Flux des sites DIP

Carlos Manuel Vazquez (Georgetown University Law Center) has posted Extraterritoriality as Choice of Law on SSRN.

The abstract reads:

The proper treatment of provisions that specify the extraterritorial scope of statutes has long been a matter of controversy in Conflict of Laws scholarship. This issue is a matter of considerable contemporary interest because the Third Restatement of Conflict of Laws proposes to address such provisions in a way that diverges from how they were treated in the Second Restatement. The Second Restatement treats such provisions — which I call geographic scope limitations — as choice-of-law rules, meaning, inter alia, that the courts will ordinarily disregard them when the forum’s choice-of-law rules or a contractual choice-of-law clause selects the law of a state as the governing law. The Third Restatement does not consider them to be choice-of-law rules, instead maintaining that they are indistinguishable from limitations on the statute’s internal scope, such as a provision specifying that a statute prohibiting vehicles applies only in parks. This means, according to the Third Restatement, that contractual choice-of-law clauses are presumed to select the chosen state’s law subject to their geographic scope limitations, and that the courts of other states are obligated to give effect to such limits when applying the law of the state that enacted the statute with the geographic scope limitation. Indeed, according to the Third Restatement, failure to do so would violate the obligation of U.S. states to give Full Faith and Credit to the laws of sister states.

This article defends the Second Restatement’s understanding of geographic scope limitations as choice-of-law rules. Limits on a statute’s territorial scope are fundamentally different from limits on a statute’s internal scope. When a state enacts a statute and specifies that it applies only to conduct occurring within the state’s territory, or to residents of the state, it has limited the reach of the law out of deference to the legislative authority of other states. The state does not have a different rule for conduct that occurs on the territory of other states or for persons who are not residents. The territorial scope provision tells us only that cases beyond the statute’s specified scope should be governed by the law of a different state. For this reason, such provisions are best understood as choice-of-law rules.

The Third Restatement treats geographic scope limitations as prescribing non-regulation for cases beyond the statute’s specified geographic scope. This understanding of geographic scope limitations is highly implausible and, indeed, either unconstitutionally discriminatory or unconstitutionally arbitrary. Failure to give effect to such provisions does not violate the Full Faith and Credit Clause. Rather, under the Supreme Court’s analysis in Franchise Tax Board v. Hyatt, such provisions violate the Full Faith and Credit Clause. Understood as choice-of-law rules, geographic scope limitations are binding on the courts of the enacting state, and other states may take them into account in determining whether to apply the law of the enacting state. But, if the forum’s choice-of-law rules select the law of the enacting state as the governing law, the constitutional obligation of U.S. states to respect the laws of their sister states poses no impediment to application of the statute’s substantive provisions to cases beyond the statute’s specified geographic scope.

University of Rijeka, Faculty of Law announces its call for RIDOC 2020: Rijeka Doctoral Conference. This conference has a stong international character and gathers promising law doctoral students, both from Europe and beyond. They will have the oportunity to test their working hypothesis before international panels composed of renown academics. Given the circumstances, the conference is planned as a hybrid online-onsite event or online only. The call may be downloaded here, while programmes of the former conferences are available at this site.

Important dates
Deadline for applications: 25 August 2020.
Information on the acceptance: 25 September 2020.
Conference and book of abstracts: 4 December 2020.

Applications and questions should be addressed to ridoc@pravri.hr.

When I reviewed Szpunar AG’s opinion, I pointed out that the crux of this case is the determination of ‘centre of main interests’ in the context of natural persons not exercising an independent business or professional activity, who benefit from free movement. The CJEU has now held.

With respect to natural persons outside of a profession, the Insolvency Regulation 2015/848 (‘EIR 2015’) determines ‘(i)n the case of any other individual, the centre of main interests shall be presumed to be the place of the individual’s habitual residence in the absence of proof to the contrary. This presumption shall only apply if the habitual residence has not been moved to another Member State within the 6-month period prior to the request for the opening of insolvency proceedings.’

‘Habitual residence’ is not defined by the EIR 2015. The CJEU runs along the usual themes: need for predictability and autonomous interpretation; emphasis on the Regulation generally defining COMI as ‘the place where the debtor conducts the administration of his interests on a regular basis and is therefore ascertainable by third parties’ (at 19 and referring to recital 13 of the previous Regulation); among those third parties, the important position of (potential) creditors and whether they may ascertain said centre (at 21); to agree with the AG at 24 that

relevant criteria for determining the centre of the main interests of individuals not exercising an independent business or professional activity are those connected with their financial and economic situation which corresponds to the place where they conduct the administration of their economic interests or the majority of their revenue is earned and spent, or the place where the greater part of their assets is located.

Like the AG, the CJEU holds that the mere presence of a natural person’s one immovable asset (the ‘family home’, GAVC) in another Member State than that of habitual residence, in and of itself does not suffice to rebut COMI (at 28).

At 30, the Court specifically flags that COMI in effect represents the place of the ’cause’ of the insolvency, i.e. the place from where one’s assets are managed in a way which led the insolvent into the financial pickle: 

In that regard, although the cause of the insolvency is not, as such, a relevant factor for determining the centre of the main interests of an individual not exercising an independent business or professional activity, it nevertheless falls to the referring court to take into consideration all objective factors, ascertainable by third parties, which are connected with that person’s financial and economic situation. In a case such as the one in the main proceedings, as was observed in paragraph 24 above, that insolvency situation is located in the place where the applicants in the main proceedings conduct the administration of their economic interests on a regular basis or the majority of their revenue is earned and spent, or the place where the greater part of their assets is located.

As in all other scenarios of rebuttal, the ascertainability in particular by (potential) creditors is key and is a factual consideration which the national courts have to make.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5, Heading 5.6.1.

San Marino, the independent State surrounded by Italy, is home to about 5,000 undertakings. Unsurprisingly, given the size of the country (61 km2) and its population (33,344), a significant part of the business carried out in the small Republic is related to Italy. In fact, it is not infrequent for Italian courts to be seised of disputes opposing businesses based in Italy and San Marino, respectively.

Service of Judicial Documents Between Italy and San Marino

Where this occurs, the issue arises, among others, of the (cross-border) service of the document instituting the proceedings.

San Marino is a party to the 1965 Hague Service Convention, since 2002. Italy, too, is a party to that Convention.

However, the application of the Convention between the two countries is proving problematic, at least in Italy.

The difficulties revolve around the declaration issued by San Marino under Article 21(2)(a) of the Convention, whereby San Marino made known its opposition to service by postal channels. In fact, Article 10(a) stipulates that the Convention ‘shall not interfere with … the freedom to send judicial documents, by postal channels, directly to persons abroad’, provided, however, that ‘the State of destination does not object’.

In practice, the above declaration implies that service on a Sammarinese defendant for the purposes of proceedings in Italy may not occur otherwise than in accordance with Article 3 to 6 of the Convention, i.e. by a request conforming to the model annexed to the Convention itself, forwarded to the Sammarinese Central authority.

The View of the Italian Supreme Court

In a judgment of 29 January 2019 (No. 2482), the Italian Supreme Court ruled that the above declaration could (and in fact ought to) be disregarded. It actually concluded that, in the circumstances of that case, service – made by post on a Sammarinese company – was in all respects valid and effective.

The Supreme Court noted that the Government of San Marino, when acceding to the Convention, issued two separate instruments – the instrument of accession itself, and the declarations accompanying it. But while the former was drawn up in the form of a law, the latter resulted from a mere executive act. The Supreme Court characterised the latter, on account of its form, as an act incapable of affecting the operation of the convention (‘un atto inidoneo a ridurre l’ambito di applicazione alla predetta Convenzione’).

Assessment

The ruling is unpersuasive for a number of reasons.

It is not for the courts of one State to scrutinise the appropriateness of the forms employed by another State’s authorities in their international relations.

This is all the more true for declarations issued by the latter State in respect of a multilateral international convention, such as the Hague Service Convention.

In fact, it is for the depositary of the convention concerned (here, the Ministry of Foreign Affairs of the Netherlands) to assess whether the declarations received are in such a form as to effectively serve their purpose.

It appears that the Ministry of Foreign Affairs of the Netherlands received the Sammarinese declaration, and recorded it as such. No objections and no remarks have been raised at a diplomatic level concerning that declaration.

According to Article 77(1)(d) and (e) of the Vienna Convention on the Law of Treaties, the tasks of the depositary include ‘examining whether the signature or any instrument, notification or communication relating to the treaty is in due and proper form and, if need be, bringing the matter to the attention of the State in question’, and ‘informing the parties and the States entitled to become parties to the treaty of acts, notifications and communications relating to the treaty’. If the declarations of a State were to be reviewed by the other Contracting States individually, this would likely frustrate the function of the depositary and undermine its practical advantages.

One would be tempted to label the Italian Supreme Court’s ruling as unfortunate, and to ignore it altogether.

But this is in fact the second such ruling by the Cassazione. The first one, given on 9 November 2011 (No. 23290), was criticised for the above reasons (including by the author of this post: ‘Sulla notifica degli atti giudiziari mediante la posta secondo la Convenzione dell’Aja del 1965’, Rivista di diritto internazionale privato e processuale (2012), 341-362). The fact is that the Court reiterated its views.

In fact, the stance staken by the Court appears to amount, now, to the official position of the Italian Supreme Court on the (not so firm) value of declarations issued in connection with the Service Convention (and, possibly, in connection with any other multilateral convention contemplating similar instruments).

The author of this post is not aware of any diplomatic protests by the Government of San Marino as regards the Italian Supreme Court’s rulings.

It is hoped that, for the sake of the proper functioning of the Hague Service Convention, the approach be reconsidered at the earliest occasion.

 

– Photo credit: Max_Ryazanov, Wikimedia Commons

In cooperation with the Asian Academy of International Law, the Hague Academy of International Law will hold its first edition of its Advanced Courses in Hong Kong from 7 to 11 December 2020.  The topic will be: “Current Trends on International Commercial Dispute Settlement“.

For this special programme, the Secretary-General of The Hague Academy of International Law has invited leading academics and practitioners from Paris (Professor Diego P. Fernández Arroyo), New York (Professor Franco Ferrari), Bonn (Professor Matthias Weller), Singapore (Ms Natalie Morris-Sharma), and Beijing (Judge Zhang Yongjian) to present expert lectures on the United Nations Convention on International Settlement Agreements Resulting from Mediation, Investor-State Dispute Settlement, international commercial arbitration, settlement of international commercial disputes before domestic courts, and the developments of the International Commercial Court. Registered participants will have pre-course access to an e-learning platform that provides reading documents prepared by the lecturers. At the end of the course, a certificate of attendance will be awarded.

For more information see here.

For the flyer see here.

In Ivanishvili, Bidzina v Credit Suisse Trust Ltd [2020] SGCA 62, the Singapore Court of Appeal considered a number of issues: (1) whether a plaintiff could amend its Statement of Claim at the appellate stage to tilt the balance of connecting factors towards Singapore; (2) whether a clause in the trust deed identifying Singapore as the “forum of administration” of the trust was a jurisdiction clause, and if so; (3) whether the clause covered hostile litigation in relation to the trust; and depending on the answers to the previous questions, (4) whether the Singapore proceedings ought to be stayed.

The case concerned Mr Ivanishvili, the former Georgian prime minister, who was a French and Georgian dual national. Mr Ivanishvili had set up the Mandalay Trust which was domiciled in Singapore. The trustee of the Mandalay Trust was Credit Suisse Trust Ltd, a Singapore trust company (“the Trustee”). The trustee’s asset management powers were delegated to the Geneva branch of Credit Suisse AG (“the Bank”). The Mandalay Trust suffered losses purportedly due to the actions of one the Bank’s employees (Mr Lescaudron) who was the portfolio manager of the Mandalay Trust. Mr Lescaudron was convicted in Swiss criminal proceedings for various forms of misconduct in relation to the Mandalay Trust. At first instance, Mr Ivanishvili and his wife and children, who were the beneficiaries of the Mandalay Trust, sued both the Trustee and the Bank alleging, inter alia, breaches of duties of care and skill and misrepresentation. A stay was granted by the court below on the grounds that Switzerland was a more appropriate forum for the action. At the Court of Appeal, Mr Ivanishvili et al strategically chose to discontinue proceedings against the Bank to strengthen their argument that Singapore was the appropriate forum for trial of the action and sought to amend their Statement of Claim to this effect. This also entailed reformulating some of the claims against the Trustee to remove references to the Bank. This was allowed by the Court of Appeal on the basis that absent bad faith, the appellants had the freedom of choice to choose its cause of action and to sue the party it wishes to sue.

On the second issue, the relevant clause provided that:

“2. (a) This Declaration is established under the laws of the Republic of Singapore and subject to any change in the Proper Law duly made according to the powers and provisions hereinafter declared the Proper Law shall be the law of the said Republic of Singapore and the Courts of the Republic of Singapore shall be the forum for the administration hereof.”

Clause 2(b) granted the Trustee the power to change the proper law and provided that if so, the courts of the jurisdiction of the new proper law would become the “forum for the administration” of the trust. Contrasting clause 2 with the equivalent clause in Crociani v Crociani (17 ITELR 624) where the relevant clauses referred to a country being the “forum for the administration”, the Court of Appeal noted that the references to “forum for the administration” in clause 2 was tied up with a reference to the courts. It therefore held that clause 2(a) was a jurisdiction clause. As a point of interest, it should be noted that it is immaterial whether clause 2(a) is an exclusive or non-exclusive jurisdiction clause after the Court of Appeal’s decision in Shanghai Turbo v Liu Ming [2019] 1 SLR 779 (previously noted here); as Singapore is a named forum, the “strong cause” test would apply to cases falling within the scope of the jurisdiction clause.

The question which had to be considered next was whether clause 2(a) covered hostile litigation concerning breach of trust issues (such as in the present case) or was confined to litigation over administrative matters. On this, the Court engaged in an extensive review of case law in other off-shore trust jurisdictions. While tentatively observing that “there is no legal rule limiting the meaning of the phrase ‘forum for [the] administration’ to an administration action in the traditional sense”(at [75]), the Court ultimately followed the reasoning of the Privy Council in Crociani and held that that the phrase “is intended to refer to the court or jurisdiction which would settle questions arising in the day to day administration of the trust, and to denote the supervisory and authorising court for actions the trustee might need to take which were not specifically by the trust deed or where its terms were ambiguous”(at [76]). Such clauses did not cover hostile litigation between trustees and beneficiaries. The Court observed that: “The trust deed is not a contract between two parties with obligations on both sides – rather, it is a unilateral undertaking by the trustee, and in our view this difference must play a part when we consider whether the intention of the drafters was to impose a mandatory jurisdiction clause for the resolution of contentious disputes regarding allegations of breach of trust”(at [78]).

That meant that whether a stay ought to be granted was to be determined under the Spiliada test on forum non conveniens rather than the “strong cause” test. On this point, the Court split. A majority of the Court (Menon CJ and Prakash JA), held that the balance of connecting factors pointed towards Singapore and allowed the appeal against the stay. The appellants argued that with the amended claim, the focus was on the Trustee’s breaches of trust, all of which occurred in Singapore. The Court was unconvinced of the respondents’ argument that most of the relevant witnesses, such as Mr Lescaudron, were located in Switzerland and not compellable to appear before the Singapore court. The location of witnesses was but a weak factor pointing in favour of Switzerland being forum conveniens relative to Singapore. The respondents had also argued that Swiss banking secrecy laws meant that disclosure of certain documents could only be ordered by the Swiss court but the Court gave little weight to this, holding that it was not clear that the Trustee could not obtain the requisite documents from the Bank itself. In contrast, the shape of litigation post the re-framing of the actions by the appellants meant that the trust relationship, rather than the banking relationship, was at the forefront of the claims. This pointed towards Singapore being the centre of gravity of the action. Further, Singapore law was the governing law of the Mandalay Trust and the rights of all parties under the Trust Deed: “There is no doubt that the Singapore courts are the most well-placed to decide issues of Singapore trust law, and the Swiss courts, operating in a civil law jurisdiction with no substantive doctrine of trusts, would be far less familiar with these issues”(at [110]). This comment may be to understate the competence of the Swiss courts in this regard, as internal Swiss trusts which are governed by a foreign law are not an uncommon wealth management tool in Switzerland. The Court was also not persuaded by the Trustee’s argument that there was a risk of conflicting findings of fact due to related proceedings elsewhere, holding that this was not a “sufficiently real possibility” (at [114]). Thus, a majority of the Court held that, on an overall assessment of the connecting factors, Singapore would be the more appropriate forum vis-à-vis Switzerland.

There was a strong dissent by Chao SJ on the application of the Spiliada test. His Honour was of the view that whether the Trustee would be prejudiced by having to defend itself in Singapore formed the crux of the stay issue. In relation to this, His Honour observed that Mr Ivanishvili was a hands-on investor who corresponded directly with the Bank officers. The Trustee was not always copied into Mr Ivanishvili’s instructions to the Bank. The alleged losses occurred in Switzerland and the acts and omissions of the Bank and its officers and the role of Mr Ivanishvili himself remained relevant in determining the Trustee’s liability. In contrast, the Trustee played a passive role and the operative events in Singapore were merely secondary in nature (at [153]). This belied the appellants’ insistence that the Bank’s alleged wrongdoing was no longer relevant in the Singapore proceedings given the amended claim. His Honour was concerned about the respondents’ ability to defend itself properly in Singapore given that the evidence and witnesses central to defending the claims were mainly located in Switzerland. Chao SJ was therefore of the view that the action had a greater connection with Switzerland than with Singapore “by a significant margin”(at [154]). His Honour went on to say that if he was wrong on stage one of the Spiliada test, stage two would also point towards Switzerland. On stage two, Chao SJ agreed with the High Court that the ends of justice would best be met by the Swiss court applying Singapore trust law. This is as the trustee’s conduct may only be properly understood against the backdrop of Mr Ivanishvili’s relationship with the Bank and the Bank’s conduct in relation to its asset management duties (at [154]).

A pdf of the judgment can be downloaded here.

An overdue post on the Hungarian Supreme Court’s judgment 2020.3.72.a, finding an implied choice of law pro Hungarian law, made by a Serbian and Hungarian party to a contract for agency and business counseling. In the absence of choice of law, per Article 4 Rome I, applicable law would have been Serbian law. Yet the SC held that the conduct of the Serbian business party in the litigation, made for implicit choice of law.

Under Rome I, choice of law may be made and changed at any time during the course of the contract. Whether it can also be made by conduct of litigation is somewhat disputed. Arguments pro rely heavily on a parallel with impromptu choice of court in Brussels Ia, by submission. The Hungarian courts had assessed the merits of the case on the basis of Hungarian law, and the Serbian defendant had engaged in that discussion in a detailed, substantive statement of defence without any objections to Hungarian law being the lex contractus. This, the courts held and the SC agreed, meant parties had made an implied choice of law by their conduct. A change of heart by defendant upon appeal was a unilateral change of law, which cannot bind the parties.

Richard Schmidt sent me the judgment and has additional analysis here– on which I relied for I do not read Hungarian. Scholarship has engaged with the issue and this SC judgment will be highly relevant material for that discussion.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 3, Heading 3.2.4.

 

 

I have reported earlier on the Commisimpex case and the various decisions of the French Supreme Court on civil and criminal matters (Cour de cassation) which have eventually excluded from the scope of the waiver of immunities of the Republic of Congo assets protected by diplomatic immunity.

On 8 June2020, Commisimpex attached a Falcon 7X business jet belonging to the presidency of Congo on the French airport of Bordeaux-Merignac where it was undergoing maintenance. Rumour has it that the markers of the aircraft were off for several years, but they were mysteriously turned on recently, allowing Congo’s creditors to track it down …

Congo immediately initiated proceedings before the Paris enforcement court to set aside the attachement on the ground that the jet was covered by diplomatic immunity.

In a judgment of 29 June 2020, the Paris Enforcement Court rejected all arguments of the Republic of Congo and confirmed the validity of the attachement.

Diplomatic Clearance

The first argument of Congo in favour of the extension of diplomatic immunity to the jet was that it was a State Aircraft in the meaning of the Chicago Convention on International Civil Aviation and could not, as such, fly over French territory without being authorised to do so. Indeed, it had received “diplomatic clearance” (DIC) from the French Ministry of Foreign Affairs to that effect.

The Paris Court found, however, that the only reason why the various authorisations that the French Ministry could grant were labelled “diplomatic” was that they were issued by the Ministry of Foreign Affairs. The label was unrelated to the use of the aircraft, and did not create any presumtion that the aircraft was used for diplomatic activities. Indeed, it did not even imply that the owner of the relevant aircaft was a state.

Sovereign Immunity, but Which One?

The Paris Court recognised that State Aircrafts must be protected by an immunity against enforcement. The crucial issue, however, was not so much whether the aircraft was covered by some sovereign immunity, but by diplomatic immunity. The Paris Court underscored that French courts have ruled that while the diplomatic immunity of Congo remains intact after its general waiver, Congo has waived all other enforcement immunities.

The Court noted that the 2016 French statute which has established a special regime for diplomatic immunity refers to “assets used (…) in the exercise of the diplomatic mission of foreign states” (French Code of Civil Enforcement Proceedings, Art L. 111-1-3). It further noted that the 1961 Vienna Convention on Diplomatic Relations also referred to the “diplomatic mission”. The Court concluded that Congo enjoyed  diplomatic immunity in France only over assets affected to the Congolese Embassy in Paris.

Congo put forward an additional argument. It argued that the aircraft was used by the presidentcy of Congo, and was thus used by President Sassou Nguesso for his diplomatic activities. The Court noted that the logbook of the aircraft showed that it had been essentially used for domestic flights within Congo. It was also used once to fly to Madagascar, in order to bring back “Covid Organics CVO”, which  was not a diplomatic activity.

In truth, the Court found, in the last two years, each time President Nguesso had travelled internationally for official visits, he had used another plane, a Boeing 787.

In the absence of any evidence of diplomatic use of the Falcon 7X business jet, the Court concluded, it is not protected by diplomatic immunity, and could thus be attached.

The general press has reported that President Nguesso is really upset. One trusts that the fight over this asset, which is worth over € 20 million, is only beginning. Congo has lodged an appeal against the judgment, but it should not suspend its enforcement, which means that a sale by auction can be immediately organised.

The second issue of 2020 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features:

Fernando Gascón Inchausti, Professor at Universidad Complutense de Madrid, Does EU Law Ensure an Adequate Protection of Debtors in Cross-Border Enforcement? (in English)

• From a general perspective, cross-border enforcement of judicial decisions – and of authentic instruments – entails the need to coordinate different procedural systems, interacting with each other. From a practical point of view, however, cross-border enforcement is also a context of dialectic between opposing parties, typical of any judicial process. Its regulation, therefore, must be developed and interpreted taking into account the rights and powers attributed to the creditor and to the debtor, so that the promotion of efficiency – favourable to the creditor – is not detrimental to the debtor’s right of defense. This article assesses the extent to which the civil procedural law of the European Union adequately protects the debtor in cross-border enforcement and, where appropriate, what could be the most reasonable measures to improve it without unduly harming the right of the creditor to a prompt satisfaction of his right. Special attention shall be given in this framework to the legal position of consumers, due to their vulnerability and their special legal status according to EU protective law.

Maria Caterina Baruffi, Professor at the University of Verona, Gli effetti della maternità surrogata al vaglio della Corte di Cassazione italiana e di altre corti (‘Effects of Surrogacy in the Jurisprudence of the Italian Corte di Cassazione? and Other Courts’, in Italian)

• This paper examines the decision by means of which the Italian Supreme Court, in plenary session, on 8 May 2019 dealt with the issue of surrogacy, with particular regard to the notion of international public policy. The Court concluded that the ban on surrogacy constitutes a principle of public order aimed at protecting fundamental values, such as the surrogate mother’s human dignity. This decision is consistent with the advisory opinion given in April 2019 by the European Court of Human Rights, that, upon request of the French Supreme Court in the context of the Mennesson case, ruled that each State can discretionarily determine the modalities by which it guarantees the recognition of the parent-child relationship, including the possibility to adopt. Nonetheless, the difficulties in the application of public policy are apparent and the situations that may arise as a result of such application are equally complex, for instance as a result of genetic ties being established with different persons. Therefore, this paper puts forth new proposals, also in the light of the most recent French case law.

The following comment is also featured:

Roberto Ruoppo, Doctor in Law, Lo status giuridico di Taiwan e i suoi riflessi sul piano internazionalprivatistico (‘Taiwan’s Legal Status and Its Consequences from a Private International Law Perspective’, in Italian)

• This paper focuses on the consequences brought in the field of private international law by the lack of recognition of a State. In particular, the paper aims to understand if it is possible that actors of the international community give effect to the acts and decisions adopted by the authorities of an entity not recognized as a State. Notably, this work addresses the case of Taiwan which, despite the lack of recognition from the others States, owns all the factual requirements to be considered as an autonomous subject in accordance with international law. Relying to the principle of effectiveness and the analysis of precedent case-law – such as those involving the Soviet Union and the German Democratic Republic – this paper aims to demonstrate that the response to this question should be premised on the consideration of the interests involved in the specific case. The conclusion reached is that the acts of an entity which lacks recognition should be given effects in the other States when this is more consistent with the principle of legal certainty and the legitimate expectations of the individuals involved.

In addition to the foregoing, this issue features the following book review by Roberta Clerici, Professor at the University of Milan: J. von Hein, E.-M. Kieninger, G. Rühl (eds.), How European is European Private International Law? Sources, Court Practice, Academic Discourse, Intersentia, Cambridge, 2019, pp. XXVI-373.

 

Nicole Grohmann, a doctoral candidate at the Institute for Comparative and Private International Law, Dept. III, at the University of Freiburg, has kindly provided us with the following report on a recent speech by Lord Jonathan Mance.

On Wednesday, 15 July 2020, the former Deputy President of the Supreme Court of the United Kingdom (UKSC), Lord Jonathan Mance, presented his views on the future relationship between the United Kingdom and Europe after Brexit in an online event hosted by the Juristische Studiengesellschaft Karlsruhe. This venerable legal society was founded in 1951; its members are drawn from Germany’s Federal Constitutional Court, the Federal Supreme Court, the office of the German Federal Prosecutor, from lawyers admitted to the Federal Supreme Court as well as judges of the Court of Appeals in Karlsruhe and the Administrative Court of Appeals in Mannheim. In addition, the law faculties of the state of Baden-Württemberg (Heidelberg, Freiburg, Tübingen, Mannheim, Konstanz) are corporate members. Due to Corona-induced restrictions, the event took place in the form of a videoconference attended by more than eighty participants.

After a warm welcome by the President of the Juristische Studiengesellschaft, Dr. Bettina Brückner (Federal Supreme Court), Lord Mance shared his assessment of Brexit, drawing on his experience as a highly renowned British and internationally active judge and arbitrator. In the virtual presence of judges from the highest German courts as well as numerous German law professors and scholars, Lord Mance elaborated – in impeccable German – on the past and continuing difficulties of English courts dealing with judgments of the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR) and the future legal struggles caused by the end of the transition period on the withdrawal of the United Kingdom from the European Union on 31 December 2020. Lord Mance’s speech was followed by an open discussion regarding the most uncertain political and legal aspects of Brexit.

In his speech, Lord Mance highlighted the legal difficulties involved in the withdrawal of his country from the European Union. Since Lord Mance himself tends to picture the British as being traditional and generally pragmatic, he named Brexit as a rare example of a rather unpragmatic choice. Especially with regard to the role of the United Kingdom as a global and former naval power, Lord Mance considered Brexit a step backwards. Besides the strong English individualism, which has evolved over the past centuries, the United Kingdom did not only act as an essential balancing factor between the global players in the world, but also within the European Union. Insofar, the upcoming Brexit is a resignation of the United Kingdom from the latter position.

Subsequently, Lord Mance focussed on the role of the European courts, the European Court of Justice and the European Court of Human Rights and their judgments in the discussions leading to Brexit. Both European courts gained strong importance and influence in the UK within the first fifteen years of the 21st century. Especially, the ECtHR is of particular importance for the British legal system since the Human Rights Act 1998 incorporated the European Convention on Human Rights into British law. Lord Mance described the Human Rights Act 1998 as a novelty to the British legal system, which lacks a formal constitution and a designated constitutional court. Apart from the Magna Charta of 1215 and the Bill of Rights of 1689, the British constitutional law is mainly shaped by informal constitutional conventions instead of a written constitution such as the German Basic Law. Following the Human Rights Act 1998 and its fixed catalogue of human rights, the British courts suddenly exercised a stricter control over the British executive, which initially gave rise to criticism. Even though the British courts are not bound by the decisions of the ECtHR following the Human Rights Act 1998, the British participation in the Council of Europe soon started a dialogue between the British courts and the ECtHR on matters of subsidiary and the ECtHR’s margin of appreciation. The UK did not regard the growing caseload of the ECtHR favourably. Simultaneously, the amount of law created by the institutions of the European Union increased. Lord Mance stressed the fact that in 1973, when the United Kingdom joined the European Economic Community, the impact of the ECJ’s decision of 5 February 1963 in Van Gend & Loos, C-26/62, was not taken into account. Only in the 1990s, British lawyers discovered the full extent and the ramifications of the direct application of European Union law. The binding nature of the ECJ’s decisions substantiating said EU law made critics shift their attention from Strasbourg to Luxembourg.

In line with this development, Lord Mance assessed the lack of a constitutional court and a written constitution as the main factor for the British hesitance to accept the activist judicial approach of the ECJ, while pointing out that Brexit would not have been necessary in order to solve these contradictions. The EU’s alleged extensive competences, the ECJ’s legal activism and the inconsistency of the judgments soon became the primary legal arguments of the Brexiteers for the withdrawal from the EU. Especially the ECJ’s teleological approach of reasoning and the political impact of the judgments were mentioned as conflicting with the British cornerstone principles of parliamentary sovereignty and due process. Lord Mance stressed that the so-called Miller decisions of the Supreme Court in R (Miller) v Secretary of State [2017] UKSC 5 and R (Miller) v The Prime Minister, Cherry v Advocate General for Scotland (Miller II) [2019] UKSC 41, dealing with the parliamentary procedure of the withdrawal from the EU, are extraordinary regarding the degree of judicial activism from a British point of view. In general, Lord Mance views British courts to be much more reluctant compared to the German Federal Constitutional Court in making a controversial decision and challenging the competences of the European Union. As a rare exception, Lord Mance named the decision in R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3, in which the UKSC defended the British constitutional instruments from being abrogated by European law. Indeed, Lord Mance also expressed scepticism towards the jurisprudential approach of the ECJ, because inconsistences and the need of political compromise could endanger the foreseeability and practicability of its decisions. Especially with regard to the recent decision of the German Constitutional Court of 5 May 2020 on the European Central Bank and the Court’s approach to ultra vires, Lord Mance would have welcomed developing a closer cooperation between the national courts and the ECJ regarding a stricter control of the European institutions. Yet this important decision came too late to change Brexiteers’ minds and to have a practical impact on the UK.

Finally, Lord Mance turned to the legal challenges resulting from the upcoming end of the transition period regarding Brexit. The European Union (Withdrawal) Acts 2018 and 2020 lay down the most important rules regarding the application of EU instruments after the exit day on 31 December 2020. In general, most instruments, such as the Rome Regulations, will be transposed into English domestic law. Yet, Lord Mance detected several discrepancies and uncertainties regarding the scope of application of the interim rules, which he described as excellent bait for lawyers. Especially two aspects mentioned by Lord Mance will be of great importance, even for the remaining Member States: Firstly, the British courts will have the competence to interpret European law, which continues to exist as English domestic law, without the obligation to ask the ECJ for a preliminary ruling according to Art. 267 TFEU. In this regard, Lord Mance pointed out the prospective opportunity to compare the parallel development and interpretation of EU law by the ECJ and the UKSC. Secondly, Lord Mance named the loss of reciprocity guaranteed between the Member States as a significant obstacle to overcome. Today, the United Kingdom has to face the allegation of ‘cherry picking’ when it comes to the implementation of existing EU instruments and the ratification of new instruments in order to replace EU law, which will no longer be applied due to Brexit. Especially with regard to the judicial cooperation in civil and commercial matters and the recast of the Brussels I Regulation, the United Kingdom is at the verge of forfeiting the benefit of the harmonized recognition and enforcement of the decisions by its courts in other Member States. In this regard, Lord Mance pointed out the drawbacks of the current suggestion for the United Kingdom to join the Lugano Convention, mainly because it offers no protection against so-called torpedo claims, which had been effectively disarmed by the recast of the Brussels I Regulation – a benefit particularly cherished by the UK. Instead, Lord Mance highlighted the option to sign the Hague Convention of 30 June 2005 on Choice of Court Agreements which would allow the simplified enforcement of British decisions in the European Union in the case of a choice of court agreement. Alternatively, Lord Mance proposed the ratification of the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments. So far, only Uruguay and Ukraine have ratified this new convention. Nevertheless, Lord Mance considers it as a valuable option for the United Kingdom as well, not only due to the alphabetical proximity to the other signatories.

Following his speech, the event concluded with a lively discussion about the problematic legal areas and consequences of Brexit, which shall be summarised briefly. Firstly, the President of the German Supreme Court Bettina Limperg joined Lord Mance in his assessment regarding the problem of jurisprudential inconsistency of the ECJ’s decisions. However, like Lord Mance she concluded that the Brexit could not be justified with this argument. Lord Mance pointed out that in his view the ECJ was used as a pawn in the discussions surrounding the referendum, since the Brexiteers were unable to find any real proof of an overarching competence of the European Union. Secondly, elaborating on the issue of enforceability, Lord Mance added that he considers the need for an alternative to the recast of the Brussels I Regulation for an internationally prominent British court, such as the London Commercial Court, not utterly urgent. From his practical experience, London is chosen as a forum mainly for its legal expertise, as in most cases enforceable assets are either located in London directly or in a third state not governed by EU law. Hence, Brexit does not affect the issue of enforceability either way. Finally, questions from a constitutional perspective were raised regarding the future role of the UKSC and its approach concerning cases touching on former EU law. Lord Mance was certain that the UKSC’s role would stay the same regarding its own methodological approach of legal reasoning. Due to the long-standing legal relationship, Lord Mance anticipated that the legal exchange between the European courts, UK courts and other national courts would still be essential and take place in the future.

In sum, the event showed that even though Brexit will legally separate the United Kingdom from the European Union, both will still be closely linked for economic and historical reasons. As Lord Mance emphasized, the UK will continue to work with the remaining EU countries in the Council of Europe, the Hague Conference on PIL and other institutions. Further, the discrepancies in the Withdrawal Acts will occupy lawyers, judges and scholars from all European countries, irrespective of their membership in the European Union. Lastly, the event proved what Lord Mance was hoping to expect: The long-lasting cooperation and friendship between practitioners and academics in the UK and in other Member States, such as Germany, is strong and will not cease after Brexit.

Performing Right Society Ltd v Qatar Airways Group QCS [2020] EWHC 1872 (Ch) concerns the infringement or not of copyright via Qatar Airways’ inflight entertainment system known as “Oryx One”. Holding on an application for a stay on grounds of forum non conveniens or alternatively on case management grounds, Birss J on Friday first of all noted the relevance of Lucasfilm Limited v Ainsworth [2011] UKSC 39 that the English court can have jurisdiction over claims for infringement of copyright by non-UK acts and under non-UK law where there is a basis for in personam jurisdiction. Which there is because of the presence of the aircraft on the ground or in the territorial airspace of the UK – the airline was served at the London address of the UK branch (defendant, QATAR Airways Group Q.C.S.C. is not domiciled in the UK, I gather). Lucasfilm did not itself deal with forum non.

I flag this case for Birss J gives a good summary of the approach to forum non, building of course on Spiliada but also with reference to Vedanta, Okpabi etc., all reviewed on the blog. Note at 16-17 claimant’s and defendant’s alternative formulations of the Stage 1 cq 2 tests following Spiliada.

The defendant has summarised the test in Spiliada as follows:

“(1) Is there another available forum which is clearly and distinctly the natural forum, that is to say, the “forum with which the action has the most real and substantial connection”?

(2) If there is, is England nevertheless the appropriate forum, in particular because the court is not satisfied that substantial justice will be done in the alternative available forum?”

At: claimant’s rival formulation is:

“Stage 1: Qatar Airways bears the burden of satisfying the Court that the Qatari court is an available forum with competent jurisdiction to determine PRS’s claim and is clearly or distinctly a more appropriate forum than England for the trial of the issues. If it fails to satisfy the Court of these matters, a stay should be refused.

Stage 2: If the Court determines that the Qatari court is prima facie more appropriate, it must nevertheless refuse to grant a stay if PRS demonstrate that, in all the circumstances of the case, it would be unjust for it to be deprived of the right to trial in England.”

The distinctions may seem trivial. However they relate to, firstly, burden of proof and secondly, which factors need to be considered in which stage (and therefore, proven by whom). In particular, it is suggested that issues such as the location of witnesses arose at the first stage yet that at least aspects of the points which were debated about expert witnesses (of foreign law) arose at the second stage not the first.

Birss J ends up summarising Stage 1 as entailing the following headings:

i) the personal connections the parties have to the countries in question; ii) factual connections which the events relevant to the claim have with the countries; iii) applicable law; iv) factors affecting convenience or expense such as the location of witnesses or documents.

I will leave readers to digest the arguments under the various headings themselves, Birss J concludes that Qatar is not clearly a more appropriate forum and does not therefore consider Stage 2.

Readers will remember that the CJEU in Owusu objected to forum non on the basis of its unpredictability. Now, I am not one for arguing that following Spiliada and Vedanta, and given the authority rule to which common lawyers and judges are attuned, forum non be unpredictable. Neither can one posit however, seeing the intensity of the discussion here and in many other cases, that it is an entirely clear exercise.

Geert.

 

 

Application (dismissed) for stay of a claim of worldwide infringement of #copyright, on grounds of forum non conveniens or alternatively on case management grounds.
References of course UKSC Lucasfilm. https://t.co/sXPxUgpbdH

— Geert Van Calster (@GAVClaw) July 17, 2020

 

 

Following successful events in Bonn and Würzburg, the third iteration of the conference for young German-speaking scholars in private international law will take place – hopefully as one of the first events post-Corona – on 18 and 19 March 2021 at the Max Planck Institute for Comparative and International Private Law in Hamburg. The conference will focus on the theme of PIL for a better world: Vision – Reality – Aberration?

It will include a keynote by Angelika Nußberger, former judge at the European Court of Human Rights, and a panel discussion between Roxana Banu, Hans van Loon, and Ralf Michaels.

The organisers are inviting contributions that explore any aspect of the conference theme, which can be submitted until 20 September 2020. The call for papers, in German and English, together with further information, can be found on the conference website.

Anita Durakovic, Associate Professor at the University Dzemal Bijedic Mostar, and Jasmina Alihodzic, Professor at the University of Tuzla, co-authored a monograph titled International Surrogate Motherhood – Account of the Legislation in Bosnia and Herzegovina (in the original: Medunarodno surogat materinstvo – osvrt na zakonodavstvo u Bosni i Hercegovini). The book was published earlier in 2020 by the Faculty of Law of the University Dzemal Bijedic in Mostar.

The book’s first pages are devoted to interdisciplinary approaches to the surrogacy phenomenon followed by the comparative perspective over substantive laws. The central part of the book is focused on the legislation in Bosnia and Herzegovina, where particularly interesting for the readers of this blog are the sections devoted to recognition of cross-border surrogacy arrangements there at three distinct levels: within the proceedings on the merits before the competent authorities in Bosnia and Herzegovina, as part of the recognition of the status certified by the foreign authentic document, and as part of the recognition of the foreign judgment in which the decision is made concerning the personal status. In evaluating the difficulties which incoming intended parents would be faced with in Bosnia and Herzegovina, especially against the background of the prohibition of surrogate motherhood in force in one of the territorial units there, the authors differentiate between situations where surrogate parents request issuing of the travel documents in order to enter Bosnia and Herzegovina with the child, and where subsequent to entering the country they attempt to regulate the child’s civil status. Further chapters are glancing through human rights aspects of the surrogate arrangements and efforts on international level to regulate these matters, particularly within the Hague Conference on Private International Law. The conclusion favours recognition of foreign authentic documents and judgments concerning the legal parenthood deriving from a surrogate arrangement as opposed to the long and costly family law proceedings to obtain decisions establishing fatherhood and adoption on the part of the mother. The authors also stress that the competent authorities need to take account of the best interest of the child when deciding in recognition proceedings and assessing whether to apply the public policy clause.

While this book offers some discussion on theoretical level, it is primarily intended to serve as a reference point for the competent authorities and potential intended parents as well as to advise legislator or the need to adjust legal framework. It would have been much more convincing if the actual cases rated to the Bosnia and Herzegovina could have been discussed. However, according to the authors, there are no official cases although it is known to have happened in practice. Perhaps this book will contribute to raising awareness not only among legal professionals but also in the local community about important interests at stake in surrogate parenting arrangements, especially that of the child.

On 17 July 2020, the Depositary (i.e. the Ministry of Foreign Affairs of the Netherlands) notified that Austria ratified the HCCH Service Convention, which will enter into force for Austria on 12 September 2020. With this ratification, the HCCH Service Convention continues to attest itself as an important instrument of judicial co-operation given that all EU Member States are now a party to it.

The ratification of Austria was made pursuant to Council Decision (EU) 2016/414 of 10 March 2016 authorising the Republic of Austria to sign and ratify, and Malta to accede to, the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, in the interest of the European Union. As indicated in a previous post, this decision required that such ratification be made by 31 December 2017 so it was long overdue.

Among the declarations/reservations made by Austria features an important reservation on service upon the Republic of Austria, which reads as follows: “The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 15 November 1965 shall not apply to the service of documents addressed to the Republic of Austria, including its political subdivisions, its authorities and persons acting on its behalf; such service shall be effected through diplomatic channels.” Although this reservation is not so common among the Contracting States to the HCCH Service Convention, and by the way it’s not contemplated explicitly in this treaty (but see art. 9(2)), it dispels any doubt as to the procedure to follow when suing a State.

All the declarations/reservations of Austria are available here.

The HCCH news item is available here.

Written by Jonathan Fitchen, University of Aberdeen

Introduction

The EEO Regulation (805/2004) was mooted in the mid-1990’s to combat perceived failings of the Brussels Convention that were feared to obstruct or prevent ‘good’ judgment creditors from enforcing ‘uncontested’ (i.e. undisputable) debts as cross-border debt judgments within what is now the EU. The characterisations ‘good’ and ‘bad’ are not employed facetiously; the unreasonable obstruction of a creditor who was assumed to pursue a meritorious debt claim was and remains a central plank of the EEO project: hence the Regulation offers an alternative exequatur and public policy free procedure for the cross-border enforcement of such uncontested monetary civil and commercial claims that, until 2002, fell under the quite different enforcement procedures of the Brussels Convention. The 2004 EEO Regulation covers money enforcement titles (judgments, settlements and authentic instruments) that are already enforceable in the Member State of origin and hence are offered an alternative route to cross-border enforcement in the Member State addressed via the successors to the Brussels Convention, first the Brussels I Regulation and now the Brussels Ia Regulation, on an expedited basis due to omitting both an exequatur stage and the ability of the Member State addressed to refuse enforcement because of public policy infringements.

As the EEO Regulation was introduced some years after the cross-border enforcement provisions of the Brussels Convention had been replaced by those of the Brussels I Regulation, many of the EEO’s ‘innovations’ to remedy ‘unnecessary’ or abusive delays, caused by either a ‘bad’ debtor or by an overly cautious enforcement venue, had already been mitigated three years before it came into force in 2005. This fact and other issues (e.g. a preference among lawyers for the familiar and now streamlined Brussels I Regulation enforcement procedure, the issue of ignorance of the EEO procedures, and a greater than expected willingness for creditors to litigate debt claims directly in foreign venues) contributed to a lower than expected take up of the EEO Regulation in the context of contentious legal proceedings.

Anecdotal evidence of low use of the EEO in contentious matters has led to a view that the EEO Regulation is somewhat redundant. The coming into force of the exequatur-free Brussels Ia Regulation and the surveys connected with the IC²BE project  have re-enforced this view of its redundancy. An expected recasting for the 2004 Regulation did not however occur in 2012 as the Commission withdrew it. The same year the Commission had received a less than complimentary report from RAND Europe concerning the Regulation (with which it disagreed and continues to disagree). It may be speculated that having lost the argument on restricting or deleting public policy in the course of the re-casting of the Brussels I Regulation, the Commission may have feared that the re-casting of the EEO might tend towards its de factodeletion if the Member States were permitted to consider its reliance on control in the Member State of origin and the lack of a public policy exception given examples of national case law that were already suggestive of structural difficulties with the Regulation and its underlying drafting assumptions (e.g. see G Cuniberti’s comment on French Cour de cassation chambre civile 2, 6 janvier 2012 N° de pourvoi: 10-23518).

As matters stand, the EEO Regulation continues to apply and continues to cause particular difficulties for debtors (and also creditors, enforcement authorities and the CJEU), whether in the Member State of origin or in the Member State addressed. This assertion is supported by two litigation notes, of which this is the first (and most extraordinary): indeed, it is suggested that the difficulties that arose in the litigation discussed below are at least as significant for European private international law as the infamous case C-7/98 Krombach v Bamberski; Krombach and Lee each indicate the need for the inclusion of an overt public policy exception for those cases in which domestic civil procedure and the norms of European and international civil procedure have malfunctioned to such an extent that EU PIL is in danger of being ‘understood’ to force the Member State of enforcement to grant cross-border legal effect to a judgment granted improperly in flagrant breach of European and domestic human rights standards.

Facts

In January 2014 the civil judgment enforcement officials of the English High Court received a European Enforcement Order (EEO) application from a Spanish gentleman’s lawyers requesting the actual enforcement of the Spanish judgment and costs recorded by the EEO certificate for €923,000. The enforcement target – who had been contacted officially by a letter from the applicant’s lawyers for the first time in the proceedings shortly before this application and given 14 days to pay – was the well-known actor Christopher Lee, who was domiciled in the UK and resident in London where he had lived for many years.

Thus began the enforcement stage of a cross-border saga in which the judgment creditor and judgment debtor sought respectively to enforce or resist the enforcement of an EEO certificate that was incomplete (hence defective on its face) and unquestionably should never have been granted because it related to a Spanish judgment that should never have been delivered (or declared enforceable) concerning a debt, that had not been properly established according to Spanish procedural law, and relating to an at best contestable (and at worst fanciful) legal liability alleged to somehow fall upon an actor in a film concerning a subsequent unauthorised use by the DVD distributor of that film of the claimant artist’s copyrighted artwork from that film in connection with the European DVD release of that film. The claim under Spanish copyright law was based on proceedings dating from June 2007 commenced before the Burgos Commercial court that unquestionably were never at any time (whether as a process, a summons or a judgment) in the following seven years served properly on the famous and foreign-domiciled defendant in accordance with the service provisions of the EU Service Regulation.

The original claim named three parties: 1) a production company (The Quaid Project Ltd); 2) Mr. Juan Aneiros (who was alleged to have signed a contract pertaining to the artwork for the film with the claimant artist in 2004 and who was the son-in-law of Christopher Lee and who seemingly ran Mr Lee’s website) and 3) Christopher Lee himself. The proceedings attempted in Spain however encountered an initial problem of how to serve these ‘persons’ in or from Spain. The solution selected as far as Lee was concerned did not use the Service Regulation nor did it anticipate the later reasoning of the CJEU in Case C 292/10 G v de Visser ECLI:EU:C:2012:142. After not finding Lee resident in Spain, the hopeless fiction of service by pinning the originating process to the noticeboard of the Burgos Commercial Court for a period of time was employed: it was then claimed that this properly effected service in circumstances where it was claimed to be impossible to find or serve a world renowned and famous English actor (or the actor’s agent) in Spain (where he did not live).

Such modes of service where the defendant is likely to be domiciled in another state have been condemned as insufficient by the ECJ in cases such as: Case 166/80 Peter Klomps v Karl Michel [1981] ECR 1593; Case C-300/14 Imtech Marine Belgium NV v Radio Hellenic SA ECLI:EU:C:2015:825; Case C-289/17 Collect Inkasso OU v Aint 2018 EU:C:2018. These defects in serving Lee as intended defendant, and then as an enforcement target, proved fatal in February 2020 when, after roughly six years of challenges by Lee (and from mid 2015 by his Widow), the Spanish Constitutional Court decided that the consequences flowing from the service violations were sufficiently serious to remit the Spanish proceedings back to square one for noncompliance with Article 24 of the Spanish Constitution by the Spanish civil courts.

Significant aspects of the claim are unclear, in particular, why Lee was regarded as potentially liable for the claim. The various law reports make clear that the claim concerned compensation sought under Spanish copyright law by an artist whose contracted artwork for a film called ‘Jinnah’ (in which Christopher Lee had starred) had later been used without his permission for the subsequent European DVD release of that film. Though Spanish law permits such a contractual claim by the artist against the relevant party who uses his artwork, it is unclear from the various English and Spanish law reports how, in connection with the DVD release, this party was Christopher Lee. It is stated at para 11 of [2017] EWHC 634 (Ch) that Lee’s lawyers told the English court that their client (who was not a producer or seemingly a funder of the original film) did not sign any contract with the claimant. It is hence not clear that Lee made (or could make) any decisions concerning the artwork for the film and still less concerning its later use for the European DVD release to breach the claimant’s copyright. Such decisions appear to have been made by other natural and legal persons, without any link to Lee capable of making him liable for the compensation claimed.

Though it is doubtful that the issue will ever be resolved, a few statements in the Spanish press (El Pais, 22 March 2010) suggest both that the claimant regarded Lee as having been amongst those who had ‘authorised’ his original appointment to the film as its artist/illustrator but also, and confusingly, that the artist had not been able to speak to Lee about the issue and did not, subject to what the court might hold, consider him responsible for the misuse. Though it is speculation, it may be that a connection was supposed by the claimant (or his lawyers) analogous to a form of partnership liability between Lee and some of the other defendants who might have been presumed to have been involved in the original decision to employ the artist at the time of the film and hence might possibly have later been involved in the decision to re-use the same artwork (this time without the artist’s consent) for the European DVD release. Neither the matter nor the nature of Lee’s potential liability is though clear.

Further uncertainty arises from the issue of quantum. Spanish law allows an aggrieved artist to bring a claim for contractual compensation to seek sums representing those revenues that would have accrued to him had there been a reasonable contractual agreement to use his artwork in this manner. One function of the Spanish court in such a claim is to determine the correct quantum of this sum by considering representations from each party to the claim: this process could not occur properly in the present case as the service defects meant that only the views of the claimant were ever presented. Why was €710,000 the correct sum? Why not €720,000, €700,000 or €10,000? Trusting the artist’s own estimation seems optimistic given that the sum claimed was large and the matter concerned the European DVD release of a film that was many orders of magnitude less well-budgeted or commercially successful than other films in which Christopher Lee had starred (e.g. Star Wars and the Lord of the Rings). Equally, did the artist really have all the data in his possession to allow him to demonstrate unilaterally the proper quantum in a forensic manner?

Despite these uncertainties the suggested liability and quantum were asserted for the purposes of formulating the Spanish claim that led to the in absentia judgment granted in March 2009 which, by May 2009, (in default of any appeal by the officially uncontacted Lee) was declared final. In October 2009 the judgment was declared enforceable by yet another notice from the same Burgos court that was again pointlessly fixed to the notice board of the court in default of employing any effective mode of service that should have been used in this context.

The matter was reported (inaccurately) in the UK press and media in 2010, possibly based on not quite understood Spanish newspaper reports, without however securing any comment from Lee. It is unclear if Lee ever did know unofficially of the Spanish proceedings, but it seems likely that he did as his son-in-law was involved in these. Such unofficial knowledge does not, of course, excuse successive service failures. One point that the UK media did record accurately in 2010 was that no defendant had appeared in the earlier Spanish proceedings.

In 2011, at the request of the claimant, the Burgos court issued him with an EEO certificate. It was seriously incomplete, omitting ticks for the boxes found at: 11.1 (that service had been as per the Service Regulation); 12.1 (ditto the summons); 13.1 (that service of the judgment had been as per the Regulation); 13.3 (that the defendant had a chance to challenge the judgment); and, 13.4 (that the defendant had not so challenged). The judgment on which the EEO certificate was based was claimed in the certificate to be one dated 26 April 2010 (seemingly never produced in the later London enforcement proceedings) while the certificate wrongly gave as Lee’s London address as the address of his son-in-law and misspelled Lee’s middle name.

In October 2013 the claimant applied to the Spanish courts for the rectification of the 2011 EEO certificate: such rectification was however confined only to correct the misspelled name and to add over €200,000 to the original ‘debt’ as costs due in part, it may be supposed from the comments of the Constitutional Court, to unsuccessful attempts to pursue the Spanish property of Lee’s Spanish son-in-law. Seemingly no rectification was sought for the other serious omissions.  The October 2013 EEO certificate was presented in January 2014 in London to Lee and to the English court. Lee’s correct address had now been ascertained by the claimant’s lawyers instructed to seek the cross-border enforcement of the EEO certificate concerning the ‘uncontested’ sums apparently due in Spain via its expedited and public policy free procedures.

On finally learning officially of the existence of the earlier Spanish in absentia proceedings when met with a lawyer’s letter to his address demanding payment of the entire alleged debt within 14 days, Lee instructed his English lawyers and appointed Spanish lawyers to commence challenges to the earlier Spanish proceedings and to secure stays of enforcement in Spain and in the UK (the latter being via Art 23(c) EEO). By reason of a good-faith error, Lee’s English lawyers ‘jumped-the-gun’ and represented to the English court that the Spanish challenge proceedings had already commenced – in fact at that point the Spanish lawyers had only been instructed to bring a challenge – and secured the English Art.23(c) stay some 17 days ahead of the actual commencement of the Spanish challenge proceedings. The creditor, via his lawyers, objected (correctly) to the premature grant and also to the continuation of the stay under Art.23(c) which first required the commencement of the Spanish challenges: this objection led to a Pyric victory when the English court dispensed with the erroneous stay but replaced it, seamlessly, with another stay granted as part of its inherent jurisdiction (rather than via any provision of the EEO Regulation) which it justified as appropriate given the presentation of a manifestly defective and incomplete EEO certificate. The stay was to endure for the duration of the Spanish appeals and all Spanish challenges to enforcement. Lee’s death in mid 2015 saw the stay endure for the benefit of his widow.

While the stay proceedings were ongoing in England, the attempts by Lee’s lawyers to challenge the earlier Spanish proceedings before the Spanish civil courts and appeal courts went from bad to worse. The said courts all took the astonishing view (summarised in paras 23 – 30 of [2017] EWHC 634 (Ch) (03 April 2017)) that there had been sufficient service and that Lee was now out-of-time to raise objections by civil appeal. All Spanish stay applications were rejected; even the Constitutional Court rejected such a stay application (on an earlier appeal prior to the 2020 case), finding the earlier conclusions of the civil courts that there was no demonstrable irreparable harm for Lee without the stay to be in accordance with the Constitution. Appeal attempts before the civil courts to object to the frankly ridiculous triple failure of service of process, summons and judgment, or to the existence of a viable claim, or to the lack of the quantification stage required by Spanish procedural law, all fell on deaf ears in these courts.

In this sense, because the Spanish civil courts all demonstrated their unwillingness to remedy the successive misapplication of EU laws, the private international law and procedural law of the EU all failed in this case in the Member State of origin. That this failure did not result in immediate actual enforcement against Lee’s estate in the Member State addressed was due only to the extemporisation by an English court of an inherent jurisdiction stay in response to an incomplete certificate supporting the application. Without this extemporised stay the enforcement would have proceeded in the UK without any possibility of Lee requesting corrective intervention by English authorities to invoke a missing public policy exception. The English court was clear that had the empty boxes been ticked, there would have been no basis for the stay and enforcement would have been compelled. So much for the Recital 11 assurances of the EEO Regulation:

“This Regulation seeks to promote the fundamental rights and takes into account the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, it seeks to ensure full respect for the right to a fair trial as recognised in Article 47 of the Charter.”

These events left Lee’s lawyers with only one remaining challenge possibility in Spain, viz. arguing that the Spanish civil courts had violated the Spanish Constitution. These challenges were brought to the Spanish Constitutional Court by lawyers acting first for Lee and then, after his death, acting for his widow. The decision of the Constitutional Court was delivered on 20 February 2020 (see comment by M Requejo Isidro) and found that there had indeed been a significant domestic breach of the Spanish Constitution, specifically, Section 24 para 1 which (in English) reads

“All persons have the right to obtain effective protection from the judges and the courts in the exercise of their rights and legitimate interests, and in no case may there be a lack of defense.”

The Constitutional Court – which necessarily is restricted to a consideration of the matters that go directly to the operation of the Spanish Constitution and hence has no further general appellate competence over the actions of the civil courts – concluded that the initial failure to serve a non-domiciled person, whose address was claimed to be unknown, but would have been very simple to discover, in accordance with the provisions of the relevant EU Service Regulation meant that Christopher Lee, and later his widow, were not adequately protected by the Spanish courts as required by Section 24 of the Spanish Constitution and hence had been deprived impermissibly of the defence that had to be provided. The order of the Constitutional Court annulled the earlier Spanish proceedings and sent the contingency-fee-funded claimant back to square one to recommence any subsequent proceedings properly and with due service concerning his alleged claim against whatever parts of the estate of the late Christopher Lee might now still be located within the UK or the EU.

Reflections on some of the wider issues

Though this litigation was compared above with the cause-celebre that was Krombach, it can be argued to represent a greater Member State of origin catastrophe than the earlier case: at least Herr Krombach was officially notified, served, summoned to the proceedings and then notified of the judgment. Krombach and Lee do both however illustrate why a public policy exception in the Member State addressed is essential. Unfortunately, in Lee this illustration is set against the absence of that exception. Thus, Lee demonstrates the grim prospects facing the ‘debtor of an uncontested sum’ (who only has this status due to blatant and successive breaches of service and private international law procedures) in cross-border enforcement procedures if the ‘emergency brake’ of public policy has been removed by drafters keen to prevent its unnecessary application to facilitate faster ‘forward-travel’ in circumstances in which the application of the said brake would not be necessary.

Had not the presented EEO certificate been so deficient, the English courts would not have been willing to extemporise a stay and the whole sum would have been enforced against Lee in London long before the civil and constitutional proceedings – all of which Lee also had to fund – concluded in Spain. Few ordinary people could have effectively defended the enforcement across two venues for six years when facing a claimant pursuing a speculative claim via a conditional fee arrangement (with its clear significance for the likely recovery of defence costs and a resulting impact upon the need to fund your own lawyers in each jurisdiction). It must be presumed that, despite manifest breaches of EU law and human rights standards, most ordinary persons would simply have had to pay-up. Whether this has already occurred, or occurs regularly, are each difficult to ascertain; what can though be said is that the design and rationale of the EEO Regulation facilitate each possibility.

Lee was fortunate indeed to face an incomplete EEO certificate and to find English judges who, successively, were favourably disposed towards his applications despite a Regulation drafted to dismiss them. Though some may be disposed to regard the judiciary of that ex-Member State as ‘constitutionally’ predisposed to effect such interpretative developments, this would be a mistake, particularly in the present context of applications to the Masters in question (members of the judiciary who deal with incoming foreign enforcement applications). In any case, judicial willingness to extemporise a solution when faced with a defective EEO certificate to avert an immediate cross-border injustice seems a slender thread indeed from which to hang the conformity of the operation of the EEO Regulation with the basic human rights that should have been, but were not, associated with the treatment of Lee throughout these proceedings.

It is suggested that the circumstances of Lee demonstrate the failure of both the EEO Regulation, and of EU PIL in general, to protect the rights of an unserved and officially unnotified defendant to object to a cross-border enforcement despite the grossest of failings in the Member State of origin that, given the existence of Article 24 of the Spanish Constitution, proved astonishingly unsusceptible to Spanish appeal procedures. Had the judgment creditor been compelled to proceed to enforcement under the Brussels I Regulation (or later under the Recast of that Regulation) the service defects would probably have been more evident whether in the assumption of jurisdiction and / or at the point of enforcement outside Spain: the judgment debtor would also have had the option to raise the public policy exception to defend the enforcement proceedings plus better stay options in the enforcement venue.

Further it is suggested that Lee indicates that the EEO Regulation is no longer fit for purpose and should be recast or repealed. Lee, like Krombach, illustrates the danger of relying on the Member State of origin when drafting cross-border procedures of a non-neutral nature, i.e. reflecting assumptions that certified claims sent abroad by the ‘creditor’ will be ‘good’. It is not always correct that all will remain ‘fixable’ in the Member State of origin such that objections to enforcement in the Member State addressed and a public policy exception are unnecessary. Krombach and Lee may be exceptional cases, but it is for such cases that we require the equally exceptional use of a public policy exception in the enforcement venue.

 

 

Thank you Nathalie Smuha for first signalling the €600,000.00 fine which the Belgian Data Protection Authority (DPA) issued on Tuesday against Google Belgium, together with a delisting order of uncertain reach (see below) and an order to amend the public’s complaint forms. The decision will eventually be back up here I am assume (at vanished yesterday) however I have copy here.

Nauta Dutilh have very good summary and analysis up already, and I am happy to refer. Let me add a few things of additional note:

• The one-stop shop principle of the GDPR must now be under severe strain. CNIL v Google already put it to the test and this Belgian decision further questions its operationalisation – without even without for the CJEU to answer the questions of the Brussels Court of Appeal in the Facebook case. At 31, the DPA refers to a letter which Google LLC had sent on 23 June 2020 (a few days therefore after the French decision) to the Irish DPA saying that it would no longer object to national DPAs exercising jurisdiction in right to be forgotten cases. Of note is that in ordinary litigation, deep-pocket claimants seeking mozaik jurisdiction seldom do that because it serves the general interest.
• Having said that, the Belgian DPA still had to establish jurisdiction against Google Belgium. Here, CJEU Google v Spain, Google v CNIL, and Wirtschaftsakademie led the DPA to take a ‘realistic’ /business plan approach (such as Jääskinen AG in Google Spain) rather than a legally pure approach: at 80 following extensive reference to CJEU authority, and to the effet utile of the GDPR, the DPA holds that it matters little whether the actual processing of the date takes places outside of the EU, by Google employees ex-EU, and that Google Belgium’s activities are supportive only. A Belgian resident’s right to be forgotten has been infringed; a Google entity is available there: that would seem to suffice.
• That left the issue of the territorial reach of the delisting request. The DPA arguably cuts a few corners on the Google Belgium issue; here, it is simply most vague: at 81 ff it refers to the jurisdictional decision in e-Date Advertising, that for infringement of privacy within Brussels Ia, the courts of the person’s centre of interests are best placed to hear the case in its entirety, holding this should be applied mutatis mutandis in GDPR cases and removal orders. It then holds at 85 that neither Google v CNIL nor Belgian law give it specific power to impose a worldwide delisting order, yet at 91 that an EU-wide delisting order would seem an effective means of redress, to end up in its final order (p.48-49) not identifying a territorial scope for delisting.

I am confused. I suspect I am not the only one.

Geert.

(Handbook of) EU private international law, 2nd ed.2016, chapter 2, Heading 2.2.8.2.5.

 

On 14 July 2020, Austria ratified the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, which will enter into force for Austria on 12 September 2020.

Source: here

The Court of Justice delivered today its judgment in case C‑249/19 (JE v KF), which is about Rome III.

Context: “11 JE and KF, who are Romanian nationals, married in Iași (Romania) on 2 September 2001.

12 On 13 October 2016, JE applied for a divorce to the Judecătoria Iași (Court of First Instance, Iași, Romania).

13 By judgment of 31 May 2017, that court declined jurisdiction to hear that application in favour of the Judecătoria Sectorului 5 București (Court of First Instance of the Fifth District of Bucharest, Romania).

14 By a judgment of 20 February 2018, that court, on the basis of the nationality of both spouses referred to in Article 3(1)(b) of Regulation No 2201/2003, established that the Romanian courts had general jurisdiction to hear the application for divorce made by JE. Furthermore, on the basis of Article 8(a) of Regulation No 1259/2010, it designated Italian law as the law applicable to the dispute of which it was seised, on the ground that, on the date on which the application for divorce was filed, the habitual residence of the spouses was in Italy.

15 In that regard, that court held that, under Italian law, an application for divorce made in circumstances such as those of the main proceedings could be filed only if a legal separation of the spouses had previously been established or declared by a court and if at least three years had elapsed between the date of that separation and the date on which the application for divorce was filed with the court.

16  Given that the existence of a court decision establishing or pronouncing such a separation had not been proven and that Romanian law does not provide for legal separation proceedings, that court held that those proceedings had to be conducted before the Italian courts and that, consequently, any application to that effect made to the Romanian courts was inadmissible.

17 JE lodged an appeal against that judgment before the referring court, claiming, inter alia, that the court at first instance should have applied Article 2600(2) of the Civil Code, which constitutes the transposition into Romanian law of Article 10 of Regulation No 1259/2010.

18 In that regard, JE is of the opinion that, since Italian law is restrictive as regards the conditions required for divorce, Romanian law should apply to the application for divorce.

19 In JE’s view, that solution also flows from the fact that the application of Italian law is manifestly incompatible with the public policy of the forum and that, consequently, that application must, in accordance with Article 12 of that regulation, be disapplied”.

Question refered to the Court of Justice: “‘Is the expression “the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce”[, in Article 10 of Regulation No 1259/2010,] to be interpreted (a) in a strict, literal manner, that it is to say only in respect of a situation where the foreign law applicable makes no provision for any form of divorce, or (b) more broadly, as also including a situation where the foreign law applicable permits divorce, but does so in extremely limited circumstances, involving an obligatory legal separation procedure prior to divorce, in respect of which the law of the forum contains no equivalent procedural provisions?’”.

Decision of the Court of Justice: “Article 10 of Council Regulation (EU) No 1259/2010 […] must be interpreted as meaning that the expression ‘where the law applicable by virtue of Article 5 or Article 8 makes no provision for divorce’ applies only where the foreign law applicable makes no provision for divorce in any form”.

Source: here

The Court of Justice delivered today its judgment in case C‑253/19 (MH, NI v OJ, Novo Banco SA), which is about the Insolvency bis Regulation:

“The first and fourth subparagraphs of Article 3(1) of Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings must be interpreted as meaning that the presumption established in that provision for determining international jurisdiction for the purposes of opening insolvency proceedings, according to which the centre of the main interests of an individual not exercising an independent business or professional activity is his or her habitual residence, is not rebutted solely because the only immovable property of that person is located outside the Member State of habitual residence”.

Source: here

The Court of Justice delivered today its judgment in case C‑80/19 (E. E. with the presence of: Kauno miesto 4-ojo notaro biuro notarė Virginija Jarienė, K.-D. E.), which is about the Succession Regulation. The judgment is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version):

« 1) Le règlement (UE) no 650/2012 […] doit être interprété en ce sens que relève de la notion de « succession ayant une incidence transfrontière » une situation dans laquelle le défunt, ressortissant d’un État membre, résidait dans un autre État membre à la date de son décès, mais n’avait pas rompu ses liens avec le premier de ces États membres, dans lequel se trouvent les biens composant sa succession, tandis que ses successibles ont leur résidence dans ces deux États membres. La dernière résidence habituelle du défunt, au sens de ce règlement, doit être fixée par l’autorité saisie de la succession dans un seul desdits États membres.

2) L’article 3, paragraphe 2, du règlement no 650/2012 doit être interprété en ce sens que, sous réserve d’une vérification par la juridiction de renvoi, les notaires lituaniens n’exercent pas des fonctions juridictionnelles lors de la délivrance d’un certificat national d’hérédité. Toutefois, il appartient à la juridiction de renvoi de déterminer si ces notaires agissent par délégation ou sous le contrôle d’une autorité judiciaire et, en conséquence, peuvent être qualifiés de « juridictions », au sens de cette disposition.

3) L’article 3, paragraphe 1, sous g) du règlement no 650/2012 doit être interprété en ce sens que, dans le cas où la juridiction de renvoi considérerait que les notaires lituaniens peuvent être qualifiés de « juridictions », au sens de ce règlement, le certificat d’hérédité qu’ils délivrent, peut être considéré comme étant une « décision », au sens de cette disposition, de telle sorte que, aux fins de le délivrer, ces notaires peuvent appliquer les règles de compétence prévues au chapitre II dudit règlement.

4) Les articles 4 et 59 du règlement no 650/2012 doivent être interprétés en ce sens qu’un notaire d’un État membre, qui n’est pas qualifié de « juridiction », au sens de ce règlement, peut, sans appliquer les règles générales de compétence prévues par ledit règlement, délivrer les certificats nationaux d’hérédité. Si la juridiction de renvoi considère que ces certificats remplissent les conditions prévues à l’article 3, paragraphe 1, sous i), du même règlement, et peuvent, dès lors, être considérés comme étant des « actes authentiques », au sens de cette disposition, ceux-ci produisent, dans les autres États membres, les effets que l’article 59, paragraphe 1, et l’article 60, paragraphe 1, du règlement no 650/2012 attribuent aux actes authentiques.

5) Les articles 4, 5, 7 et 22 ainsi que l’article 83, paragraphes 2 et 4, du règlement no 650/2012 doivent être interprétés en ce sens que la volonté du de cujus ainsi que l’accord entre ses successibles peuvent conduire à la détermination d’une juridiction compétente en matière de successions et à l’application d’une loi successorale d’un État membre autre que celles qui résulteraient de l’application des critères dégagés par ce règlement ».

Source : here