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Galapagos Bidco SARL v Kebekus & ors [2021] EWHC 68 (Ch) is yet again a fairly extensive first instance judgment merely on the issue of jurisdiction, entertaining Article 8(1) Brussel Ia’s anchor defendant mechanism as well as Article 25 choice of court.

On A8(1), focus of the discussion was the extent of a merits review under A8(1), which I also discuss  in Sabbagh v Khoury and Senior Taxi v Agusta Westland (both referred to here by Zacaroli J at 44 ff.; as was nb PIS v Al Rajaan). The issue was raised in CJEU C-98/06 Freeport but not answered. The judge here uses the notion of ‘sustainable claim’ to ensure absence of abuse of the anchor mechanism, concluding at 132 after fairly serious if arguably not excessive engagement with the merits, that the conditions of A8(1) are fulfilled.

Article 25 choice of court is discussed obiter at 138 ff., leading to some discussion on the timing of the binding character of the clause upon various parties (and a minor side-issue re Brexit).

A case-management stay was also applied for, with the judge justifiably adopting the strict approach at 160 that such a stay must not be used to circumvent the inapplicability of an Article 34 BIa challenge (the A34 route was dropped; in the light of A25 jurisdiction being established, it would be unavailable at any rate): case-management stay in such circumstances is in essence an application for forum non conveniens which is not permitted under BIa.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.13.1 (in particular 2.496); Heading 2.2.15.3.2.

In yet another very extensive jurisdictional ruling, jurisdiction in E&W accepted on the basis of A8(1) BIa anchor jurisdiction and A25 choice of court against another defendant. https://t.co/ppPZZqtxNy

— Geert Van Calster (@GAVClaw) January 19, 2021

Guest post by Bronwen Manby

In 2014, UNHCR launched a ten-year campaign to end statelessness by 2024. A ten-point global action plan called, among other things, for universal birth registration.  One year later, in September 2015, the UN General Assembly adopted the Sustainable Development Goals (SDGs), an ambitious set of objectives for international development to replace and expand upon the 15-year-old Millennium Development Goals.  Target 16.9 under Goal 16 requires that states shall, by 2030, ‘provide legal identity for all, including birth registration’. The SDG target reflects a recently consolidated consensus among development professionals on the importance of robust government identification systems.

Birth registration, the protection of identity, and the right to a nationality are already firmly established as rights in international human rights law – with most universal effect by the 1989 Convention on the Rights of the Child, to which every state in the world apart from the USA is a party. Universal birth registration, ‘the continuous, permanent, compulsory and universal recording within the civil registry of the occurrence and characteristics of birth, in accordance with the national legal requirements’, is already a long-standing objective of UNICEF and other agencies concerned with child welfare. There is extensive international guidance on the implementation of birth registration, within a broader framework of civil registration.

In a recent article published in the Statelessness and Citizenship Review I explore the potential impact of SDG ‘legal identity’ target on the resolution of statelessness. Like the UNHCR global action plan to end statelessness, the paper emphasises the important contribution that universal birth registration would make to ensuring respect for the right to a nationality. Although birth registration does not (usually) record nationality or legal status in a country, it is the most authoritative record of the information on the basis of which nationality, and many other rights based on family connections, may be claimed.

The paper also agrees with UNHCR that universal birth registration will not end statelessness without the minimum legal reforms to provide a right to nationality based on place of birth or descent. These will not be effective, however, unless there are simultaneous efforts to address the conflicts of law affecting recognition of civil status and nationality more generally. UNHCR and its allies in the global campaign must also master private international law.

In most legal systems, birth registration must be accompanied by registration of other life events – adoption, marriage, divorce, changes of name, death – for a person to be able to claim rights based on family connections, including nationality. This is the case in principle even in countries where birth registration reaches less than half of all births, and registration of marriages or deaths a small fraction of that number. Fulfilling these obligations for paperwork can be difficult enough even if they all take place in one country, and is fanciful in many states of the global South; but the difficulties are multiplied many times once these civil status events have to be recognised across borders.

Depending on the country, an assortment of official copies of parental birth, death or marriage certificates may be required to register a child’s birth. If the child’s birth is in a different country from the one where these documents were issued, the official copies must be obtained from the country of origin, presented in a form accepted by the host country and usually transcribed into its national records. Non-recognition of a foreign-registered civil status event means that it lacks legal effect, leaving (for example) marriages invalid in one country or the other, or still in place despite a registered divorce. If a person’s civil status documents are not recognised in another jurisdiction, the rights that depend on these documents may also be unrecognised: the same child may therefore be born in wedlock for the authorities of one country and out-of-wedlock for another. On top of these challenges related to registration in the country of birth, consular registration and/or transcription into the records of the state of origin is in many cases necessary if the child’s right to the nationality of one or both parents is to be recognised. It is also likely that the parents will need a valid identity document, and if neither is a national of the country where their child is born, a passport with visa showing legal presence in the country. A finding of an error at any stage in these processes can sometimes result in the retroactive loss of nationality apparently held legitimately over many years.  Already exhausting for legal migrants in the formal sector, for refugees and irregular migrants of few resources (financial or social) these games of paperchase make the recognition of legal identity and nationality ever more fragile.

These challenges of conflicts of law are greatest for refugees and irregular migrants, but have proved difficult to resolve even within the European Union, with the presumption of legal residence that follows from citizenship of another member state. The Hague Conference on Private International Law has a project to consider transnational recognition of parentage (filiation), especially in the context of surrogacy arrangements, but has hardly engaged with the broader issues.

The paper urges greater urgency in seeking harmonisation of civil registration practices, not only by The Hague Conference, but also by the UN as it develops its newly adopted ‘Legal Identity Agenda’, and by the UN human rights machinery. Finally, the paper highlights the danger that the SDG target will rather encourage short cuts that seek to bypass the often politically sensitive task of determining the nationality of those whose legal status is currently in doubt: new biometric technologies provide a powerful draw to the language of technological fix, as well as the strengthening of surveillance and control rather than empowerment and rights.  These risks – and their mitigation – are further explored in a twinned article in World Development.

 

Last week, the EAPIL blog published a post on the EU feedback period on modernising judicial cooperation between EU countries – use of digital technology (see here). This feedback period is open until 5 February 2021 (midnight Brussels time) and may be provided by clicking here.  A possible future type of act is a proposal for a regulation.

The relevant documents are: the Inception impact assessment – Ares(2021)172677 (available on the feedback page) and the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions.

In general, the objective and target groups of such feedbacks are: “Inception Impact Assessments aim to inform citizens and stakeholders about the Commission’s plans in order to allow them to provide  feedback  on  the  intended  initiative  and  to  participate  effectively  in  future  consultation  activities. Citizens  and stakeholders  are  in  particular  invited  to  provide  views  on  the  Commission’s  understanding  of  the  problem  and  possible solutions  and  to  make  available  any  relevant  information  that  they  may  have,  including  on  possible  impacts  of  the  different options.” But it is possible for non-EU citizens to provide feedback.

Apparently, an official public consultation – by way of a questionnaire – is upcoming (although there seems to be a mistake on the year on the website).

As stated on the EU website, the summary of this initiative is the following:

“This initiative aims to make judicial cooperation in cross-border cases throughout the EU more efficient and more resilient to crises, such as the COVID-19 pandemic.

It will make it mandatory for the authorities involved in each country to use digital technology, instead of paper, to communicate.

It will improve access to justice by ensuring that individuals, businesses and legal practitioners involved in cases can communicate digitally with the competent authorities in the other countries.”

 

It is worth noting the following excerpt of the Impact Assessment about the likely economic impacts:

“Positive. The initiative could require new investment from EU countries to develop the necessary infrastructure that can interact with e-CODEX. Investment  would  depend  on  the  current national level  of digitalisation, level  of involvement  in the e-CODEX  project, the  interoperability  of  solutions  implemented by EU countries and  the possibility under national law to allow for electronic transmissions. However, in the long run, digitalization of justice would significantly decrease the costs incurred by national justice systems in cross-border procedures.

To  address cost  concerns,  the initiative could  also propose that  the  Commission  develops  and  provides EU countries with a reference implementation software solution (back-end portal) for their national use.

As mentioned in the Communication on the digitalization of justice, the upcoming Multiannual Financial Framework and financial instruments for Next Generation EU could also provide funding.

The EU countries could reduce costs by re-using the infrastructure being developed for the European Investigation Order in criminal proceedings (eEDES) and for Service of Documents and Taking of Evidence also for other judicial cooperation instruments.

With  its  potential  to substantially cut  the cost of participating in cross-border  cases,  the  initiative would also directly  benefit citizens  and  businesses  (including small/medium  firms)  concerned  by  the various  EU civil  law instruments. Use  of  these  instruments  (e.g. the  European  Small  Claims  procedure  and  European Order for Payment) by citizens, businesses and legal practitioners would also increase, through the new electronic access point.”

The EU press release is available here.

 

The Interest Group on Private International Law of the Italian Society of International Law invites you to a series of webinars on current developments in jurisprudence in various topics of private international law.

The webinars will be hosted on Teams by Microsoft 365. In order to attend one or more webinars please write a message to the email address sidigdipp@gmail.com to be added to the relevant Teams group. Once the request has been made for one webinar, there will be no need to repeat it for subsequent events.

The webinars will take place in English except where indicate otherwise.

All webinars will be chaired by Prof. Stefania Bariatti (Università degli Studi di Milano), convenor of the Interest Group.

Programme:

29 January 2021 @ 4-6 PM (CET):

Limiting European Integration Through Constitutional Law? Recent Decisions of the German Bundesverfassungsgericht and their Impact on Private International Law

 Speaker: Christian Kohler, Universität Saarbrücken

 Discussant: Giulia Rossolillo, Università degli Studi di Pavia

 

19 February 2021 @ 4-6 PM (CET):

State Immunity and Jurisdiction in Civil and Commercial Matters in Recent Court of Justice Rulings

Speaker: Alexander Layton, King’s College London

Discussant: Lorenzo Schiano di Pepe, Università di Genova

 

12 March 2021 @ 4-6 PM (CET):

La trascrizione dell’atto di nascita nella recente giurisprudenza della Corte costituzionale italiana (in Italian)

Speaker: Sara Tonolo, Università degli Studi di Trieste

Discussant: Elena Rodriguez Pineau, Universidad Autonóma de Madrid

 

9 April 2021 @ 4-6 PM (CET):

Law Governing Arbitration Agreements in a Recent Judgment of the UK Supreme Court

Speaker: Adrian Briggs, University of Oxford

Discussant: Pietro Franzina, Università Cattolica del Sacro Cuore

 

TBC 23 April 2021 @ 4-6 PM (CET) TBC: 

Jurisdiction in Matters Relating to Cross-Border Torts according to the Recent Volkswagen Judgment of the Court of Justice

 Speaker: Giesela Rühl, Humboldt-Universität zu Berlin

Discussant: Fabrizio Marongiu Buonaiuti, Università di Macerata

 

Eduardo Álvarez-Armas is Lecturer in Law at Brunel University London and Affiliated Researcher at the Université Catholique de Louvain. He has kindly provided us with his thoughts on recent proposals for amending the Rome II Regulation. This is the first part of his contribution; a second one on corporate social responsibility will follow in the next days.

 

On December the 3rd, 2020, the EU commission published a call for applications, with a view to putting forward, by late 2021, a (legislative or non-legislative) initiative to curtail “abusive litigation targeting journalists and civil society”. As defined in the call, strategic lawsuits against public participation (commonly abbreviated as SLAPPs) “are groundless or exaggerated lawsuits, initiated by state organs, business corporations or powerful individuals against weaker parties who express, on a matter of public interest, criticism or communicate messages which are uncomfortable to the litigants”. As their core objective is to silence critical voices, SLAPPs are frequently grounded on defamation claims, but they may be articulated through other legal bases (as “data protection, blasphemy, tax laws, copyright, trade secret breaches”, etc) (p. 1).

The stakes at play are major: beyond an immediate limitation or suppression of open debate and public awareness over matters that are of significant societal interest, the economic pressure arising from SLAPPs can “drown” defendants, whose financial resources are oftentimes very limited. Just to name but a few recent SLAPP examples (For further review of cases throughout the EU see: Greenpeace European Unit [O. Reyes, rapporteur], “Sued into silence – How the rich and powerful use legal tactics to shut critics up”, Brussels, July 2020, p. 18ff): at the time of her murder in 2017, Maltese journalist Daphne Caruana Galizia was facing over 40 civil and criminal defamation lawsuits, including a 40-million US dollar lawsuit in Arizona filed by Pilatus Bank (Greenpeace European Unit [O. Reyes, rapporteur], pp. 9-12); in 2020, a one million euros lawsuit was introduced against Spanish activist Manuel García for stating in a TV program that the poor livestock waste management of meat-producing company “Coren” was the cause for the pollution of the As Conchas reservoir in the Galicia region.

In light of the situation, several European civil-society entities have put forward a model “EU anti-SLAPP Directive”, identifying substantive protections they would expect from the European-level response announced in point 3.2 of the EU Commission´s “European democracy action plan”. If it crystallized, an EU anti-SLAPP directive would follow anti-SLAPP legislation already enacted, for instance, in Ontario, and certain parts of the US.

Despite being frequently conducted within national contexts, it is acknowledged that SLAPPs may be “deliberately brought in another jurisdiction and enforced across borders”, or may “exploit other aspects of national procedural and private international law” in order to increase complexities which will render them “more costly to defend” (Call for applications, note 1, p. 1) Therefore, in addition to a substantive-law intervention, the involvement of private international law in SLAPPs is required. Amongst core private-international-law issues to be considered is the law applicable to SLAPPs.

De lege lata, due to the referred frequent resort to defamation, and the fact that this subject-matter was excluded from the material scope of application of the Rome II Regulation, domestic choice-of-law provisions on the former, as available, will become relevant. This entails a significant incentive for forum shopping (which may only be partially counteracted, at the jurisdictional level, by the “Mosaic theory”).

De lege ferenda, while the risk of forum shopping would justify by itself the insertion of a choice-of-law rule on SLAPPs in Rome II, the EU Commission´s explicit objective of shielding journalists and NGOs against these practices moreover pleads for providing a content-oriented character to the rule. Specifically, the above-mentioned “gagging” purpose of SLAPPs and their interference with fundamental values as freedom of expression sufficiently justify departing from the neutral choice-of-law paradigm. Furthermore, as equally mentioned, SLAPP targets will generally have (relatively) modest financial means. This will frequently make them “weak parties” in asymmetric relationships with (allegedly) libeled claimants.

In the light of all of this, beyond conventional suggestions explored over the last 15 years in respect of a potential rule on defamation in Rome II (see, amongst other sources: Rome II and Defamation: Online Symposium), several thought-provoking options could be explored, amongst which the following two:

1st Option: Reverse mirroring Article 7 Rome II

A first creative approach to the law applicable to SLAPPs would be to introduce an Article 7-resembling rule, with an inverted structure. Article 7 Rome II on the law applicable to non-contractual obligations arising from environmental damage embodies the so-called “theory of ubiquity” and confers the prerogative of the election of the applicable law to the “weaker” party (the environmental victim). In the suggested rule on SLAPPs, the choice should be “reversed”, and be given to the defendant, provided they correspond with a carefully drafted set of criteria identifying appropriate recipients for anti-SLAPP protection.

However, this relatively straightforward adaptation of a choice-of-law configuration already present in the Rome II Regulation could be problematic in certain respects. Amongst others, for example, as regards the procedural moment for performing the choice-of-law operation in those domestic systems where procedural law establishes (somewhat) “succinct” proceedings (i.e. with limited amounts of submissions from the parties, and/or limited possibilities to amend them): where a claimant needs to fully argue their case on the merits from the very first written submission made, which starts the proceedings, how are they meant to do so before the defendant has chosen the applicable law? While, arguably, procedural adaptations could be enacted at EU-level to avoid a “catch-22” situation, other options may entail less legislative burden.

2nd option: a post-Brexit conceptual loan from English private international law = double actionability

A more extravagant (yet potentially very effective) approach for private-international-law protection would be to “borrow” the English choice-of-law rule on the law applicable to defamation: the so-called double actionability rule. As it is well-known, one of the core reasons why “non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation” were excluded from the material scope of the Rome II Regulation was the lobbying of publishing groups and press and media associations during the Rome II legislative process (see A. Warshaw, “Uncertainty from Abroad: Rome II and the Choice of Law for Defamation Claims”). With that exclusion, specifically, the English media sector succeeded in retaining the application by English courts of the referred rule, which despite being “an oddity” in the history of English law (Vid. D. McLean & V. Ruiz Abou-Nigm, The Conflict of Laws, 9th ed., Swett & Maxwell, 2016, p. 479), is highly protective for defendants of alleged libels and slanders. The double actionability rule, roughly century and a half old, (as it originated from Philips v. Eyre [Philips v. Eyre (1870) L.R. 6 Q.B. 1.] despite being tempered by subsequent case law) is complex to interpret and does not resemble (structurally or linguistically) modern choice-of-law rules. It states that:

“As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be of such a character that it would have been actionable if committed in England … Secondly, the act must not have been justifiable by the law of the place where it was done” (Philips v. Eyre, p. 28-29).

The first of the cumulative conditions contained in the excerpt is usually understood as the need to verify that the claim is viable under English law (Lex fori). The second condition is usually understood as the need to verify that the facts would give rise to liability also under foreign law. Various interpretations of the rule can be found in academia, ranging from considering that once the two cumulative requirements have been met English law applies (Vid. Dicey, Morris & Collins, The Conflict of Laws, vol. II, 15th ed., Swett & Maxwell, 2012, pp. 2252-2270, para. 35-111), to considering that only those rules that exist simultaneously in both laws (English and foreign) apply, or that exemptions from liability from either legal system free the alleged tortfeasor (Vid. Cheshire, North & Fawcett, Private International Law, 15th ed., OUP, 2017, p. 885. Similarly, Dicey, Morris & Collins, The Conflict of Laws, vol. II, 15th ed., Swett & Maxwell, 2012, pp. 2252-2270, para. 35-128). Insofar as it is restrictive, and protective of the defendant, double actionability is usually understood as a “double hurdle” (Vid. Cheshire, North & Fawcett, Private International Law, 15th ed., OUP, 2017, p. 885; D. McLean & V. Ruiz Abou-Nigm, The Conflict of Laws, 9th ed., Swett & Maxwell, 2016, p. 479) to obtaining reparation by the victim, or, in other words, as having to win the case “twice in order to win [only] once” (Vid. A. Briggs, The Conflict of Laws, 4th ed., Clarendon Law Series, OUP, 2019, p. 274). Thus, the practical outcome is that the freedom of speech of the defendant is preserved.

A plethora of reasons make this choice-of-law approach controversial, complex to implement, and difficult to adopt at an EU level: from a continental perspective, it would be perceived as very difficult to grasp by private parties, as well as going against the fundamental dogma of EU private international law: foreseeability. This does not, nevertheless, undermine the fact that it would be the most effective protection that could be provided from a private-international-law perspective. Even more so than the protection potentially provided by rules based on various “classic” connecting factors pointing towards the defendant´s “native” legal system/where they are established (as their domicile, habitual residence, etc).

Truth be told, whichever approach is chosen, a core element which will certainly become problematic will be the definition of the personal scope of application of the rule, i.e. how to precisely identify subjects deserving access to the protection provided by a content-oriented choice-of-law provision of the sort suggested (and/or by substantive anti-SLAPP legislation, for that matter). This is a very delicate issue in an era of “fake news”.

On 30 September 2020, the French Supreme Court for private and criminal matters (Cour de cassation) issued a remarkable decision in the field of French international arbitration (Cass. Civ. 1st Chamber, 30 September 2020, no. 18-19.241).

The Court held that the power of the arbitral tribunal to determine its own jurisdiction based on Articles 1448 and 1506 of the French Civil Procedural Code shall not infringe consumers’ rights conferred by EU law. Therefore, an arbitration clause that is at odds with the requirements resulting form Directive 1993/13 concerning unfair terms in consumer contracts should be set aside by the courts.

EU Background

For those who are familiar with EU consumer law, the added-value of the decision may seem limited. Indeed, more than ten years ago, the European Court of justice ruled that national courts shall invalidate an unfair arbitration clause included in a B2C contract, on the basis of directive 1993/13 (Mostaza Claro, C-168/05 and Asturcom Telecomunicaciones SL, C-40/08). But the cases dealt with actions to set aside the arbitral award (for the first one) or to enforce it (for the second one); this means at the “post-award” procedural stage. Here, the French case concerns the prior phase of arbitration.

Facts and Issue

A French national sought the advice of a Spanish law firm for the succession of her father, opened in Spain. Despite the international reputation of the law firm’s mother company, the French client was not satisfied with the legal services provided for and sued the Spanish law firm for damages before French court. The law firm opposed an arbitration clause included within the legal services contracts concluded with her French client and, in the alternative, challenged the international competence of the court.

In response, the Court of Appeal set aside the arbitration clause on the basis of the prohibition of unfair terms in B2C contracts pursuant to Directive 93/13 (Article 3(1)) because the clause had not been individually negotiated. Then, the Court of Appeal recognised its jurisdiction pursuant to the Brussels I bis Regulation (Article 17(1)(c) and Article 18(1)). The law firm appealed to the French Supreme Court.

The main issue at stake, under French international arbitration law, was the implementation of the cornerstone principle of “jurisdiction to decide jurisdiction” (principe compétence-compétence) laid down in Article 1448 of the French Civil Procedure Code and applicable to international arbitration pursuant to Article 1506 of the same Code.

This principle has a twofold dimension. On the first hand, in case of dispute on the validity of an arbitration agreement, the arbitral tribunal has exclusive jurisdiction to assess its own jurisdiction. On the other hand, when such a dispute is brought before a court, such court shall decline jurisdiction. However, article 1448 provides for a narrow exception “if an arbitral tribunal has not yet been seized of the dispute and if the arbitration agreement is manifestly void or manifestly not applicable”.

Precedents and New Solution

Was the arbitration clause here “manifestly void”?

No, the law firm argued, as a comprehensive assessment by the Court of Appeal was needed to conclude to the unfair nature of the term. And this was indeed the position of the French Supreme Court so far, despite criticisms by the legal doctrine. In two famous cases, Jaguar (Cass. Civ., 1st Chamber, 21 May 1997) and Rado (Cass. Civ., 1st Chamber, 30 March 2004), related to B2C contracts, the French Supreme Court declined jurisdiction “in the absence of clear invalidity” of the arbitration clause and stated that the arbitral tribunal is entitled to apply any mandatory provisions commanded by the international public policy to assess its jurisdiction.

In the present case, the French Supreme Court overturns its jurisprudence and approves the decision of the Court of Appeal. However, the decision is taken outside the exception laid down in article 1448 (op. cit.). The solution is justified by the implementation of the “test of effectiveness” in the framework of the European principle of procedural autonomy. According to settled case-law of the Court of Justice:

“[…] in the absence of relevant Community rules, the detailed procedural rules designed to ensure the protection of the rights which individuals acquire under Community law are a matter for the domestic legal order of each Member State, under the principle of the procedural autonomy of the Member States, provided that they are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the Community legal order (principle of effectiveness)” (par. 24, Mostaza Claro, C-168/05).

As a consequence, the exclusive jurisdiction of arbitrators to assess the validity of an arbitration clause makes it more difficult for a claimant, in his/her capacity as European consumer, to benefit from his/her European rights, in particular in the present case the assessment of an arbitration clause under Directive 93/13. This is obviously a change of perspective, strongly documented by European case-law references in the ruling.

Assessment

In the present case, the French Supreme Court extends the principle of effectiveness into the prior stage of international arbitration proceedings. The control of an alleged violation of a European mandatory requirement by an arbitration clause shall therefore be undertaken ex ante to ensure the effectiveness of EU law.

It emerges from this decision that the autonomous nature of arbitration vis-à-vis State justice and national legal orders is incompatible with the autonomy of the European legal order. As arbitrators do not belong to any jurisdiction, shall we therefore assume, more globally, that they can never be trusted to implement European mandatory provisions, such as European consumer rights?

This decision is a key development from the French Supreme Court within a local legal framework that has traditionally shown a liberal as well as a favourable approach to international arbitration.

Written by Aline Beltrame de Moura, Professor at the Federal University of Santa Catarina, in Brazil

 

 

It is with great satisfaction that we announce the launch of the Portal of the Latin American Center of European Studies (LACES) – www.eurolatinstudies.com.

The portal proposes to create a channel for dialogue and exchange of good practices between Latin America and Europe through the dissemination of innovative scientific research with the Latin American Journal of European Studies, and relevant news and events in the Observatory on European Studies.

The proposed activities are developed within the scope of the Jean Monnet Network “BRIDGE Project” of the Erasmus + Program of the European Commission, which has a research network formed by professors and researchers from several Latin American and European universities.

We inform that we are already open for submissions of articles for the Journal and news for the Observatory.

In addition, we take the opportunity to invite all the academic community to submit their scientific papers to the Workshop event of the I Jean Monnet Network – BRIDGE Seminar on “EU – Latin America Trade and Investment Relations”, which will take place on the 15 March 2021, at the University of Lisbon (Portugal), through online platform.

The best articles will receive a prize, and it will be possible to publish in the Latin American Journal of European Studies, as well as in the Seminar Annals both backed by AAFDL Publisher. It is also possible to present your paper during the event.

Those who are interested must submit their full article until 8 February 2021 to the e-mail: network@eurolatinstudies.com.

For more information: https://eurolatinstudies.com/index.php/laces/announcement/view/2

 

The first issue of 2021’s International and Comparative Law Quarterly  has recently been published. It features a book review by Dr. Nahel Asfour of Dr. Gianluigi Passarelli’s book titled “Contract Law in Contemporary International Commerce: Considerations on the Complex Relationship between Legal Process and Market Process in the New Era of Globalisation [Nomos, Baden-Baden, 2019]. ” It contains no other topic on directly on private international law.

On a personal note, I have earlier read Dr. Passarelli’s book to completion at least twice, and found it to be thought provoking.  His book is focused on the applicable law in the absence of choice under Rome I Regulation, and challenges the approach of the European legislator for giving too much emphasis to certainty through hard and fast rules, at the expense of flexibility. In this connection, he argues that the European legislator’s approach  is contrary to the expectations of international commercial actors. The central theme that motivates the thesis of his book is that legal certainty in choice of law in determining the applicable law in the absence of choice is overrated under Rome I Regulation.  It is unlikely that the European legislator will be convinced  by Dr. Passarelli’s argument that elevates the role of flexibility in the choice of law process, or accept a “regression” to Article 4(5) of Rome Convention style of flexibility that produced  uncertainty among Member States. My verdict is that Dr. Passarrelli’s work will remain relevant to students, scholars, practitioners, judges and legislators in other jurisdictions who prize flexibility over certainty in private international law.

 

As announced on this blog a few days ago, the second EAPIL Virtual Seminar, devoted to Digital Teaching and Private International Law, will take place on 27 January 2021 from 5 to 7 p.m. (MET).

Around ninety persons have already registered and will soon receive the details to attend the seminar.

All others interested in joining the discussion are encouraged to fill in this form: registrations are open until 25 January at noon.

The Comité Français de Droit International Privé has launhed the 6th edition of the Committee’s Thesis Award.

For detailed information, see the official announcement.

Eligible PhD dissertations are those written in French and defended between 1 January 2020 and 15 January 2021.

The deadline for submissions is 16 February 2021.

 

Written by Abubakri Yekini

We wish to share with us the shocking news of the demise of Professor Jonathan Fitchen. Prof Fitchen died today, Friday 22nd January 2021. His death was announced by Prof Greg Gordon, the Head of Aberdeen Law School in an e-mail sent to colleagues earlier today. The email noted that Prof Fitchen “had been off work for since summer, when he suffered a serious break to his arm.  Over the last month or so it sadly became clear that this had been caused by a weakening of the bone as a result of the effects of cancer, and although treatment was attempted, the disease had advanced too far for this to be successful”.

Until his death, Fitchen was a Professor of Law at the University of Aberdeen, Scotland. He was also the Director of the Centre for Private International Law and the Convenor of the Board of Examiners for the Law School. Prof Fitchen is the author of The Private International Law of Authentic Instruments which was published in the Hart Studies of Private International Law in November 2020. The first chapter is currently accessible for free online.

Prof Fitchen was promoted to a Personal Chair a week before his death. On a personal note, this was a piece of cheering news to me. I am glad that Prof Fitchen received the news of his promotion and witnessed the publication of the book that has taken him several years of hard work before he died.

Prof Fitchen (together with Prof Beaumont) supervised my PhD thesis which I defended in May 2020. Despite his health challenges, he would always create time to discuss my thesis with me and his feedback is always excellent. He was a great mentor.

He is survived by his wife Kathrin and his children Thomas and Sofia.

 

Pursuant to Protocol No 22 to the Treaty on European Union and the Treaty on the Functioning of the European Union, Denmark is not bound by the measures enacted by the EU in the area of freedom, security and justice, including as regards judicial cooperation in civil matters.

However, an agreement was concluded in 2005 between the European Community, as it was then, and Denmark to ensure the application in Denmark, and in respect of Denmark, of the EU rules concerning the service of judicial and extrajudicial documents in civil and commercial matters, i.e., at that time, the rules laid down in Regulation 1348/2000.

According to Article 3(2) of the 2005 agreement, whenever amendments to the latter Regulation are adopted, Denmark shall notify to the Commission of its decision whether or not to implement the content of such amendments.

This occurred when the 2000 Service Regulation was replaced by Regulation 1393/2007, and has now occurred for Regulation 2020/1784 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, which was adopted on 25 November 2020 (as announced on this blog by this post by Apostolos Anthimos) and is set to apply in full from 1 July 2022.

In accordance with Article 3(2) of the 2005 agreement, Denmark has by letter of 22 December 2020 notified the Commission of its decision to implement the contents of Regulation 2020/1784. In accordance with Article 3(6) of the agreement, the Danish notification creates mutual obligations between Denmark and the Community. Thus, Regulation (EU) 2020/1784 constitutes an amendment to the agreement and is considered annexed thereto.

In accordance with Article 3(4) of the agreement, the necessary administrative measures enter into force on the date of entry into force of Regulation 2020/1784.

The European Commission is carrying out a public consultation on the modernisation of judicial cooperation via digital technology (Modernising judicial cooperation between EU countries – use of digital technology). The consultation is opened until 5 February 2021 and will be taken into account for a proposal for an initiative by the European Commission. This will be followed by a public consultation later this year.

The initiative for which the European Commission is gathering input aims to make judicial cooperation in cross-border cases throughout the EU more efficient and more resilient to crises, such as the COVID-19 pandemic that we are currently going through.

The project for the regulation seeks to make it mandatory for the authorities involved in judicial cooperation each Member State to use digital technology for communicating documents and information, instead of paper, as it is usually the case at the moment. In taking this initiative, the European Commission looks to improve access to justice by ensuring that individuals, businesses and legal practitioners involved in cross-border civil, commercial or criminal cases can communicate digitally with the competent authorities in the other Member States.

Additional information on European Commission’s vision and objectives for the coming period can be found in the communication published on 2 December 2020 – Communication on digitalisation of justice in the EU – A toolbox of opportunities.

An important notification under the Agreement between the European Community and the Kingdom of Denmark on the service of judicial and extrajudicial documents in civil or commercial matters has been published today at the OJEU (L 19, 21.1.2021, p. 1):

“According to Article 3(2) of the Agreement between the European Community and the Kingdom of Denmark on the service judicial and extrajudicial documents in civil or commercial matters, […] (hereafter “the Agreement”), whenever amendments to the Regulation on the service of documents are adopted, Denmark shall notify to the Commission of its decision whether or not to implement the content of such amendments.

Regulation (EU) 2020/1784 of the European Parliament and of the Council on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents) (recast) was adopted on 25 November 2020.

In accordance with Article 3(2) of the Agreement, Denmark has by letter of 22 December 2020 notified the Commission of its decision to implement the contents of Regulation (EU) 2020/1784. In accordance with Article 3(6) of the Agreement, the Danish notification creates mutual obligations between Denmark and the Community. Thus, Regulation (EU) 2020/1784 constitutes an amendment to the Agreement and is considered annexed thereto.

In accordance with Article 3(4) of the Agreement, the necessary administrative measures enter into force on the date of entry into force of Regulation (EU) 2020/1784”.

Source: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2021.019.01.0001.01.ENG&toc=OJ%3AL%3A2021%3A019%3AFULL

In the context of its investigation on the issues surrounding the Autonomous v. Nationalistic Interpretation of the 1958 New York Convention, and as a follow up to the first Seminar it organized in this framework, on 25 January 2021 the NYU Center for Transnational Litigation, Arbitration, and Commercial Law will host a second Seminar.

The event will feature internationally renowned scholars who will address core issues such as:  ‘Incapacity’ (Francesca Ragno); ‘Deviations from the agreed procedure’ (Friedrich Rosenfeld); ‘Public policy’ (Giuditta Cordero-Moss); ‘Procedure to enforce and arbitral award’ (Lucas Siyang Lim).

More information on this event is available here.

From the publisher’ site:

 

About Climate Change Litigation This book investigates and discusses the respective issues arising in the current discourse on climate protection from different legal perspectives (including international law, European law and national public and civil law). In particular, it addresses the issue of “climate protection by courts”.

It gives an overview of important jurisdictions in the field of climate change litigation, including the US, Canada, Australia, the UK, France, the Netherlands, Italy, Brazil and Germany.

The handbook provides answers and ideas both to scholars and practitioners in the field. Furthermore, it is guaranteed to provide an overview of the latest news in cases and progress in the field of climate change litigation.

Table Of Contents Summary of Contents
INTRODUCTION
CLIMATE CHANGE AS A CHALLENGE FOR GLOBAL GOVERNANCE, COURTS AND HUMAN RIGHTS (Voigt)
PART 1
FUNDAMENTAL QUESTIONS
A. Liability for climate damages, sustainability and environmental justice (Kloepfer/Neugärtner)
B. Climate damages and the ‘Polluter Pays’ Principle (Rehbinder)
C. The role of courts in climate protection and the separation of powers (Payandeh)
D. Climate change and duties to protect with regard to fundamental rights (Gross)

PART 2
PROCEDURAL ISSUES AND CONFLICT OF LAWS
E. Arbitration proceedings (Lennarz)
F. Conflicts of jurisdiction and the applicable law in domestic courts’ proceedings (Kieninger)

PART 3
STATE LIABILITY UNDER INTERNATIONAL AND EUROPEAN LAW
G. Environmental liability in international law (Wolfrum)
H. The international law and policy implications of climate change litigation: sustainable developments in international investment law and policy related to renewable energy, climate change mitigation and adaptation (Cordonier Segger/Arvan/Byron/Srinivas)
I. The Paris Climate Agreement and liability issues (Franzius/Kling)
J. Liability of EU Member States under EU law (Purnhagen/Saurer)

PART 4
CLIMATE CHANGE LITIGATION – NATIONAL REPORTS
K. Climate change litigation in the United States (Farber)
L. Climate change litigation in Canada (Jodoin/McGinn)
M. Climate change litigation in Brazil (Wedy)
N. Climate change litigation in Australia (Bell-James)
O. Climate change litigation in the United Kingdom (Ohdedar/McNab)
P. Climate change litigation in Italy (Butti)
Q. Climate change litigation in France (Epstein/Deckert)
R. Climate change litigation in the Netherlands – the Urgenda case and beyond (Van der Veen/De Graaf)
S. Climate change litigation in Germany (Weller/Nasse/Nasse)

PART 5
LIABILITY FOR CLIMATE DAMAGES – GERMANY AS AN INTERNATIONAL PIONEER?
T. Liability for climate damages under the German law of torts (Wagner/Arntz)
U. Liability for climate change damages under the German Environmental Liability Act (Nitsch)
V. Climate protection and compliance in German corporate law (Habersack/Ehrl)
W. Investor-led action for climate and business sustainability (Duve/Hamama)
X. Liability for climate damages under the Environmental Damage Act (Kahl/Stürmlinger)
Y. The role of non-governmental organizations for climate change litigation (Verheyen/Pabsch)
PART 6
CONCLUSIONS
LIABILITY FOR CLIMATE DAMAGES –
SYNTHESIS AND FUTURE PROSPECTS (Kahl/Weller)

 

 

This post is addressed, in particular, to my fellow colleagues of the ILA Committee Committee on the Protection of Privacy in Private International and Procedural Law; may we meet this year, in person.

Violeta Friedman (1930–2000) was a Jewish Holocaust survivor born in Marghita, Transylvania, Romania. She became well-known in Spain thanks to a ruling of the Constitutional Court (STC 214/1991 – aka the ‘Violeta Friedman case’) on the fundamental right to honor.

Violeta Friedman was deported in 1944 to the Auschwitz-Birkenau concentration camp, at the age of fourteen. She lost most of her family to the Nazis. After the  War she lived in Canada and in Venezuela; in 1965 she moved to Spain with her daughter.

In 1985, feeling outraged by statements made by the former head of the Waffen SS L. Degrelle to a Spanish journal, where he denied the Holocaust and voiced anti-Semitic and racist opinions, she started civil proceedings in Spain against him, the journalist signing the report, and the editor of the journal. After several unfavorable decisions of the ordinary courts, the Constitutional Court of Spain confirmed her legal standing to sue in 1991, based on ‘her dual condition, as a citizen of a people such as the Jews, who suffered an authentic genocide by National Socialism, and as a descendant of her parents, maternal grandparents and great-grandmother (all of whom were murdered in the aforementioned concentration camp)’. Most relevant, just before this assertion the Court had said that

It is considered as original legal standing that of a member of a specific ethnic or social group, when the offense is directed against that entire group in such a way that, by belittling said group, it tends to provoke feelings from the rest of the social community hostile or, at least, contrary to the dignity, personal esteem or respect to which all citizens are entitled.

The Constitutional Court also found that Degrelle’s assertions amounted to a violation of the right to honor of Violeta Friedman and the victims of Nazi camps. This ruling served as a precedent for the reform of the Spanish Criminal Code.

Violeta Friedman’s claim was never contested on the basis of lack of international jurisdiction of the Spanish courts. L. Degrelle was present in Spain when he was interviewed, and there appears to have been no discussion about his domicile there at the time the court was seized; the same applies to the co-defendants. Degrelle’s anti-Semitic assertions were printed in a Spanish magazine, and distributed mainly in Spain. It could be argued that, even if the case involved a foreign element to some extent, it affected the claimant’s side and did not trigger doubts related to the international jurisdiction under the applicable rules.

40 years later, one can safely take for granted that the declarations of Degrelle would be on the net, largely accessible. Violeta Friedman could have read them at home in Madrid; other survivors of a concentration camp, at home as well, in Bucharest or in Paris – just to name a couple of places. For the sake of the argument, let’s assume that the publisher has its seat in Germany and the online newspaper is published in German on a website ending ‘.de’. Would the Spanish (Romanian, French, etc) courts still have jurisdiction for a claim like hers?

In fact, there is no need to assume anything. A preliminary reference currently pending before the Court of Justice, which has so far, to the best of my knowledge, remain unnoticed, will provide for an answer in due course. Case C-800/19 relates to a dispute between SM, a Polish national living in Warsaw, and Mittelbayerischer Verlag KG, a German company which publishes a daily journal in German on the http://www.mittelbayerische.de website. The newspaper is regional in nature but may be accessed from other countries, including Poland.

SM was a prisoner in Auschwitz during the Second World War; today, he is involved in activities aimed at preserving, in the public consciousness, the memory of the victims of crimes committed by Nazi Germany against Poles during the Second World War. On 15 April 2017, an article entitled ‘Ein Kämpfer und sein zweites Leben’ was published on http://www.mittelbayerische.de. At some point, the sentence ‘was murdered in the Polish extermination camp of Treblinka’ (italics added) appeared in the text. The phrase remained on the website for only a few hours on 15 April 2017. After an e-mail by the Polish consulate in Munich, the phrase in question was replaced with ‘was murdered by the Nazis in the German Nazi extermination camp of Treblinka in occupied Poland’, thus reflecting the historical fact that the camp in Treblinka was a German Nazi extermination camp established during the Second World War within the territory of occupied Poland.

SM lodged an application against Mittelbayerischer Verlag KG with the Regional Court of Warsaw on 27 November 2017, requesting that his personality rights, in particular national identity and national dignity, be protected by:

–   prohibiting the defendant from disseminating in any way the terms ‘Polish extermination camp’ or ‘Polish concentration camp’ in German or any other language in relation to German concentration camps located within the territory of occupied Poland during the Second World War;

–   ordering the defendant to publish on its website a statement with the content specified in the application, apologising to the applicant for the infringement of his personality rights caused by the online publication of 15 April 2017, which suggested that the extermination camp in Treblinka was built and operated by Poles;

–  ordering the defendant to pay the amount of PLN 50 000 to the Polski Związek Byłych Więźniów Politycznych Hitlerowskich Więzień i Obozów Koncentracyjnych (Polish Association of Former Political Prisoners of Nazi Prisons and Concentration Camps).

To justify the jurisdiction of the Polish court, the applicant relied on the judgment of the Court of Justice in eDate Advertising and Martinez (Joined Cases C-509/09 and C-161/10).

The defendant filed a motion for dismissal of the action on the ground that Polish courts lack jurisdiction. He stresses that, unlike the situation in Joined Cases C-509/09 and C-161/10, the online article which became the basis for SM’s action did not directly concern the applicant. The defendant also emphasises its regional profile and readership range, as its reporting covers the Upper Palatinate, Bavaria and focuses primarily on regional news; the heading ‘Germany and the World’ is only in fourth place on the page menu. He also points out that the website exists solely in a German-language version. All in all, the defendant relies on the requirement that jurisdiction under Article 7(2) of the Brussels Ibis Regulation must be predictable and claims that, operating on a local scale and addressing its message to recipients who do not include the applicant, he could not have objectively foreseen the jurisdiction of Polish courts.

The case reached the Court of Appeal of Warsaw, First Civil Division, which has addressed the following questions to the Court of Justice:

1. Should Article 7(2) of Regulation (EU) No 1215/2012 […] 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) of Regulation No 1215/2012 […], that is to say, when assessing whether a national court is the court for the place where the harmful event occurred or may occur, to take account of circumstances such as:

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

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

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

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

At point 16 of the request, the referring court states

At the present stage of the main proceedings, no consideration may be given to the substantive law applicable to the assessment of the claims submitted and the Sąd Apelacyjny (Court of Appeal) is even less able to consider whether those claims have merit under the substantive law and whether the applicant is entitled to make them.

I am not sure one can split the decision on legal standing and the one on international jurisdiction when the latter requires identifying the center of interest of the victim. In any event, and not only for this: a preliminary reference which deserves to be followed.

The New York Convention of 1958 owes much of its success to being an international convention setting forth uniform rules. Its uniform enforcement regime not only lowers the parties’ transaction costs of identifying under which circumstances an award will be recognized and enforced across jurisdictions; it also ensures that States cannot justify the failure to comply with their obligations under the New York Convention by reference to domestic law. Still, the courts of different contracting States apply the Convention differently. Oftentimes, this is due to the erroneous understanding of concepts employed by the drafters of the Convention.

To shed the light on this complex matter, on 21 January 2021 the NYU Center for Transnational Litigation, Arbitration, and Commercial Law will host a conference on Autonomous v. Nationalistic Interpretation of the 1958 New York Convention. In this context, a group of internationally renowned scholars will address core issues such as: ‘Autonomous Interpretation of the New York Convention’ (Franco Ferrari); ‘The notion of an arbitral award’ (Burkhard Hess); ‘Arbitration agreement – Scope issues’ (Dennis Solomon); and ‘Arbitrability’ (Winnie Ma).

More information on this event is available here.

 

The new issue of the AJ Contrat (12/2020) Dalloz contains a special dossier to mark the 40th Anniversary of the United Nations Convention on Contracts for the International Sale of Goods (CISG), prepared by Gustavo Cerqueira, full professor at the University of Nîmes, France (in French).

The dossier foreword reads as follows (English translation): “The international sale of goods supports a peace project between Nations. Ninety-four of them share today the same body of substantive rules largely governing the formation and the performance of contracts for the sale of goods as diverse as wine and children’s toys. This uniform law is supported by the United Nations Convention concluded in Vienna on April 11, 1980 (the CISG), which celebrates in 2020 its forty years. This anniversary could not go unnoticed. Few are the instruments on international harmonization that are coming at the age of maturity with such unparalleled authority and vitality. In addition to the constant expansion of its geographical scope of application through the increasing number of accessions, its influence on modernization of certain domestic contract laws, such as the recent legislative reform passed in France, attests to its importance. This can also be measured by the always fascinating questions that arise regarding its existence, its content and its application. Some of them will deserve a sharp analysis, sometimes renewed by those who are participating in this commemorative dossier. Thus, crucial to the success of the Convention – the uniform interpretation remains a challenge, while European Union law recognizes an unexpected importance to the Convention. Also, the CISG’s application still seems to be threatened by the silence of the contractors, while the Convention has dangerous liaisons with the French action directe. The links are no less complex between the foreclosure period and the deadline prescription period, while interest rates reveal unresolved issues. Last but not least, poignant current events call for a reinterpretation of the notion of impediment to perform”.

The dossier contains the following articles (titles have been translated into English):

The challenge of uniform interpretation, by Claude Witz (Saarland University)

The CISG’s articulation with the European Union Law, by Cyril Nourissat (University of Lyon 3)

Back on the parties’ silence about the CISG’s application, by Gustavo Cerqueira (University of Nîmes) and Nicolas Nord (University of Strasbourg)

The Vienna Convention and the action directe:  back on dangerous liaisons, by Etienne Farnoux (University of Strasbourg)

The links between the foreclosure period and the deadline prescription period (about CISG’s Article 39), by Marc Mignot (University of Strasbourg)

The issue of interest rates on arrears, by Franco Ferrari (New York University)

For a reinterpretation of the concept of impediment to perform, by Ludovic Pailler (University of Lyon 3)

The full table of contents is available here (in French).