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The 6th Petar Sarcevic International Scientific Conference titled “Intellectual Property Rights in the EU: Going Digital” will be held in Zagreb, Croatia, on 18 and 19 October 2019. The conference is structured in three sessions and will gather EU and national judges, practitioners and academics to discuss current topics in copyright, trademarks and designs, along with the issues in IP enforcement. The conference is co-organised by the Croatian IP Office,the Faculty of Law of the University of Rijeka and the Croatian Comparative Law Association, while the main supporter is the EUIPO.

The conference is in Croatian and English with simultaneous translation.

More information is available at the conference web page: ps6conference.law.hr or at ikunda@pravri.hr.

Authors: Jie (Jeanne) Huang and Winston Ma

Following the promulgation of the judicial interpretation by the Supreme People’s Court (“SPC”) on 26 September 2019, Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region (“Arrangement”) signed by Mainland China and Hong Kong on 2 April 2019 came into effect in Mainland China from 1 October 2019. This Arrangement provides mutual recognition and enforcement of interim measures between Hong Kong and Mainland China. It has generated broad coverage.[1] This post tries to add to the discussion by providing the first case decided under the Arrangement on 8 October 2019, and more broadly, the reflections on the continuing protests in Hong Kong and arbitration under “One Country, Two Systems’.

1. Mutual recognition and enforcement of interim measures between Hong Kong and Mainland China

Hong Kong Arbitration Ordinance has long been allowing parties to arbitral proceedings in any place to apply to the courts of Hong Kong for interim measures. Interim measures include injunction and other measures for the purpose of maintaining or restoring the status quo pending determination of the dispute; taking action that would prevent, or refraining from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral proceedings; preserving assets; or preserving evidence that may be relevant and material to the resolution of the dispute. However, in contrast to the liberal Hong Kong counterpart, people’s courts in Mainland China are conservative. Chinese law limits interim measures to property preservation, evidence preservation and conduct preservation. More important, Mainland courts generally only enforce interim measures in support of arbitration administered by domestic or foreign-related arbitration institutions of the People’s Republic of China (PRC). This is because Article 272 of Chinese Civil Procedure Law provides that where a party applies for a preservation measure, the foreign-related arbitral institution of PRC shall submit the party’s application to the intermediate people’s court at the place of domicile of the respondent or at the place where the respondent’s property is located. Article 28 of Chinese Arbitration Law states that if one of the parties applies for property preservation, the arbitration commission shall submit to a people’s court the application of the party in accordance with the relevant provisions of the Civil Procedure Law. Article 10 of Chinese Arbitration Law restricts arbitration institutions to those registered with the judicial administrative department of the relevant province, autonomous region or municipalities directly under the Central Government.[2]

There are few exceptions to the Mainland conservative approach. First, since 2017, ad hoc arbitration has been permitted in China’s pilot free trade zones.[3] Therefore, Mainland courts are likely to issue interim measures in support of such ad hoc arbitration. Second, a party to a maritime arbitration seated outside of Mainland China can apply for property preservation to the Chinese maritime court of the place where the property is located.[4] However, the property to be preserved was limited to vessels, cargos carried by a vessel, and fuel and supplies of a vessel.[5]

The third exception is created by the recent Arrangement. Arbitral proceedings commenced both before and after 1 October 2019 are potentially caught by the Arrangement, under which property, evidence and conduct preservation orders could be granted by the courts in Mainland China to assist the Hong Kong arbitration.

The scope of the Arrangement confines to arbitral proceedings seated in Hong Kong and administered by institutions or permanent offices meeting the criteria under Article 2 of the Arrangement. Six qualified institutions have been listed on 26 September 2019, being Hong Kong International Arbitration Centre (“HKIAC”), ICC Hong Kong, CIETAC Hong Kong, Hong Kong Maritime Arbitration Group, eBRAM International Online Dispute Resolution Centre and South China International Arbitration Centre (Hong Kong). Future applications will also be considered and the list may be subject to alteration.

Articles 3-5 of the Arrangement set out the procedural requirements for applying to the courts in Mainland China for interim measures. Since time is of essence, application can be made by a party to the arbitration directly to the relevant Mainland Chinese court before an arbitration is accepted by an arbitration institution.[6] If the arbitration has been accepted, the application should be submitted by the arbitration institution or representative office.[7]

Article 8 of the Arrangement further reflects the importance of timeliness by demanding the requested court to make a decision after examining the application “expeditiously”. Nevertheless, the Arrangement is silent on the specific time limit applicable to the court’s examination process. Pursuant to Article 93 of the Chinese Civil Procedure Law, the court is to make an order within 48 hours after receiving an application for property preservation prior to the commencement of arbitration; Furthermore, Article 4 of the Provisions of the SPC on Several Issues concerning the Handling of Property Preservation Cases by the People’s Courts demands the court to make an order within 5 days after the security is provided, and within 48 hours in cases of emergency.

The first case decided under the Arrangement demonstrates how “expeditiously” a people’s court can make a decision. In the morning of 8 October 2019, the Shanghai Maritime Court received a property preservation application submitted by HKIAC. In this case, the arbitration applicant is a maritime company located in Hong Kong and the respondent is a company in Shanghai. They concluded a voyage charter party which stated that the applicant should provide a vessel to transport coal owned by the respondent from Indonesia to Shanghai. However, the respondent rescinded the charter party and the applicant claimed damages. Based on the charter party, they started an ad hoc arbitration and ultimately settled the case. According to the settlement agreement, the respondent should pay the applicant USD 180,000. However, the respondent did not make the payment as promised. Consequently, the respondent brought an arbitration at the HKIAC according to the arbitration clause in the settlement agreement. Invoking the Arrangement, through the HKIAC, the applicant applied to the Shanghai Maritime People’s Court to seize and freeze the respondent’s bank account and other assets. The Shanghai Court formed a collegial bench and issued the property preservation measure on the same date according to the Arrangement and Chinese Civil Procedure Law.

2. Protests in Hong Kong

As the first and so far the only jurisdiction with the special Arrangement through which parties to arbitration can directly apply to Mainland Chinese courts for interim measures, Hong Kong has been conferred an irreplaceable advantage while jockeying to be the most preferred arbitration seat for cases related to Chinese parties. Arbitration that is ad hoc or seated outside Hong Kong cannot enjoy the benefits of the Arrangement. Parties to an arbitration seated in Hong Kong are encouraged to select one of the listed institutions to take advantage of the Arrangement. Meanwhile, the Arrangement also attracts prominent international arbitration institutions to establish permanent offices in Hong Kong.

One may argue that the Arrangement is the necessary consequence of the “One Country, Two Systems” principle and the increasingly close judicial assistance between Mainland China and Hong Kong. Especially in the context of China’s national strategy to develop the Greater Bay Area, the notion of “one country, two systems, three jurisdictions” makes Hong Kong the only common-law jurisdiction to deal with China-related disputes.[8]

However, to what extent may the recent protests negatively impact on the arbitration industry in Hong Kong? Notably, London and Paris have also experienced legal uncertainly (Brexit in the UK) and protests (Yellow vests movement in France) in recent years. Nevertheless, the Hong Kong situation is more severe than its western counterparts in two aspects. First, currently, the protestors have impacted on the traffic inside Hong Kong. Last month, they even blocked the Hong Kong airport. It is not surprising that parties may want to move the hearings outside of Hong Kong just for the convenience of traffic, if the arbitration is still seated in Hong Kong. Second, the continuation of protests and the uncertainty of the Chinese government’s counter-measures may threaten parties’ confidence in choosing Hong Kong as the seat for arbitration. The Arrangement brings an irreplaceable advantage to Hong Kong to arbitrate cases related with Chinese parties. However, this significance should not be over-assessed. This is because by choosing a broad discovery and evidence rule, parties and tribunals have various means to deal with the situation where a party wants to hide a key evidence. Arbitration awards can be recognized and enforced in all jurisdictions ratified the New York Convention. Therefore, the value of the Arrangement is mainly for cases where the losing party only has assets in Mainland China for enforcement.

The flourish of arbitration in Hong Kong is closely related to Mainland China. However, Hong Kong, if losing its social stability due to the protests, will lose its arbitration business gradually. In the Chinese Records of the Grand Historian (Shiji by Han dynasty official Sima Qian), there is a famous idiom called “cheng ye xiao he bai ye xiao he”.[9] It means the key to one’s success is also one’s undoing. It is the hope that Mainland China and Hong Kong can find a solution quickly so that the arbitration industry in Hong Kong can continue to be prosperous. This is more important than the implementation of the Arrangement.

Authors:

Jie (Jeanne) Huang is an associate professor at University of Sydney Law School, Australia, jeanne.huang@sydney.edu.au.

Winston Ma is an LLB student at University of Sydney Law School, Australia

[1] E.g. http://arbitrationblog.kluwerarbitration.com/2019/07/24/arrangement-concerning-mutual-assistance-in-court-ordered-interim-measures-interpretations-from-a-mainland-china-perspective-part-i/?_ga=2.249539525.310814453.1570572449-887368654.1570572449.

[2] There are different opinions regarding whether Article 10 and 28 of Chinese Arbitration Law restrict the interim measures to arbitration administered by Chinese arbitration institutions. See the judgment of [2016] E 72 Cai Bao No. 427 issued by Wuhan Maritime Court. In this case, the Ocean Eleven Shipping Corporation initiated an arbitration in HKIAC against Lao Kai Yuan Mining Sole Co., Ltd. The applicant was a company in South Korea and the respondent a Chinese company. The parties had disputes over a voyage charter party. In order to ensure the enforcement of the coming award in Mainland China, the applicant applied to Wuhan Maritime Court to freeze USD 300,000 in the respondent’s bank account or seizure, impound or freeze other equivalent assets. The People’s Insurance Company provided equivalent insurance for the applicant’s property preservation application. Wuhan Maritime Court permitted the property preservation application according to Article 28 of Chinese Arbitration Law and Article 103 of the Civil Procedure Law. However, this case is inconsistent with majority cases where Chinese courts rejected to issue interim measures for arbitration administered by ad hoc or arbitration institutions registered outside of Mainland China.

[3] SPC Opinions on Providing Judicial Safeguard for the Building of Pilot Free Trade Zones, Fa Fa [2016] No. 34, http://www.court.gov.cn/fabu-xiangqing-34502.html.

[4] Art. 21(2) of the Interpretation of the SPC on the Application of the Special Maritime Procedure Law of the PRC, Fa Shi [2003] No. 3.

[5] Ibid., art. 18.

[6] Art. 3 of the Arrangement.

[7] Ibid., art. 2.

[8] China has made the economic integration between the Grater Bay Area a national strategy. The Grater Bay Area includes Hong Kong, Macao and Guangdong Province https://www.bayarea.gov.hk/sc/outline/plan.html.

[9] https://en.wiktionary.org/wiki/%E6%88%90%E4%B9%9F%E8%90%A7%E4%BD%95%EF%BC%8C%E8%B4%A5%E4%B9%9F%E8%90%A7%E4%BD%95.

China is one of few countries that permits the parties to choose the applicable law governing cross-border infringement of intellectual property disputes. Article 50 of the Chinese Law Applicable to Foreign-Related Civil Relations 2010 (Conflicts Act) provides that the parties could choose Chinese law (lex fori) after dispute has arisen to derogate from the default applicable law, i.e. lex loci protectionis, in IP infringement disputes.

This choice of law rule was applied by the Beijing IP Court in its 2017 decision on Xiang Weiren v  Peng Lichong (“Drunken Lotus”), (2015) Jing Zhi Min Zhong Zi 1814. The claimant published his painting “Drunken Lotus” in 2007. In 2014, the defendant exhibited his artwork entitled “Fairy in Lotus” in Mosco and Berlin, which allegedly had infringed the claimant’s copyrights. Although the parties did not enter into an explicit choice of law agreement, both parties submitted their legal arguments based on Chinese Copyright Law, which was deemed an “implied” ex post choice of Chinese law. Beijing IP Court thus applied Chinese law to govern the infringement dispute.

This case reveals a number of interesting points. Party autonomy may provide a practical alternative to lex loci protectionis in infringements occurring in multiple jurisdictions. In the Drunken Lotus case, applying lex loci protectionis would result in the application of two foreign laws, Russian and German law, respectively to the infringement occurred in Russia and Germany. In the even worse scenario, where a copyright is infringed in the internet, the territoriality nature of copyrights may result in multiple, similar but independent, infringements occurring in all countries where the online information is accessed, causing more difficulties for the claimant to enforce their rights based on multiple applicable laws.

However, there may be no convincing argument to limit the choice to the lex fori. If party autonomy is justifiable in IP infringement, which is controversial, it would be appropriate for the parties to choose any law. The only justification of such a limitation probably sterns from judicial efficiency and pragmatism. It would be more convenient for the court to apply its own law. Also in practice, it is very common that when the litigation is brought in China and especially where both parties are Chinese, the parties naturally rely on Chinese law to support their claims or defences without being aware of the potential choice of law questions. It renders “implied” ex post choice exist very frequently and make it legitimate for Chinese court to apply Chinese law in most circumstances. It is also likely that allowing the parties to choose the lex fori could be an attractive reason for the claimants, especially those in multi-jurisdiction infringement disputes, to bring the action in China, granting Chinese court a competitive advantage versus other competent jurisdictions.

Furthermore, the Chinese law only permits party autonomy in infringement of IPRs. Any issues concerning substance of IPRs, including ownership, content, scope and validation, are exempt from party autonomy (Art 48 of Contracts Act). These issues are usually classified as the proprietary perspective of IPRs, exclusively subject to the lex protectionis to the exclusion of party autonomy. However, before a court could properly consider the infringement issue, it is inevitable to know at least the content and scope of the disputed IPR in order to ascertain parties’ rights and obligations. In other words, the substance and infringement of IPRs are two different, but closely related, issues. Applying party autonomy means the court should apply two different laws, one for the substance and the other infringement, causing depacage. The necessity to decide the content of IPRs may largely reduce the single law advantage brought by party autonomy in multi-jurisdictional infringements. In the Drunken Lotus case, Chinese court simply applied Chinese law to both the content and infringement issues, without properly considering substance and infringement classification.

Conference on Due Process in International Commercial Arbitration will be held on 18 Oct 2019 at the New York University Lester Pollack Colloquium Room, organised by NYU Centre for Transnational Litigation, Arbitration and Commercial Law.

This event will discuss the topics addressed in the national reports drafted on the basis of a questionnaire prepared by Professors Franco Ferrari, Dietmar Czernich, and Friedrich Rosenfeld. The ultimate goal behind the national reports and the discussion that will take place at the conference is to provide the necessary background information for the preparation of a set of guidelines on due process in international arbitration. The purpose of these guidelines is twofold. On the one hand, they will identify the appropriate standard of due process that arbitrators should apply in international arbitration proceedings. On the other hand, they will contain recommendations on how arbitrators can respond to misuses of due process by recalcitrant parties. To this end, they will identify appropriate case management techniques that help to ensure the efficiency of the proceedings. For further information, please find the Due Process Conference Program October 2019.

Parties’ names alone in Elena Tsareva et al v Dimitri Ananyev et al [2019] EWHC 2414 (Comm) clearly indicate the attraction of England in international forum shopping. As Baker J notes at 5:

‘I infer that the choice of this jurisdiction as a venue for the claimants’ claims has been led by the lawyers (Russian and English) who have engaged themselves in assisting the claimants as disappointed investors. Indeed, I think it unlikely it would have occurred to the claimants, unless so led, to try to sue here. The most natural targets for any claim are PSB and (possibly) the first defendant, so the most natural venues for any litigation (all things being equal) are Russia and (perhaps) Cyprus. But none of that means that this court does not have jurisdiction.’

One, as always, wonders where these cases might go should following Brexit (if any) the English courts will regain full authority to apply forum non conveniens.

The Ananyevs are Russian nationals who were domiciled and resident in Russia in 2017. One of them, when the Claims were commenced in 2018, was domiciled and resident in Cyprus, where he has had a dual citizenship since June 2017. They are, or at all events they were in 2017, well-known in Russia as successful and very wealthy businessmen. They were the ultimate beneficial owners together of a number of businesses and assets, including Promsvyaz Bank – PSB, of whom claimants were clients. The core allegation underlying the claimants’ claims is that they were induced to invest in Notes by mis-selling on the part of PSB employees to the effect that the Notes were personally guaranteed by the Ananyevs and/or that they were safe investments. It is alleged that PSB was in a parlous financial condition rendering it highly likely the Notes would default, as in due course they did; and that the misselling was directed by the Ananyevs in a conspiracy to enrich themselves and/or their businesses at the expense of the claimants.

Some of the corporate defendants are English companies, although ‘tax-resident’ in Ireland in 2017, in Cyprus from some time later (and still now). The English companies cannot and do not challenge jurisdiction (but they are struck out nevertheless given the absence of foundation to the claims). Promsvyaz is a Dutch company, the Issuer is a Cayman Islands company, and Peters International is a Dutch Antilles company. Other defendants are Cypriot companies.

There are a great many claimants with varying suggested gateways for jurisdiction, and one best read the judgment to get the full picture. In short, however, the gateways relevant to the Brussels regime (this blogpost does not focus on the English rules) are Article 4, 7(2), and 8(1). At 29, Baker J emphasises that for the anchor claim under Article 8(1), unlike in the English CPR rules, there cannot be a merits claim. But there can be abuse, per CJEU Reisch Montage, and CDC, as recently also applied in Privatbank v Kolomoisky. Unlike in the latter case, Article 34 is not engaged here. Baker J concludes after considerate yet concise analysis that there is no good arguable case against the English defendants, the claim against them is hopeless, and therefore the anchor mechanism is abused. As always in these cases, walking the rope between merits analysis and ‘good arguable case’ is not straightforward yet the judgment shows again how the English courts deploy creativity to ensure the anchor mechanism of Article 8(1) is not abused.

At 51, the tort gateway of Article 7(2) against the non-English EU defendants is dismissed with reference to Lober. Claimants suffered loss by parting with their funds deposited with PSB in Russia (or, perhaps, by contracting with PSB in Russia to do so); there is no indication of links to England, as required by Lober (applying Universal Music).

The above only narrates the essence of the Brussels Ia analysis. There is quite a bit more in the judgment of relevance to the CPR rules.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2.

Starting with the infamous and fundamentally flawed Laws of Fear by Cass Sunstein, Europe’s precautionary principle has been under constant attack by industry both within and outside of the EU. My postings on the principle here and the section on it in my Handbook of EU environmental law with Leonie Reins attempt to show that despite industry propaganda against it, the principle has never been a blind ‘when in doubt, don’t do it’ approach to risk management.

In C-616/17 Blaise and others, the Court once again shows its measured approach. Defendants in national criminal proceedings, argued that they should be let off in a criminal damage prosecution. They are environmental activists and are charged with causing criminal damage to containers of herbicidal products (specifically ‘Roundup’) containing the chemical glyphosate. In their defence, they argue that the products present an unacceptable potential risk to human health and the environment and that the EU approval process is defective and therefore unlawful.

The Court found that the approval process on the basis of EU law is entirely in line with EU law, including the precautionary principle. Steptoe have excellent overview here and I am happy to refer entirely.

Geert.

EU environmental law (with Leonie Reins), Edward Elgar, 2018, p.28 ff.

On the occasion of the 40th anniversary of the Austrian Private International Law Act, the Interdisciplinary Association of Comparative and Private International Law (IACPIL/IGKK) will be hosting a lecture series in Vienna, starting from 11 December 2019. The lectures will address the future role of the national PIL codifications of EU member states and the application of the Austrian Act during the last decades. Given the comparative focus of the lectures, the organisers are kindly inviting colleagues from all jurisdictions to attend and participate in the discussions. The working languages will be German and English.

A flyer with more information can be found here, the address for registration is office@igkk.org.

Written by Zeno Crespi Reghizzi, Associate Professor of International Law at the University of Milan

The recognition of punitive damages represents a controversial issue in Europe. For many years, due to their conflict with fundamental principles of the lex fori, punitive damages have been found to be in breach of public policy by some European national courts. This has prevented the recognition and enforcement of foreign judgments awarding them, or (more rarely) the application of a foreign law providing for these damages.

More recently, the negative attitude of European courts vis-à-vis punitive damages has been replaced, at least in some States, by a more open approach. The latest example is offered by a revirement of the Italian Supreme Court case law as per its judgment no 16601 of 5 July 2017.

This book – edited by Stefania Bariatti, Luigi Fumagalli, and Zeno Crespi Reghizzi and published by Wolters Kluwer-CEDAM – intends to explore the relationship between punitive damages and European private international law from different angles. After introducing the topic from a comparative law perspective, the chapters of this book examine, in particular, the purpose and operation of public policy as applied to punitive damages, the solutions adopted by the case law of various European States, the treatment of punitive damages in international commercial arbitration, and the emerging trends in EU and ECHR law.

The contributions have been prepared by leading legal scholars from different jurisdictions and are based on papers presented at a conference that took place on 11 May 2018 at the Department of Italian and Supranational Public Law of the State University of Milan, with the support of the SIDI Interest Group on Private International Law and the “Rivista di diritto internazionale privato e processuale”.

A succinct post on the French Supreme Court judgment 18-19665 MP v ML of 19 September last. Thank you Hélène Péroz for alerting us to the judgment. A French couple, married in 1995, file for divorce in 2012 when the husband discovers his wife has been married before, in Las Vegas, 1981. He requests his marriage be declared invalid on the grounds of bigamy. To settle the ‘divorce’ the courts therefore need to first settle the incidental question or Vorfrage of prior marriage, much like in the archetypal Vorfrage judgment of  Schwebel v Unger.

Under French law consent to marriage is covered by the lex patriae which for both partners in this case is French. The Supreme Court confirms the lower courts’ discretion to find as a matter of fact whether or not there was such consent, which in casu they had found there was not on the basis of the wife having presented the Vegas trip to her friends as not being of real consequence; no banns of marriage having been published, no effort having been undertaken by the partners to have their Vegas ‘wedding’ registered in France, no reference to the marriage having been made at the time of registration of the birth of their child, and both partners having entered into relationships after the ‘marriage’.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 1, Heading 1.4.

Save the Date – 14 November 2019

Workshop: Application of the “Second Generation” Regulations in The Netherlands

The Erasmus School of Law (Erasmus University Rotterdam, the Netherlands) will host a second national workshop on Thursday, 14 November 2019 from 9.30-13.00 hrs, in the framework of the research project “Informed Choices in Cross-Border Enforcement” (IC2BE) (see our first workshop). This project (JUSTAG-2016-02) is funded by the Justice Programme (2014-2020) of the European Commission and aims to assess the functioning in practice of the “second generation” of EU regulations on procedural law for cross-border cases, i.e. the European Enforcement Order (“EEO”), European Order for Payment (“EPO”), European Small Claims (as amended by Regulation (EU) 2015/2421) (“ESCP”) and the European Account Preservation Order (“EAPO”) Regulations.

The project is carried out by a European consortium involving the Max Planck Institute Luxembourg and the universities of Antwerp, Complutense of Madrid, Milan, Rotterdam, and Wroclaw, and is coordinated by Prof. Jan von Hein from the University of Freiburg.

The workshop will present the findings of the research in the Netherlands and discuss these with experts from legal practice and academics, with the aim of assessing and improving the application of these instruments.

The language of the workshop is mostly Dutch. Practitioners and academics interested in cross-border litigation are invited to participate in this event. Detailed information on the program and (free of charge) registration will follow soon. Contact address for further information: ontanu@law.eur.nl

On 25 and 26 October 2019 Benedetta Cappiello and Gherhardo Carullo from the Università degli Studi di Milano will host a conference dealing with blockchain from a legal perspective. The focus is on the positive effects that this technology can generate. Special attention is paid to projects that aim to promote sustainability through blockchain solutions. One of the panels is devoted to jurisdiction and the law applicable to smart contracts.

The conference aims at:

• offering a critical analysis of the potential benefits and legal risks of distributed ledger technologies;
• scrutinizing opportunities offered by blockchain technology and possible regulatory frameworks;
• discussing the legal implications of blockchain technologies;
• presenting real-world blockchain projects applied to society;
• bringing together different stakeholders to discuss the future role of governments and the contemporary challenges to public trust.

Conference programme:

DAY 1 – October 25th

9:00 – 9:30: Registration

9:30 – 10:15: Welcome from: E. Franzini, University Chancellor; V. Nardo, Presidente Ordine Avvocati; L. Violini, Head of Department Diritto pubblico italiano e sovranazionale

10:30 –11:00: The Italian perspective: “An Introduction”

• P. Ciocca, Commissario Consob

11:00 – 11:30: Coffee Break

11:30 –12:15: Plenary Session: Understanding Blockchain: “An introduction”

• C. Malcolm, Head, Blockchain Policy Center, OECD-OCDE, tbc

12:30 – 13:45: Lunch

13:45 –14:15: Workshop:“How to ‘mine’?”

• C. Biondi Santi, BitMiner Factory, Firenze

14:30 –16:15: PlenarySession:“Blockchain in law”

Chair: NerinaBoschiero,FacultyDean

• P. de Filippi, Permanent Researcher at the National Center of Scientific Research (CNRS) and Faculty Associate at the Berkman Klein Center for Internet and Society at Harvard University
• O. Goodenough, Director of the Center for Legal Innovation, Vermont Law School – CodeX Affiliated
• T. Schrepel, Utrecht University School of Law

16:15 – 16:45: Coffee Break

16:45 –18:00: “Blockchain in action: Crypto currencies”

Chair: Gabriele Sabbatini

• G. Zucco, BlockchainLabit, founder
• P. Dal Checco, Turin University
• R. Ghio, WizKey

16:45 –18:15: “Smart legal contract: forum and applicable law issue”

Chair:Benedetta Cappiello, University of Milan

• G. Rühl, Professor Friedrich Schiller University, Jena
• P. Bertoli, Professor Università degli Studi dell’Insubria
• M. T. Giordano, LT42

DAY 2 – October 26th

9:30 –10:30: Plenary session:“Blockchain as a tool to achieve the SDGs”

Chair: Cesare Pitea, University of Milan

• R. della Croce, OCSE, Senior Economist, Blockchain and green finance
• G. Baroncini Turrichia, HELPERBIT founder, Blockchain Project applied
• G. Coppi, Fordham University, International Humanitarian Affairs

10:30 – 11:00: Coffee break

11:00 –12:30: “Who and how to decide?”

Chair: Alessandro Palumbo, Ph.D., CEOJUR

• P. Ortoloni, Radboud University, Nijmegen
• A. Santosuosso, Professor Università degli Studi di Pavia
• J. Lassègue, Professor and Chargé de recherche CNRS

11:00 – 12:30: “Transparency Issue”

Chair: Gherardo Carullo

• M. Nastri, Notaio
• M. Finck, Max Planck Institute for innovation and competition
• A. Zwitter, Dean, Rijksuniversiteit Groningen

For further information contact Benedetta Cappiello (benedetta.cappiello@unimi.it)

Salzburg-based Alpine Bau had been carrying out a considerable amount of roadwork engineering for the Polish State. The courts at Vienna started insolvency proceedings in 2013, appointing Mr Riel as what is now called the ‘insolvency practitioner’. Austria is the centre of main interests, the Austrian procedure the main proceedings. A little later a secondary proceeding is opened in Poland. Skarb Państwa, the Polish finance ministry or treasury, seeks in those proceedings the payment of debt it claims is outstanding vis-a-vis the Polish State. It also seizes the Austrian courts in a separate proceeding, asking it to confirm the existence of debt owed to it (the amount almost exactly the amount it specified in the Polish secondary proceedings) and at the same time a stay in its pronouncement until the Polish courts have ruled on the fate of the claim in Poland. Essentially therefore the Austrian action is a conservatory action, a hedging of the treasury’s bets.

An interesting angle is that in the Austrian proceedings the Treasury claims application of the Brussels Ia Regulation, particularly its Article 29 lis alibi pendens rule. The Austrian courts reject the existence of the debt and they do not entertain the lis alibi pendens request (the request for a stay).

The first question in C-47/18 (judgment 18 September) was whether Brussels Ia or the Insolvency Regulation are engaged. The CJEU (at 33) emphasises the need for both avoidance of overlap and of non-cover by either (‘doivent être interprétés de façon à éviter tout chevauchement entre les règles de droit que ces textes énoncent et tout vide juridique’), in the relation between the two Regulations: the infamous dovetail which as I have flagged in earlier posts, the Court in my view does not get entirely right. References are to Valach, Wiemer & Trachte, Feniks, Nickel & Goeldner). Here, the Treasury bases its action on Article 110 of the Austrian insolvency act (allowing, and urging first-tier creditors (such as, inevitably, Inland Revenue) to have their claims properly registered so as to ensure the priority in the picking order against the other creditors). The claim therefore is subject to the Insolvency Regulation 1346/2000.

The Court subsequently and unsurprisingly holds that Brussels Ia’s lis alibi pendens rule cannot somehow apply deus ex machina. At 43: insolvency is excluded from the Regulation; this exclusion is all or nothing: if the Regulation does not apply, none of it applies, including its procedural rules. These have, in BIa context, the clear purpose of ruling out as much as possible procedures pending in more than one Member State on the same issue. The Insolvency Regulation, by contrast, allows for concurrent proceedings, albeit primary and secondary ones, and (in Article 31 of the old Regulation; tightened in the current version 2015/848) encourages co-operation and exchange of information to avoid irreconcilable judgments.

(The further question asked refers to debt documentation requirements).

Geert.

Handbook of) EU private international law, 2nd ed. 2016, Chapter 5 Heading 5.4.1. Chapter 2 Heading 2.2.2.10.1

written by Ivana Isailovic & Ralf Michaels 

We are excited to announce the launch of a new transdisciplinary research project,  Gender and Private International Law (GaP), based at the Max Planck Institute for Comparative and International Private Law (MPI). 

This project is born out of a sense of scholarly and political urgency in a rapidly shifting world, where both conversations about gender equality and a powerful backlash against gender and LGBTQI justice are on the rise. Unlike other legal fields, private international law (“PIL”) has for the most part been absent from this conversation, with some rare (here, here & here) exceptions (see also the panel on women & PIL). The field is almost never analyzed using the concept of ‘gender’, or using methodologies and ideas developed by gender studies scholars. Similarly, scholars working on gender and the law tend to overlook how PIL regulates gender and distributes power and privilege at the transnational level. Transnational studies focusing on gender, often prioritize human rights analyses, or cultural issues, ignoring how PIL techniques and practices interact with identity, and negotiate differences.

Our goal is to create a space for transdisciplinary research and cross-learning at the intersection of PIL and gender and feminist studies. Over the course of this academic year, we will put in place a series of discussion groups bringing together a diverse group of legal scholars working on gender, and PIL scholars interested in gender justice issues. Sessions, organized around short readings, will address methodological questions as well as some of the most pressing topics in PIL, such as the regulation of transnational surrogacy, the recognition of Islamic family law, or international abduction. Our goal with this project is also to give a platform to emergent scholars representing a diversity of voices and backgrounds.

This academic year, we plan to organize three types of events at the MPI in Hamburg. 

• The first one will be the kick-off event, taking place on Friday, Oct. 25, from 2-5 pm. Ivana Isailovi? (MPI and Northeastern University, US) and Roxana Banu (Western University, Ontario, and Queen Mary University, UK) will guide a discussion examining the connections between gender studies and PIL. The event will be followed by a brainstorming session on how to move the project further.
  
  
• Over the course of the Fall 2019, and possibly into the Spring, we will also organize a series of intimate reading groups around canonical texts in gender studies and PIL respectively. PIL scholars and scholars working on gender and law will meet to discuss these texts in an informal setting. More information about these reading groups will be available soon.
• The final event for this academic year, to take place in the Spring of 2020, will be a full-day workshop with discussion groups organized around several specific themes. Similarly to the kick-off event, each discussion will be guided by a PIL expert and gender and law scholars.
  

In order to ensure that cost is not a barrier for participants, travel reimbursements will be available for emerging scholars who could not otherwise attend. 

If you want to attend the kick-off event, please write, by October 18, to veranstaltungen@mpipriv.de. For any general questions concerning the project, including the stipend, please write to gender@mpipriv.de. 

We look forward to seeing you at the MPI in Hamburg!

This post was written by Ms Martina Mantovani, Research Fellow at the Max Planck Institute Luxembourg. The author is grateful to her colleague, Ms Adriani Dori, for pointing out the tweet.

On 26th September 2019, Dutch MEP Sophie in ‘t Veld announced through her Twitter account the lodging of a question for written answer to the EU Commission, prompting the opening of an investigation (and, eventually, of infringement proceedings) in relation to a commercial use of the European Criminal Record Information System (ECRIS). A cornerstone of judicial cooperation in criminal matters, this network is allegedly being exploited by a commercial company operating on the European market (hereinafter name, for the purposes of this entry, The Company), in order to provide, against payment, a speedy and efficient service to actual or prospective employers, wishing to access the criminal records of current employees or prospect hires. Commercial activities of this kind raise a number of questions concerning, first and foremost, the lawfulness of the use of the ECRIS network beyond its institutional purpose, as well as the potential liability under EU law of the national authorities which are (more or less knowingly) fostering such practices. Moreover, as specifically concerns the topic of interest of this blog, such commercial practices exemplify how law shopping, stemming from the lack of coordination of Member States’ data protection laws, can be turned into a veritable profit-seeking commercial endeavor. As it is, these commercial practices are made possible not only by the specific legislation instituting the ECRIS, but also due to the legal uncertainty and fragmentation fostered by the GDPR. In fact, this Regulation leaves rooms for maneuver for Member States’ legislators to specify its provisions in relation to, inter alia, the processing of personal data in the context of employment (art 88), without nonetheless providing for either a guiding criterion or an explicit uniform rule to delimit or coordinate the geographical scope of application of national provisions enacted on this basis. This contributes to creating a situation whereby advantage might be taken of the uncertainty relating to the applicable data protection regime, to the detriment of the fundamental right to data protection of actual or prospective employees.

The ECRIS: institutional mission and open concerns.

The ECRIS is based on two separate but related pieces of legislation, Council Framework Decision 2009/315/JHA and Council Decision 2009/316/JHA, as well as on a separate data protection framework, previously set out by Council Framework Decision 2008/977/JHA, now repealed and replaced by Directive (EU) 2016/680. The intuitional mission of the ECRIS consists in providing competent public authorities from one Member States with access to information from the criminal records of nationals of other Member States. By facilitating the exchange of information from criminal records, this network aims at informing the authorities responsible for the criminal justice system of the background of a person subject to legal proceedings, so that his/her previous convictions can be taken into account to adapt the decision to the individual situation (Recital 15 of Council Framework Decision 2009/315/JHA). The ECRIS additionally aims at ensuring that a person convicted of a sexual offence against children will no longer be able to conceal this conviction or disqualification with a view to performing professional activity related to supervision of children in another Member State (Recital 12 of Council Framework Decision 2009/315/JHA, in conjunction with article 10(3) of Directive 2011/93/EU). In current law, ECRIS applications for accessing extracts from criminal records can be filed by judicial or competent administrative authorities, such as bodies authorized to vet persons for sensitive employment or firearms ownership. In such cases, these applications must be submitted with the central authority of the Member State to which the applicant authority belongs. This central authority may (and not shall) submit the request to the central authority of another Member State in accordance with its national law. In addition, access requests can also be filed by the person concerned for information on own criminal records. In this case, the central authority of the Member State in which the request is made may, in accordance with its national law, submit a request to the central authority of another Member State for information and related data to be extracted from its criminal record, provided the person concerned is or was a resident or a national of either the requesting or the requested Member State. In relation to information extracted via the ECRIS for any purposes other than that of criminal proceedings, a Statewatch Report of 2011 already expressed serious concerns, noting that while the European Data Protection Supervisor recommended that requests of this kind should have only be allowed “under exceptional circumstances”, the Council Framework Decision did not finally introduce such a stringent limitation. Moreover, since, under current article 7, the requested central authority shall reply to such requests in accordance with its national law, this piece of legislation provides “an opportunity for the widespread cross-border exchange of information extracted from criminal records for a variety of purposes unrelated to criminal proceedings”. That same Report additionally stresses the huge potential for “information shopping” that may thus arise, insofar as applicants who are not able to obtain information on an individual from that person’s home Member State, may access it via another Member State which also holds the information and has less stringent data protection legislation.

New commercial practices.

It is within this framework that the new commercial practices lying at the heart of Ms Sophie in ‘t Veld’s question must be understood. The commercial services in question are provided by The Company, expressly identified in the MEP’s interrogation. On its website, The Company takes great care to specify that, while it may have a name which closely echoes the EU system, it remains a private company offering commercial services and that “the purpose of this similarity is to highlight [it uses] the EU structures to access information on criminal records”. According to the same source, the services provided aim at addressing a widespread need of employers from Europe and rest of the world, who wish to ensure that their employees have no criminal background. Having remarked that said employers often struggle to perform background checks in a compliant manner, with legislation varying across the European Union rendering such a check “complicated, time consuming or impossible”, The Company proposes an innovative solution. According to its website, it “discovered” that by resorting to a EU program called European Criminal Records Information System, it is “able to address all of those concerns and offer easy and compliant access to state-issued EU criminal records certificates”. The FAQs further specify how this procedure works in practice. They confirm that all certificates are obtained from central criminal registers of EU Member States. What makes the service provided “unique” is that The Company is declaredly streamlining all access requests through the ECRIS central authority of just one Member State, who requests criminal information from its European counterparts on The Company’s behalf. According to both The Company’s website and MEP Sophie in ‘t Veld’s interrogation, the National Criminal Register of this Country “play[s] a role of a middleman in the flow of documentation and requests the information from the central register of the destined country”. While The Company claims that “the application is made with the applicant’s full awareness and explicit consent”, the MEP stresses “it is not clear whether the person whose records are obtained has given explicit consent”. In fact, it must be acknowledged that the website’s wording is rather ambiguous, being unclear whether the expression “the applicant” refers to the employer seeking the company’s services, or to the persons whose criminal records are being accessed.  The way in which The Company (which, incidentally, has UK phone number and which, according its website’s FAQ’s, seems to direct its services primarily to employers operating in the UK and Ireland) is effectively resorting to a foreign National Criminal Register for accessing the ECRIS remains a mystery. In fact, The Company cannot certainly be counted among either the administrative or the judicial authorities admitted to filing a request under Council Framework Decision 2009/315/JHA. Two highly speculative guesses might be made. A first possibility might be that the National Criminal Register allegedly playing the role of middleman might be misapplying the Framework Decision by submitting requests filed by non-legitimate applicants (as MEP in ‘t Veld seems to imply, by appealing to the principle of mutual trust and by envisioning the possibility of opening infringement proceedings). As it is, the form for access requests used by said National Criminal Register does not strictly require, according to its letter, that person filing the request shall be the same person whose criminal records need to be obtained, although it contains the explicit warning that “obtaining unauthorized information about a person from the National Criminal Register is punishable by a fine, restriction of liberty or imprisonment up to 2 years”.  A second possibility is that the company might be exploiting individual access requests, which – it must be stressed – could concern only “residents or nationals of the requesting or requested Member State” (article 6§2 of Council Framework Decision 2009/315/JHA). In such cases, one might imagine that, after being approached by the employer, The Company would transmit the aforementioned form to the employee/prospect hire, who would personally sign the form, thus explicitly consenting to the procedure. From the standpoint of data protection law, however, such an approach would not be less problematic. As repeatedly confirmed by the Article 29 Working Party, an employer which processes personal data (even within the framework of a recruitment process) qualifies as a controller of the employee/prospect hire personal data, having moreover very limited possibilities to rely on the employee’s express consent as a lawful basis for their processing.  Furthermore, such approach remains even more controversial if account is taken of the fact that it may be purposefully used to circumvent the more restrictive data protection provisions in matters of employment enacted by another Member State.

The Member State’s law applicable to the processing of personal data in the context of employment.

Albeit having been promoted by the EU Commission as “a single, pan-European law for data protection”, the new GDPR fails to level out all legislative differences in the Member States’ data protection laws. As mentioned above, it provides in fact a margin of maneuver for Member States to specify its rules, including for the processing of special categories of personal data. To that extent, it does not exclude Member State law that sets out the circumstances for specific processing situations, including determining more precisely the conditions under which the processing of personal data is lawful (recital 10). In this vein, its article 88 provides that “Member States may, by law or by collective agreements, provide for more specific rules to ensure the protection of the rights and freedoms in respect of the processing of employees’ personal data in the employment context, in particular for the purposes of recruitment […]”. Commercial practices such as those signaled by Ms in ‘t Veld seem to thrive on this situation of persisting legal uncertainty and fragmentation. In fact, some Member States’ data protection legislation expressly prohibits the use of individual access requests to criminal record in connection with the recruitment of an employee, except for very exceptional circumstances. Nonetheless, such legislative measures are often rendered toothless at the international level, either because the legislator limited – more or less willingly – their reach to the domestic domain, or because their geographical scope of application, left undefined by the relevant GDPR- complementing law, remains highly ambiguous. This is precisely what happens in relation to the British and the Irish Data Protection Acts, expressly mentioned by The Company’s website.

• The UK Data Protection Act 2018

This law, meant to adapt the UK data protection regime to the GDPR, provides, under its Section 184, that:

 “it is an offence for a person (“P1”) to require another person to provide P1 with, or give P1 access to, a relevant record in connection with— (a)the recruitment of an employee by P1; (b)the continued employment of a person by P1; or (c)a contract for the provision of services to P1.” According to Schedule 18 of the same law,  “relevant record” means— […] (b)a relevant record relating to a conviction or caution …[which] (a)has been or is to be obtained by a data subject in the exercise of a data subject access right from a person listed in sub-paragraph (2), and (b)contains information relating to a conviction or caution. The Company is well aware of these restrictions, which are expressly reported on its website (reference is made to Section 56 of the Data Protection Act (DPA) 2015, corresponding to Section 184 of the new DPA 2018). Nonetheless, it is further clarified that “[The Company] do[es] not make any requests under section [184] of the DPA, therefore [being] not limited by [it]” and that, consequently, it might even be “safer”, as a UK-based employer, to resort to its services. And this might admittedly be true, since the prohibition set out by Section 184 solely concerns records obtained by a data subject in the exercise his/her access right from one of the UK-based authorities listed in §3(2) of Schedule 18, and not by a foreign Criminal Register. Nonetheless, despite the apparent lawfulness of the whole process, the fact remains that the use (or abuse?) of an EU system, established to address specific needs of the judicial cooperation in criminal matters, becomes, in practice, the tool for enabling a UK-established employer to access employees’ personal data which he could not lawfully access domestically. This goes explicitly against the declared ratio and aim of Section 184 of the UK Data Protection Act. As clarified by the Explanatory Notes, this provision aims at thwarting conducts which may give the employer access to records which they would not otherwise have been entitled. There are, in fact, established legal routes for employers and public service providers to carry out background checks, which do not rely on them obtaining information via subject access requests. Disclosure and Barring Service (DBS) checks can in fact be performed locally only by one responsible organizations registered with DBS and according to the procedure and guarantees set out by British law.

• The Irish Data Protection Act 2018

The other relevant national GDPR-complementing provision is Section 4 of this law, entitled “obligation not to require data subject to exercise right of access under Data Protection Regulation and Directive in certain circumstances”. This provision prohibits a person from requiring, in connection with the recruitment of an individual as an employee or his continued employment, that individual to exercise his rights of access to own criminal records, or to supply the employer with data obtained as a result of such a request. Again, The Company’s website specifies that the services provided are not based on requests under Section 4 of the Irish law, and that this provision does not consequently constitute a limitation, thus making the use of their services “safer” for employers. It must be noted, however, that as opposed to the British provision, Section 4 does not limit the scope of the prohibition to records obtained by requesting access to Irish authorities. Therefore, the extent to which the processing of employees’ personal data, including their criminal records,  will be covered by Section 4 of the Irish Data Protection Act will finally depend on the identification of the scope of application of this Act as a whole. The problem with the Irish Data Protection Act (and with many other national GDPR-complementing laws, such as, inter alia, the Italian and the Spanish legislations) is that it does not explicitly define its geographical reach, thus fostering uncertainty as to the range of factual situations effectively covered and governed by its complementing provisions. This omission has been maintained in the final text of the Irish Data Protection Act despite the contrary advice given, during the drafting process, by the Irish Law Society. This pointed to such a lacuna as a potential source of ambiguity, for both individuals and controllers/processors, with regard to the remit and applicability of that piece of legislation. In particular, clarity as to what entities the Data Protection Act 2018 applies would have been especially desirous “given the number of corporations processing personal data on a large scale in Ireland and the likely queries that might otherwise arise and require judicial clarification”.

The need for better coordination of national data protection laws in the context of employment.

Following Ms in ‘t Veld’s question, the EU Commission will eventually investigate whether such a use of the ECRIS system is compliant with EU law, and whether the National Criminal Register in question is lawfully taking action on the basis of applications filed by/or with the help of The Company. In any event, the objective difficulties that may be encountered, in current law, in deciding over the lawfulness of commercial practices this kind, which might be merely taking advantage of pre-existing legislative loopholes and gaps, are a clear cry for better coordination of the Member States’ data protection laws enacted on the basis of the opening clauses enshrined in the GDPR. In a related paper, which is forthcoming in the Rivista italiana di diritto internazionale privato e processuale, this author tries and demonstrate that this problem is of an overarching nature, not being limited to the rather specific issues of, on the one side, the parochial approach adopted by the UK Parliament in defining the reach of its provision on forced access to criminal records for employment purposes and, on the other side, the silence kept by many national legislators concerning the geographical reach of their domestic data protection law. As it is, the entire European regime on data protection is deeply and adversely affected by a generalized lack of coordination of the spatial reach of domestic GDPR-complementing provisions. Lacking any uniform solution at EU level (set out either by the GDPR itself or by other existing instruments) the delimitation of the scope of application of national GDPR-complementing provisions is in fact left to unilateral and uncoordinated initiatives of domestic legislators. The review of existing national legislation evidences the variety of techniques and connecting factors employed for these purposes by the several Member States, which is liable to generate endemic risks of over- and under-regulations, and, above all, gaps of legal protection which are perfectly exemplified by, but not limited to, the commercial practices arisen in relation to the use of the ECRIS.

‘The algorithms of the law must keep pace with new and emerging technologies’ is the opening sentence of Hadon-Cave LJ and Swift J in R v The Chief Constable of South Wales Police and others [2019] EWHC 2341.

The central issue is whether the current legal regime in the United Kingdom is adequate to ensure the appropriate and non-arbitrary use of AFR in a free and civilized society. the High Court finds it is. No doubt appeal will follow. I leave the assessment of the findings of the Court to others. It is the opening sentence which drew my attention as, inevitably, it did others’. It is a sentence upon which one can hinge en entire regulatory /new technologies course. Must the algorithms of the law (whatever these may be) keep pace with technology?  Or rather, guard against the challenges of same?

Discuss.

Geert.

in BVC v EWF [2019] EWHC 2506 (QB) claimant applied for summary judgment in a claim for misuse of private information and harassment. The privacy claim arises from internet publication, on a website created by the defendant, of his account of his relationship with claimant. The harassment claim arises from a series of email communications from the defendant to claimant over a period of some two years, and from publication of the website itself.

An ex parte injunction had been granted earlier. The Defendant was restrained from contacting or harassing claimant, from publishing the website or any of its contents to the world at large, and from publishing any of the information set out in a confidential schedule, or any information which was liable to or might identify the claimant as a party to the proceedings or as the subject of the confidential information

In current proceedings defendant (a UK national) submits he is domiciled in Switserland. This triggers the Lugano Convention.

Parkes J clearly had to consider Article 5(3) Lugano’s special jurisdictional rule for tort (the BIa equivalent of course is now Article 7(2), hence also applying e-Date and Bolagsupplysningen.  Steyn DJ had earlier rejected defendant’s arguments. At 33: ‘She held, in short, that the Claimant had a good arguable case that this jurisdiction was the state in which he had the centre of his interests, and that in any event a real and substantial tort (namely misuse of private information) had been committed within the jurisdiction. She also ordered that the steps already taken to bring the Claim Form and orders of 27 June and 4 July 2018 to the Defendant’s attention (namely, service by email) constituted good service on him, notwithstanding that he claimed he was domiciled in Switzerland at the date of receipt of the documents, not (as had been believed) in this jurisdiction.’

Defendant (praised nb by Parkes J for his ‘brief but enlightening written submissions’) however continues to challenge the jurisdiction, jumping at the chance to bring it up again when claimant referred to his centre of interests in his PoC (Particulars of Claim), and employing the distinction which the CPR makes between challenges to existence and exercise of jurisdiction (notwithstanding authority (see at 39) that despite the distinction claims viz the two need to be brought concurrently).

He essentially (at 43) posits the court reconsider

‘whether Article 7(2) RJR is ‘to be interpreted as meaning that a natural person who alleges that his personality rights have been infringed by the publication of information concerning him on the internet may have his centre of interests in a Member of State where he is not habitually resident, where he has no ongoing professional connections or employment, no home, no income and no immediate family’. In his letter to the court of 18 June 2019, the Defendant puts it this way: ‘… with no permission to appeal the judgment of Karen Steyn QC, if the court continues to accept the Claimant’s centre of interests is in England and Wales despite very clear evidence to the contrary then it is necessary to refer the question of interpretation to the ECJ pursuant to Article 267 of the TFEU’.

At 44 Parkes J dismisses the suggestion of preliminary review to Luxembourg. That route is ‘not designed to provide a route of appeal against judicial evaluation of evidence of fact.’ In conclusion, re-opening of the discussion on jurisdiction is rejected, referring finally to Lord Green in Kaefer:”it would not be right to adjourn the jurisdiction dispute to the full trial on the merits since this would defeat the purpose of jurisdiction being determined early and definitively to create legal certainty and to avoid the risk that the parties devote time and cost to preparing and fighting the merits only to be told that the court lacked jurisdiction“.

Arguments on submission to the jurisdiction where not entertained: whether service of a defence, and the making of an application to strike out qualify as ‘submission’ becomes otiose when that jurisdiction has already been unsuccessfully challenged.

Then follows extensive discussion of the substance of the matter, which is less relevant for the purposes of this blog. Hence fast forward to 150 ff where the issue of jurisdiction to issue an injunction prohibiting re-publication of the material is discussed (in case: re-offering of the website on WordPress or elsewhere). At 158 ff this leads to a re-discussion of Bolagsupplysningen where the Court held that where a claimant seeks an injunction to rectify or remove damaging material from the internet, he can only do so only in a State with full jurisdiction. Parkes J at 160 suggests this is only in the state where the defendant is domiciled (the general rule, as stated by Art 2(1) Lugano and Art 4(1) RJR), or (by virtue of the special jurisdiction: Art 5(3) Lugano and Art 7(2) RJR) in the state where he has his centre of interests, and not before the courts of each member state in which the information is accessible.

I believe Parkes J on that point omits locus delicti commissi. At the time of my review of Bolagsupplysningen I suggssted the judgment was bound to create a need for further clarification: Shevill and e-Date confirm full jurisdiction for the courts of the domicile of the defendant, and of the locus delicti commissi, and of the centre of interests of the complainant. These evidently do not necessarily coincide. With more than one court having such full jurisdiction positive conflicts might arise.

Of more importance here is that Parkes J (obiter) at 163 suggests that the requirement of full jurisdiction, also applies to orders restraining any further publication and not just as the Grand Chamber held limited by the facts in Bolagsupplysningen, to orders for rectification and removal. In doing so he follows the in my view correct suggestion made by Dr Tobias Lutzi (‘Shevill is dead, long live Shevill!’, L.Q.R. 2018, 134 (Apr), 208-213) viz divisible cq indivisible remedies.

Conclusion: Claimant is entitled to summary judgment for a final injunction to restrain further misuse of his private information

Geert.

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

This book is published as part of Hart’s Studies in Private International Law- Asia series. It is edited by Anselmo Reyes who is a Guest Professor at the Law Faculty of Doshisha University  and an International Judge of the Singapore International Commercial Court.

The publisher’s blurb is as follows:

“This collection offers a study of the regimes for the recognition and enforcement of foreign commercial judgments in 15 Asian jurisdictions: mainland China, Hong Kong, Taiwan, Japan, Korea, Malaysia, Singapore, Thailand, Vietnam, Cambodia, Myanmar, the Philippines, Indonesia, Sri Lanka and India. For practising lawyers, the book is intended as a practical guide to current law and procedures for enforcing judgments in the selected jurisdictions. However, it does not stop at describing current law and practice. Of interest to academics and students, it also analyses the common principles of the enforcement regimes across the jurisdictions, and identifies what should be regarded as the norm for enforcement in Asian countries for the purpose of attracting foreign direct investment and catalysing rapid economic development.

In light of the common principles identified, the book explores how laws in Asia may generally be improved to enable judgments to be more readily enforced, while ensuring that legitimate concerns over indirect jurisdiction, due process and domestic public policy are respected and addressed. With this in mind, the book discusses the potential impact that the adoption of the 2005 Hague Convention on Choice of Court Agreements might have on Asian jurisdictions; it also considers the potential impact of the convention for the enforcement of judgments in civil and commercial matters presently being drafted by the Hague Conference on Private International Law.

This timely book argues that it is imperative to adopt a uniform system for the recognition and enforcement of judgments throughout Asia if there is to be traction for the enhanced cross-border commerce that is expected to result from endeavours such as the ASEAN Economic Community (AEC), the Belt and Road Initiative (BRI), CPTPP (also known as TPP-11), and RCEP.

Anselmo Reyes is Guest Professor at the Law Faculty of Doshisha University in Kyoto and an International Judge of the Singapore International Commercial Court.”

Many commentators were wrong-footed on reading Advocate-General Szpunar’s Opinion in C-505/17 Google Inc v Commission nationale de l’informatique et des libertés (CNIL), concerning the territorial limits to right to have search results delisted, more popularly referred to as ‘the right to erasure’ or the ‘right to be forgotten’ (‘RTBF’ – a product of the CJEU in Google Spain). Far from ruling out ‘extraterritorial’ or worldwide force of the right, the AG saw no objection to it in principle, even if he suggested non-application to the case at issue (he did so again in his Opinion in C-18/18 Eva Glawischnig-Piesczek v Facebook, which I review here and on which judgment is forthcoming next week).

The Court yesterday held (the Twitter storm it created was later somewhat drowned by the UK Supreme Court’s decision in the prorogation case) and overall confirmed the AG’s views. As with the AG’s Opinion, it is important to read the Judgment for what it actually says, not just how the headlines saw it. For immediate analysis, readers may also want to read Daphne Keller’s and Michèle Finck’s threads and Dan Svantesson’s impromptu assessment.

It is again important to point out that the French data protection authority’s (CNIL) decision at issue, 2016/054 is a general CNIL instruction to Google to carry out global delisting in instances where natural persons request removal; not a case-specific one. 

I have a case-note on the case and on C-137/17 (judgment also yesterday) forthcoming with Yuliya Miadzvetskaya, but here are my initial thoughts on what I think is of particular note.

1. The Court of Justice (in Grand Chamber) first of all, unusually, examines the questions in the light of both Directive 95/46, applicable to the facts at issue, and the GDPR Regulation ‘in order to ensure that its answers will be of use to the referring court in any event’ (at 41).

2. Next, at 52, the Court dismisses a fanciful distributive approach towards the computing reality of data processing:

Google’s establishment in French territory carries on, inter alia, commercial and advertising activities, which are inextricably linked to the processing of personal data carried out for the purposes of operating the search engine concerned, and, second, that that search engine must, in view of, inter alia, the existence of gateways between its various national versions, be regarded as carrying out a single act of personal data processing. The referring court considers that (and the CJEU clearly agrees, GAVC), in those circumstances, that act of processing is carried out within the framework of Google’s establishment in French territory.

3. At 55, the Court points out that de-referencing carried out on all the versions of a search engine would meet the objective of data protection in full, particularly (at 56) given the fact that ‘(t)he internet is a global network without borders and search engines render the information and links contained in a list of results displayed following a search conducted on the basis of an individual’s name ubiquitous (the Court restating here its finding in both Google Spain and Bolagsupplysningen). 

At 58 the Court employs that finding of ubiquitousness to ‘justify the existence of a competence on the part of the EU legislature to lay down the obligation, for a search engine operator, to carry out, when granting a request for de-referencing made by such a person, a de-referencing on all the versions of its search engine.’ No grand statements on public international law’s views on adjudicative extraterritoriality /universality. Just a simple observation.

The Court subsequently however (at 59-60) notes other States’ absence of a right to de-referencing and their different views on the balancing act between privacy and freedom of speech in particular. At 61-62 it then notes

While the EU legislature has, in Article 17(3)(a) of Regulation 2016/679, struck a balance between that right and that freedom so far as the Union is concerned (see, to that effect, today’s judgment, GC and Others (De-referencing of sensitive data), C‑136/17, paragraph 59), it must be found that, by contrast, it has not, to date, struck such a balance as regards the scope of a de-referencing outside the Union.

In particular, it is in no way apparent from the wording of Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 or Article 17 of Regulation 2016/679 that the EU legislature would, for the purposes of ensuring that the objective referred to in paragraph 54 above is met, have chosen to confer a scope on the rights enshrined in those provisions which would go beyond the territory of the Member States and that it would have intended to impose on an operator which, like Google, falls within the scope of that directive or that regulation a de-referencing obligation which also concerns the national versions of its search engine that do not correspond to the Member States.

In other words the Court has adopted the same approach as the United States Supreme Court has done in Morrison v. National Australia Bank; and Kiobel: there is a presumption against extraterritoriality, however it is not excluded. In the absence of indications of the legislator wish to extend the right to delisting extraterritorially it does not so exist in the current state of the law.

4. At 63 the Court hints at what might be required as part of such future potential extraterritorial extension: EU law does not currently provide for cooperation instruments and mechanisms as regards the scope of a de-referencing outside the Union – in contrast with the regime it has intra-EU. This also hints at the CJEU taking a more multilateral approach to the issue than its SCOTUS counterpart.

5. At 69 the Court then adds that intra-EU, a delisting order covering all of the search engine’s EU extensions is both possible and may be appropriate: co-operation between authorities may lead to ‘where appropriate, a de-referencing decision which covers all searches conducted from the territory of the Union on the basis of that data subject’s name.’

6. A final twist then follows at 72:

Lastly, it should be emphasised that, while, as noted in paragraph 64 above, EU law does not currently require that the de-referencing granted concern all versions of the search engine in question, it also does not prohibit such a practice. Accordingly, a supervisory or judicial authority of a Member State remains competent to weigh up, in the light of national standards of protection of fundamental rights (references to CJEU authority omitted, GAVC), a data subject’s right to privacy and the protection of personal data concerning him or her, on the one hand, and the right to freedom of information, on the other, and, after weighing those rights against each other, to order, where appropriate, the operator of that search engine to carry out a de-referencing concerning all versions of that search engine.

Here I do not follow the Court: one could argue that the harmonised EU’s approach is currently not to extend the right to delisting extraterritorially. The Court on the other hand seems to be suggesting that the extraterritoriality issue was not discussed in the Directive or Regulation, that EU law does not occupy (‘pre-empt’) that regulatory space and consequently leaves it up to the Member States to regulate that right.

I shall need more detailed reading of the GDPR’s preparatory works to form a view as to whether the extraterritorial element was considered, and rejected, or simply not discussed. However I also want to already point out that if the decision is left to the Member States, the case-law and theory of pre-emption clarifies that such national action has to be taken in full compatibility with EU law. including free movement of services, say, which Google may rightfully invoke should there be a disproportionate impact on the Internal Market.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2, Heading 2.2.8.2.5.

Written by Mayela Celis

A meeting on the international transfer of maintenance funds was held in The Hague, the Netherlands from 16 to 18 September 2019. The Conclusions and Recommendations are available here.

Among the solutions contemplated were the establishment of a centralised point for international transfers for both incoming and outgoing transfer of funds, the abolishment of the usage of cheques and how to increase transparency and cost reduction to the transfer of funds. The meeting also discussed the benefits and disadvantages of bundled payments, as well as the use of blockchain and other payment transfer solutions.

While the Experts’ Group discussed solutions and good practices in the context of the 2007 HCCH Child Support Convention, these are equally important to the United Nations Convention of 1956 on the Recovery Abroad of Maintenance Obligations, Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, and other regional or bilateral instruments.

It should be noted that pursuant to its Article 49, the 2007 HCCH Child Support Convention prevails over the 1956 United Nations Convention in so far as its scope of application as between the relevant States coincides with the scope of application of the 2007 HCCH Convention.

The European Union, as a Regional Economic Integration Organisation, approved the 2007 HCCH Child Support Convention, which entered into force for the EU on 1 August 2014 (with the exception of Denmark which has not yet acceded to it)

The HCCH news item is available here.

Written by Saloni Khanderia

Associate Professor Saloni Khanderia (Jindal Global Law School, O.P. Jindal Global University, Sonipat, India) recently published a new paper in the Commonwealth Law Bulletin, titled The Hague judgments project: assessing its plausible benefits for the development of the Indian Private International Law.

The author talks about the two international instruments which come under the esteemed Hague judgments project: the Convention of 30 June 2005 on Choice of Court Agreements [the HCCA] and the recent Proposed Draft Text on the Recognition and Enforcement of Foreign Judgments [the Draft Convention], with specific reference to India. The question that the author raises is whether India should endorse the above two instruments. Even though India is a Member of the Hague Conference, it a non-signatory to any treaty or Convention regarding the international jurisdiction of courts and the consequent recognition and enforcement of foreign verdicts. Thus it becomes interesting to see the stance India should take. Initially, the author provides an overview of the judgments project, followed by the role of the HCCA and the Draft Convention and their applicability and contribution to transnational trade. The article presents a position of India in the sphere of private international law. It further analyses the role of the two instruments on the development of India’s private international law.

The author welcomes the freedom of choice of a forum that is granted to the parties in India in respect of civil and commercial transnational matters. However, there is a need for certainty in several matters. Looking at the jurisprudence it can be seen that the Indian courts have been dismissing cases where the parties have not chosen them as a governing forum. Conversely, the courts have taken cognizance and assumed jurisdiction where the same has been conferred upon them by the agreement. Ratification to the HCCA tends to solve this problem as would subject the Indian private international law to a fixed and consistent set of rules on (dis)regarding the choice of court agreements. HCCA also lays down exceptions in cases on an exclusive choice of court agreements, therefore, its incorporation in the Indian laws would guide the court as to when to disregard the choice of court agreement. The ratification would also help in the holistic development of the private international law by easing the need the file fresh suits for recognition and enforcement.

Indian’s archaic rules on private international law make it necessary for the country to endorse the Draft Convention as it would prevent the Indian courts from enforcing a foreign judgment that has been rendered in violation to such an agreement, on coming into effect. Like the HCCA it would ease the process of recognition and enforcement of foreign judgments as one would not have look

through the domestic laws before moving the courts. It would provide certainty to the litigants as would provide answers to inconsistent judgments and parallel proceedings. Although

the ground of public policy is seemingly recognized in India, the Draft Convention would enhance the predictability with respect to enforcement as it explicitly confers the requested court with the right to deny the enforcement, for this reason. The above arguments by the author clearly lay out the conclusion that India should endorse the HCCA and the Draft Convention under the Hague’s Judgment Project.