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Ilaria Viarengo and Pietro Franzina have edited The EU Regulations on the Property Regimes of International Couples – A Commentary, published by Edward Elgar in its Elgar Commentaries in Private International Law series.

The publisher’s abstract reads as follows.

This article-by-article Commentary on EU Regulations 2016/1103 and 2016/1104 critically examines the uniform rules adopted by the EU to deal with the property relations of international couples, both married and in registered partnerships. Written by experts from a variety of European countries, it offers a comprehensive side-by-side discussion of the two Regulations to provide context and a deeper understanding of the issues of jurisdiction, applicable law and recognition of judgements covered.

The authors of the commentary are Giacomo Biagioni, Andrea Bonomi, Beatriz Campuzano Díaz, Janeen Carruthers, Sabine Corneloup, Gilles Cuniberti, Elena D’Alessandro, Pietro Franzina, Martin Gebauer, Christian Kohler, Silvia Marino, Cristina M. Mariottini, Dieter Martiny, Csongor I. Nagy, Jacopo Re, Carola Ricci, Andres Rodríguez Benot, Lidia Sandrini, Ilaria Viarengo and Patrick Wautelet.

More information available here.

Thank you Maxime Barba for flagging the judgment in the Paris Court of Appeal Sodmilab et al. (Text of the judgment in Maxime’s post). The case concerns the ending of a commercial relationship. Part of the contract may be qualified as agency with lex causae determined under the 1978 Hague Convention. On this issue, the Court of Appeal confirmed French law as lex causae.

Things get messy however with the determination of that part of the contract that qualifies as distribution (a mess echoing DES v Clarins), and on the application of Rome II.

The Court of Appeal first (at 59) discusses the qualification of A442-6 of the French Code du commerce, on unfair trading practices (abrupt ending of a commercial relationship), dismissing it as lois de police /overriding mandatory law under Article 9 Rome I. As I noted in my review of DES v Clarins, this is a topsy turvy application of Rome I. The qualification as lois de police is up to the Member States, within the confines of the definition in Rome I. The Court of Appeal holds that A442-6 only serves private interests, not the general economic interest, and therefore must not qualify under Rome I. Hitherto much of the French case-law and scholarship had argued that in protecting the stability of private interests, the Act ultimately serves the public interest.

Next (as noted: this should have come first), the Court reviews the application of A4f Rome I, the fall-back position for distribution contracts – which would have led to Algerian law as lex causae. It is unclear (62 ff) whether the Court reaches its conclusion as French law instead either as a confirmation of circumstantial (the court referring to invoicing currency etc.) but clear choice of law under Article 3, or the escape clause under Article 4(3), for that Article is mentioned, too.

Rome I’s structure is quite clear. Why it is not properly followed here is odd. That includes the oddity of discussing French law under Article 9 if the court had already confirmed French law as lex causae under A3 or 4.

Finally, corners are cut on Rome II, too. Re the abrupt ending of the relationship (at 66ff). French law again emerges victorious even if the general lex locus damni rule leads to Algerian law. The court does not quite clearly hold that on the basis of Article 4(3)’s escape clause, or circumstantial choice of law per A14. The court refers to ‘its findings above’ on contractual choice of law, however how such fuzzy implicit choice under Rome I is forceful enough to extend to choice of law under Rome II must not be posited without further consideration. Particularly seeing as Article 6 Rome II excludes choice of law for acts of unfair trading.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2, Heading 2.2.11.2.9; Chapter 3, Heading 3.2.8, Heading 3.2.8.3; Chapter 4).

The Presidency of the Council of the European Union and the European Parliament reached on 30 June 2020 a provisional agreement on the modernisation of Regulation 1206/2001 on the taking of evidence abroad, and Regulation 1393/2007 on the service of judicial and extra-judicial documents (see here and here for contributions appeared on this blog regarding the reform).

The provisional agreement now needs to be submitted for endorsement by Member States’ representatives.

The purpose of the amendments under discussion is, generally, to improve the efficiency and speed of cross-border judicial proceedings by taking advantage of digitalisation and the use of modern technology, and by these means advance access to justice and fair trial for the parties.

Changes include the mandatory use of an electronic decentralised IT system, composed of interconnected national IT systems, for the transmission of documents and requests between Member States. The new regulations will also task the Commission with the creation, maintenance and future development of a reference software which Member States can choose to apply as their back end system, instead of a nationally-developed IT system.

As to the service of documents, the envisaged new rules provide that documents can be served electronically and directly on an addressee with a known address in another Member State, when his or her express consent is given in advance. The service can be performed through qualified electronic registered delivery services or, under additional conditions, by e-mail.

The new rules also aim to promote the use of videoconferencing or other distance communication technology in the taking of evidence.

Anyone planning a conflict of laws course in the next term might well consider the succinct Council of Europe report on the application of islamic law in the context of the European Convention on Human Rights – particularly the case-law of the Court. It discusses ia kafala, recognition of marriage, minimum age to marry, and the attitude towards Shari’a as a legal and political system.

Needless to say, ordre public features, as does the foundation of conflict of laws: respect for each others’ cultures.

Geert.

On the last day of the Croatian Presidency of the Council of the EU, an important deal was concluded: “the Council Presidency and the European Parliament today reached a provisional agreement on two amended regulations, one on the taking of evidence and a second on the service of documents”.

Key points: “Changes in both regulations include the mandatory use of an electronic decentralised IT system, composed of interconnected national IT systems, for the transmission of documents and requests between member states. The draft regulations also task the Commission with the creation, maintenance and future development of a reference software which member states can choose to apply as their back end system, instead of a nationally-developed IT system.

Regarding the service of documents, under the draft new rules documents can be served electronically and directly on an addressee with a known address in another member state, when his or her express consent is given in advance. The service can be performed through qualified electronic registered delivery services or, under additional conditions, by e-mail.

The draft new rules also promote the use of videoconferencing or other distance communication technology in the taking of evidence which implies hearing a witness, party or expert present in another member state”.

Next step: “The provisional agreement now needs to be submitted for endorsement by EU member states’ ambassadors”

Source: here

See also, from the European Parliament, here

Before the judicial holiday, several decisions will be delivered regarding EU instruments on private international law.

The decision of the 1st Chamber (Bonichot, Safjan, Bay Larsen, Toader, Jääskinen) in C-343/19, Verein für Konsumenteninformation, regarding Article 7.2 of the Brussels I bis Regulation, is due on 9 July 2020. M. Safjan is the reporting judge; AG Campos’s Opinion was published on 4 April.

One week later the 1st Chamber will read the judgments in C-73/19, Movic e.a., C-80/19, E.E., and C-249/19, JE. C. Toader acts as reporting judge in C-73/19, on the meaning of “civil and commercial matters” in the Brussels I bis Regulation; see here AG Szpunar’s Opinion, of 23 April 2020. Judge Toader is the reporting judge as well in C-80/19, which addresses several aspects of the Succession Regulation; the Opinion by AG Campos, of 26 March 2020, has not yet been fully translated into English (here the French version; the original is in Spanish). C-249/19 benefited from AG Tanchev’s Opinion, also of 26 March 2020; the Court was asked to rule on the Rome III Regulation on the law applicable to divorce. R. Silva de Lapuerta is the reporting judge.

The same day, the judgment in C-253/19 (9th Chamber: Rodin, Jürimäe, Piçarra, with Jürimäe as reporting judge) will be delivered, addressing the COMI under the new Insolvency Regulation. AG Szpunar’s Opinion was published on 30 April 2020.

The Court’s activity resumes on 1 September 2020. Next date for a PIL judgment is September 3 (C-186/19, Supreme Site Services e.a.; see the Opinion by AG Oe here).

In 2017 drivers working under contract for Uber in Ontario launched a class action.  They alleged that under Ontario law they were employees entitled to various benefits Uber was not providing.  In response, Uber sought to stay the proceedings on the basis of an arbitration clause in the standard-form contract with each driver.  Under its terms a driver is required to resolve any dispute with Uber through mediation and arbitration in the Netherlands.  The mediation and arbitration process requires up-front administrative and filing fees of US$14,500.  In response, the drivers argued that the arbitration clause was unenforceable.

The Supreme Court of Canada has held in Uber Technologies Inc. v. Heller, 2020 SCC 16 that the arbitration clause is unenforceable, paving the way for the class action to proceed in Ontario.  A majority of seven judges held the clause was unconscionable.  One judge held that unconscionability was not the proper framework for analysis but that the clause was contrary to public policy.  One judge, in dissent, upheld the clause.

A threshold dispute was whether the motion to stay the proceedings was under the Arbitration Act, 1991, S.O. 1991, c. 17 or the International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sch. 5.  Eight judges held that as the dispute was fundamentally about labour and employment, the ICAA did not apply and the AA was the relevant statute (see paras. 18-28, 104).  While s. 7(1) of the AA directs the court to stay proceedings in the face of an agreement to arbitration, s. 7(2) is an exception that applies, inter alia, if the arbitration agreement is “invalid”.  That was accordingly the framework for the analysis.  In dissent Justice Cote held that the ICAA was the applicable statute as the relationship was international and commercial in nature (paras. 210-18).

The majority (a decision written by Abella and Rowe JJ) offered two reasons for not leaving the issue of the validity of the clause to the arbitrator.  First, although the issue involved a mixed question of law and fact, the question could be resolved by the court on only a “superficial review” of the record (para. 37).  Second, the court was required to consider “whether there is a real prospect, in the circumstances, that the arbitrator may never decide the merits of the jurisdictional challenge” (para. 45).  If so, the court is to decide the issue.  This is rooted in concerns about access to justice (para. 38).  In the majority’s view, the high fees required to commence the arbitration are a “brick wall” on any pathway to resolution of the drivers’ claims.

The majority then engaged in a detailed discussion of the doctrine of unconscionability.  It requires both “an inequality of bargaining power and a resulting improvident bargain” (para. 65).  On the former, the majority noted the standard form, take-it-or-leave-it nature of the contract and the “significant gulf in sophistication” between the parties (para. 93).  On the latter, the majority stressed the high up-front costs and apparent necessity to travel to the Netherlands to raise any dispute (para. 94).  In its view, “No reasonable person who had understood and appreciated the implications of the arbitration clause would have agreed to it” (para. 95).  As a result, the clause is unconscionable and thus invalid.

Justice Brown instead relied on the public policy of favouring access to justice and precluding an ouster of the jurisdiction of the court.  An arbitration clause that has the practical effect of precluding arbitration cannot be accepted (para. 119).  Contractual stipulations that prohibit the resolution of disputes according to law, whether by express prohibition or simply by effect, are unenforceable as a matter of public policy (para. 121).

Justice Brown also set out at length his concerns about the majority’s reliance on unconscionability: “the doctrine of unconscionability is ill-suited here.  Further, their approach is likely to introduce added uncertainty in the enforcement of contracts, where predictability is paramount” (para. 147).  Indeed, he criticized the majority for significantly lowering the hurdle for unconscionability, suggesting that every standard-form contract would, on the majority’s view, meet the first element of an inequality of bargaining power and therefore open up an inquiry into the sufficiency of the bargain (paras. 162-63).  Justice Brown concluded that “my colleagues’ approach drastically expands the scope of unconscionability, provides very little guidance for the doctrine’s application, and does all of this in the context of an appeal whose just disposition requires no such change” (para. 174).

In dissent, Justice Cote was critical of the other judges’ willingness, in the circumstances, to resolve the issue rather than refer it to the arbitrator for decision: “In my view, my colleagues’ efforts to avoid the operation of the rule of systematic referral to arbitration reflects the same historical hostility to arbitration which the legislature and this Court have sought to dispel. The simple fact is that the parties in this case have agreed to settle any disputes through arbitration; this Court should not hesitate to give effect to that arrangement. The ease with which my colleagues dispense with the Arbitration Clause on the basis of the thinnest of factual records causes me to fear that the doctrines of unconscionability and public policy are being converted into a form of ad hoc judicial moralism or “palm tree justice” that will sow uncertainty and invite endless litigation over the enforceability of arbitration agreements” (para. 237).  Justice Cote also shared many of Justice Brown’s concerns about the majority’s use of unconscionability: “I am concerned that their threshold for a finding of inequality of bargaining power has been set so low as to be practically meaningless in the case of standard form contracts” (para. 257).

The decision is lengthy and several additional issues are canvassed, especially in the reasons of Justice Cote and Justice Brown.  The ultimate result, with the drivers not being bound by the arbitration clause, is not that surprising.  Perhaps the most significant questions moving forward will be the effect these reasons have on the doctrine of unconscionability more generally.

Iacyr de Aguilar Vieira and Gustavo Cerqueira have edited a volume on the CISG in the Americas (La Convention de Vienne en Amerique).

From the foreword of the book:

On the occasion of the Vienna Convention on Contracts for the International Sale of Goods’ 40th anniversary, its success can be evidenced by its influence in America. In fact, 19 out of the 93 member-States are found in this vast continent.

To celebrate its 40th anniversary, the Latin American section of the Société de législation comparée sought to present the Convention’s current state of application in different American countries, as well as to measure its influence on domestic sales laws.

As court decisions and scholarly writing multiply with the ratification of the Convention by American States, this presentation seeks to offer a better understanding of how the Convention is being applied and, through that, support the efforts for its uniform application. A comparative approach concludes the book. This initiative seeks not only to oppose the attempts that can be found in domestic cases to interpreting the Convention differently, but also, and on a more positive note, to promote the Convention as a model for the regulation of sales in America and Europe.

Concerning the more specifics private international law issues, the numerous analyses related to the applicability of the Convention and to the subsidiary application of national law offer very interesting insights into the conflict of laws systems of Contracting States in this part of the world. On this point, the contributions of G. Argerich (Argentina), F. Pignatta (Brazil), D. Rojas Tamoyo (Colombia), M. Paris Cruz (Costa Rica), R. A. Williams Cruz (Honduras), E. Hernández-Bretón and C. Madrid Martinez (Venezuela) will be particularly instructive.

Thus, this book is the perfect occasion to compare the Vienna Convention’s implementation in American States and to benefit from the view of American scholars on this universal instrument for the uniformization of sales of goods.

It is meant both for scholars and lawyers in the field of international commerce.

The table of contents can be downloaded here. More details are available here.

Save the date

The conference Frontiers in Civil Justice will take place at Erasmus University Rotterdam on 16 and 17 November 2020. The conference will address four key issues in civil justice, which require a deeper and renewed reflection in light of their contribution of facilitating access to justice. These are the shaping of the interaction between formal and informal justice, the digitalization of consumer dispute resolution (ODR), the collectivizing and monetizing of civil litigation and efforts of bringing justice closer to citizens. The conference will bring together academics, policymakers, practitioners and representatives of civil society to critically reflect on the opportunities and possible drawbacks ensuing from these paramount developments.

The outline of the conference, including confirmed keynote speakers, is avaible here. Further details will be made available soon.

Call for papers

For the last part of the conference we welcome abstracts on the topic ‘Innovations in Civil Justice – Bringing Justice Closer to Citizens’. Please send your abstract of max. 500 words before 31 July. Further details can be found here.

This conference is organised by Erasmus School of Law in the context of the ERC-Consolidator Research Project ‘Building EU Civil Justice: Challenges of Procedural Innovations – Bridging Access to Justice’. More information at: www.euciviljustice.eu.

The Court of Justice delivered yesterday its judgment in case C‑380/19 (Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband eV v Deutsche Apotheker- und Ärztebank eG), which is about Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on consumer alternative dispute resolution:

“Article 13(1) and (2) of Directive 2013/11 […] are to be interpreted as meaning that a trader who provides in an accessible manner on his website the general terms and conditions of sales or service contracts, but concludes no contracts with consumers via that website, must provide in his general terms and conditions information about the ADR entity or ADR entities by which that trader is covered, when that trader commits to or is obliged to use that entity or those entities to resolve disputes with consumers. It is not sufficient in that respect that the trader either provides that information in other documents accessible on his website, or under other tabs thereof, or provides that information to the consumer in a separate document from the general terms and conditions, upon conclusion of the contract subject to those general terms and conditions”.

Source: here

Thank you Gaetan Goldberg for flagging that the French Supreme Court has confimed on 19 June last, jurisdiction of the French Data Protection Agency (‘DpA’), CNIL for issuing its fine (as well as confirming the fine itself) imposed on Google for the abuse of data obtained from Android users. The Court was invited to submit preliminary references to the CJEU on the one-stop shop principle of  the GPDR, but declined to do so.

Readers of the blog know that my interest in the GDPR lies in the jurisdictional issues – I trust date protection lawyers will have more to say on the judgment.

With respect to the one stop shop principle (see in particular A56 GDPR) the Court held at 5 ff that Google do not have a ‘main establishment’ in the EU at least not at the time of the fine complained of, given that the Irish Google office (the only candidate for being the ‘main establishment) at least at that time did not have effective control over the use and destination of the data that were being transferred – US Google offices pulling the strings on that decision. A call by the CNIL under the relevant EU procedure did not make any of the other DPAs come forward as wanting to co-ordinate the action.

On the issue of consent the SC referred to CJEU Cc-673/17 Planet49 and effectively held that the spaghetti bowl of consent, ticking and unticking of boxes which an Android user has to perform to link a Google account to Android and hence unlock crucial features of Android, do not amount to consent or proper compliance with GDPR requirements.

Geert.

French SC confirmation of French DPA fine in #Android data case
On jurisdiction, rejects application of #GDPR one stop shop principle on the basis that #Google's Irish representation does not have decision power over use of the data
See 3 ff of judgmenthttps://t.co/ZVAuZnjznd https://t.co/Jqz7Mm2nfl pic.twitter.com/WBAhjdudVJ

— Geert Van Calster (@GAVClaw) June 19, 2020

Still on the application of foreign law (see my previous post here), a second topic has caught my eye: that of free access providers of legal information – the ‘Legal Information Institutes’ (‘LII’s), directly related to the ‘Free Access to Law Movement’. I have never really reflected about them; even less, about what their role could be for the purposes of facilitating access to a foreign law. I have made a little bit research on the institutions and the underlying principles, out of curiosity.

The existence of the LIIs was made possible thanks to the internet; free access to legal information would not be possible against distribution costs. As a consequence, the LII’s existence goes back only to the early 1990’s. The first institute was the Legal Information Institute at Cornell University Law School, set up in 1992 with a number of databases primarily of US federal law. The foundation of the Australasian Legal Information Institute (AustLII) followed in Sydney, Australia, in 1995. The next ones were the ZamLII (Zambia), the BAILII (UK and Ireland), the PacLII (Pacific Islands), the HKLII (Hong Kong), the SAFLII (South Africa), the NZLII (New Zealand), and the CanLII (Canada). Today, there are more of 50 LII or similar institutions –  not all of them have borrowed the “LII” suffix- over the world.

The LIIs publish legal information from more than one source, i.e., not just ‘their own’ information but also data from other LIIs, for free access via the Internet. To this aim they collaborate with each other, also at the technical level (sharing of software, technical expertise and experience on policy questions such as privacy issues), through membership of the ‘Free Access to Law Movement’ (FALM). The FALM was officially born at a Conference in Montreal in 2002, where the Declaration on Free Access to Law was adopted. The document as amended, as well as a list of all members with links to their respective websites, is accessible here.

The Montreal Declaration defines public legal information as “legal information produced by public bodies that have a duty to produce law and make it public”. It includes primary sources of law, such as legislation, case law and treaties, and various secondary (interpretative) public sources, such as reports on preparatory work and on law reform, and resulting from boards of inquiry. It also includes legal documents created as a result of public funding.

The underlying principles of the Declaration read as follows: public legal information from all countries and international institutions is part of the common heritage of humanity; maximising access to this information promotes justice and the rule of law; public legal information is digital common property and should be accessible to all on a non-profit basis and free of charge; the government bodies that create or control that information should provide access to it so that it can be published by other parties. The Declaration acknowledges, however, that while access to secondary interpretative legal materials should be for free, permission to republish is not always appropriate or possible.

The FALM aims at being global, but so far only a few LIIs are based in Europe (Austria, Cyprus, France, Germany, Ireland -and the UK-, Italy, Spain); the majority are located and represent jurisdictions outside Europe. It should be noted that some LLIs, like the WorldLII, have a global scope.

What precisely can be obtained from the LIIs, and who behind each of them is, are  tricky questions: the answer is, it depends on the LLI. Regarding the first question, all the institutes share the task of promoting and supporting free access to public legal information throughout the world, principally via the Internet. In practice, however, the number and scope of the databases varies a lot: from many of the countries they are small, but they are very substantial from others; in some cases, like Canada, Australia, Hong Kong, Ireland or the UK, the LIIs’ offer includes content not available from commercial legal publishers. Another factor to be taken into account when assessing the usefulness of an LII is the policy on re-use: in some countries where doctrines such as the Crown Copyright still apply (for example, Australia), a LII is not at liberty to permit users to reproduce its data for all purposes.

On the second question, the answer is that LIIs are mostly based in academic institutions; some include as well libraries, and some, governmental or semi-governmental bodies. From this information it is already easy to guess that funding, and particularly long-term funding, is a problem. Private sponsorship and voluntary contributions to this kind of project, which is finally in the general interest, seems to be a question of culture and tradition: popular in some countries and almost unknown in others. As a consequence, the capacity of the LIIs to perform varies from one another; the divergences appear already at the level of the design and degree of sophistication of the respective websites. How often statutes and regulations are updated, how long it takes to have a decision published after delivery, depends as well on each LII.

Because every LII (and assimilated institutions) is different, a common assessment in terms of the authenticity, reliability or update of the sources provided, would be inappropriate. However, two things are clear: documents published by LIIs have no official status; and the initiative was not adopted, nor is being implemented, primarily for foreign users. Whether local courts and professionals rely on the services of an LII is a matter of trust. What I would say is that if they do – that is, if the documents published on a particular LII are routinely used for professional purposes, and accepted by the courts to assess the state of the law at the domestic level-, there is no reason not to follow for the purposes of bringing that foreign law before a court sitting in another country. But, of course, already finding out whether this is the case may be a cumbersome task.

— Further Reading: you may want to have a look at the Journal of Open Access to Law.

Marie-Luisa Loheide is a doctoral candidate at the University of Freiburg who writes her dissertation about the relationship between the status of natural persons in public and private international law. She has kindly provided us with her thoughts on a recent ruling by the German Constitutional Court.

According to Article 116 para. 2 of the German Basic Law (Grundgesetz – GG), every descendant of former German citizens of Jewish faith who have been forcibly displaced and expatriated in a discriminatory manner by the Nazi-regime is entitled to attain German citizenship upon request. This rule has been incorporated in the Basic Law since 1949 as part of its confrontation with the systematic violations of human rights by the Nazi-regime and is therefore meant to provide reparation by restoring the status quo ante.

Descendants (“Abkömmlinge”) as referred to in Article 116 para. 2 are children, grandchildren and all future generations without any temporal constraint. Regardless of their parents’ choice of citizenship, they have a personal right to naturalisation which is exercised upon request by reactivation of the acquisition of citizenship iure sanguinis. This very wide scope is legitimated by the striking injustice done by the Nazi-regime. Yet, according to the settled case law of the Federal Administrative Court, it had been limited by a strict “but-for” test: in order to solely encompass those people affected by this specific injustice. This meant that the descendant must hypothetically have possessed German citizenship according to the applicable citizenship law at the time of its acquisition which is usually the person’s birth. To put it more clearly, one had to ask the following hypothetical question: Would the descendant be a German citizen if his or her ancestor had not been expatriated by the Nazis?

Exactly this limiting prerequisite was the crucial point of the matter decided upon by the German Constitutional Court on 17 June 2020. In the underlying case, the hypothetical question described above would have had to be answered in the negative: Until its revocation in 1993, German citizenship law stated that children of an unmarried German father and a mother of other citizenship did not acquire the German citizenship of their father but only that of their mother, contrary to today’s principle of ius sanguinis-acquisition. As in casu the daughter of a forcibly displaced and expatriated former German emigrant of Jewish faith and a US-American mother was born outside marriage in 1967, she was denied the acquisition of the German citizenship. Whereas this was not criticised by the administrative courts seised, the German Constitutional Court in its ruling classified the denial as an obvious violation of the principle of equal treatment of children born within and outside marriage underlying Article 6 para. 5 GG as well as the principle of equal treatment of women and men according to Article 3 para. 2 GG, as alleged by the plaintiff. In its reasoning, the Court emphasised that an exception from the principle of equal treatment of children born outside marriage could only be made if absolutely necessary. This corresponds to the case-law of the European Court of Human Rights on Article 14 of the ECHR that a difference in treatment requires “very weighty reasons”. The former non-recognition of the family relationship between an unmarried father and his child, however, did obviously contradict the stated constitutional notion without being justified by opposing constitutional law. Out of two possible interpretations of “descendant” as referred to in Article 116 para. 2 GG the court must have chosen the one that consorts best with the constitution. According to the Constitutional Court, the more generous interpretation of descendant also prevents a perpetuation of the outdated notion of inferiority of children born outside marriage through Article 116 para 2 GG and corresponds to its purpose of reparation.

As the notion of inferiority of children born outside marriage has fortunately vanished, a clarifying judgment was highly overdue and is therefore most welcome. It is not acceptable that outdated notions are carried to the present through a provision of the Basic Law that is meant to provide reparation of Nazi crimes. Especially in post-Brexit times, the question dealt with has become more and more urgent with respect to people reclaiming their German citizenship in order to maintain their Union citizenship and the rights pertaining to it (see here).

In regard to conflicts law, this clarification of a key question of citizenship law is relevant to the determination as a preliminary issue (incidental question or Vorfrage) when nationality is used as a connecting factor. The judgment is likely to lead to more cases of dual citizenship that are subject to the ambiguous conflicts rule of Art. 5 para. 1 sentence 2 EGBGB.

A short update on the Prestige litigation. I reported earlier on the disclosure order in the recognition leg of the case. In that review I also listed the issues to be decided and the preliminary assessment under Title III Brussels Ia. That appeal is to be heard in December 2020 (see also 21 ff of current judgment). In The London Steam-Ship Owners’ Mutual Insurance Association Ltd v Spain (M/T “PRESTIGE”) [2020] EWHC 1582 (Comm) Henshaw J on 18 June held on yet another set of issues, related to arbitration and State Immunity.

He concluded after lengthy analysis to which it is best to refer in full, that Spain does not have immunity in respect of these proceedings; that the permission to serve the arbitration obligation our of jurisdiction, granted earlier to the Club should stand; and that the court should appoint an arbitrator.

I am pondering whether to add a State immunity chapter to the 3rd ed. of the Handbook – if I do, this case will certainly feature.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.1, Heading 2.2.11.2, Heading 2.2.16.

William S. Dodge (University of California, Davis) and Wenliang Zhang (Renmin University of China) have posted Reciprocity in China-U.S. Judgments Recognition on SSRN.

The abstract reads:

The conventional wisdom is that China and the United States do not recognize each other’s court judgments. But this is changing. A U.S. court first recognized a Chinese judgment in 2009, and a Chinese court first reciprocated in 2017. This Article provides an overview of the enforcement of U.S. judgments in China and Chinese judgments in the United States, noting the similarities and differences in the two countries’ systems. In China, rules for the enforcement of foreign judgments are established at the national level and require reciprocity. In the United States, rules for the enforcement of foreign judgments are established at the state level and generally do not require reciprocity. This Article also looks at possibilities for future cooperation in the enforcement of foreign judgments, through a bilateral treaty, a multilateral convention, and the application of domestic law. It concludes that progress in the recognition and enforcement of China-U.S. judgments is most likely to come from continued judicial practice under existing rules and from China’s shifting approach to reciprocity.

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

The EU Commission is organising a consultation on whether the EU should accede to the Judgments Convention. Responses to the questionnaire may be submitted until 5 October 2020.

If you are interested, see here

Yesterday, EU Parliament and Council of the EU negotiators reached a deal on the first EU-wide rules on collective redress, which will take the form of a Directive to be implemented within the usual 2 years period.

Here is the official presentation of the rules: “The new rules introduce a harmonised model for representative action in all member states that guarantees consumers are well protected against mass harm, while at the same time ensuring appropriate safeguards from abusive lawsuits. The new law also aims to make the internal market function better by improving tools to stop illegal practices and facilitating access to justice for consumers”. […]

Main elements of the agreement:

At least one representative action procedure for injunction and redress measures should be available to consumers in every member state, allowing representative action at national and EU level;

Qualified entities (organisations or a public bodies) will be empowered and financially supported to launch actions for injunction and redress on behalf of groups of consumers and will guarantee consumers’ access to justice;

On designation criteria for qualified entities, the rules distinguish between cross-border cases and domestic ones. For the former, entities must comply with a set of harmonised criteria. They have to demonstrate 12 months of activity in protecting consumers’ interest prior to their request to be appointed as a qualified entity, have a non-profit character and ensure they are independent from third parties whose economic interests oppose the consumer interest;

For domestic actions, member states will set out proper criteria consistent with the objectives of the directive, which could be the same as those set out for cross-border actions;

The rules strike a balance between access to justice and protecting businesses from abusive lawsuits through the Parliament’s introduction of the “loser pays principle”, which ensures that the defeated party pays the costs of the proceedings of the successful party;

To further avoid abusive lawsuits, Parliament negotiators also insisted that courts or administrative authorities may decide to dismiss manifestly unfounded cases at the earliest possible stage of the proceedings in accordance with national law;

Negotiators agreed that the Commission should assess whether to establish a European Ombudsman for collective redress to deal with cross-border representative actions at Union level;

The scope of collective action would include trader violations in areas such as data protection, financial services, travel and tourism, energy, telecommunications, environment and health, as well as air and train passenger rights, in addition to general consumer law”.

Source: here

The EU has opened a Public Consultation into a possible accession to the 2019 HCCH Judgments Convention. The Consultation will run from 22 June 2020 – 05 October 2020 (midnight, Brussels time).

The Consultation is expansive and the target audience is described as follows: businesses and citizens involved or likely to get involved in international trade and investment; public authorities (including justice professionals); social partners organisations (trade unions and employers organisations), trade, business and professional associations, including consumer and business organisations, as well as professional organisations representing lawyers and members of research or academic institutions.

Importantly, the Consultation is not limited to EU Stakeholders. Rather, the EU expressly invites non-EU Stakeholders to participate and have their say.

Given the importance of being able to manage cross-border enforcement risks and validate rights through a predictable, effective and efficient international enforcement mechanism, this Consultation should attract many submissions from around the globe.

The questionnaire, which is available, and can be filled in, in any official EU language, as well as further information concerning the Consultation, can be found following this link.

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

E. Schollmeyer: The effect of the entry in the domestic register is governed by foreign law: Will the new rules on cross-border divisions work?

One of the most inventive conflict-of-law rules that secondary law of the European Union has come up with, can be discovered at a hidden place in the new Mobility Directive. Article 160q of the Directive assigns the determination of the effective date of a cross-border division to the law of the departure Member State. The provision appears as an attempted clearance of the complicated brushwood of the registration steps of a cross-border division of a company. This article explores whether the clearance has been successful.

F. Fuchs: Revolution of the International Exchange of Public Documents: the Electronic Apostille

The Apostille is of utmost importance for the exchange of public documents among different nations. The 118 states currently having acceded to the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents issue, altogether, several millions of Apostilles per year in order to certify the authenticity of public documents emanating from their territory. Some years ago, the electronic Apostille was implemented, which allows states to issue their Apostilles as an electronic document. Interested parties may verify the authenticity of such an electronic document via electronic registers which are accessible on the internet. Whereas Germany has not yet acceded to that new system, 38 other jurisdictions already have done so.

G. Mäsch: Third Time Lucky? The ECJ decides (again) on the place of jurisdiction for cartel damages claims

In three decisions now the ECJ has dealt with the question of where the “place of the causal event” and the “place where the damage occurred” are to be located in order to determine, based on the ubiquity principle enshrined in Article 7(2) of the Brussels Ibis Regulation, the place of jurisdiction for antitrust damages (tort) claims. In this paper the overall picture resulting from the ECJ decisions in CDC Hydrogen Peroxides, flyLAL-Lithuanian Airlines and now Tibor-Trans is analysed. The place of the “conclusion” of a cartel favoured by the ECJ to determine the place of the causal event is not only unsuitable in the case of infringements of Art. 102 TFEU (abuse of a dominant market position), but also in cases of infringement of Art. 101 TFEU (prohibition of cartels). The same criticism applies to the ECJ’s localisation of the place where the damage occurred at the place where the competition is impaired and the victim of the cartel or the abuse of the dominant market position (claimant) sustained the financial loss. In this paper it is suggested to dock the place of the causal event to the actual seat(s) of the cartel offender(s) and the place where the damage occurred exclusively to the affected market.

J. Kleinschmidt: Jurisdiction of a German court to issue a national certificate of succession (‘Erbschein’) is subject to the European Succession Regulation

The European Succession Regulation provides little guidance as to the relationship between the novel European Certificate of Succession and existing national certificates. In a case concerning a German “Erbschein”, the CJEU has now clarified an important aspect of this relationship by holding that jurisdiction of a Member State court to issue a national certificate is subject to the harmonised rules contained in Art. 4 et seq. ESR. This decision deserves approval because it serves to avoid, as far as possible, the difficult problems ensuing from the existence of conflicting certificates from different Member States. It remains, however, an open question whether the decision can be extended to national certificates issued by notaries.

K. Thorn/K. Varón Romero: The Qualification of the Lump-Sum Compensation for Gains in the Event of Death Pursuant to Section 1371 (1) of the German Civil Code (BGB) in Accordance with the Regulation (EU) No. 650/2012

In “Mahnkopf” the CJEU had to decide whether the material scope of application of the Regulation (EU) No. 650/2012 of the European Parliament and of the Council of 4/7/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession also covers national provisions which, like Section 1371 (1) of the German Civil Code (BGB), grant the surviving spouse a lump-sum compensation for gains after the death of the other spouse by increasing his or her inheritance. Hence, this was a question of the qualification of Section 1371 (1) BGB, which had been discussed controversially in Germany for a long time and had only been clarified on a national level in 2015. The CJEU decided in favour of a qualification under inheritance law at the level of Union law, and thus took a view which contradicts that of the Federal Court of Justice (BGH) for national conflict of laws. The authors agree with the result of the CJEU but criticise the methodical approach to the implementation of the functional qualification. The article identifies the new questions and problems that will now have to be clarified by the German courts as a result of the CJEU decision and in this context analyses two recent decisions of Higher Regional Courts. The authors note that in the context of Section 1371 (1) BGB, the question of the (temporal) scope of application of the Regulation is likely to become more important in the future, asotherwise, in their opinion, the BGH case law will still have to be considered. Accordingly, in the opinion of the authors, for future German jurisdiction much will depend on whether the BGH adapts its previous case law to that of the CJEU.

P. Mankowski: Recognition and free circulation of names ‘unlawfully’ acquired in other Member States of the EU

The PIL of names is one of the strongholds of the recognition principle. The touchstone is whether names “unlawfully” acquired in other Member States of the EU must also be recognised. A true recognition principle implies that any kind of révision au fond is interdicted. Yet any check on the “lawfulness” or “unlawfulness” of acquiring a certain name abroad amounts to nothing else than a révision au fond.

M. Gernert: Termination of contracts of Iranian business relations due to US sanctions and a possible violation of the EU Blocking Regulation and § 7 AWV

US secondary sanctions are intended to subject European economic operators to the further tightened US sanctions regime against Iran. In contrast, the socalled Blocking Regulation of the European Union is intended to protect European companies from such extraterritorial regulations and prohibits to comply with certain sanctions. In view of the great importance of the US market and the intended uncertainty in the enforcement of US sanctions, many European companies react by terminating contracts with Iranian business partners in order to rule out any risk of high penalties by US authorities. This article examines if and to what extent the Blocking Regulation and § 7 AWV influence the effectiveness of such terminations.

B. Rentsch: Cross-border enforcement of provisional measures – lex fori as a default rule

Titles from provisional measures are automatically recognised and enforced under the Brussels I-Regulations. In consequence, different laws will apply to a title’s enforceability (country of the rendering of the provisional measure) and ist actual enforcement (country where the title is supposed to take effect). This sharp divide falls short of acknowledging that questions of enforceability and the actual conditions of enforcement are closely entangled in preliminary measure proceedings, especially the enforcement deadline under Sec. 929 para. 2 of the German Code of Civil Procedure (ZPO). The European Court of Justice, in its decision C-379/17 (Societ  Immobiliare Al Bosco Srl) refrained from creating a specific Conflicts Rule for preliminary measures and ruled that the deadline falls within the scope of actual enforcement. This entails new practical problems, especially with regard to calculating the deadline when foreign titles are involved.

A. Spickhoff: “Communication torts” and jurisdiction at the place of action

Communication torts in more recent times are mostly discussed as “internet torts”. Typically, such torts will be multi-state torts. In contrast, the current case of the Austrian Supreme Court concerns the localisation of individual communication torts. The locus delicti commissi in such cases has been concretised by the Austrian Supreme Court according to general principles of jurisdiction. The locus delicti commissi, which is characterised by a falling apart of the place of action and place of effect, is located at the place of action as well as at the place of effect. In the event of individual communication torts, the place of effect is located at the victim’s place of stay during the phone call or the message arrival. The place of action has to be located at the sending location. On the other hand, in case of claims against individual third parties, the place of effect is located at the residence of the receiver. The Austrian Supreme Court remitted the case to the lower court for establishing the relevant facts for jurisdiction in respect of the denial of the plaintiff’s claim. However, the court did not problematise the question of so-called “double-relevant facts”. The European Court of Justice, in line with the judicial practice in Austria and Germany, has accepted a judicial review of the facts on jurisdiction only with respect to their conclusiveness.

R. Rodriguez/P. Gubler: Recognition of a UK Solvent Scheme of Arrangement in Switzerland and under the Lugano Conventions

In recent years, various European companies have made use of the ability to restructure their debts using a UK solvent scheme of arrangement, even those not having their seat in the UK. The conditions and applicable jurisdictional framework under which the scheme of arrangement can be recognised in jurisdictions outside the UK are controversial. In Switzerland doctrine and jurisprudence on the issue are particularly scarce. This article aims to clarify the applicable rules of international civil procedural law as well as the requirements for recognition of a scheme of arrangement in Switzerland. It is held that recognition should be generally granted, either according to the 2007 Lugano Convention or, in a possible “no-deal Brexit” scenario, according to the national rules of private international law, or possibly even the 1988 Lugano Convention.

T. Helms: Foreign surrogate motherhood and the limits of its recognition under Art. 8 ECHR

On request of the French Court of Cassation the Grand Chamber of the European Court of Human Rights has given an advisory opinion on the recognition of the legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and its intended mother who is not genetically linked to the child. It held that Art. 8 ECHR requires that domestic law provides a possibility of recognition of a legal parent-child relationship with the intended mother. But it falls within states’ margin of appreciation to choose the means by which to permit this recognition, the possibility to adopt the child may satisfy these requirements.

On 22 June 2020, Parliament and Council negotiators reached a deal on the first EU-wide rules on collective redress.

The new rules introduce a harmonised model for representative action in all member states that guarantees consumers are well protected against mass harm, while at the same time ensuring appropriate safeguards from abusive lawsuits. The new law also aims to make the internal market function better by improving tools to stop illegal practices and facilitating access to justice for consumers.

The Representative Action Directive is a part of the New Deal for Consumers, launched in April 2018 by the European Commission, to ensure stronger consumer protection in the EU. It includes stronger consumer rights online, tools to enforce rights and compensation, penalties for violating EU consumer law and improved business conditions.

The main elements of the agreement are as follows.

1. Each Member State will name at least one qualified entity (an organisation or a public body) that will be empowered and financially supported to launch actions for injunction and redress on behalf of groups of consumers and will guarantee consumers’ access to justice.

2. On designation criteria for qualified entities, the rules distinguish between cross-border cases and domestic ones. For the former, entities must comply with a set of harmonised criteria. They have to demonstrate 12 months of activity in protecting consumers’ interest prior to their request to be appointed as a qualified entity, have a non-profit character and ensure they are independent from third parties whose economic interests oppose the consumer interest;

3. For domestic actions, member states will set out proper criteria consistent with the objectives of the directive, which could be the same as those set out for cross-border actions.

4. The rules strike a balance between access to justice and protecting businesses from abusive lawsuits through the Parliament’s introduction of the “loser pays principle”, which ensures that the defeated party pays the costs of the proceedings of the successful party-

5. To further avoid abusive lawsuits, Parliament negotiators also insisted that courts or administrative authorities may decide to dismiss manifestly unfounded cases at the earliest possible stage of the proceedings in accordance with national law.

6. Negotiators agreed that the Commission should assess whether to establish a European Ombudsman for collective redress to deal with cross-border representative actions at Union level.

7.  The scope of collective action would include trader violations in areas such as data protection, financial services, travel and tourism, energy, telecommunications, environment and health, as well as air and train passenger rights, in addition to general consumer law.

Parliament as a whole and the Council will now have to approve the political agreement. The directive will enter into force 20 days following its publication in the Official Journal of the EU. Member states will then have 24 months to transpose the directive into their national laws, and an additional six months to apply it.

Click here to access the procedure file.