Flux des sites DIP

Professor Dr. Nina Dethloff, Institute for German, European and International Family Law, University of Bonn, Germany, is looking for a research assistant (WissMit) on a part-time basis (50%) as of 1 January 2018 or later.

The candidate should hold a first law degree (as the German First State Exam) and be interested in the international and European dimensions of family law, comparative law and private international law. A very good command of German is required. Knowledge of French and English or other languages is an asset, as are good IT skills.

The fellow will have the opportunity to conduct his or her PhD project (according to the Faculty’s regulations). The position is paid according to the German public salary scale E-13 TV-L, 50%.

If you are interested, please send your application (cover letter, CV and relevant documents, notably Abitur, university transcripts and law degree) to Professor Dr. Nina Dethloff, LL.M., Institute for German, European and International Family Law, Adenauerallee 8a, 53113 Bonn by 22 December 2017 (Reference number: 76/17/3.13). All applications have to be sent in writing (conventional post or pdf document via e-mail).

Please address all questions regarding your application to Mrs Christiane Stadie (dethloff@uni-bonn.de or +49 (0)228/73-9290).

The University of Bonn is an equal opportunity employer. Thus, the University of Bonn especially encourages highly skilled female applicants to apply for jobs in areas in which they are underrepresented. All applications will be measured by the “Landesgleichstellungsgesetz”.

The full job advert in German is accessible here.

Bobek AG must have picked up his knack for colourful language at Teddy Hall. His Opinion last week in C-498/16 Schrems v Facebook is a delight and one does best service to it by simply inviting one reads it. Now, that must not absolve me of my duty to report succinctly on its contents – the Court itself I imagine will be equally short shrift with claimant’s arugments.

When I asked my students in the August exam to comment on the case, I simply gave them the preliminary questions and asked them how the CJEU should answer them:

1 Is Article 15 of Regulation 44/2001 to be interpreted as meaning that a ‘consumer’ within the meaning of that provision loses that status, if, after the comparatively long use of a private Facebook account, he publishes books in connection with the enforcement of his claims, on occasion also delivers lectures for remuneration, operates websites, collects donations for the enforcement of his claims and has assigned to him the claims of numerous consumers on the assurance that he will remit to them any proceeds awarded, after the deduction of legal costs?

2. Is Article 16 of Regulation (EC) No 44/2001 to be interpreted as meaning that a consumer in a Member State can also invoke at the same time as his own claims arising from a consumer supply at the claimant’s place of jurisdiction the claims of others consumers on the same subject who are domiciled

a. In the same Member State, b. In another Member State: or c. In a non-Member State,

if the claims assigned to him arise from consumer supplies involving the same defendant in the same legal context and if the assignment is not part of a professional or trade activity of the applicant, but rather serves to ensure the joint enforcement of claims?

The long and the short of the case is whether the concept of ‘consumer’ under the protected categories of Brussels I (and Recast) is a dynamic or a static one; and what kind of impact assignment has on jurisdiction for protected categories.

On the first issue, I expected my students to point to the CJEU’s precedent of applying the Regulation with a view to predictability and legal certainty; specifically for consumers, to Gruber and the burden of proof in cases of dual use; and to the Court’s judgment in Emrek. Other than the last issue, the AG points to all. Predictability points to a static approach: I would suggest the AG is right. Bobek AG does leave the door ajar for a dynamic interpretation: at 39: in exptional cases, a ‘dynamic’ approach to consumer status should not be entirely excluded. This could be potentially relevant in the event that a contract does not specify its aim, or it is open to different uses, and it lasts a long period of time, or is even indeterminate. It is conceivable that in such cases, the purpose for which a certain contractual service is used might change — not just partially, but even completely. Social media contracts may lead to such circumstances, one imagines, however there would be many ifs and buts to such analysis: including, I would suggest, the terms of the contract wich the service provider initially drew up.

On the issue of assignment the AG’s approach is entirely logical and not surprising: evidently Herr Schrems cannot have claims assigned to him and then exercise those claims using any other jurisdictional prerogatives then present in the original claim. While these may allow him to sue in the forum actoris of the original consumer, there is no valid argument whatsoever to suggest he could join them to his own domicile. The arguments made de lege ferenda (need for forum shopping in collective consumer redress) are justifiably rejected.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2.

As previously reported here, the United States Court of Appeals for the Second Circuit issued a decision in 2016 reversing a $147.8 million price-fixing judgment against two Chinese manufacturers of Vitamin C. The plaintiffs alleged that the Chinese manufacturers engaged in price fixing and supply manipulation in violation of U.S. antitrust laws. In its first ever appearance as an amicus before a U.S. court, the Chinese government filed a formal statement asserting that Chinese law required the Chinese manufacturers to set prices and reduce the quantities of Vitamin C sold abroad. Relying on this statement, the Second Circuit held that because the Chinese manufacturers could not comply with both Chinese law and the U.S. antitrust laws, principles of international comity compelled dismissal of the case.

This case raises a host of interesting questions. First, did the Second Circuit reach the right result? Second, is this a comity case or a foreign sovereign compulsion case? Third, what level of deference is due to a foreign sovereign that appears in private litigation to explain their country’s laws? Fourth, should U.S. judges defer to such an explanation?

In June 2017, the United States Supreme Court called for the views of the United States.  This past Tuesday, the Solicitor General (SG) filed this brief in response to the Court’s order.

In this submission, the SG explains that the Court should grant review of the Second Circuit’s decision in order to review the court of appeals’ holding that the Chinese government’s submission conclusively established the content of Chinese law.  According to the SG, “a foreign government’s characterization of its own law is entitled to substantial weight, but it is not conclusive.”  The SG argues that the case warrants the Court’s review because “[t]he degree of deference that a court owes to a foreign government’s characterization of its own law is an important and recurring question, and foreign sovereigns considering making their views known to federal courts should understand the standards that will be applied to their submissions.”

Should the Court grant review, the question of what standard should be applied to foreign sovereign submissions will be key.  This is a question I have explored here.

It will be interesting to see whether the Court accepts the SG’s request to review the Second Circuit’s decision.

Thank you Stefanie Roosen for flagging the issue in what after a bit of searching I take it to be Delta Lloyd v Witsen. At issue is not immediately a conflict of laws concern however the case does highlight a discussion often occurring with respect to choice of court and choice of law: when do mere references to general terms and conditions (GTCS) become binding upon parties, all the more so when these refer to industry standards. Here: HISWA standards, the ‘Nederlandsche Vereeniging voor Handel en Industrie op het Gebied van Scheepsbouw en Watersport’ est.1932.  The Netherlands are a seafaring nation: HISWA is big.

During repairs to the yacht Kontiki, the rear cable of the shipyard’s portal crane broke, the Kontiki fell and she suffered severe damage. The shipyard had in the course of negotiation, agreement and confirmation referred to no less than three different HISWA sets. The Rechtbank Noord-Holland held that as a result, none was validly incorporated into the contract (neither incidentally was a mere sign quayside, limiting liability).

As I have reported on this blog before (e.g. here), there is no magic wand when it comes to GTCS: all that is required is due diligence. Neat filing and dito reference. Electronically or otherwise: it is elementary for all things legal.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.9.3.1.

(Report on the Conference held in Luxembourg on 12 October 2017, by Martina Mantovani, Research Fellow MPI Luxembourg)

On 12 October 2017, the Brussels Privacy Hub (BPH) at the Vrije Universiteit Brussel and the Department of European and Comparative Procedural Law of the Max Planck Institute Luxembourg held a joint conference entitled “Jurisdiction, Conflicts of Law and Data Protection in Cyberspace”. The conference, which was attended by nearly 100 people, included presentations by academics from around the world, as well as from Advocate General Henrik Saugmandsgaard Øe of the Court of Justice of the European Union. The entire conference was filmed and is available for viewing on the YouTube Channel of the Max Planck Institute Luxembourg (first and second parts)

Participants were first welcomed by Prof. Dr. Burkhard Hess, Director of the MPI, and Prof. Dr. Christopher Kuner, Co-Director of the BPH. Both highlighted the importance of considering each of the discussed topics from both a European and a global perspective.

The first panel was entitled “Data Protection and Fundamental Rights Law: the example of cross-border exchanges of biomedical data – the case of the human genome”. The speaker was Dr. Fruzsina Molnár-Gábor of the Heidelberg Academy of Sciences and Humanities, who discussed the regulatory challenges arising in connection to the processing and transfer of biomedical data, including data exchanges between research hubs within the EU and to third-countries (namely the US). The need for innovative regulatory solutions, originating from a bottom-up approach, was discussed against the backdrop of the impending entry into force of the new EU General Data Protection Regulation (GDPR), whose Article 40 encourages the adoption of Codes of Conduct intended to contribute to the proper application of the Regulation in specific sectors. According to Dr. Molnár-Gábor, however, in order to establish an optimal normative framework for biomedical research, the regulatory approach should be combined with appropriate privacy-enhancing technologies and privacy-by-design solutions (such as the emerging federated clouds, the European Open Science Cloud, and data analysis frameworks bringing analysis to the data). This approach should also be paired with the development of adequate incentives prompting non-EU established companies to express binding and enforceable commitments to abide by EU-approved Codes of Conduct. Her presentation demonstrated the basic problem of data protection and data transfer: The creation of appropriate and applicable legal frameworks often lags behind the necessarily more rapid pace of data exchange seen in successful scientific research.

The second panel was entitled “Territorial Scope of Law on the Internet”. According to Prof. Dr. Dan Svantesson of Bond University in Australia, the focus on territoriality, which characterises contemporary approaches to the solution of conflicts of laws, is the result of an inherent “territorial bias” in legal reasoning. A strict application of territoriality would however be destructive when dealing with cyberspace. Here, the identification of the scope of remedial jurisdiction should follow a more nuanced approach. Prof. Svantesson specifically focused on Article 3 of the new GDPR, which he deemed “too unsophisticated” for its intended purposes as a result of its “all-or-nothing approach” In other words, either a data controller is subject to the Regulation in its entirety, or it is totally excluded from its scope of application. As an alternative, he proposed a layered approach to its interpretation, grounded in proportionality. The GDPR, he contended, should be broken down into different sets of provisions according to the objectives pursued, and each of these sets should be assigned a different extraterritorial reach. Against this backdrop, the spatial scope of the application of provisions pertaining to the “abuse prevention layer” may, and should, be different from that of the provisions pertaining to the “rights layer” or “the administrative layer”.

A response was made by Prof. Dr. Gerald Spindler of University of Göttingen, who conversely advocated the existence of an ongoing trend toward a “reterritorialization” of the Cyberspace, favoured by technological advance (geo-blocking, Internet filtering). This segmentation of the Internet is, in Prof. Spindler’s opinion, the result of a business strategy that economic operators adopt to minimise legal risks.  As specifically concerns private international law rules, however, a tendency emerges towards the abandonment of “strict territoriality” in favour of a more nuanced approach based on the so-called market principle or “targeting”, which is deemed better adapted to the more permeable borders that segment cyberspace.

The third panel was entitled “Contractual Issues in Online Social Media”. The speaker was Prof. Dr. Alex Mills of University College London. A thorough analysis of Facebook’s and Twitter’s general terms and conditions brought to light private international law issues stemming from “vertical contractual relationships” between the social media platform and final users. Professor Mills highlighted, in particular, the difficult position of social media users within the current normative framework. In light of the ECJ case-law on dual purpose contracts, in fact, a characterisation of social media users as “consumers” under the Brussels I bis and the Rome I Regulations may be difficult to support. Against this backdrop, social media users are left at the mercy of choice of court and choice of law clauses unilaterally drafted by social media providers. In spite of their (generally) weaker position vis-à-vis social media giants, European social media users will in fact be required to sue their (Ireland-based) contractual counterpart in Californian courts, which will then usually apply Californian substantive law. In addition to generating a lift-off of these transactions from EU mandatory regulation, these contractual clauses also result in an uneven level of protection of European social media users. In fact, Germany-based social media users seem to enjoy a higher level of protection than those established in other EU countries. Since the contract they conclude with the social media provider usually encompass a choice of law clause in favour of German substantive law, they may in fact benefit from the European standard of protection even before Californian courts.

Prof. Dr. Heike Schweitzer of Freie Universität Berlin, highlighted a fundamental difference between E-Commerce and social media platforms. While the former have an evident self-interest in setting up a consumer-friendly regulatory regime (e.g., by introducing cost-efficient ADR mechanisms and consumer-oriented contractual rights) so as to enhance consumer trust and attract new customers, the latter have no such incentive. In fact, competition among social media platforms is essentially based on the quality and features of the service provided rather than on the regulatory standard governing potential disputes. This entails two main consequences. On the one hand, from the standpoint of substantive contract law, “traditional” contractual rights have to adapt to accommodate the need for flexibility, which is inherent to the new “pay-with-data” transactions and vital to survival in this harshly competitive environment. On the other hand, from the standpoint of procedural law, it must be noted that within a system which has no incentive in redirecting disputes to consumer-friendly ADR mechanisms (Instagram being the only exception), private international law rules, as applied in state courts, still retain a fundamental importance.

The final roundtable dealt with “Future Challenges of Private International Law in Cyberspace”. Advocate General Saugmandsgaard Øe discussed the delicate balance between privacy and security in the light of the judgment of the Court of Justice in the case C-203/15, Tele2 Sverige, as well as the specifications brought to the protective legal regime applicable to consumers by case C-191/15, Verein für Konsumenteninformation v Amazon EU Sarl. Prof. Kevin D. Benish of New York University School of Law illustrated the US approach to extraterritoriality in the protection of privacy, having particular regard to the recent Microsoft case (the U.S. Supreme Court recently granted certiorari). Prof. Dr. Gloria Gonzalez Fuster of Vrije Universiteit Brussels pointed to a paradox of EU data protection legislation, which, on the one hand, regards the (geographic) localisation of data as irrelevant for the purpose of the applicability of the GDPR and, on the other hand, establishes a constitutive link with EU territory in regulating data transfers to third countries. Finally, Dr. Cristina Mariottini, Co-Rapporteur at the ILA Committee on the Protection of Privacy in Private International and Procedural Law, provided an overview of the European Court of Human Rights’ recent case-law on the interpretation of Article 8 ECHR. Specific attention was given to the conditions of legitimacy of data storage and use in the context of criminal justice and intelligence surveillance, namely with respect to the collection of biological samples in computerised national databases (case Aycaguer v. France), the use as evidence in judicial proceedings of video surveillance footage (Vukota-Bojic v. Switzerland) and the telecommunication service providers’ obligation to store communications data (case Breyer v. Germany and case C?alovic? v. Montenegro, concerning specifically the police’s right to access the stored data).

Overall, the conference demonstrated the growing importance of private international and procedural law for the resolution of cross-border disputes related to data protection. The more regulators permit private enforcement as a complement to the supervisory activities of national and supranational data protection authorities, the more issues of private international law become compelling. As of today, conflict of laws and jurisdictional issues related to data protection have not been sufficiently explored, as the discussion on private law issues related to the EU General Data Protection Regulation demonstrates. With this in mind, both Brussels Privacy Hub and MPI have agreed to regularly organize conferences on current developments in this expanding area of law.

Worldwide freezing injunctions are one of the civil procedure reasons for forum shopping to the English courts. [2017] EWHC 2747 (Ch) Campbell v Campbell is an excellent illustration  of the current state of the law, with Sarah Worthington QC expertly summarising and applying precedent. The application is for a freezing injunction over assets located outside England and Wales, partly in aid of domestic proceedings (partnership dissolution proceedings) and partly in aid of foreign proceedings (proceedings in Jersey re claims for 50% interest in shareholdings).

One for the comparative binder.

Geert.

The Court held some weeks ago in C-194/16 Bolagsupplysningen OÜ on the application of the Shevill rule, as supplemented by e-Date advertising, to infringements of a company’s personality rights over the internet. I held back reporting on the case for exam reasons – yep, some of the places I teach at already have exams.

Judgment was issued in Grand Chamber. There can be no clearer indication of the relevance the Court attaches to the question. The CJEU introduces in my view further complication in the Article 7(2) rule (jurisdiction for torts) by requiring the court seized carry out analysis of ‘main economic activity’ with those same courts being told not to get carried away however in that analysis. The judgment does not I believe offer a solid conclusion for the issues of removal and rectification.

An Estonian company operating in Sweden was blacklisted for its allegedly questionable business practices on the website of a Swedish employers’ federation. The website attracted a number of hostile comments from its readers. The Estonian company brought an action before the Estonian courts against the Swedish federation. It complained that the published information has negatively affected its honour, reputation and good name. It asked the Estonian courts to order that the Swedish federation rectify the information and remove the comments from its website. It also requested damages for harm allegedly suffered as a result of the information and comments having been published online.

Can the Estonian courts assert jurisdiction to hear this action on the basis of the claimant’s ‘centre of interests’, a special ground of jurisdiction that the Court previously applied to natural persons, but so far not legal persons? If they can, then second, how should the centre of interests of a legal person be determined? Third, if the jurisdiction of the Estonian courts were to be limited to situations in which the damage occurred in Estonia, the referring court wonders whether it can order the Swedish federation to rectify and remove the information at issue.

I reviewed Bobek AG’s Opinion here – let me recap core issues: Bobek AG suggested there are two novelties in the questions referred: a legal person (not a natural one) is primarily asking for rectification and removal of information made accessible on the internet (and only secondarily for damages for the alleged harm to its reputation). This factual setting, the AG suggests, leads to the question of how far the seemingly quite generous rules on international jurisdiction previously established in Shevill with regard to libel by printed media, and then further extended in eDate to the harm caused to the reputation of a natural person by information published on the internet, may be in need of an update.

At the real root of course of the generous rules on jurisdiction for tort, lies the Court’s judgment in Bier. Bobek AG joined Szpunar AG in severely questioning the wisdom of the Bier rule (both locus delicti commissi and locus damni lead to jurisdiction) in the age of internet publications. Not unexpectedly, the Court of Justice further refined Bier, but did not overrule it.

It held first of all that legal persons like natural persons can claim for damages in their centre of interests (at 38): the split in Bier was introduced for reasons of judicial suitability (‘sound administration of justice’), not personal interest of the plaintiff hence the qualification of that plaintiff has no bearing on the rule.

Following e-Date, the national court therefore needs to determine a centre of interests for a legal person just as it would for a natural person. At 41: for legal persons, this centre of interests ‘must reflect the place where its commercial reputation is most firmly established and must, therefore, be determined by reference to the place where it carries out the main part of its economic activities. While the centre of interests of a legal person may coincide with the place of its registered office when it carries out all or the main part of its activities in the Member State in which that office is situated and the reputation that it enjoys there is consequently greater than in any other Member State, the location of that office is, not, however, in itself, a conclusive criterion for the purposes of such an analysis.’ As one knows from the definition of ‘domicile’ under the Brussels I Regulation, leading to positive jurisdictional conflicts (it is perfectly possible for more than one Member State considering itself the domicile of a corporation), it is far from self-evident to determine where a company’s ‘main’ economic activities are located.

At 43 the Grand Chamber reminds the national courts that their role in the application of the Brussels I Recast is limited to the jurisdictional stage: they must not go into the merits (yet), hence if it is ‘not clear from the evidence that the court must consider at the stage when it assesses whether it has jurisdiction that the economic activity of the relevant legal person is carried out mainly in a certain Member State’, the Court must conclude that the Article 7(2) locus damni for the full damage is not available to that claimant.

The Court then distinguishes actions for rectification of false information and removal of comments: there is no jurisdiction before the courts of each Member State in which the information published on the internet is or was accessible. The Court follows Bobek AG’s Opinion on this point (although the AG also employed it to support his view on withdrawal of Bier altogether) at 48: ‘in the light of the ubiquitous nature of the information and content placed online on a website and the fact that the scope of their distribution is, in principle, universal …an application for the rectification of the former and the removal of the latter is a single and indivisible application and can, consequently, only be made before a court with jurisdiction to rule on the entirety of an application for compensation for damage [the Court refers to Shevill and e-Date] and not before a court that does not have jurisdiction to do so.’

On this latter point, the judgment is 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. These do not necessarily coincide but do raise the same difficulty of claims for rectification and removal by nature being single and indivisible. With more than one court having such full jurisdiction I do not see a solution in the Court’s approach.

Geert.

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

By Stephan Walter, Research Fellow at the Research Center for Transnational Commercial Dispute Resolution (TCDR), EBS Law School, Wiesbaden, Germany.

Today, Advocate General Bobek delivered his opinion in Schrems (Case C-498/16) on the interpretation of Articles 15 and 16 of Regulation No 44/2001.

The Austrian Supreme Court referred two preliminary questions to the CJEU:

(1) Is Article 15 of [Regulation No 44/2001] to be interpreted as meaning that a “consumer” within the meaning of that provision loses that status, if, after the comparatively long use of a private Facebook account, he publishes books in connection with the enforcement of his claims, on occasion also delivers lectures for remuneration, operates websites, collects donations for the enforcement of his claims and has assigned to him the claims of numerous consumers on the assurance that he will remit to them any proceeds awarded, after the deduction of legal costs?

(2) Is Article 16 of [Regulation No 44/2001] to be interpreted as meaning that a consumer in a Member State can also invoke at the same time as his own claims arising from a consumer supply at the claimant’s place of jurisdiction the claims of others consumers on the same subject who are domiciled

(a) in the same Member State,

(b) in another Member State,

or

(c) in a non-member State,

if the claims assigned to him arise from consumer supplies involving the same defendant in the same legal context and if the assignment is not part of a professional or trade activity of the applicant, but rather serves to ensure the joint enforcement of claims?

With regard to the first preliminary question, AG Bobek found that

42. (…) the central element upon which consumer status for the purpose of Articles 15 and 16 of Regulation No 44/2001 is to be assessed is the nature and aim of contract to which the claim(s) relate. In complex cases where the nature and aim of a contract is mixed, namely, that it is both private and professional, there must be an assessment of whether the professional ‘content’ can be considered as marginal. If that is indeed the case, consumer status may still be retained. Moreover, it ought not be excluded that in certain exceptional situations, due to the indeterminate content and the potentially long duration of the contract, the status of one of the parties may shift over time.

62. (…) the carrying out of activities such as publishing, lecturing, operating websites, or fundraising for the enforcement of claims does not entail the loss of consumer status for claims concerning one’s own Facebook account used for private purposes.

However, AG Bobek answered the second question in the negative. He argued that

118. (…) on the basis of Article 16(1) of Regulation No 44/2001 a consumer cannot invoke, at the same time as his own claims, claims on the same subject assigned by other consumers domiciled in other places of the same Member State, in other Member States or in non-member States.

The very interesting opinion can be downloaded here.

China has signed the Hague Choice of Court Convention on 12 September 2017, but has not yet ratified this Convention. The Hague Choice of Court Convention has not entered into force in China. However, Shanghai High Court has already relied on the Hague Choice of Court Convention to make decision.

In Cathay United Bank v Gao, Shanghai High Court, (2016) Hu Min Xia Zhong No 99, the appellant, a Taiwan commercial bank, and the respondent, a Chinese citizen resident in Shanghai, entered into a Guarantee contract. It included a clause choosing Taiwan court as the competent court to hear disputes arising out of the contract. This clause did not specify whether it was exclusive or not. Chinese law does not provide how to decide exclusivity of a choice of court agreement. Facing the legal gap, Shanghai High Court took into account Article 3 of the Hague Choice of Court Convention 2005 and decided that choice of court agreements should be exclusive unless the parties stated otherwise. The Shanghai High Court thus declined jurisdiction in favour of Taiwan Court.

This decision was made on 20 April 2017, even before China signed the Hague Choice of Court Convention. Since the Hague Choice of Court Convention has not entered into force in China, it should not be directly applied by Chinese courts in judicial practice. The question is whether Chinese courts could ‘take into account’ of international conventions not being effective in China to make decision. Although Article 9 of the Chinese Supreme Court’s Judicial Interpretation of Chinese Conflict of Laws Act allows the Chinese courts to apply international conventions, which have not entered into effect in China, to decide the parties’ rights and obligations, such an application is subject to party autonomy. In other words, parties should have chosen the international convention to govern their rights and obligations. Article 9 does not apply to international judicial cooperation conventions that do not deal with individuals’ substantive rights and are not subject to party autonomy. Perhaps, a more relevant provision is Article 142(3) of the PRC General Principle of Civil Law, which provides that international customs or practice may be applied to matters for which neither the law of the PRC nor any international treaty concluded or acceded to by China has any provisions. Arguably, the Hague Choice of Court Convention represents common practice adopted internationally and forms a source to fill the gap in the current Chinese law.

Granted, Arie van Hoe’s brief review of the issues in C-641/16 Tünkers France has the more resonant title for those truly in the know: vis attractiva concursus is a principle which makes sense from a judicial economy point of view but which is likely to gazump parties’ choice of court, as well as ordinary jurisdictional rules. Briefly explained: when a company is insolvent (or under restructuring), prima facie it makes sense to gather as many lawsuits as possible against it, in one court: that of the Member State of COMI. Vis attractiva (the pulling force) concursus then (as defined by Arie) is the principle that ancillary proceedings may be attracted to, and brought before, the forum concursus. The Court of Justice supports an interpretation in that direction of the Brussels I Regulation in conjunction with the insolvency Regulation, most recently in case like Nortel (see my posting for references to earlier case-law), and now included in some form in the Insolvency Regulation. Its development by the CJEU however was not straightforward, as is explained by Laura Carballo Piñeiro; neither is the jury on it entirely settled as excellently reviewed by Zoltan Fabok. More importantly, vis attractiva concursus tends to upset choice of court validly made by creditors of the insolvent company (unlike the Brussels I Regulation, the Insolvency Regulaiton does not accommodate choice of court; indeed it actively discourages forum shopping). The principle therefore must not be interpreted in a way which upsets standard choice of court to a disturbing degree.

Tünkers France involves a case for unfair competition brought by the insolvency practitioners of a German company. Part of the business was sold to a company in France who subsequenly started soliciting clients from the insolvent company, misrepresenting itself as the exclusive distributor in France of the goods manufactured by the debtor. The French subsidiary of the insolvent company brings an action for damages for unfair competition.

The CJEU (in passing nota bene emphasising the need for a harmonious application of the Insolvency and Brussels I Regulation) held that such action is a separate action and it is not based in the rules specific to insolvency proceedings. The French subsidiary acted exclusively with a view to protecting its own interests and not to protect those of the creditors in the insolvency proceedings. The conduct of the tortfeasors is moreover subject to other rules than those applicable in the contest of insolvency proceedings.

Vis attractiva concursus therefore does not have superhero status: the forum concursus cannot attract cases that are too far removed from the insolvency.

Geert.

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

I have just received this Call for papers related to the International Seminar “50 Years of EU Private International Law in Therapy”, organized by the Spanish Association of Professors of International Law and International Relations (AEPDIRI) and the University of Valencia (Spain). It will be held in Valencia on January 25th, 2018.

The purpose of the seminar is to critically examine the five decades of codification of private international law in the EU, assessing its achievements and shortcomings, as well as its interaction with existing national and conventional responses, and with the practice of legal practitioners. In short, the seminar seeks to assess the regulatory and policy outcomes and their impact on the activity of EU operators and citizens. It covers the three classic fields of international jurisdiction, applicable law, and circulation of judgments and public documents in the European Union, without focusing on any specific act adopted by the EU. Future prospects for the process will also be addressed, considering the regulatory proposals on which the European Commission is working.

All those interested in presenting a paper should send their proposal by November 30th, 2017, to seminarioactualidad.dipr2018@aepdiri.org. For guidance purposes, the following topics are suggested (non-exhaustively):

1. Codification techniques in EU private international law.- The need for Regulations; advantages and disadvantages of sector-specific codification; external competences of the EU; interaction with the Hague Conference (HCCH) and other codification forums.

2. Scope and limitations of mutual recognition.- Enforcement of judgments; effectiveness of civil status documents; restrictions on recognition.

3. Interaction of EU private international law with the Spanish model of private international law.- Close and open-ended Regulations; scope of autonomous private international law; intra-EU and international private relations.

4. Impact of private international law on legal practitioners.- Review of the concept of authority; contentious and voluntary jurisdiction; out-of-court procedures; scope of notarial activities in the EU; implementation of EU private international law by public registry officials.

5. The “interregional” dimension of the EU private international law model.- Reference to multi-legal systems and their internal dimension; review of the Spanish model of interregional law.

Applications must be accompanied by the following documents in Word format:

-1. A document with the following information only: title of the proposal; name of the candidate; home university; academic position; indication of whether the candidate is member of AEPDIRI.

-2. Summary of the proposal (without indication of the name of the candidate, but only the title, contents and 3-5 keywords), of 1000-1500 words.

-3. Brief CV (max. 5 pages).

A book will be published  bringing together all the papers and communications submitted –or accepted without oral presentation– for this Seminar.

Thank you Angharad Parry for flagging  [2017] EWCA Civ 1609 Koza v Akcil – Angharad has excellent factual background. The case concerns the application of Article 24(2) of the Brussels I Recast Regulation, which assigns exclusive jurisdiction to the Courts of the Member State of the seat in matters relating to the life and death of companies and of the validity of decisions made by their organs:

in proceedings which have as their object the validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, or of the validity of the decisions of their organs, the courts of the Member State in which the company, legal person or association has its seat. In order to determine that seat, the court shall apply its rules of private international law;

Referring particularly to C-144/10 BVG and to C-372/07 Hassett, the Court of Appeal at 28 correctly suggests Article 24’s exclusive jurisdictional rules need to be interpreted with their limited purpose in mind: ‘when article 24(2) speaks of proceedings having an “object” it is not referring to the purpose of the proceedings. Rather that phrase is to be interpreted as “proceedings which are principally concerned with” one of the types of subject matter within the article.’ At 37: ‘The task for the court in each case is therefore to determine whether the proceedings relate principally to the validity of the decisions of an organ of the company. A mere link to a decision of the company, or an issue raised which is ancillary to the heart of a contractual or some other dispute, is insufficient to bring the proceedings within the exclusive jurisdiction.’

Floyd LJ at 46 summarises the direction for courts: ‘I do not take from the English or European authorities which were cited to us any suggestion that one is required in all cases to disentangle issues which are interlinked in this way and apply Article 24(2) to each issue separately. On the contrary, faced with such proceedings, the court is required to form an overall evaluative judgment as to what the proceedings are principally concerned with. The position is obviously different from a case where two quite independent claims are made in the same proceedings. Exclusive jurisdiction in relation to each claim would, in those circumstances, have to be determined separately.’ In the case at hand the case was found overall and fundamentally to concern one and the same issue of the validity of decisions of the organs of the company

Consequently the issue is one of looking beyond the particulars of form and into the true nature of the proceedings. Not a decision always made with ease.

Geert.

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

In a recent ruling, the Supreme Court of Greece dismissed a cassation against an appellate decision, confirming the findings of the first instance ruling, which issued a default judgment against an Italian company, following the return of a non-service certificate by an Italian bailiff.

The interesting part of the judgment is related to the application of Art. 19.2 Service Regulation.

The questions raised are twofold:

First, the extent of efforts to be made by the Receiving Authority, before deciding to return the document to the Transmitting Authority.

Second, the presumption of the Greek Supreme Court that failure of the defendant to notify his change of abode, allows a court to continue with the proceedings, even when the change occurred before lis pendens.

More information can be found here.

The European Parliamentary Research Service (EPRS) has published the results on its Study “Cross-border restitution claims of looted works of art and cultural goods”. The objective of the Study is described as follows:

“Works of art and cultural goods looted in armed conflicts or wars usually travel across several borders when they are sold. The cross-border character of looted art creates legal challenges for restitution claims as they often concern various national jurisdictions, with differing rules, as well as fragmented and insufficiently defined legal requirements in international and European legal instruments. Against this background, this European Added Value Assessment identifies weaknesses in the existing EU legal system for restitution claims of works of art and cultural goods looted in armed conflicts and wars. Moreover, it outlines potential legislative measures that could be taken at the EU level and that could generate European added value through simplification and harmonisation of the legal system in this area.”

Against this background, the Study deals, inter alia, with

(i) shortcomings of Article 7 no. 4 Brussels Ibis Regulation;

(ii) possible improvements of choice of law in relation to cultural property such as the question of a “lex originis” as a potential variation to the lex rei sitae under certain circumstances;

(iii) potential amendments on the level of substantive law such as e.g. the accession of the remaining Member States to the UNIDROIT Convention on Stolen or Illegally Exported Cultural Goods or, alternatively, autonomous means of incorporating elements of this Convention or relevant provisions of the DCFR by extending Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on the return of cultural objects unlawfully removed from the territory of a Member State;

(iv) the special issue of Holocaust related claims for restitution, including options for developing an adequate sales law;

(v) accompanying measures on EU level such as increasing data exchange of results from provenance research or setting up a EU Agency for the Protection of Cultural Property.

The legal basis for this Study is the following: In accordance with Article 225 of the Treaty on the Functioning of the European Union (TFEU), the European Parliament has a right to ask the European Commission to take legislative action in a particular area. Such requests are based on a legislative initiative report by the parliamentary committee responsible. On 16 February 2016, the Conference of Presidents of the European Parliament authorised its Committee on Legal Affairs (JURI) to draft a legislative initiative report on cross-border restitution claims of looted works of art and cultural goods.

All legislative initiative reports must automatically be accompanied by a detailed European Added Value Assessment (EAVA). Accordingly, the JURI Committee asked the Directorate-General for Parliamentary Research Services (EPRS) to prepare an EAVA to support the legislative initiative report on the cross-border restitution claims of works of art and cultural goods looted in armed conflicts and wars. The Rapporteur is Pavel Svoboda (EPP, Czech Republic), Chairman of the JURI Committee. The author of the Study is Dr Christian Salm, Policy Analyst, European Added Value Unit. The Study is based on an externally commissioned scientific study (“Annex I”) by the author of these lines. Both texts are available here.

Saugmandsgaard ØE’s would seem fast to become the CJEU’s Advocate General of choice in matters of social dumping – witness the recent Ryanair litigation. In C-359/16 Altun, at issue is the binding nature of the E101 certificate. This certifies that a worker moving within the EU is covered by the social security scheme of the Member State (‘MS’) to which the issuing institution belongs. Standing case-law is that the host MS is not entitled to scrutinise the validity of an E101 certificate in the light of the background against which it was issued: this is the result of the mutual trust built into the relevant secondary law.

In current case the Belgian Supreme Court queries whether that case-law applies where a court of the host MS finds that an E101 certificate was obtained or invoked fraudulently.

The AG summarises the relevant investigation at 10: ‘The Sociale Inspectie (Social Inspectorate, Belgium) conducted an investigation into the employment of the staff at Absa NV, an undertaking governed by Belgian law active in the construction sector in Belgium. That investigation established that from 2008 Absa had practically no staff in its employ and outsourced all manual labour to Bulgarian undertakings under subcontracting agreements. Those Bulgarian undertakings had no activities to speak of in Bulgaria and posted workers to work under subcontracting agreements in Belgium for Absa, partly with the involvement and cooperation of other Belgian companies. The employment of the workers concerned was not notified to the Belgian institution responsible for the collection of social security contributions, as they held E 101 certificates issued by the competent Bulgarian authority, certifying that they were covered by the Bulgarian social security system.’

What follows is essentially the Belgian authorities alleging that their Bulgarian counterparts, having been asked to withdraw the certificates, only answered halfheartedly if at all. The Court of Appeal found that the certificates had been obtained by fraud.

Saugmandsgaard ØE emphasises that the EU social security rules at issue effectively establish a private international law system for social security. They assign authorities competent to issue certificates; they designate the social security law applicable. The principle of mutual trust /sincere co-operation, laid down in Article 4(3) TEU, ensures that authorities in the host MS respect the certificates issued in the home MS. However, the AG then effectively flips the coin: sincere co-operation requires sincerity on both sides (my words, not the AG’s).

The AG recalls the Halifax case-law of the CJEU: EU law cannot be relied on for abusive or fraudulent ends and that national courts may, case by case, take account — on the basis of objective evidence — of abuse or fraudulent conduct on the part of the persons concerned in order, where appropriate, to deny them the benefit of the provisions of EU law, in the light of the objectives pursued by the provisions of EU law concerned.

The AG does not just refer to case-law on the very secondary law at issue. He opens up the debate to the wider implications of social dumping and regulatory competition:

At 46: ‘socio-economic considerations likewise support priority being given to the combating of fraud in such a situation. In the context of the system of conflict of laws established by … Regulation No 1408/71, fraud linked to the issue of E 101 certificates represents a threat to the coherence of the Member States’ social security schemes. In that regard, I consider that Member States have a legitimate interest in taking appropriate steps to protect their financial interests and to ensure the financial balance of their social security systems. In addition, the use of E 101 certificates obtained or invoked fraudulently is, in my view, a form of unfair competition and calls into question the equality of working conditions on national labour markets.‘ (footnotes omitted)

At 49, the AG suggest a finding of fraud requires the satisfaction of an objective criterion and of a subjective criterion. The objective criterion consists in the fact that the conditions for obtaining the advantage sought are not in fact satisfied. At 51, the subjective factor:  it is to be established that the persons concerned had the intention of concealing the fact that the conditions for the issue of the E 101 certificate were not in fact met, in order to obtain the advantage stemming from that certificate. Proof of the existence of such fraudulent intent may consist in an intentional act, in particular an inaccurate presentation of the true situation of the posted worker or of the undertaking posting that worker, or in an intentional omission, such as the non-disclosure of relevant information.

(In the case at issue, the facts point to non-fulfillment of one of the substantive criteria for the E101 to be issued, namely that only an undertaking which habitually carries on significant activities in the Member State in which it is established may be issued an E101 of that State).

The fraud must be established in the context of adversarial proceedings with legal guarantees for the persons concerned and in compliance with their fundamental rights, in particular the right to an effective remedy enshrined (at 52).

If the AG’s Opinion is followed, and taking into account Commissioner Thyssen’s recent progress on the reform of the relevant laws, the social dumping window is closing yet a bit more.

Geert.

I was asked yesterday (interview in Dutch) for my thoughts on the Belgian Government’s plans for a Brussels International Business Court. Here goes, in bullet-points format, a slightly extended and more technical version of those preliminary thoughts:

• Three and more’s a crowd. The Belgian move of course is not the first and neither will it be the last. Even pre-Brexit, Member States (and even individual cities within Member States; see Michiel Poesen recently on Frankfort) were vying for the title of preferred place for litigation.
• Brexit evidently may be a game-changer. I have flagged repeatedly that post-Brexit and assuming there will be no deal which would roll-over the UK’s engagement with EU civil procedure law, UK courts will become a lot less attractive. This is due to the more cumbersome recognition and enforcement regime that will be the result of decoupling from Brussels I. The same incidentally does not apply to arbitration. Pre and post Brexit, deal or not, free movement of arbitral awards is subject to the New York Convention.
• Attractiveness as a centre of litigation and legal services is part of regulatory competition. Being known as a place of legal know-how and expedited litigation brings prestige as well as attractive billable hours to the law firms of one’s country.
• Crucially, in an attempt to prise litigation away from London in particular, the use of English in proceedings is always the eye-catcher for the media. However in reality the language of proceedings is to my experience not the defining issue in client’s forum shopping strategies. Know-how of the bench; speed of proceedings; transparency of case-law; and of course ease of recognition and enforcement, are much more so. The Belgian proposal acknowledges as much by touting in particular the ‘collegiality’ and ‘expertise’ of the pool of (domestic and foreign) commercial law experts that will populate the court.
• Unwittingly perhaps but without a doubt, the proposal in flagging the benefits of the BIBC, also highlights the well-known disadvantages of the Belgian courts in ordinary: tardiness of proceedings (the ‘Belgian’ torpedo) in particular. However also very much so, intransparency (as I have repeatedly signalled: access to Belgian case law continues to be highly problematic) and lack of collegiality among the bench: being a judge is a lonely professional existence in Belgium. Professional secrecy rules, practicalities (lack of proper office space), and the aforementioned reporting issues work against Belgian jurisprudence presenting itself as coherent.
• At a technical level, the proposal emphasises repeatedly that the BIBC will be a court. Not an arbitral tribunal. The difference lies particularly in the easy or enforcement. The draft Bill loudly talks the talk in this respect. But does it walk the walk? What a ‘court’ means within the context of EU civil procedure law is of course the prerogative of that EU law: not of the Member States. (I refer to recent blog posts on same). Extensive reference to UNCITRAL’s Model Law on international commercial arbitration is a strange prop to use in the draft, if the idea is to take one’s attention away from arbitration. The BIBC will only take cases in the event of prorogation (choice of court or submission). The pool of judges will mostly be taken from part-timers, not benchers. Most importantly, in my mind: Article 43 of the draft instructs the BIBC, with respect to choice of law, to respect parties’ choice of governing law, and, in the absence of such law, ‘to apply the law determined by the conflict of laws rules which it considers applicable’. This is a copy /paste from Article 28(2) of the Model Law. In footnote the Act suggests that by omitting the third para of said Law (‘The arbitral tribunal shall decide ex aequo et bono or as amiable compositeur only if the parties have expressly authorized it to do so’), the Bill emphasises the nature of the BIBC as court. It does not. Courts are simply subject to Rome I and II when it comes to applicable law. They do not just ‘consider a law applicable’.

Much to chew on. My analysis is based on a draft Bill which a little bird sent me. This is probably not the final say on the BIBC. (On an aside: @BIBC is already taken. I can think of one or two Twitter Handles which the BE government may want to snap up before someone else does).

Geert.

Expecting higher demands for international commercial dispute resolution following Britain’s departure from the EU, Belgium plans to set up a new English-language commercial court, the Brussels International Business Court (BIBC), to take cases away from the courts and tribunals in London. This decision was announced on 27 Oct 2017. This BIBC is designed to address disputes arising out of Brexit and major international commercial disputes. The court will take jurisdiction based on parties’ choice, and will do the hearing and deliver judgments in English. The parties would have no right to appeal. BIBC combines elements of both traditional courts and arbitration. See comments here.

Although Brexit may cause uncertainty to litigants in the UK, a survey suggests that the EU judicial cooperation scheme is not the main reason for international parties choosing London to resolve their disputes. The top two factors that attract international litigants to London are the reputation and experience of English judges and combination of choice of court clauses with choice of law clauses in favor of English law,  followed by efficient remedies, procedural effectiveness, neutrality of the forum, market practice, English language, effective UK-based counsel, speed and enforceability of judgments. Furthermore, Brexit will not affect the New York Convention and would less likely affect London as an arbitration centre. It may be more reasonable to suggest that the main purpose of BIBC is not to compete with London at the international level, but to offer additional judicial tool and become a new commercial dispute resolution centre within the EU to attract companies and businesses to Brussels.

First personal impressions presented by Edina Márton, LLM, PhD (Saarbruecken)

For jurisdictional purposes, the localisation of cross-border violations of personality rights under European instruments, such as Regulation (EU) No 1215/2012 (Brussels Ia), has attracted the attention of a considerable number of scholars and often led to different legal solutions in the national judicial practice. At EU level, besides Shevill (C-68/93; ECLI:EU:C:1995:61) as well as eDate and Martinez (C-509/09 and C-161/20; ECLI:EU:C:2011:685), since 17 October 2017, a third judgment in case Bolagsupplysningen (C-194/16; ECLI:EU:C:2017:766) has given further clarification in this area. In the recently delivered judgment, the ECJ specified one of the two limbs of the connecting factor “where the harmful event occurred or may occur” under Article 7(2) of Brussels Ia, namely the place of the alleged damage.

Two key factual elements of Bolagsupplysningen differentiate this case from Shevill, as well as eDate and Martinez. First, one of the alleged victims is a legal person established under Estonian law and has business activities in Sweden (paras 9 and 10). Secondly, the case concerned “the rectification of allegedly incorrect information published on … [the] website [of the Swedish defendant], the deletion of related comments on a discussion forum on that website and compensation for [the entire] harm allegedly suffered” (para 2; emphases omitted; words in square brackets added).

Regarding the determination of the jurisdictionally relevant place of damage, the ECJ basically ruled that a legal person asserting that its personality rights have been violated through the Internet may bring an action for rectification and removal of the allegedly infringing information, and compensation for all the damage occurred before the courts of the Member State in which its centre of interests is situated. In addition, it also stated that the courts of each Member State in which the contested online information is or was accessible are not competent to hear actions brought for rectification and removal of that information.

In the present author’s view, one of the most significant aspects of the judgment is that the ECJ treated the pecuniary and non-pecuniary damage equally for determining the jurisdictionally relevant place of damage (para 36). In addition, the ECJ applied the “centre of interests” connecting factor introduced in eDate and Martinez to this case and identified it vis-à-vis a legal person pursuing business activities in a Member State other than in the Member State in which its registered office is located (paras 40 ff.). The decisive element for this identification seems to be the pursuit of business activities. As a side note, it is worth questioning how to define this approach for entities that do not carry out such activities (cf. the centre of interests of a natural person generally coincides with his/her habitual residence in eDate and Martinez, para 49). Finally, and, in the opinion of the present author, most importantly, regarding claims for rectification and removal of allegedly infringing online information, the ECJ disregarded the so-called mosaic principle (paras 45 ff.).

On 1 December 2017, the University of Milan will host the final conference of the Project ‘Planning the Future of Cross-Border Families: A Path Through Coordination’ (JUST/2014/JCOO/AG/CIVI/7729, co-funded by the European Commission under the Civil Justice Programme).

The Project aims at analyzing the practice of several Member States concerning the application of EU Regulations No 2201/2003, No 1259/2010, No 4/2009, and No 650/2012, as well as the 2007 Hague Maintenance Protocol, and the 2007 Hague Recovery Convention. It has been carried out by the University of Milan together with the MPI Luxembourg, the Universities of Heidelberg, Osijek, Valencia and Verona, and in partnership with several family lawyers associations – the Italian AIAF, the Spanish AEAFA-, the Italian Scuola Superiore della Magistratura, and the Croatian Pravosudna akademija.

The event is free of charge and it will be held in English and Italian with simultaneous interpretation. Registration is nevertheless compulsory (click here, also to access the full program ).

Facebook page: www.facebook.com/eufams

The new issue of “Rabels Zeitschrift für ausländisches und internationales Privatrecht  – The Rabels Journal of Comparative and International Private Law” (RabelsZ) has just been released. It contains the following articles:

Marc-Philippe Weller, Vom Staat zum Menschen: Die Methodentrias des Internationalen Privatrechts unserer Zeit (Referral, Recognition and Consideration: New Methodological Approaches in Private International Law):

This article draws attention to new methodological challenges posed by an increasingly globalized world: In modern European societies, individual interests are becoming more and more important, demanding private international law to no longer only determine the legal order closest connected to the respective case, but to consider individual interests and substantive arguments as well. To cope with these current developments, private international law must find a balance between individuals’ and states’ interests, while ensuring international consistency at the same time. This article aims at showing that these challenges can, however, be met if the existing system of referral was complemented by methods of recognition and consideration of local and moral data.

Dorothee Einsele, Kapitalmarktrecht und Internationales Privatrecht (Capital Market Law and Private International Law)

Claims for damages in the case of capital market offences not only grant compensation to market participants but also play an important role in the enforcement of market regulations. Hence, the question of which law is applicable to capital market offences becomes relevant. In this regard, one must make the following differentiation: If a (pre-)contractual relationship between the injuring party and the damaged person already exists at the time of the infringement, claims for damages are covered by the Rome I Regulation. Otherwise, the applicable law is determined by the Rome II Regulation. This means that the place of injury, which usually coincides with the place of habitual residence of the injured party, is, in principle, the decisive connecting factor (Art. 4(1)). However, this connecting factor, by focusing on the individual injured party, does not correspond with the character of capital market law as market organisation law. With regard to competition law, another set of rules regulating the organisation of markets, Art. 6 of the Rome II Regulation provides for the application of the law of the affected market. Since Recital 23 of the Rome II Regulation qualifies Art. 6 as a mere clarification of the general rule of Art. 4(1), the place of injury may be clarified accordingly for capital market offences and be interpreted as the law of the affected market. Capital market rules of conduct, however, are mostly overriding mandatory rules. Therefore, they are not covered by the general conflict-of-law rule for torts but are governed by special provisions, especially Art. 17 of the Rome II Regulation. The rationale of Art. 17 is to protect the legitimate expectations of the injuring party that the rules of conduct he had to comply with at the time the harmful act was committed will also be relevant to whether he has to pay damages. Therefore, the rules of conduct of the country in which the harmful act was committed, while often coinciding with the law of the affected market, may be taken into account when applying the substantive law. The rationale of Art. 17 even allows for primarily the rules of the affected market to be taken into account when market participants could expect this law and not the rules of the country where the harmful act was committed to be relevant for damage claims. Ultimately, this means that the rules of conduct of the affected market will usually be relevant, albeit not automatically but rather taking into account their nature as overriding mandatory rules. The differentiation between the applicable tort law and the relevant rules of conduct is already necessary for those rules that follow the country-of-origin principle. By contrast, it would not be consistent with the principles of the Rome I and Rome II Regulations to apply the tort law of the violated rule of conduct, as this would mean that overriding mandatory rules would determine the applicable tort law.

Hannes Wais, Einseitige Gerichtsstandvereinbarungen und die Schranken der Parteiautonomie (Unilateral Jurisdiction Agreements and the Limits of Party Autonomy)

1. Unilateral jurisdiction agreements may seem unfair when viewed from a purely procedural perspective. However, the mere imbalance of jurisdictional options between the parties may be counterbalanced by a financial or other benefit for the (procedurally) disadvantaged party. The regulation does not provide for a standard of review against which the implied unfairness can be measured.

2. Unilateral jurisdiction agreements may constitute an abuse of law. Such an abuse of law is generally prohibited under the Brussels I Regulation. Thus, where an abuse of law is ascertained, the unilateral jurisdiction agreement is void. An abuse of law exists where the sole purpose of the unilateral jurisdiction agreement is to render it impossible for the disadvantaged party to file a lawsuit or to appear in court.

3. Unilateral jurisdiction agreements may infringe substantive national law. Article 25(1) Brussels I Regulation provides for the application of the law of the prorogated forum for questions concerning the agreement’s substantive validity. Notwithstanding the still unclear definitive scope of Art. 25(1) Brussels I Regulation, the rules of lex fori prorogatiwill, in any case, apply where their purpose is to safeguard the existence of real party autonomy.

4. With regard to German substantive law, the provisions on the admissibility of standard contract terms (Secs. 305 ff. German Civil Code (BGB)) mostly fulfil these requirements. Due to the inherent imbalance in the procedural options, unilateral jurisdiction agreements differ from the conceptual approach to jurisdiction underlying the Brussels I Regulation. For this reason, where Secs. 305 ff. BGB are applicable, unilateral jurisdiction agreements are generally presumed to be void.

5. Article 31(2) Brussels I Regulation does not apply to unilateral jurisdiction agreements. Hence, these types of agreements are not immune to so-called “torpedo claims” that are filed with the sole purpose of delaying trial in the chosen court.

Johan Meeusen, Fieke van Overbeeke, Lore Verhaert, The Link Between Access to Justice and European Conflict of Laws after Lisbon, Much Ado About Nothing?

Since the Treaty of Lisbon, the access to justice principle has become “serious business”. Its insertion in the Treaty implies a certain gravity. The inclusion of conflict of laws within that realm provokes many questions. As has been explained in this paper, access to justice is not easy to define within the framework of the EU Treaty and is primarily understood in a procedural sense. It is therefore rather odd that European conflict of laws harmonisation should be approached in its light, as a procedural concept of access to justice does not seem apt to impose a substantive, policy-inspired direction upon conflict of laws, apart then from promoting the benefits served by harmonisation as such. Also, one could read in the strong emphasis by Articles 67(4) and 81(1) TFEU on mutual recognition of judicial and extrajudicial decisions in civil matters another confirmation of this procedural approach towards conflict of laws in the EU, which could eventually result in its completely auxiliary position.

From a conflict of laws perspective, yet paradoxically even more so from a broader EU perspective, such limited understanding of the purpose which choice-of-law rules can serve, would be unfortunate as some specific and valuable features of conflict of laws might remain unused. Appropriate choice-of-law rules may in their way contribute to the attainment of substantive policy goals. It should be noted however that not only this ability to incorporate policy objectives in choice-of-law rules pleads for a well-balanced approach between mutual recognition and European conflict of laws as developed by the EU legislature. Harmonised choice-of-law rules in important or delicate fields tend to create more legal certainty as well as inspire more political and judicial acceptance, one must assume, than a system solely based on mutual recognition. The Rome I, II and III Regulations and those on Maintenance and Succession illustrate the advantages of an elaborated, legislative system of conflict of laws very well. The AFSJ, however broad and vague this concept still may be, can certainly serve as an appropriate framework for the elaboration of private international law within the EU with ample space for the establishment of such a well-balanced system. The prominent place of the AFSJ, enhanced by the Treaty of Lisbon and paralleled with the clear categorisation of conflict of laws in this area, can be very instrumental in both preventing an isolated approach to conflict of laws and providing a framework which would fit its proper characteristics. Possibly, the somewhat enigmatic link with access to justice, in a modern understanding which includes substantive policies, could even stimulate this process.