment Convention

Jamile Bergamachine Mata Diz, Pedro Campos Araújo Corgozinho, La qualification et le caractère dynamique des biens en droit international privé brésilien

Gustavo Ferraz de Campos Monaco, Mobilité de personnes et droit international privé : un regard brésilien

Claudia Lima Marques, Pablo Marcello Baquero, Gouvernance mondiale et droit de la consommation

Fernanda Munschy, Autonomie de la volonté en Amérique Latine : 27 ans après l’adoption de la Convention de Mexico sur la loi applicable aux contrats internationaux

Nicolas Nord, La reconstruction des règles de conflit relatives au contrat de travail international. Etude du droit européen à l’aune des incohérences jurisprudentielles

Naiara Posenato, On the formation of the electio iuris agreement: some comparative insights

Camille Reitzer, Qualification et méthode de la reconnaissance

Carmen Tiburcio, Choice of court agreements : a comparative analysis

Alan Wruck Garcia Rangel, Échanges épistolaires en droit international privé : les consultations juridiques de José Carlos de Almeida Arêas dans les dernières décennies du XIXe siècle

III – Droit privé comparé et droit du commerce international 

Olivier Cachard, La méthode comparatiste et l’hybridation des droits. L’exemple de la lex Schuman lors du recouvrement de l’Alsace et de la Moselle.

Andreia Costa Vieira, Sustainable foreign direct investments for emerging and developing countries

Milena Donato Oliva, Pablo Renteria, Filipe Medon, La protection des données personnelles au Brésil et en Europe

José Angelo Estrella Faria, Competition among legal systems: the influence of rankings in stimulating commercial law reform

Franco Ferrari, Friedrich Rosenfeld, Les limites à l’autonomie des parties en matière d’arbitrage international

Ana Gerdau de Borja Mercereau, Responsabilité sociale de l’entreprise et l’arbitrage d’investissement

Anne Gilson-Maes, La famille et le contrat en droit français – Analyse à la lumière du droit comparé

Carlos Nelson Konder, Tramonto o revirement della causa del contratto: Influenze europee sul diritto brasiliano

Sabrina Lanni, Imprevisión contrattuale: esperienze latinoamericane e armonizzazione del diritto

Andrea Marighetto, La clausola della buona fede nel commercio internazionale. Natura giuridica e profili comparatistici occidentali

José Antonio Moreno Rodrígues, International Sales Law and Arbitration

Magalie Nord-Wagner, Le droit et la quête du bonheur en droit comparé

Francisco Pignatta, La nouvelle loi de protection des données au Brésil : le RGPD comme référence et les difficultés de sa mise en œuvre

Marilda Rosado de Sá Ribeiro, Fernanda Torres Volpon, Ely Caetano Xavier Junior, Contrats internationaux complexes et la responsabilité civile précontractuelle dans une perspective comparative

Claude Witz, Influences de la Convention de Vienne sur le législateur français

IV – Droit et littérature

Luiz Felipe Araújo, The Lost Pathos of Rhetoric: human being, power and affections on Law in Friedrich Nietzsche

Gustavo Cerqueira, Pour un dictionnaire juridique de notions et de phénomènes contemporains

Arnaud Coutant, Aux origines du mouvement droit et littérature, le Professeur John Henry Wigmore

Thibault de Ravel d’Esclapon, Molière et le droit. À propos de Scapin, de ses fourberies et de la justice

Emilien Rhinn, La littérature au service d’un idéal politique : nationalisme français et femmes alsaciennes-lorraines (1871-1918)

Nunziata Valenza Paiva, Il diritto nei confronti delle favole : il contributo della letteratura nella costruzione della base morale, civica e giuridica dei bambini

In a judgement dated 18 November 2020, the French Supreme Court for private and criminal matters (Cour de cassation) ruled that the obligation to apply choice of law rules equally applies in interim proceedings. In contrast, the court had ruled in 1996 that French courts did not have the power to apply choice of law rules in interim proceedings.

The case was concerned with a traffic accident which had occurred in Italy. A car driven by a French woman had run over a professional Australian cyclist living in Monte Carlo (which one is anyone’s guess). The victim initiated interim proceedings in France against the driver and her insurer seeking the appointment of a judicial expert and a provisional payment order.

Various provisions of the French Code of Civil Procedure grant French courts the power to issue provisional payment orders (référé provision) where a claim cannot be “seriously disputed”. Such orders may be granted in interim proceedings for up to 100% of the claim. They are not final, and in theory the defendant may always reopen the issue in the proceedings on the merits. In practice, defendants often do not bother and provisional payment orders are never challenged.

The issue in this case was whether the French court had the power, and indeed the duty, to apply French choice of law rules and, as the case may be, assess whether the claim was undisputable be reference to the law governing the substantive rights.

The case was clearly concerned with a tort claim. In many Member states, the Rome II Regulation would have applied, but France is a party to the 1971 Hague Convention on the law applicable to traffic accidents. Pursuant to Article 28 of the Rome II Regulation, the Regulation does not affect the application of the 1971 Convention because it also applies in third states (Switzerland, Morocco, Ukraine, etc…).

The Hague Convention is of universal application, and it thus applied in French courts irrespective of the fact that the accident occurred in a third state, and designated the law of a third state. The choice of law rules of the Convention are pretty complex, and include a number of exceptions to the application of the law of the place of the accident, in particular where the car was matriculated, and the victim was outside the vehicle and resided, in the same country (art. 4), but that was not the case here. So Italian law likely applied as the law of the place of the accident (Article 3).

However, maybe because it had limited knowledge of private international law or, more likely, because it had no intention of applying Italian law, the court of appeal of Aix en Provence applied the Rome II Regulation and found that the exception clause in Article 4(3) allowed for the conclusion that French law was manifestely more connected to the tort.

The Cour de cassation did not even bother to comment on the application of the exception clause. It set aside the judgment of the court of appeal on the ground that it had applied the wrong choice of law rule, as it had failed to apply the Hague Convention.

Most importantly, it held that the court of appeal had the duty to apply the Hague Convention to determine the applicable law, “even in interim proceedings” (“même statuant en référé“).

Although the judgment of the Cour de cassation is concise, its meaning is clear.

It is not that foreign law might be applied to procedure or to determine which provisional measures might be available. This is governed by the law of the forum. So, the availability of the two provisional measures sought by the  victim was entirely governed by French law, and so were the requirements for granting them. French law provided that provisional payment orders could only be granted if the claim could not seriously be disputed.

Many provisional measures, however, aim at protecting and anticipating substantive rights. Freezing orders protect the payment of a claim. Under French law, a provisional payment order anticipates the payment of a claim. The issue was whether the existence of such claim should also be assessed in accordance with the law of the forum, or whether it should be assessed in accordance with the law governing the relevant claim. The Cour de cassation rightly holds that it should be in accordance with the law governing the relevant claim.

The judgment is right. There is no acceptable alternative to the application of the law governing the claim. If the law of the forum is applied, the resulting measures will protect imaginery rights. Another possibility would be to rule that, as foreign law cannot be applied in interim proceedings, the application should be dismissed where the law of the forum does not apply. For protective measures at least, this would border denial of justice. But this was the outcome of the 1996 judgment of the Cour de cassation where it was held that French courts did not have the power to apply choice of law rules to determine whether the creditor seeking a freezing order had a good arguable case, and the application denied.

Of course, time is typically of the essence in interim proceedings. The establishment of foreign law may then raise difficulties. But the establishment of facts raises the same difficulties. For certain proctective measures such as freezing orders, the answer is to lower the standard of proof. It is possible to do the exact same for establishing foreign law. German courts have so held in several cases: only the likelihood of the content of foreign law should be established at that stage.

For other provisional measures, the standard of proof is high, if not higher. This is the case for establishing that a claim cannot be seriously disputed under French civil procedure. But such measures are not urgent, and it would not be a denial of justice to deny the remedy and to await for the outcome of the proceedings on the merits.

The author of this post is Cecilia Rizcallah. She is visiting Professor at the Université Saint-Louis-Bruxelles and at the Université libre de Bruxelles, Postdoctoral Researcher at the National Fund for Scientific Research (F.R.S.-FNRS) and re:constitution fellow. As announced in a previous post, Cecilia is the author of a monograph on the principle of mutual trust in EU Law, based on her doctoral thesis. She has kindly accepted to provide us with a presentation of this key-principle of EU law with a special focus on EU judicial cooperation in civil matters.

The principle of mutual trust, whose fundamental importance is recognised by the European Court of Justice (hereafter “ECJ”), became a genuine “leitmotiv” of discourses on EU integration. This principle indeed underpins a large set of EU rules of primary and secondary law, in the fields of the internal market and the area of freedom, security and justice.

The principle of mutual trust appeared at an early stage of European integration, in the area of mutual recognition of diplomas and professional qualifications and in the field of free movement of goods. Being an attractive tool for integration by allowing the opening-up of the different national legal orders, it was subsequently called upon in the areas of European judicial cooperation in civil and criminal matters, as well as in the area of the common asylum policy. In spite of its success, this principle lacked conceptualization. The main objective of my research was to remedy this nebulous situation by providing a cross-cutting definition of the principle of mutual trust. It also analysed its role for EU integration as well as its relationship with EU founding values, which include the rule of law and human rights. The principle of mutual trust is indeed presented as being “based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the Union is founded, as stated in Article 2 TEU” (ECJ, Opinion 2/13, pt. 168). Yet, the EU currently faces a “crisis of values” resulting from the existence of serious violations of these values and, in particular, the rule of law and human rights, in an increasing number of Member States.

The in-depth study of the manifestations of the principle of mutual trust shows that it imposes to the Member States to presume – to a certain extent and in their direct horizontal relationships – the compatibility of different national “legal solutions”.  Indeed, the principle of mutual trust requires Member States – when it applies – to “trust” acts issued by other Member States, or legal practices or situations tolerated in their territory. This duty of trust prevents, as a matter of principle, the double control of these national legal solutions’ compliance with EU law. The principle of mutual trust has nevertheless no direct effect and has therefore to be implemented by primary or secondary law in order to be applicable. It constitutes one of the foundations of the principle of mutual recognition, which in turn imposes, more specifically, the recognition of a legal act issued by another Member State.

In the field of judicial cooperation in civil matters, the principle of mutual trust opposes the revision of a judgment issued by a – issuing – Member State for which the recognition is sought in another – executing – Member State. It therefore countenances the principle of mutual recognition imposed by a number of instruments in civil and commercial matters, matrimonial matters and matters of parental responsibility and insolvency. A judgment deciding on the custody of a Franco-German couple’s child handed down in Berlin will thus be able to take effect almost without formalities in Paris, despite the specificities distinguishing German and French family law. The judgments issued by the Member States should be presumed as being “equivalent” and as complying with the requirements of Union law, particularly in terms of fundamental rights.

As a matter of fact, the principle of mutual trust plays an essential role for EU integration. It indeed lies at the crossroads of three essential imperatives of the European construct: unity, diversity and equality between Member States. Despite the safeguarding of national substantive and procedural diversities, the borders between the Member States are fictitiously blurred so that – in broad terms – the legal solution of State A does not encounter any obstacles to penetrate the legal order of State B. The judgment issued by the authorities of a Member State A will indeed be able to take effect, without any formalities such as an exequatur, in the Member State B. In this way, the principle of mutual trust makes it possible to unify the national legal orders, which remain distinct and equal.

Although it plays an essential role for EU integration, this principle generates important risks because of the lack of mutual control of legal solutions presumed to be compatible. It may indeed lead to the spread of unsatisfactory legal solutions – infringing EU law – within the European area without internal borders. These risks are of course amplified because of the existence of the “crisis of values”. The major challenges faced by the Union and the Member States in economic, security and migration matters have indeed revealed deep divisions as to the meaning of European integration and the values on which it is based. These divisions have gone so far as to lead to the existence of widespread and persistent failures which, in the opinion of the majority of observers, are causing a rule of law backsliding in a few Member States. This situation increases the likelihood that national legal solutions are incompatible with democratic values and the rule of law. A judgement issued by a judge who is no longer independent could indeed, by vertu of mutual trust, spread its effects in the other Member States.

Exceptions have nevertheless been recognized to the principle of mutual trust in order to limit the risks of violation of EU founding values it entails. These exceptions must however be construed narrowly according to the ECJ, because of the principle mutual trust. Indeed, according to the Court, it is only in “exceptional circumstances” that this principle may be set aside (ECJ, Opinion 2/13, pt. 191).

The ECJ, for example precluded, with regards to the Brussels II bis regulation, the review, by an executing authority, of a decision requiring the return of a child issued on the basis of Article 42 of this regulation. In the Zarraga case, it held that the authorities of the executing Member State were not entitled to verify whether the court which issued the judgment requiring the return of the child had respected the child’s right to be heard, as provided for by the Regulation, since the principle of mutual trust requires the national authorities to consider “that their respective national legal systems are capable of providing an equivalent and effective protection of fundamental rights, recognised at European Union level, in particular, in the Charter of Fundamental Rights” (pt. 70). The Court of Justice justified this approach on the grounds that the regulation did not foresee any exceptions to this kind of decision and, also, that the child’s right to be heard is not absolute and that the national authorities are granted a margin of discretion regarding its application (pt. 66).

Exceptions to the principle of mutual trust have nevertheless been established, when more serious risks of violation of fundamental rights were at stake, in the context of the application of the Brussels I bis Regulation, which concerns the recognition and enforcement of judgments in civil and commercial matters and which establishes a general exception to mutual recognition based on public policy. This exception must however, still because of the principle of mutual trust, be construed narrowly. In the Krombach case, the Court of Justice nevertheless held that mutual recognition may be refused when the defendant has suffered “a manifest breach of his right to defend himself before the court of origin”. A similar conclusion was made in the Trade Agency case, where the Court of Justice stressed that the public policy clause could only be relied upon when the defendant’s right to a fair trial is “manifestly” breached, leading to the “impossibility of bringing an appropriate and effective appeal” against the judgement in the issuing state.

The study of all the exceptions surrounding the principle of mutual trust led to the conclusion that if not all violations of fundamental rights justify setting aside mutual trust, the ones threatening absolute fundamental rights (such as the prohibition of inhuman and degrading treatment) or the essential content of other fundamental rights, in the sense of Article 52(1) of the Charter do. Indeed, only the most serious violations of fundamental freedoms seem to exclude the application of the principle of mutual trust.

This observation is based on the case-law in private international law (above) which refers to the concept of “manifest breach”, but also in the field of criminal cooperation and asylum where the Court found that a risk of infringement of Article 4 of the Charter prohibiting inhuman and degrading treatments excluded mutual trust.

Yet, if the integration aims pursued by the principle of mutual trust are legitimate, one can nevertheless wonder how to justify that this principle continues to apply even in presence of risks of “simple” infringements of fundamental freedoms, especially since this principle is supposed to be based on the respect of these rights by all the member states. The implementation of the principle of mutual trust can therefore in itself weaken its proper foundations.

 Observing the unsatisfactory character of the limitation scheme surrounding the principle of mutual trust, this research ended by proposing ways of improving its operation so that the founding values of the Union are better protected. More specifically, we call on those involved in mutual trust to transform the principle of mutual trust from a postulate into a method. In other words, we propose to move away from the postulate of trust in favour of a methodical application of trust.

This method, which is based on risk management tools notably developed by the Society for Risk Analysis, is divided into two phases.

The first is aimed at EU institutions that implement, in an abstract way, mutual trust in standards with a general scope: when they adopt an EU legislation implementing this principle, it seems desirable to us that they carry out a risk analysis and that they adapt the exceptions enshrined in this instrument accordingly. To this end, several steps are proposed, which differ according to the type of value exposed by the envisaged legislation, the type and seriousness of the damage incurred, and the possible vulnerability of the resources concerned. For example, when fundamental rights are threatened by the instrument underpinned by the principle of mutual trust – such as the best interest of the child in the framework of the Brussels II bis regulation – we consider that a margin of appreciation should be reserved to national authorities implementing the instrument on a case-by-case basis.

The second phase is aimed at the actors who actually implement these general instruments in specific cases (judges, administrations, etc.). Here too, guidelines that could guide these actors in this task are developed, always with a view to increasing the protection of the fundamental rights of individuals. The method deals in particular with the question of the adjustment of the burden of proof, an issue that is of particular importance in litigation, especially when it comes to protecting fundamental rights. In this sense, if the existence of risks of serious violations of fundamental rights is alleged and demonstrated prima facie, we recommend a shift of the burden of the proof so that it would be up to the authority that wants to take advantage of the principle of mutual trust to demonstrate the non-existence of this risk. This proposition is largely inspired by the adjustment of the burden of the proof in non-discriminatory law (see, for example, art. 10 of Directive 2000/78)

As a complement to this method, various “risk management tools” are also explored, making it possible to reduce those that threaten human rights in the context of the implementation of mutual trust. These tools include minimum harmonization, the strengthening of procedural guarantees surrounding the principle of mutual trust, the establishment of solidarity mechanisms between the Member States, …

Evidently, this method does not claim to solve all the difficulties arising from the principle of mutual trust. On the contrary: it aims at opening the discussion on the basis of a systematic identification of the risks induced by this principle, and to inspire the stakeholders with a few best practices.

On 5 March 2021, from 5 to 6.30 p.m. (CET), the European Association of Private International Law will host its third (Virtual) Seminar (see here and here for the previous events in the series). The Seminar will focus on the digitalization aspects of the revised Service of process and Taking of evidence Regulations.

The speakers will be Andreas Stein (European Commission), Elizabeth Zorilla (Hague Conference on Private International Law), Michael Stürner (University of Konstanz and Court of Appeal of Karlsruhe), Jos Uitdehaag (International Union of Judicial Officers) and Ted Folkman (attorney at law, Boston, and Letters Blogatory).

Gilles Cuniberti will introduce the Seminar, while Giesela Rühl will provide some concluding remarks.

Attendance is free, but those wishing to attend are required to register here by 3 March 2021 at noon.

Registered participants will receive the details to join the Seminar by e-mail the day before the Seminar.

For more information, please write an e-mail to Apostolos Anthimos at apostolos.anthimos@gmail.com.

The International Max Planck Research School for Successful Dispute Resolution in International Law (IMPRS-SDR) is accepting applications for PhD proposals within the research areas of the Department of International Law and Dispute Resolution and the Department of European and Comparative Procedural Law to fill a total of

5 funded PhD positions

at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law.

Selected PhD candidates will receive full-time research contracts of initially 2 years, with a possible extension of up to additional 2 years depending on the availability of funds, the student’s progress, and the Directors’ approval. In addition to being embedded in one of the vibrant Departments and its activities, the PhD candidates will be part of the IMPRS-SDR through which they will receive additional scholarly guidance and take part in events, such as doctoral seminars, master classes, and lectures. PhD candidates will benefit from the productive working environment within an international and creative team of researchers and have the opportunity to establish contacts and networks with all participating institutions as well as visiting academics and practitioners.

The deadline for application is 31 March 2021.

Additional information is available here.

For any questions with regard to the IMPRS-SDR and this Call for Applications, please contact:
Dr. Michalis Spyropoulos, IMPRS-SDR Coordinator, at: imprs-sdr@mpi.lu

The Max Planck Institute Luxembourg strives to ensure a workplace that embraces diversity and provides equal opportunities.

“From 15 to 17 February 2021, the Experts’ Group on Parentage / Surrogacy met for the eighth time. […] The Experts’ Group discussed what the focus of its work should be at its next meeting(s) in order to prepare its final report to CGAP on the feasibility of a possible future general private international law instrument on legal parentage (the Convention) and the feasibility of a separate possible future protocol with private international law rules on legal parentage established as a result of an international surrogacy arrangement (the Protocol).

The Experts’ Group will recommend that its current mandate until 2022 be extended by one year, in order to continue intersessional work and convene several short online meetings and at least one in-person meeting, before submitting its final report on the feasibility of the Convention and the Protocol to CGAP in 2023”. 

A report has been drafted, albeit it contains no information on the substance of the work.

Source: https://www.hcch.net/en/news-archive/details/?varevent=790

The HCCH Experts’ Group on International Transfer of Maintenance Funds met last week via videoconference. The Expert Group discussed topics such as the move away from cheques, the covering of costs related to the transfer of funds (with a view to their abolition), the implementation of bundled payments to reduce costs of transfers, etc. A résumé of these discussions may be found in the Aide-mémoire, available at https://assets.hcch.net/docs/abad87fe-7177-4dce-8393-cf32d240cc0d.pdf

Source: https://www.hcch.net/en/news-archive/details/?varevent=789

From March 3 to May 13, 2021, the University of Milan will host a series of webinars dealing with cross-border civil and commercial litigation in Europe, as part of the three-year project funded by the European Union and named “Jean Monnet Module on Multilevel, Multiparty and Multisector Cross-Border Litigation in Europe“.

The cycle of seminars will be divided into three modules, focusing, respectively, on relations and conflicts between national judges, European courts and international tribunals; on collective redress, addressed from a European, comparative and transnational perspective and in the context of different legal sectors; on the main procedural issues arising out of transnational litigation in financial law, IP law, labor law and family law disputes, as well as on the the current EU works on judicial cooperation and on the latter’s prospects after Brexit. A short module will provide participants with basic hints on written and oral legal advocacy.

The seminars, held by Italian and foreign experts with remarkable experience (not only academic, but also professional and institutional) in the sector, also due to their involvement in international research works and legislative reform projects coordinated by the European Commission, are aimed at Italian and foreign under- and post-graduate students, as well as professionals (the latter being entitled to continuing legal education credits).

To register (for the entire program or only for some modules), please fill in and submit, no later than Monday, March 1, 2021, the registration form retrievable here.

See here the Full Programme.