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Written by Muhammad Zubair Abbasi, Lecturer at School of Law, Oxford Brookes University (mabbasi@brookes.ac.uk)

Introduction:

In a recent judgment Tousi v Gaydukova [2024] EWCA Civ 203, the Court of Appeal dealt with the issue of the relevance of foreign law to the remedy available under English law in respect of an overseas ceremony of marriage. Earlier the High Court had held that the foreign law determines not only the validity or invalidity of the ceremony of marriage but also the ramifications of the validity or invalidity of the ceremony. The Court of Appeal disagreed and reiterated the rule that lex loci celebrationis is limited to the determination of the validity or invalidity of the ceremony of marriage. Therefore, English law will apply to provide a remedy or relief upon the breakdown of the relationship of the parties to a marriage ceremony that took place abroad.

In this comment, I argue that the judgment of the Court of Appeal conflates the distinction between the formal recognition of the relationship under the foreign law and the relief available thereto. The judgment of the Court of Appeal does not appreciate this distinction along with the distinction between the void marriage and ‘non-qualifying ceremony’ of marriage, which does not entitle the parties to any remedy or financial relief under the law in England and Wales.

The Facts:

The ceremony of marriage between the parties, an Iranian husband and a Ukrainian wife, took place at the Iranian Embassy in Kyiv on 12 December 1997 in the presence of two official witnesses. The marriage was not registered with the state authorities in Ukraine. The parties knew about the requirement of the registration of their marriage for its validity, but the husband refused to cooperate with the wife when she attempted to register the marriage. In 2000, the parties moved to the UK for the husband to study for a PhD. The Home Office granted entry clearance to the wife as the spouse of the husband. In 2010, the parties were granted the tenancy of a property in their joint names, but they separated in December 2019. In April 2020, the wife applied for non-molestation and occupation orders. The court granted a non-molestation order ex parte but refused an occupation order and observed that the wife could apply for the transfer of the tenancy. Therefore, the wife applied for the transfer of tenancy of the former matrimonial home into her sole name.

The wife made the application under section 53 and Schedule 7 of the Family Law Act 1996 which empowers the court to transfer a tenancy to cohabitants. Paragraph 3 of Schedule 7 of the Act authorises the court to make such orders when cohabitants cease to cohabit. It is a curious aspect of this Act, that it puts a cohabitant applicant in a better position than a married applicant, who must wait until the court terminates their marriage, before their application can be heard. The court granted a transfer of tenancy to the wife by regarding her as a cohabitee because the marriage of the parties was not registered under Ukrainian law and hence it was not recognised under English law, not even as a void marriage.

The husband filed an appeal on the ground that the parties had entered into a marriage which was capable of recognition under English law. The wife argued that the court should regard the unregistered marriage as a ‘non-marriage’ which does not entitle the parties even to a nullity order under the Matrimonial Causes Act 1973 (MCA). Mostyn J addressed this single point of appeal in his detailed judgment at the High Court Family Division. He rejected the appeal after holding that the marriage ceremony did not qualify even as a void marriage and therefore, the couple were unmarried cohabitants because Ukrainian law did not recognise their marriage ceremony.

In his judgment, Mostyn J criticised the judicial creation of ‘non-qualifying ceremony’ (NQC) by the Court of Appeal in AG v Akhter and Others [2020] EWCA Civ 122 for its direct conflict with that statute [s. 11 of the MCA 1973]’ which extends financial relief even to void marriages to protect the rights of spouse. In highlighting the impact of the category of the NQC on the legal recognition of foreign marriages under English law, he held that foreign law determines not only the validity of a ceremony of marriage, but also the ramifications of the validity or invalidity of the ceremony.

Ruling and Comments:

Earlier, Mostyn J had observed that it is “well established under our rules of private international law that the formal validity of a marriage celebrated overseas (forma) is governed by the lex loci celebrationis” [para 65]. He held that “If the foreign law not only determines the question of validity, but also determines the ramifications of invalidity (if found), then in my judgment that corollary should also be binding, provided that it is not obviously contrary to justice.” [para 68]

At the Court of Appeal, Moylan LJ observed, “The effect of the judge’s approach … was that the relief available under the foreign law should determine … the relief available under English law.” [para 29]. This, according to Moylan LJ was wrong because “the relief available, or not available, is determined by the law governing the dissolution and annulment of marriages, not the law governing the formation of marriages.” [para 35]. In this case however the issue was not related to “the dissolution and annulment of marriages” because both Mostyn J and Moylan LJ agreed that the ceremony of marriage of the parties did not “qualify” as a marriage and hence did not require to be dissolved or annulled because it did not have any legal effect at all. Therefore, the main issue in this case was whether Ukrainian law recognised the marriage ceremony that took place at the Iranian embassy in Kyiv. Both judges found that Ukrainian law did not recognise the marriage ceremony, not even as a void marriage and hence did not provide any remedy or relief.

It is important to note that the judges of the Court of Appeal did not appreciate that there is a third stage between the validity of marriage and relief on breakdown of marriage, and it is the stage of legal recognition or non-recognition of a marriage as valid, void or non-marriage. For instance, in Hudson v Leigh [2009] EWHC 1306, South African law recognised the ceremony as a void marriage; and in Asaad v Kurter [2013] EWHC 3852, the ceremony could be subsequently ratified, but a similar option was not available under Ukrainian law. Ukrainian law however recognised since 2002 a “so-called in-fact marriage relations” which provided the parties with rights and remedies in respect of property acquired during their cohabitation. Similar provisions are available for the transfer of tenancy but not for the provision of other financial relief under English law.

Moylan LJ highlighted that “there is a fundamental distinction between the law governing the formation of marriages and the law governing the dissolution and annulment of marriages. The remedies or relief which might be available under the latter are distinct from former.” [para 73]. This binary distinction however does not cater to the situations where “the law governing the formation of marriages” regards the marriage ceremony as “non-qualifying ceremony” and hence “the law governing the dissolution and annulment of marriages” does not provide any “remedies or relief”. In Hudson v Leigh, the former category of the law regarded the marriage as void and the latter category provided financial relief. In the case at hand, “the law governing the formation of marriages” regarded the marriage ceremony as “non-marriage” and hence “the law governing the dissolution and annulment of marriages” did not apply and could not provide any remedy or relief.

As the category of “non-qualifying ceremony” which was previously described as “non-marriage” is relatively new under English law, the case law is unclear about their treatment especially in cases involving conflict of laws. Mostyn J argued that the category of “non-qualifying ceremony” would be treated under the foreign law as the governing law both for the determination of such ceremonies and their consequent legal ramifications while Moylan LJ has favoured limiting the foreign law to the question of validity or invalidity of marriage ceremonies. I submit that the tension between these two conflicting views can be resolved by appreciating a third stage between the formation and dissolution/annulment of marriage, which is the legal recognition or non-recognition of the marital relationship by taking into account the possibilities of subsequent ratification or registration of marriages. In this way, the governing law of marriage regulates both the formation of the marriage and its subsequent treatment as legally recognised or not while the remedy or relief is determined under lex fori when the relationship breaks down.

A call for papers has recently been issued by Michiel Poesen and Patricia Živković (University of Aberdeen), co-convenors of the Society of Legal Scholars Conflict of Laws section, for the Conflicts section of the SLS Annual Conference 2024 at Bristol University from 3 to 4 September 2024. The theme of the conference is Learning from Others: Lessons for Legal Scholars?.

The call is reproduced below, as received by the promoters.

As scholars, we interact with others – students; fellow academics; legal practitioners; the wider public – and the 2024 conference will reflect on the gains we can achieve from such interaction in a global academic environment.  The conference will examine this theme in two ways.  First, as scholars attending the SLS conference, we benefit greatly from meeting colleagues from different backgrounds and disciplines and, notably, from other legal jurisdictions (both within and outside the common law world).  What can we gain from taking an international or comparative perspective to our work?  To what extent do different perspectives, such as socio-legal, interdisciplinary or historical viewpoints, assist our research? Secondly, one of the significant elements of the conference is the inclusion of papers from both junior and senior scholars. What lessons can we gain from each other, both in terms of mentoring and in recognising the need to promote the interests of early career legal scholars and offering support for those entering the academy? No scholar is an island. The SLS provides a positive inclusive environment for legal academics at whatever stage of their career to engage with each other and learn valuable lessons from a diverse and inclusive community of legal scholars. Doctoral students are very welcome and are encouraged to submit papers for consideration in the Subject Sections Programme.

The 2024 conference will be primarily in person with a virtual element.  ECR and EDI sessions, together with the AGM and Council meeting, will be available virtually free of charge.  A small charge will be made for virtual attendance at the plenary sessions. Council members who are not attending the 2024 Conference will still be able to attend the Council meeting and AGM virtually and, consistent with our EDI priorities, speakers who cannot attend may, on sufficient notice, be able to present virtually.  We will also endeavour to allow speakers unable to attend at the last minute due to ill-health or travel restrictions to present virtually. This decision reflects a move globally to resume in person conferences, the significant costs of virtual attendance which would require a rise in price due to the absence of suitable facilities at Bristol University and evidence of a significant drop in numbers for virtual attendance at the 2023 conference. We will also continue to offer support for attendance via our Annual Conference Additional Support Fund (ASF) to support those with special circumstances warranting additional support. Priority for support will be given to applicants who have no other source of funding.

If you are interested in delivering a paper or organising a panel, please submit your paper abstract or panel details by 11:59pm UK time on 22 March 2024. All abstracts and panel details must be submitted through the Oxford Abstracts conference system which can be accessed here – and following the instructions (select ‘Track’ for the relevant subject section). If you registered for Oxford Abstracts for last year’s conference, please ensure that you use the same e-mail address this year if that address remains current. For those whose papers are accepted, the original submission offers the facility to upload a full paper nearer the time. If you experience any issues in using Oxford Abstracts, please contact slsconference@mosaicevents.co.uk. If you are submitting as part of the Gesellschaft für Rechtsvergleichung there will be a tick box option for you to select as you complete the form.

This is the second year we will be running first blind peer review, with a subsequent non-blind review once initial decisions have been made to consider profile diversity before final decisions are made and communicated. The feedback from convenors on this process was overwhelmingly positive.

Decisions will be communicated by 26 April 2024.

We welcome proposals for papers and panels on any issue relating to “Learning from Others: Lessons for Legal Scholars?.” We welcome proposals representing a full range of intellectual perspectives and methodological approaches in the subject section, and from those at all stages of their careers.

Those wishing to present a paper should submit a title and abstract of around 300 words. Those wishing to propose a panel should submit a document outlining the theme and rationale for the panel and the names of the proposed speakers (who must have agreed to participate) and their abstracts.  Sessions are 90 minutes in length and so we recommend panels of three speakers, though the conference organisers reserve the right to add speakers to panels in the interests of balance and diversity.

As the SLS is keen to ensure that as many members with good quality papers as possible can present, speakers should not present twice at the conference at the expense of another credible paper.  When you submit an abstract via Oxford Abstracts you will be asked to note if you are also responding to calls for papers or panels from other sections.

Please also note that the SLS offers two prizes. First, The Best Paper Prize, which can be awarded to academics at any stage of their career, and which is open to those presenting papers individually or within a panel.  The Prize carries a £300 monetary award, and the winning paper will, subject to the usual process of review and publisher’s conditions, appear in Legal Studies.  To be eligible:

•  speakers must be fully paid-up members of the SLS (Where a paper has more than one author, all authors eligible for membership of the Society under its rule 3 must be members. The decision as to eligibility of any co-authors will be taken by the Membership Secretary, whose decision will be final.)
• papers must not exceed 12,000 words including footnotes (as counted in Word; figures and tables are not included in the word count);
• papers must be uploaded to the paperbank by 11:59pm UK time on 23 August 2024;
• papers must not have been published previously or have been accepted or be under consideration for publication; and
• papers must have been accepted by a convenor in a subject section and an oral version of the paper must be presented at the Annual Conference.

In 2020 the Society launched the Best Paper by a Doctoral Student Prize, which is open to currently registered doctoral students who are members of the Society. The Prize is £300. There is no link to publication in Legal Studies arising from this award, but any winner would be welcome to submit their paper for consideration by the Society’s journal. To be eligible:

• speakers must be fully paid-up members of the SLS who are Doctoral students. (Where a paper has more than one author, all authors eligible for membership of the Society under its rule 3 must be members and all authors must be Doctoral students, whatever their discipline). The decision as to eligibility of any co-authors will be taken by the Membership Secretary, whose decision will be final;
• papers must not exceed 12,000 words including footnotes (as counted in Word; figures and tables are not included in the word count);
• papers must be uploaded to the paperbank by 11:59pm UK time on 23 August 2024;
• papers must not have been published previously or have been accepted or be under consideration for publication; and
• papers must have been accepted by a convenor in a subject section and an oral version of the paper must be presented at the Annual Conference.
• Where a paper eligible for this prize wins the Best Paper Prize, the judges may at their discretion award the prize for Best Paper by a Doctoral Student to a different nominated paper
• The judges may announce a shortlist at their discretion with the winner to be announced by the first week in August.

We have also been asked to remind you that all speakers will need to book and pay to attend the conference and that they will need to register for the conference by 14 June 2024 to secure their place within the programme, though please do let us know if this deadline is likely to pose any problems for you. Booking information will be circulated in due course and will open after the decisions on the response to the calls are made.

Due to massive strikes in Germany’s public transport sector, we have made the decision to move the conference on “Who’s Afraid of Punitive Damages?”, to take place in Augsburg on 8/9 March (originally announced here), to a hybrid format.

Accordingly, everyone interested in the topic is welcome to join some (or all) presentations via this Zoom link (ID: 624 2497 5622; password: &ZB&%1).

The latest version of the conference programme can be found here.

The third edition of Paul Torremans‘ Intellectual Property and Private International Law has just been published by Oxford University Press in its Private International Law series.

The blurb reads:

The rapidly developing field of intellectual property and private international law could be difficult to navigate for practitioners and researchers because of the complex interface of the two legal disciplines. Intellectual Property and Private International Law sets out the main concepts with a comprehensive analysis of issues arising from the relationship between the two disciplines from common law, European Union and international perspectives.

This highly regarded work examines how jurisdiction is established in intellectual property disputes, how one identifies the applicable law and how to secure the recognition and enforcement of foreign judgments. This new edition encompasses the numerous, and in some cases major, legal developments seen over the past twelve years. It deals with the private international law aspects of the introduction of mandatory exemptions to the Directive on Copyright in the Digital Single Market; discusses the new Court of Justice of the European Union case law on article 7.2 Brussels I Regulations and its divergent approach to European Union intellectual property rights; covers recent EU directives and national case law, including the fundamental change in patent law that will result from the introduction of the European Patent with Unitary Effect and the Unified Patent Court; as well as elucidating the implications of Britain’s departure from the European Union.

New to this Edition:

• Analyses the fundamental change in patent law that will result from the introduction of the European Patent with Unitary Effect and the Unified Patent Court
• Discusses the private international law side of the introduction of mandatory exemptions to copyright in the DSM Directive
• Clarifies the impact of Brexit and other EU directives and case law
• Covers the Court of Justice of the European Union case law on article 7.2 Brussels I Regulation and its divergent approach to Eurasian Economic Union (EEU) intellectual
• Property rights

A corrigendum to Regulation (EU) 2020/1784 of 25 November 2020 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (the Recast Service Regulation) has been published on the Official Journal of the European Union of 2 February 2023 (L 405).

It concerns Article 33, which is about the information that Member States must share with the Commission so that the latter can make it available to the public at large.

Article 33(1) refers to such information as is required under Articles 3, 7, 12, 14, 17, 19, 20 and 22 of the Regulation. This includes, for example, the names and addresses of receiving agencies, the professions or competent persons that are permitted under national law to effect the direct service of documents, whether national law requires a document to be served within a particular period, etc.

The correction is, specifically, about Article 33(3). As originally published, the latter provision read as follows:

The Commission shall publish the information communicated in accordance with paragraph 1 in the Official Journal of the European Union, with the exception of the addresses and other contact details of the agencies and of the central bodies and the geographical areas in which they have jurisdiction.

According to the corrigendum, Article 33(3) should read instead:

The Commission shall publish the information communicated in accordance with paragraph 1 through appropriate means, including through the European e-Justice Portal.

As this is presented as a corrigendum, rather than an amendment to the Regulation, the revised text is meant to apply as of the date of application of the Regulation, that is, 1 July 2022. In fact, the information referred to in Article 33(3) has never been published on the Official Journal, and appears to be already available on the European Judicial Atlas in Civil Matters, which can be reached through the e-Justice Portal.

On 25 April, Fleur Johns (University of New South Wales) will deliver the 9th Annual T.M.C. Asser Lecture at the Peace Palace in The Hague, Netherlands. The organizers have kindly shared the following abstract (and this invitation) with us.

The concept of ‘community’ (as in the ‘international community’ or the ‘community of nations’) has been a cornerstone of international law, sometimes aiding the articulation and promotion of public interests. For example, recent attempts to forge international agreement on pandemic prevention, preparedness, and response have been spurred by governments acknowledging ‘the catastrophic failure of the international community’ to ensure solidarity and equity in response to the COVID-19 pandemic.

And lately, international legal litigants have invoked ‘community interest’ in seeking to hold states accountable for alleged violations of international law. Such claims have been central to recent proceedings brought before the International Court of Justice (ICJ) alleging genocide or torture: by The Gambia against Myanmar; by Canada and the Netherlands against the Syrian Republic; and by South Africa against Israel.

Nonetheless, international legal notions of ‘community’ have also served racist, exclusionary purposes. The 19th century international lawyer James Lorimer famously argued that some religious and racialised peoples could never be full members of a community of nations under international law. Current international legal vocabularies, such as the ICJ Statute’s reference to the ‘law recognized by civilized nations’ for example, remain redolent of this racist idea of community-as-privilege.

In view of their ambivalence, claims about ‘international community’ should be made with caution. They often imply commonality of experience and shared value on a global scale when the experiences and values at issue may, in fact, be partial or contested, perhaps increasingly so. Digital technologies have changed how nations and peoples are brought together or connect, creating new disparities between those made more vulnerable to violence and injustice by digital connectivity, and those who benefit from the uneven global spread of computation.

This lecture will examine the concept of ‘community’ in today’s international law, especially in the context of humanitarianism and the growing use of technology. We will revisit key texts such as Georges Abi-Saab’s 1998 article, ‘Whither the International Community?‘. Ideas of ‘community’ have long played a role in making insiders and outsiders in international law, and continue to do so. Yet techniques of community-making in international law may nevertheless present egalitarian possibilities—or so this lecture will show.

Seats can be booked via this link.

On 6 December 2024, Yuliya Chernykh (Norway University of Applied Sciences) is going to host a workshop on international investment contracts in Lillehammer, Norway. She has kindly shared the Call for Abstracts with us.

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on Thursday 14 March 2024 at 13:00 (Mexico City time – CST), 20:00 (CET time). The topic of the webinar is the Inter-American Court of Human Rights’ judgment in Córdoba v. Paraguay, a case relating to international child abduction, and will be presented by a panel of experts in different fields (in Spanish, see poster). This judgment will be discussed from the following perspectives: State responsibility, Private International Law, human rights law and legal argumentation.

The judgment is currently available only in Spanish: I/A Court H.R., Case of Córdoba v. Paraguay. Merits, Reparations and Costs. Judgment of September 5, 2023. Series C No. 505. Press release is available here (in Spanish only).

The details of the webinar are:

https://us02web.zoom.us/j/87214914850?pwd=UStJWnRZc2wvZUplWUx5VkZUSm9FQT09

Meeting ID: 872 1491 4850

Password: AMEDIP

Participation is free of charge.

This event will also be streamed live: https://www.facebook.com/AmedipMX

The author of this post is Lydia Lundstedt, who is an Associate Professor and Senior Lecturer at Stockholm University. In the interest of transparency, author notes that she previously wrote an expert legal opinion on behalf of BSH Hausgeräte.

On 22 February 2024, Advocate General (AG) Emiliou’s Opinion on the interpretation of Article 24(4) Regulation (EU) No 1215/2012 (Brussels I bis) in BSH Hausgeräte (C-339/22) was published.

Article 24(4) confers exclusive jurisdiction “in proceedings concerned with the registration or validity of patents” upon “the courts of the Member State in which the … registration has been applied for, [or] has taken place …”.

AG Emiliou opines that Article 24(4) 1) does not encompass infringement proceedings even after an alleged infringer pleads the invalidity of the foreign patent; and 2) does not apply to proceedings concerning patents registered in third states, but that a Member State court may give Article 24(4) reflexive effect on the basis of national law. See here for a brief synopsis of the facts and the questions referred and GAVC LAW for a good review of the opinion.

Prior to the CJEU ruling in GAT (C-4/03), there were three possible interpretations of what is now Article 24(4). GAT ruled out the first interpretation, i.e., that the provision does not apply to preliminary questions, by holding that what is now Article 24(4) applied to “all proceedings relating to the registration or validity of a patent, irrespective of whether the issue is raised by way of an action or a plea in objection”. In describing this background, the AG calls GAT an “unfortunate decision” because it goes beyond what is necessary to fulfil the raison d’être of Article 24(4), which in the AG’s view, is deference to national sovereignty. He explains that because an invalidity finding in an infringement proceeding has only inter partes effects, it does not encroach upon the sovereignty of the state of patent registration. He states that if the EU legislator had not codified GAT when it amended the Regulation, he would have advised the CJEU to overturn GAT.

Even after GAT and its codification, uncertainty remained concerning which of the remaining two interpretations of Article 24(4) were correct, namely, 1) that once invalidity is raised, infringement proceedings fall within Article 24(4) and the infringement court loses its jurisdiction (broad reading) or 2) that while validity falls within Article 24(4), infringement does not. Thus, a court having jurisdiction over an infringement dispute based on the rules in the Regulation retains its jurisdiction over the infringement claim but may not determine validity (narrow reading).

The AG finds that the narrow reading is the “lesser evil” because it better aligns with the system and objectives of the Regulation. Specifically, he finds that it better respects the relationship between the general rule in Article 4 and the exception in Article 24(4), and also better ensures legal certainty as the defendant will not be able to undermine the plaintiff’s choice of jurisdiction by raising a validity defence.

Moreover, the AG notes that a narrow reading ensures that a defendant cannot “torpedo” the proceedings and deny the patent holder its right to intellectual property and to an effective remedy (see Article 17(2) and Article 47 of the EU Charter and 41(2) TRIPS) by raising invalidity so late in the proceedings that the statute of limitations has expired so the patent holder cannot initiate new proceedings before the court of registration.

That said, the AG argues that Article 47 of the Charter requires the infringement court to take the invalidity defence into account and he offers practical guidelines on how a Member State court should procced. He suggests that if an invalidity defence has been properly raised, the infringement court should make a preliminary analysis of how a court in the state of registration would decide the matter (compare Solvay (C‑616/10), where such an analysis is done before granting a preliminary injunction) and balance the patent holder’s right to an effective remedy as well as the requirement of efficiency of procedure with the alleged infringer’s right of defence and the sound administration of justice. If the invalidity defence is serious, the Member State court having jurisdiction over the infringement claim should instruct the defendant to initiate invalidity proceedings in the state of patent registration within a set deadline and stay the infringement case in accordance with its procedural rules until the validity question has been decided by the courts/authorities of the state of registration.

The AG notes that the reflexive effect of Article 24(4) has implications for the interpretation of the other rules in Article 24 and for Article 25 on prorogation agreements. The starting point for the AG’s analysis is that the Regulation has a “design flaw” in that while it applies to disputes where the defendant is domiciled in a Member State and the subject matter is closely connected to a third state, it was not designed for such disputes. Thus, the AG opines that the gap needs to be filled in by one of three ways.

The AG rejects the first way, i.e., applying Articles 24/25 by analogy to such situations, because it goes against the clear wording of these articles which refer to a “Member State” and also because previous CJEU case law had already held that the Articles did not apply (see IRnova (C-399/21) concerning patents registered in third states and Coreck Maritime (C-387/98) concerning prorogation agreements in favour of third states). The AG also notes that such a solution would be inconsistent with the system of the Regulation.

The AG also rejects a second way whereby Member States courts having jurisdiction over such disputes based on a rule in the Regulation, are bound to exercise that jurisdiction. Referring to the “design flaw” mentioned above, the AG first opines that an absence of specific provisions addressing these situations cannot be interpreted to mean that Member State courts must exercise jurisdiction. The AG notes that there is nothing in the wording or recitals of Articles 33 and 34 that suggests that these provisions are exhaustive. Articles 33 and 34 allow a Member State court to stay proceedings under certain circumstances if proceedings are already pending in a third state court. The AG also rejects the argument that Owusu (C-281/02) supports this interpretation. In that decision, the CJEU stated “Article 2 of the Brussels Convention [now Article 4 of the Regulation] is mandatory in nature and that, according to its terms, there can be no derogation from the principle it lays down except in the cases expressly provided for by the Convention”. The AG notes that in Owusu the CJEU declined to answer the second question which dealt with the specific situation here. The AG also notes that Coreck Maritime and Mahamdia (C‑154/11) suggests that Member State courts are permitted to give effect to prorogation agreements in favour of third state courts.

Second, the AG opines that such an interpretation (i.e. the second way) would be at a variance with the raison d’êtreof Article 24 to give deference to sovereignty and of Article 25 to respect party autonomy. Moreover, he states that this interpretation would not contribute to legal certainty because a resulting Member state judgment would not be valid in the third state and the issue may be relitigated there resulting in irreconcilable judgments.

Third, the AG notes that the Lugano Convention and the 2005 Hague Convention do not remedy these problems because they only bind a few states and therefore unilateral solutions within the framework of the Regulation are needed.

Lastly, the AG rejects the argument that this interpretation was the clear intention of the EU legislator noting that it was not expressed in the text of Regulation, the travaux preparatoires are generally not clear, and in any case, must be understood in the context whereby the EU legislator abandoned the idea of achieving a comprehensive solution to disputes connected to third states.

The AG suggests therefore a third way of filling the gap, i.e. that the Regulation permits Member State courts that have jurisdiction over such disputes pursuant to a rule of the Regulation, to decline jurisdiction on the basis of national law. That said, the AG opines that the Member State courts’ discretion is limited by EU law in that 1) a Member State court may refuse to exercise jurisdiction over a dispute connected to a third State only where the matter in dispute (i.e. patent invalidity) would fall within the scope of Article 24 had the matter been located in a Member State, or where a choice-of-court agreement in favour of a third state otherwise fulfils the requirements laid down in Article 25; and 2) a Member State court must respect the rules on the protection of weaker parties and the exclusive jurisdiction of the courts of another Member State. However, even when these conditions are fulfilled, the AG opines that a Member State court is not required to decline jurisdiction if there is a risk for denial of justice. The AG rejects the argument that this creates a risk for legal uncertainty because this way gives narrow discretion to the Member state courts under specific circumstances.

I heartily agree with the AG opinion concerning the scope of Article 24(4) so I will limit my comments to his opinion on the reflexive effect of Article 24(4). It seems a bit odd to start off with the premise that there is a design flaw in the Regulation that the CJEU needs to fix instead of accepting the Regulation as it is and interpreting it accordance to the CJEU’s methods of interpretation. The wording of the provisions and the system of the Regulation suggest that Member State courts may not give Articles 24 and 25 reflexive effect under national law.

Indeed, Articles 24 and 25 expressly apply only to Member State courts and Articles 33-34 expressly apply to third state courts. Articles 33-34 are the only rules in the Regulation that permit a Member State court to decline or stay jurisdiction in favour of a third state court. In particular, recital 24 instructs that when applying Articles 33-34, a Member State court may take into consideration

whether the court of the third State has exclusive jurisdiction in the particular case in circumstances where a court of a Member State would have exclusive jurisdiction.

An e contrario interpretation suggests that a Member State may not decline jurisdiction in other situations (except where a higher norm demands this). Moreover, if the Member States already had discretion to give Article 24 and 25 reflexive effect, then Articles 33-34 are superfluous. Lastly, Article 6 exhaustively informs when the Member State courts may apply national rules.

With regard to the objective of Article 24 of giving deference to sovereignty, an argument can be made that, in the absence of an international obligation, the EU does not give third state sovereign interests the same weight as Member State interests. A similar argument can be made with respect to Article 25, i.e., that the EU intentionally refuses to give effect to third state prorogation agreements outside of its treaty obligations, e.g. 2005 Hague Convention on Choice of Court Agreements. That said, the situations involved in Articles 24 and 25 are not completely congruent as Article 25 raises the issue of party autonomy, which is arguably a fundamental right. Also, introducing a discretionary reflexive effect does not further the objective of legal certainty including strengthening the legal protection of persons established in the European Community as it will be less easy to identify in which court one can sue and be sued.

Curiously, the AG’s solution has the unfortunate result that it extends to third states the very solution that the AG criticizes. On the one hand, the AG is critical of GAT and its codification in Article 24(4) because it goes beyond what is necessary to fulfil Article 24(4)’s objective of giving deference to the sovereignty interests of the state of patent registration. On the other hand, the AG suggests that deference to sovereignty interests of the state of patent registration requires that the Member State courts give Article 24(4) reflexive effect when a matter would have fallen under Article 24(4) had the patent been registered in another Member State instead of a third state.

When it comes to the application of Article 24(4), as the AG notes, the CJEU is now “trapped in the solution that it initially adopted”. This is not the case however when giving Article 24(4) reflexive effect. There is no reason why the rule cannot be adapted to better serve its objective without going beyond what is necessary. As noted, deference to the sovereignty interests of a third state does not require a Member State court that is exercising jurisdiction on the basis of a rule in the Regulation to decline jurisdiction over a question concerning a third state patent’s invalidity when the question is raised in infringement action. Thus, there is no reason to “reflexively” apply Article 24(4) to these situations. In contrast, if an alleged infringer sued a patent holder in a Member State on the basis of a rule in the Regulation asking the court to invalidate with erga omnes effect a patent registered in a third state, Article 24(4) should “reflexively” apply as a matter of EU law giving effect to a recognised rule of public international law that one state will not invalidate the public law acts of another state.

The website you’re visiting has been on-line since December 2019. It has undergone only minor changes since.

The time has come to offer readers some new features and a new design.

Between 7 and 10 March 2024 a newly designed website will replace the existing one. Information on the European Association of Private International Law and its activities will prove easier to retrieve, and members will benefit from improved opportunities for exchange and cooperation.

One notable innovation of the new website consists in the creation of a reserved area for the members of the Association (“MyEAPIL”). Through MyEAPIL, members will be able to update their profile and browse the members’ database. They will also be able to check whether the Association has received their fees (by the way, fellow members, if you haven’t paid your fees for 2024, please take a moment to do so as soon as practical: just fill in this form).

EAPIL members will be receiving their login credentials on 11 March 2024 by e-mail (the sender’s address is noreply@eapilapp.org).

The redesign of the new website will also offer an opportunity to fix some technical issues. We’re aware that some of those who have subscribed to be notified of the publication of new posts on the EAPIL blog have not been receiving such notifications recently. Sincere apologies to those affected. We’re working on the problem and trust it’ll disappear once the new website is on-line.

In order to facilitate the transition towards the new website, the EAPIL blog will take a break for a couple of days. No new posts will be published on 7 and 8 March. Posting will resume with the usual pace on 11 March 2024.

The contents of the website will remain accessible at all times during this passage. The display of some pages, however, may occasionally be problematic in the meanwhile. Many thanks in advance for your understanding.

In case of doubts, feel free to get in touch with us at blog@eapil.org.

Curious about how the new website will look like? Please find below the screenshots of the new home page and some other pages.

Thank you very much confrère Lucian Ilie for sharing copy of the hitherto unreported Thomas Hilton Matthews v Mutuelle Assurance des Commercants et Industriels de France [2023] EWHC 2175 (KB) – Matthews v MACIF for short.

Maître Ilie successfully secured a High Court judgment (Ritchie J sitting on appeal) overturning registration with a view to enforcement under Brussels I (old: Regulation 44/2001) of a Paris Court of Appeal 2 April 2013 judgment, as his chambers report here.

The summons for the Court of Appeal proceedings (as Justice Ritchie’s judgment sets out in detail) had not reached Mr Matthews due to his return to England and the subsequent judgment, reducing an earlier pay-out (which had already been transferred to Mr Matthews) by insurance company MACIF for his injuries etc following collision with a car whilst cycling, was issued in his absence. MACIF unsuccessfully attempted to serve the Court of Appeal judgment on Mr Matthews at his previous location in France, and for 9 years no contact with the Matthews’ in England was made. (From the witness statements Ritchie J accepted that the fact that a copy of the judgment was left with Mrs Matthews’ father in France was not mentioned to the couple, let alone received). MACIF in June 2022 then obtained an Annex V Brussels I certificate of the judgment (which only mentioned that the amount to be paid out to Mr Matthews was now ‘less favourable’, without mentioning numbers) and waited another 9 months before seeking ex parte (judged by Ritchie J [34] to be ‘not right or fair’ in the circumstances) registration of the judgment in England, in language [34] not reflecting any of the background to the case and unlike the Annex V certificate, mentioning an exact amount. The application was granted.

Upon appeal the questions agreed [9] by parties were summarised by the judge as follows [10]

(1) Service: Was the Appellant sufficiently served with notice of (1.1) the start of the appeal and (1.2) the Paris Judgment, such that he could defend the appeal from the Tribunal Judgment and/or appeal the Paris Judgment?

(2) The EC Regulation: Is the Order made by the Master one which he was entitled to make in the light of the assertions that:

(2.1) it does not match the wording of the Annex V certificate summarising the Paris Judgment, the words of which made the Respondent the judgment debtor, not the Appellant and did not order any sum to be paid by the Appellant to the Respondent;

(2.2) the Appellant has recently appealed against the Paris Judgment so is it currently enforceable? The Appellant asserts that the Paris Judgment is a default judgment and not enforceable due to non-service;

(2.3) the Appellant asserts that the Respondent does not have an interest in the Paris Judgment as a creditor and that the Appellant was not ordered to pay anything;

(2.3) (sic) for public policy reasons due to the behaviour of MACIF it should not have been registered.

On the issue of service Ritchie J refers to first instance English judgments which however are backed up by continental scholarship and some indications in CJEU authority: the procedural rules of the lex fori are an indication of valid service but not decisive, and taking into account other points of departure listed [43], he holds that service was not valid, hence triggering Article 34 Brussels I, now Article 45 Brussels Ia (not materially different for the case at issue): lack of service in the Member State of origin shall (not just may) lead to refusal of recognition.

Obiter, the judge also refuses recognition on four more grounds

on form: the presentation of the foreign judgment was obiter held [49] to have amounted to re-writing;

seeing as the Paris Court of Appeal judgment is no longer enforceable in France pending the Mathews’ now launched appeal, it cannot be enforceable in the UK either [50];

[51] MACIF is not a judgment creditor under the Paris judgment: that judgment reduces the amount which Mr Matthews is to receive however it does not directly at least hold title for MACIF to receive payment from Mr Matthews;

[52] the delay in seeking enforcement causing substantial prejudice to Mr Matthews, the unfaithful transcription of the Annex V certificate, the insufficient efforts to locate Mr Matthews; the registration proceedings in E&W which really should have been conducted inter partes  also would have led to a refusal on ordre public grounds.

A rare and extensive Article 34 BI/45 BIa discussion and for that alone, of much note.

Geert.

EU Private International Law, 4th ed. 2024, 2.600 ff.

As regards private international law, March 2024 starts at the Court with the delivery of AG N. Emiliou’s opinion on C-774/22, FTI Touristik, on Thursday 7 – an opinion previously scheduled for February.

By its single question, the Amtsgericht Nürnberg (Germany) asks the CJEU whether Article 18(1) of the Brussels I bis Regulation determines, not only international judicial jurisdiction, but also internal territorial jurisdiction. In addition, this court questions the foreign element required for the application of the Brussels I bis regulation.

In the dispute in the main proceedings, a consumer filed a claim against FTI, a professional providing tourist services, in relation to a package trip. Both parties to the dispute are domiciled in the same Member State, namely Germany; the only cross-border element is constituted by the destination of the trip outside that Member State. The consumer sued before the court of his domicile. FTI relies on the rules of German territorial jurisdiction to argue lack of jurisdiction, in that these rules designate as territorially competent jurisdiction that of the headquarters of FTI Touristik.

According to the referring court, under national rules it does not have territorial jurisdiction to hear the dispute. Venue could only be deduced from the application of the Brussels I bis Regulation, more specifically its Article 18, paragraph 1. Thus the question:

Is Article 18(1) of [the Brussels I bis Regulation] to be interpreted as meaning that, in addition to providing for international jurisdiction, the rule also concerns a provision on the territorial jurisdiction of national courts in matters relating to a travel contract where both the consumer, as a traveller, and the other party to the contract, the tour operator[,] have their seat in the same Member State, but the travel destination is situated not in that Member State but abroad (so-called ‘false internal cases’) with the consequence that the consumer can make contractual claims against the tour operator supplementing national provisions on jurisdiction at the court of his or her place of residence?

The case has been allocated to a chamber of five judges (S. Prechal, N. Wahl, J. Passer, L. Arastey Sahún, and F. Biltgen acting as reporting judge).

One week later, on Thursday 14, AG M. Szpunar will communicate his opinion on C-86/23, HUK-COBURG-Allgemeine Versicherung II. The Varhoven kasatsionen sad (Bulgaria) asks :

Must Article 16 of Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II Regulation) be interpreted as meaning that a rule of national law, such as that at issue in the main proceedings, which provides for the application of a fundamental principle of the law of the Member State, such as the principle of fairness, in the determination of compensation for non-material damage in cases where the death of a close person has occurred as a result of a tort or delict, may be regarded as an overriding mandatory provision within the meaning of that article?

This question is raised in the context of an action for compensation against the insurance company HUK-COBURG, for the moral damage suffered by the parents of the deceased on a traffic accident. The accident took place in Germany; at the time it happened, there was a valid civil liability insurance contract between the driver and the German insurance company HUK-COBURG-Allgemeine Versicherung AG.

The parents of the deceased are Bulgarian nationals permanently resident in Bulgaria. In 2017 they filed claims with the Sofiyski gradski sad (Sofia City Court) against the German insurer for payment of insurance compensation for each parent as compensation for non-material damage suffered as a result of the death of their daughter. The request was declared partially founded at first instance; the appeal court overruled, finding the claimants had not demonstrated that the pain and suffering suffered had caused damage to their health, which, under German law applicable under Article 4(1) of the Rome II Regulation, would constitute a prerequisite for compensation for non-pecuniary damage. The court also rejected the argument put forward by the parents according to which Bulgarian law should be applied under Article 16 of the Rome II Regulation.

On cassation, the Varhoven kasatsionen sad (Supreme Court of Cassation), noted that there is contradictory case law from the Bulgarian courts on the question of whether the Bulgarian provision at stake constitutes a mandatory provision derogating within the meaning of Article 16 of the Rome II Regulation, leading, in the main dispute, to the exclusion of German law.

The preliminary reference will be addressed by judges C., Lycourgos,  J.C. Bonichot, S. Rodin, L.S. Rossi, and O. Spineanu-Matei acting as reporting judge.

Next event with interest for PIL readers is the hearing of March 20, regarding case C-227/23, Kwantum Nederland et Kwantum België. The questions by the Hoge Raad der Nederlanden (Netherlands) are:

1. Does the situation at issue in these proceedings fall within the material scope of EU law?

Should the preceding question be answered in the affirmative, the following questions are also submitted:

2. Does the fact that copyright on a work of applied art forms an integral part of the right to protection of intellectual property enshrined in Article 17(2) of the Charter mean that EU law, in particular Article 52(1) of the Charter, in order to limit the exercise of copyright (within the meaning of Directive 2001/29/EC) on a work of applied art by application of the material reciprocity test of Article 2(7) Berne Convention for the Protection of Literary and Artistic Works requires this limitation to be provided for by law?

3. Must Articles 2, 3 and 4 of Directive 2001/29/EC and Articles 17(2) and 52(1) of the Charter, read in the light of Article 2(7) BC, be interpreted as meaning that it is solely for the EU legislature (and not for national legislatures) to determine whether the exercise of copyright (within the meaning of Directive 2001/29/EC) in the European Union can be limited by application of the material reciprocity test provided for in Article 2(7) BC in respect of a work of applied art whose country of origin within the meaning of the Berne Convention is a third country and whose author is not a national of an EU Member State and, if so, to define that limitation clearly and precisely (see judgment of 8 September 2020, Recorded Artists Actors Performers, C 265/19, EU:C:2020:677)?

4. Must Articles 2, 3 and 4 of Directive 2001/29/EC, read in conjunction with Articles 17(2) and 52(1) of the Charter, be interpreted as meaning that as long as the EU legislature has not provided for a limitation of the exercise of copyright (within the meaning of Directive 2001/29/EC) on a work of applied art by application of the material reciprocity test of Article 2(7) BC, EU Member States may not apply that test in respect of a work of applied art whose country of origin within the meaning of the Berne Convention is a third country and whose author is not a national of an EU Member State?

5. In the circumstances at issue in the present proceedings and given the time of the establishment of (the predecessor of) Article 2(7) BC, are the conditions of the first paragraph of Article 351 TFEU satisfied for Belgium, meaning that Belgium is therefore free to apply the material reciprocity test provided for in Article 2(7) BC, taking into account the fact that in the present case the country of origin acceded to the Berne Convention on 1 May 1989?

The case revolves around the question whether an object of applied art, namely a chair designed in the United States of America, enjoys, in the Netherlands and in Belgium, copyright protection as a “work of applied arts”. The main dispute confronts Vitra, which holds the rights to the chair, and Kwantum, which operates a chain of interior design stores in the Netherlands and Belgium, on the grounds that the latter has marketed a chair which, according to Vitra, would infringe its copyright.

Before the referring court, Kwantum notes that the chair has, in more than 70 years of existence, never benefited from copyright protection in its country of origin – the United States of America. She argues in particular that Vitra cannot invoke such protection in Belgium and the Netherlands, having regard to the criterion of material reciprocity contained in Article 2(7) of the Berne Convention, which constitutes an exception to the principle of national treatment provided for in Article 5, paragraph 1, of this convention.

The deciding judges will be A. Arabadjiev, T. von Danwitz, P.G. Xuereb, A. Kumin, plus I. Ziemele as reporting judge. AG M. Szpunar will announce the date of delivery of the opinion at the end of the hearing.

Finally, on March 21, the same chamber, this time with A. Kumin reporting, will publish the decision in C-90/22, Gjensidige. I reported briefly on facts and questions here. AG N. Emiliou’s opinion was published on December 14, 2024. The Lietuvos Aukščiausiasis Teismas (Lithuania) asks:

1. Can Article 71 of Regulation No 1215/2012 [the Brussels I bis Regulation], having regard to Articles 25, 29 and 31 and recitals 21 and 22 thereof, be interpreted as permitting the application of Article 31 of [the CMR] also in cases where a dispute falling within the scope of both those legal instruments is the subject of an agreement conferring jurisdiction?

2. Having regard to the legislature’s intention to strengthen the protection of agreements conferring jurisdiction in the European Union, can Article 45(1)(e)(ii) of [the Brussels I bis Regulation] be interpreted more broadly, as covering not only Section 6 of Chapter II of that regulation but also Section 7 thereof?

3. After assessment of the specific features of the situation and the resulting legal consequences, can the term “public policy” used in [the Brussels I bis Regulation] be interpreted as covering the ground for deciding not to recognise a judgment of another Member State where the application of a specialised convention, such as [the CMR], creates a legal situation in which both the agreement conferring jurisdiction and the agreement on the applicable law are not observed in the same case?

AG Emiliou did not consider it necessary to answer to the first question in light of what he deemed the correct answer to the following ones. He proposes the Court to interpret Article 45(1)(a) and (e)(ii) of the Brussels I bis regulation as meaning:

that the grounds for the refusal of recognition set out therein do not apply to a situation in which the court of origin established its jurisdiction on the basis of one of several rules contained in a specialised convention, within the meaning of Article 71 of Regulation No 1215/2012, which include – but do not classify as exclusive – a choice-of-court agreement, and when the court of origin was not the court designated by the choice-of-court agreement concluded by the parties concerned.

And also

as meaning that an error, when established, as to the determination of the applicable law cannot, per se, lead to the recognition of a judgment being refused on the ground that it is contrary to the public policy of the State addressed.

I . Introduction

Egypt and its legal system occupy a unique position within the MENA region. Egyptian law and scholarship exert a significant influence on many countries in the region. Scholars, lawyers, and judges from Egypt are actively involved in teaching and practicing law in many countries in the region, particularly in the Gulf States. Consequently, it is no exaggeration to say that developments in Egyptian law are likely to have a profound impact on neighboring countries and beyond, and warrant special attention.

The cases presented here were recently released by the Egyptian Supreme Court (mahkamat al-naqdh). They are of particular interest because they illustrate the complex nature of legal sources, particularly with respect to the enforcement of foreign judgments (on this topic, see Béligh Elbalti, “Perspective of Arab Countries”, in M. Weller et al. (eds.), The 2019 HCCH Judgments Convention – Cornerstones, Prospects, Outlook (Hart, 2023), pp. 195 ff). These cases also provide a good opportunity to elucidate the basic principles regarding the service requirement, which, as the cases discussed here and the comments that follow show, can pose particular challenges.

II. Facts

Two cases are presented here. Both involve the enforcement of judgments from neighboring countries (Kuwait in the first case and Saudi Arabia in the second) with which Egypt has concluded conventions on the enforcement of foreign judgments. In both cases, enforcement was granted by lower courts.  The parties challenging the enforcement then appealed to the Supreme Court. The main grounds of appeal in both cases revolve around the issue of proper service of process. Ultimately, the Supreme Court ruled in favor of the appellants in both cases.

III. Summary of the Rulings

• Case 1: Appeal No. 2765 of 25 June 2023 (Enforcement of a Kuwaiti Monetary Judgment)

 Proper service is a prerequisite to be verified by the enforcing court before declaring a foreign judgment enforceable, as stipulated in Article 298 of the Code of Civil Procedure (hereinafter CCP). Enforcement should be refused unless it is established that the parties were duly served and represented. This is in line with the provisions of the Convention on the Enforcement of Judgments concluded between States of the Arab League, in particular Article 2(b), as well as Article 30 of the Riyadh Convention on Judicial Cooperation, which was ratified by Egypt by Presidential Decree No. 278 of 2014, and according to which foreign default judgments rendered in a contracting state shall not be recognized if the defendant has not been properly served with the proceedings or the judgment. […] [The record indicates that the appellant challenged the enforcement of the foreign judgment on the basis of insufficient service. The enforcing court admitted the regularity of the service, but without stating the basis for its conclusion. As a result, the appealed decision is flawed and requires reversal with remand].

• Case 2: Appeal No. 17383 of 14 November 2023 (Enforcement of a Saudi custody judgment)

 According to Article 301 of the CCP, conventions signed by Egypt take precedence over domestic law. Egypt ratified the Convention on the Enforcement of Judgments issued by the Council of the League of Arab States by Law No. 29 of 1954 and deposited the instruments of ratification with the General Secretariat of the League on July 25, 1954. The Kingdom of Saudi Arabia also signed the Convention on May 23, 1953. Consequently, the provisions of this Convention are applicable to the present case. […] The appellant argued that he had not been properly served with the summons because he had left the Kingdom of Saudi Arabia before the trial, which led to the foreign judgment. However, the judgment under appeal did not contain any valid response to the appellant’s defense or any indication that the enforcing court had reviewed the procedures for serving the appellant. Furthermore, it did not examine whether the service of the appellant was in accordance with the procedures laid down by the law of the rendering State. Consequently, the appealed decision is vitiated by an error of law which requires it to be quashed.

Comments

The enforcement of foreign judgments in Egypt is regulated by Articles 296 to 301 of the CCP (for an English translation of these provisions, see J. Basedow et al. (eds.), Encyclopedia of Private International Law – Vol. IV (Elgar Editions, 2017), pages 3163-4). It is also governed by the conventions on the enforcement of foreign judgments ratified by Egypt (for a detailed overview in English of the enforcement of foreign judgments in Egypt under the applicable conventions and domestic law, see Karim El Chazli, “Recognition and Enforcement of Foreign Decisions in Egypt”, Yearbook of Private International Law, Vol. 15 (2013/2014), pp. 387). The two cases presented above concern enforcement under these conventions.

In this regard, it is noteworthy that Egypt has established an extensive network of bilateral and regional multilateral conventions (for a detailed list, see Elbalti, op. cit. pp. 196, 199). With regard to multilateral conventions, Egypt has ratified two conventions adopted under the auspices of the League of Arab States: (1) The Arab League Convention on the Enforcement of Foreign Judgments and Arbitral Award of 1952 (hereinafter referred to as the “1952 Arab Judgments Convention”. On this Convention, see eg, El Chazli, op. cit. pp. 395-399) and (2) The Riyadh Convention on Judicial Cooperation of 1983 (hereinafter referred to as the “1983 Riyadh Convention”. On this Convention, see eg, Elbalti, op. cit. pp. 197-198). It is important to note that the 1983 Riyadh Convention is intended to replace the 1952 Arab Judgments Convention in relations between the States Parties to both Conventions (see Article 72).

Bilateral conventions include a convention concluded with Kuwait in 1977. This convention was replaced by a new one in 2017.

1. With regard to the first case, the following observations can be made:

a. This case appears to be the first case in which the Supreme Court has referred to the 1983 Riyadh Convention since its ratification in 2014. This is noteworthy in light of the numerous missed opportunities for the Court to apply the Convention (see eg., Supreme Court Appeal No. 5182 of 16 September 2018. In the Appeal No. 16894 of June 6, 2015, the Riyadh Convention was invoked by the parties, but the Court did not refer to it. See also 2(b) below).

b. It is also noteworthy, and somewhat surprising, that the Supreme Court referred to the 1983 Riyadh Convention in a case concerning the enforcement of a Kuwaiti judgment. This is because, contrary to what is widely acknowledged, Kuwait has only signed but did not ratify the Riyadh Convention (on this point see Elbalti, op. cit., page 197 fn (118)). Since Kuwait is a party only to the 1952 Arab Judgments Convention, the Supreme Court’s reference to the 1983 Riyadh Convention was inaccurate. Moreover, if the 1983 Riyadh Convention had been applicable, there would have been no need to refer to the 1952 Arab Judgments Convention, since the former is intended to replace the latter (Article 72 of the Riyadh Convention).

c. Conversely, the Supreme Court completely overlooked the application of the 2017 bilateral convention with Kuwait, which, as noted above, superseded the 1977 bilateral convention between the two countries. This case provided another missed opportunity for the Court to address the so-called problem of conflict of conventions, as both the 1952 Arab Convention and the 2017 bilateral convention were applicable with overlapping scopes. In the absence of special guidance in the text of the conventions, such a conflict could have been solved on the basis of one of the two generally admitted principles: lex posteriori derogat priori or lex specialis derogat generali (for an example of a case adopting the latter solution from the UAE, see Abu Dhabi Supreme Court, Appeal No. 950 of 26 December 2022).

d. This is not the first time the Egyptian Supreme Court has dealt with the enforcement of Kuwaiti judgments (there are 10 cases, by my count). In all of these cases, the court referred to the 1952 Arab Judgments Convention in addition to domestic law. It is only in two cases that the Court referred to the 1977 Kuwait-Egypt bilateral convention in addition to the 1952 Arab Judgments Convention (Supreme Court Appeal No. 3804 of 23 June 2010 and Appeal No. 15207 of 11 April 2017). In the majority of cases (8 out of 10), the Court refused to enforce Kuwaiti judgments. The main ground of refusal was mainly due to, or including, lack of proper service.

2. With regard to the second case, the following observations can be made:

a. Egypt does not have a bilateral convention with Saudi Arabia. However, both Egypt and Saudi Arabia are parties to the 1952 Arab Judgments Convention and the 1983 Riyadh Convention. As noted above, the 1983 Riyadh Convention replaces the 1952 Arab Judgments Convention for all States that have ratified it (Article 72). Therefore, the Supreme Court’s affirmation that “the provisions of the [1952 Arab Judgments] Convention are therefore applicable to the present case” is incorrect. It is also surprising that the court made such a statement, especially considering that the party seeking enforcement relied on the 1983 Riyadh Convention, and given its erroneous application in Case 1.

b. This is not the first time that the Supreme Court has overlooked the application of the 1983 Riyadh Convention in a case involving the enforcement of a Saudi judgment. In a case decided in 2016, almost two years after the Convention entered into force in Egypt, the Supreme Court referred to the 1952 Arab Judgments Convention to reject the enforceability of a Saudi judgment, again citing the lack of proper service (Supreme Court, Appeal No. 11540 of 24 February 2016).

3. Enforcement of Foreign Judgments and Service Requirement in Egypt

As a general rule, service of process under Egyptian law is considered a procedural matter that should be governed by the lex fori (Article 22 of the Civil Code. For an English translation, see Basedow et al, op. cit.; see also El Chazli, pp. 397, 402). In the context of foreign judgments, this means that the service of process or judgment is, in principle, governed by the law of the state of origin, subject, however, to considerations of public policy (see eg., Supreme Court, Appeal No. 2014 of 20 March 2003). Based on the case law of the Supreme Court, the following features are noteworthy:

• Service by publication was considered sufficient for enforcement purposes if the court could confirm that it had been duly carried out in accordance with the law of the State of origin (Supreme Court, Appeal No. 232 of 2 July 1964).
• However, if it appears that the service by publication did not comply with the requirements of the foreign law, the regularity of the service will be denied (Supreme Court of, Appeal No. 14777 of 15 December 2016 [service of summons]; Appeal No. 1441 of 20 April 1999 [notification of judgment]).
• Conversely, the Court held that the service irregularities may be cured if the defendant voluntarily appears before the foreign court and presents arguments on the merits of the case (Supreme Court, Appeal No. 18249 of April 13, 2008).
• Merely asserting that service was made in accordance with the law of the country of origin is not sufficient. Egyptian courts are required to verify that the judgment debtor has been properly served in accordance with the law of the country of origin and that such service is not contrary to Egyptian public policy (Supreme Court of Cassation, Appeal No. 558 of 29 June 1988). This aspect can be particularly important when it appears that the judgment debtor had permanently left the State of origin at the time when the service was made (Supreme Court, Appeal No. 8376 of 4 March 2010; Appeal No. 14235 of 1 January 2014; Appeal No. 1671 of 18 February 2016).
• With regard to ensuring that the defendant has been duly served, the courts are not bound by any specific method imposed by Egyptian law; therefore, the conclusions made by the enforcing court as to the regularity of the service based on the findings of the foreign judgment and not disputed by the appellant may be accepted (Supreme Court, Appeal No. 1136 of 28 November 1990).
• Where an international convention applies, the rules for service set out in the convention must be complied with, even if they differ from the rules of domestic law. Failure to comply with the methods of service prescribed by the applicable convention would render the foreign judgment unenforceable (Supreme Court, Appeal No. 137 of 8 March 1952).
• The rules provided for by the conventions prevail, including the method of determining whether proper service has been made (eg., the submission of a certificate that the parties were duly served with summons to appear before the proper authorities). Therefore, failure to comply with this rule would result in the rejection of the application for enforcement by the party seeking enforcement (Supreme Court, Appeal No. 5039 of 15 November 2001; Appeal No. 3804 of 23 June 2010).

4. Service under Conventions

Most of the bilateral and regional conventions ratified by Egypt contain provisions on the service of judicial documents. The Riyadh Convention is particularly noteworthy in this regard, as 18 of the 22 members of the League of Arab States are parties to it (see Elbalti, op. cit., pp. 196-197). In addition, Egypt has been a party to the HCCH 1965 Service Convention since 1968.

The proliferation of these international instruments inevitably leads to the problem of conflict of conventions. This problem can be particularly acute in some cases, where as many as three competing instruments may come into play. This scenario often arises with some Arab countries, such as Tunisia or Morocco, with which Egypt is bound by (1) bilateral conventions, (2) a regional convention (namely the Riyadh Convention), and (3) a global convention (namely the HCCH Hague Service Convention).

In this context, the solution adopted by the Hague Convention deserves attention. Article 25 of the Convention provides that “[…] this Convention shall not derogate from conventions containing provisions on matters governed by this Convention to which the Contracting States are or will become Parties“. However, the evaluation of this solution deserves a separate comment (for analyses on a similar issue regarding the HCCH 2019 Judgments Convention, see Elbalti, op. cit., p. 206).

The second issue of 2023 of Giustizia consensuale (published by Editoriale Scientifica) has just been released, and it features:

Giuseppe Trisorio Liuzzi (Professor at the Università degli Studi di Bari “Aldo Moro”), La composizione negoziata. Una soluzione consensuale della crisi d’impresa (The negotiated settlement. A consensual solution to the business crisis; in Italian)

This article examines the main features of the ‘Negotiated Settlement of the Business Crisis’ (Composizione Negoziata della Crisi d’Impresa), introduced in the Business Crisis and Insolvency Code (Codice della Crisi d’Impresa e dell’Insolvenza) in place of the initially envisaged ‘Alert Procedure’ (Procedura di Allerta). Notably, the author highlights the consensual and extrajudicial nature of the Negotiated Settlement of the Business Crisis, also focusing on the protective and precautionary measures, on the one hand, and on the authorisation to take out loans and to transfer the company or its branches, on the other, which contemplate the intervention of the court in the instant procedure.

Monica Delsignore (Professor at the Università degli Studi di Milano-Bicocca) e Marsela Mersini (Ph.D. at the Università degli Studi di Milano-Bicocca), Gli strumenti per la composizione dei conflitti ambientali nella realizzazione delle infrastrutture per la crescita (Tools for conflict resolution in environmental law in the implementation of infrastructure for growth; in Italian)

This article aims to provide an overview of the tools available for resolving environmental conflicts stemming from the construction of large infrastructure and public works. While crucial for the development of the country, these projects pose a definite impact on the surrounding environment. Recognising that courts may not be the optimal forum for conflict resolution in this domain, this academic contribution will question the effectiveness and challenges of existing mechanisms and discuss a proposal to introduce a professional mediator in the administrative proceeding.

Olga Fuentes Soriano (Professor at the Universidad “Miguel Hernández”, Alicante), Riflessioni sulla fattibilità della mediazione penale nei casi di violenza di genere (Reflections on the feasibility of criminal mediation in cases of gender-based violence; in Italian)

In 2004, Spain enacted the Law on Integral Protection Measures against Gender Violence. This legislation marked a significant advancement in combating this societal issue. It explicitly prohibited using mediation as a means of justice for such crimes, a notable departure from previous Spanish laws. While prior legislation contained limited references to criminal mediation – prohibiting it in gender violence cases and allowing it in juvenile justice – the subsequent implementation of the Victims’ Statute in 2015 explicitly mentioned the incorporation of restorative justice mechanisms into the criminal field. This shift, following the 2012 European Directive, reignited a contemporary debate on the advantages and disadvantages of employing mediation in criminal cases, particularly in cases of gender violence. However, due to the inherent imbalance between the involved parties and the power dynamics characterising these violent situations, utilising consensual dispute resolution methods is deemed inadvisable.

Vincenzo Ansanelli (Professor at the Università degli Studi di Genova), Qualche minimo update sulla composizione del conflitto tramite consulenza tecnica preventive (Some updates on conflict resolution through preliminary expert consultation; in Italian)

The ‘Preliminary Expert Consultation for the Settlement of Disputes’ (Consulenza tecnica preventiva ai fini della composizione della lite) was introduced into the Italian legal system in 2005. Regulated by Article 696 bis of the Italian Civil Procedure Code, this instrument is based on the assumption that the resolution of the decisive technical issue of the case would facilitate an amicable settlement. The paper offers an in-depth analysis of the most recent literature and case-law on this instrument. In particular, it focuses on its admission phase and examines two recent judgements of the Italian Constitutional Court – No. 222 of December 21, 2023, and No. 202 of November 10, 2023 – that partially redefine its scope of application.

Observatory on Legislation and Regulations

Cassio Scarpinella Bueno (Professor at the “Pontifícia Universidade Católica de São Paulo”), Meccanismi di giustizia consensuale nel diritto processuale brasiliano. Un’introduzione in chiave comparata (Mechanisms of consensual justice in Brazilian procedural law. An introduction from a comparative perspective; in Italian)

This article argues that the analysis of consensual conflict resolution methods has the power to influence the traditional understanding of civil procedural law itself and to promote an ad hoc study of conflict resolution techniques without court intervention. To this end, the paper seeks to provide a portrait of non-judicial methods of conflict resolution in the Brazilian legal system based on their provision in the Brazilian Code of Civil Procedure of 2015, with the aim of promoting a fruitful comparison with other legal systems. In this perspective, the article deals mainly with conciliation, mediation, arbitration and procedural agreements, highlighting their importance for a greater awareness of the parties themselves in voluntarily resolving their conflicts or establishing different procedural rules to allow for a more adequate resolution of disputes through judicial proceedings.

Elena Mattevi (Researcher at the University of Trento), Strutture e figure professionali nella disciplina organica della giustizia riparativa. Il ruolo della formazione del mediatore esperto (Structures and professional figures in the regulation of restorative justice. The role of the expert mediator training; in Italian)

The Cartabia Reform (Law 27 September 2021 No 134 reforming criminal procedure in Italy) regulated for the first time in Italy the professional figure of the mediator in criminal matters and the organizational structure called to manage restorative justice programs. The mediator plays a decisive role in the system and, precisely for this reason, Legislative Decree No 150 of 2022 and its implementing decrees provided for a highly articulated training course with an interdisciplinary slant, to acquire the necessary qualification to carry out the activity. The analysis conducted in this article focuses on these aspects and the complexity of the mediator’s role, which justifies the demand for very serious training. Universities – called to collaborate with the Restorative Justice Centres in the organization of the courses – will have a leading role, and thus the opportunity to open new perspectives in post-graduate training, but also to invest in research and curricular training on restorative justice.

Observatory on Practices

Michael S. Coffee (Professorial Lecturer in Law at the George Washington University Law School in Washington, D.C.) and Melissa A. Kucinski (International family law expert based in Washington, D.C.), Arbitrating a Multi-Jurisdictional Children’s Dispute

Arbitration remains a relatively new dispute resolution process in family law cases in the United States, and some jurisdictions within the United States differ in terms of process, selection of an arbitrator, and whether certain discrete issues, such as those that relate to parenting and children, can be arbitrated. This may create additional complications for cross-border families who find themselves living in the United States but with connections to another country, and a contractual requirement that they engage in arbitration of their family law dispute. This article will walk readers through a situation of a family who had previously agreed, at the time the spouses married, to arbitrate future family law disputes, and, after moving to the United States from their home country, are now faced with the layer of laws and complications over how to actually proceed.

Annalisa Atti (Researcher at the University of Bologna), Profili deontologici della professione del mediatore e dell’avvocato in mediazione (Deontological profiles of the mediator and lawyer’s activity in mediation; in Italian)

This article aims to examine the role, duties and styles of the mediator and the lawyer who assists the parties in mediation, in the light of the regulatory and deontological provisions in force, including non-domestic ones, and of the application made of them by civil and disciplinary jurisprudence. The intertwining between competence and professional training, correct information to the client, behaviour according to loyalty and correctness, diligence in the fulfilment of the professional service, in the different but complementary civil and deontological levels is then outlined, not only for the best client satisfaction but also for the best solution of conflicts.

In addition to the foregoing, this issue features the following Conference Proceedings:

Tommaso Greco (Professor at the University of Pisa), La giustizia consensuale, alle radici del diritto (Consensual justice, at the roots of law; in Italian)

During a presentation of journal Giustizia consensuale, held on 4 May 2023 at the University of Pisa, the theme linking ‘justice’ and ‘consensus’ was the subject of fruitful discussions from different standpoints. The Author retraces the introductory remarks he delivered on that occasion and puts forward the idea that consensual justice goes to the roots of the law, enhancing its horizontal and cooperative dimension.

Pierluigi Consorti (Professor at the University of Pisa, Affiliate Professor at the “Istituto Dirpolis, Scuola Superiore Sant’Anna di Pisa”), Oltre la mitezza, la gentilezza del diritto (Beyond meekness, the kindness of law; in Italian)

This essay discusses the possibility of considering a soulful role of the law. In principle, law is mainly conceived as a self-referential institution that bases its ability upon the exercise of power. This power-based notion of the law does not always assist it in performing its social function effectively. In this essay the author takes into consideration the theses on ‘mild law’ and advances the proposal of a ‘kind law’, which takes care of personal relationships and tries to make the dimension of listening prevail over that of assertiveness, as well as to make unitive elements prevail over divisive ones; a ‘kind law’ does not rely on the exercise of power but, rather, on the search for consensus.

Valentina Bonini (Associate Professor at the University of Pisa), Consenso e giustizia penale: dal mercato globale alla bottega sartoriale (Consent and criminal justice: From the global marketplace to the tailor’s workshop; in Italian)

Criminal procedure used negotiated justice since 1988 to achieve procedural economy through the defendant’s waiver of fundamental rights and guarantees in exchange for better terms with respect to punishment. Despite problems of compatibility with the system of simplified procedures such as the so-called plea bargaining, the legislator has progressively expanded the availability of negotiated justice. Only in more recent times other mechanisms have been implemented to enhance the defendant’s will not only for the goal of efficiency but also to offer a different justice response: this is the case with the trial probation and, even more markedly, restorative justice, which proposes an autonomous justice paradigm aimed at bringing people’s needs back to the center, offering a way of actively overcoming the offence perpetrated by the author and suffered by the victim.

Luciana Breggia (formerly Judge at the Florence Tribunal), Una giustizia plurale tra autonomia, responsabilità e autorità (A plural justice between autonomy, responsibility and authority; in Italian)

We are amidst a significant transformation within the justice system, embracing a diverse array of methodologies while championing individual autonomy and accountability. The journal Giustizia consensuale is not merely an outcome of this transformation; it stands as a harbinger of future growth and innovation.

Finally, it features the following Book Reviews:

One book review is by Cristina M. Mariottini (European Institute of Public Administration): Werner HASLEHNER, Timothy LYONS KC, Katerina PANTAZATOU, Georg KOFLER, Alexander RUST (eds), Alternative Dispute Resolution and Tax Disputes, Cheltenham-Northampton, Edward Elgar Publishing, 2023, vii-xxv, 1-341.

Another book review is by Angela M. Felicetti (University of Bologna): Emma VAN GELDER, Consumer Online Dispute Resolution Pathways in Europe. Analysing the Standards for Access and Procedural Justice in Online Dispute Resolution Procedures, The Hague, Eleven, 2022, 1-329.

Maastricht University is organising a webinar on the Evidence Regulation that will take place on Wednesday 27 March 2024 in Dutch. More information is available here.

This event is being organised within the framework of the DIGI-GUARD project, which is co-funded by the European Union under the JUST-2021-JCOO program and which stands for Digital communication and safeguarding the parties’ rights: challenges for European civil procedure.

This webinar is a follow-up to a previous event announced here.

Participation is free of charge (click here). The event will be recorded and will be accessible to registered participants.

The program is available below.

Programma

Introductie tot de verordening, verhouding tot art. 35 Brussel I bis-verordening
(Vo 1215/2012) en de mogelijkheid om in het buitenland bewijs af te nemen
op basis van de nationale wetgeving 14:40 – 14:50 Discussie 14:50 – 15:00 Pauze 15:00 – 15:30 Bewijs in het buitenland? Hoe kan de Bewijsverordening helpen
Marta Pertegás Sender en Jona Israël, Universiteit Maastricht 15:30 – 15:40 Discussie 15:40 – 15:45 Slotwoorden

I would like to thank Prof. Lotfi Chedly for providing me with the text of the decision on which this post is based.

I. Introduction

Scholars of private international law are well familiar with the classic debate on nationality and domicile as connecting factors in the choice of applicable law (see, for example, L. I. de Winter, “Nationality or Domicile? The Present State of Affairs” 128 Collected Courses III (1969) pp. 357 ff). In Tunisian private international law, this controversy has been particularly pronounced with regard to the role of nationality as a ground for the international jurisdiction of Tunisian courts. Since the enactment of the Tunisian Private International Law Code (“PILC”) in 1998 (for an English translation, see J. Basedow et al. (eds.) Encyclopedia of Private International Law – Vol. IV (Elgar Editions, 2017) 3895 and my own translation of the provisions dealing with international jurisdiction and the enforcement of foreign judgments in 8 Journal of Private International Law 2 (2012) pp. 221 ff)), the debate between opponents and proponents of nationality as a ground for international jurisdiction, especially in family law matters, has never ceased to be intense (for detailed analyses, see eg. Salma Triki, “La compétence internationale tunisienne et le critère de nationalité” in Ben Achour/Triki (eds.), Le Code de droit international privé – Vingt ans d’application (1998-2018) (Latrach edition, 2020) 119ff). This divergence in academic opinion is also reflected in the judicial practice of the courts, with the emergence of two opposing trends: one extends the international jurisdiction of the Tunisian courts when the dispute involves a Tunisian party, in particular as a defendant even when domiciled abroad. The other firmly rejects nationality as a ground for international jurisdiction.

The case commented here illustrates the culmination of this disagreement within the courts. The Supreme Court (mahkamat al-ta’qib – cour de cassation), in a second appeal, strongly denied the existence of such a privilege and emphasized the primacy of domicile over nationality as a basis for international jurisdiction in Tunisia. The Court of Appeal, acting as a court of remand, explicitly recognized that the jurisdiction of the Tunisian courts could be based on what is commonly referred to as “privilege of jurisdiction”. The Court of Appeal went even further by describing the decision of the Supreme Court, from which the case had been remanded, as “legally incorrect”. This stark contrast between the two courts prompted the intervention of the Joint Chambers (chambres réunies) of the Supreme Court, which issued what appears to be the first decision of its kind in the field of private international law in Tunisia (Ruling No. 36665 of 15 June 2023), signed by 62 judges of the Supreme Court (including the Chief Justice (President of the Court), 21 Presidents of Chambers and 40 other judges as counsellors).

II. Facts

The case concerns a divorce action brought in Tunisia by X (plaintiff husband and appellee in subsequent appeals) against his wife, Y (defendant and appellant in subsequent appeals). The text of the decision indicates that X and Y were married in 2012 and had a child. Moreover, while X’s Tunisian nationality appears to be undisputed, there may surprisingly be some doubts about Y’s Tunisian nationality, as emerged later in the parties’ arguments before the Joint Chambers.

In 2017, the Court of First Instance of Sousse (a city located about 150 km south of the capital Tunis) declared the parties divorced and ordered some measures regarding maintenance, custody and visitation. Dissatisfied, Y appealed to the Court of Appeal of Sousse. In 2018, the court overturned the appealed decision, considering that the Tunisian courts did not have jurisdiction over the dispute. X appealed to the Supreme Court (1st appeal). In its decision issued later in 2018, the Supreme Court overturned the appealed decision with remand, holding that the Court of Appeal did not correctly examine the existence (or not) of a foreign element in the dispute in order to decline jurisdiction on the grounds that X claimed that the spouses’ matrimonial domicile was in Tunisia, where Y lived and worked.

In 2019, the Court of Appeal of Sousse, as the court of remand, accepted jurisdiction and confirmed the decision of the court of first instance with some modifications. Y appealed to the Supreme Court (2nd appeal). Y argued, inter alia, that the rules of international jurisdiction laid down in the PILC had been violated, since the spouses’ matrimonial domicile was in France and that the couple had only returned to Tunisia during the summer vacations. In 2020, the Supreme Court ruled in favor of Y, stating, inter alia, that the Tunisian legislator had made from “the domicile of the defendant the decisive ground for the international jurisdiction of the Tunisian courts”. The Court also held that the Court of Appeal had reached an erroneous conclusion based on a misapplication of the facts and a misinterpretation of the law. The case was referred back again to the Court of Appeal.

In 2021, the Court of Appeal, in a frontal opposition, declared that the decision of the Supreme Court, according to which the domicile of the defendant was the ground based on which Tunisian courts could assume international jurisdiction, “cannot be followed” and is “legally incorrect”. Then the court affirmed that Tunisian nationals enjoy a “privilege of jurisdiction”, and this “means that Tunisian defendants should be subject to their national courts, even if they are domiciled abroad, since the purpose of granting jurisdiction to Tunisian courts in this category of disputes is to ensure better protection of their interests”.

Y challenged the decision of the Court of Appeal again before the Supreme Court (3rd appeal). As this was a disagreement between the Court of Appeal and the Supreme Court on a second appeal, the jurisdiction of the Joint Chambers was justified (articles 176 and 177 of the Code of Civil and Commercial Procedure, hereafter “CCCP”).

Before the Joint Chambers, Y argued, inter alia, that (1) that she was not a Tunisian national but a holder of dual Algerian/French nationality; (2) that the court had also based its decision on the fact that she was resident in Tunisia, ignoring the fact that she had returned to Tunisia only to spend her summer vacation; (3) that she had left Tunisia for France.

On the other hand, X argued that the Court of Appeal was right to hold that disputes in which one of the parties is Tunisian and in which the subject matter concerns matters of personal status fall within the jurisdiction of the Tunisian courts, since matters concerning the family and its protection concern public policy, especially when the dispute also involves a Tunisian minor.

III. Ruling

The Joint Chamber of the Supreme Court held that the Tunisian courts did not have jurisdiction and decided to overturn the decision of the Court of Appeal without further remand. The court ruled as follows (only relevant parts are reproduced here. The gendered style reflects the language used in the text of the Court’s decision):

“The dispute concerns the question whether the international jurisdiction of the Tunisian courts should be determined on the basis of the defendant’s domicile (maqarr), in accordance with Article 3 of the PILC, or on the basis of the privilege of jurisdiction, according to which a Tunisian national is subject to the jurisdiction of his national courts even if he is domiciled abroad.

It goes without saying that in Articles 3 to 10 of the PILC, the legislator has sought to confer jurisdiction on the Tunisian courts on the basis of close connections between the Tunisian legal system and the legal relationship, thereby abolishing the exceptional grounds such as nationality, representation or reciprocity. The reason for the abolition of these exceptional grounds lies in the fact that they do not constitute a genuine connection between the dispute and the Tunisian legal system […].

[…]

As appears from the files of the case, the residence (iqama) of Y in France is established either on the basis of the service of the summons […] on her domicile (maqarr) in France […] or the judicial admission made by X […] [in which he] admitted that his wife had moved to France where she had settled with their daughter and refused to return to Tunisia.

[However], by considering that the privilege of jurisdiction entails subjecting the Tunisian defendant to the jurisdiction of his or her national courts, even if he resides (muqim) abroad, the remand court misjudged the facts and drew erroneous conclusion, leading to a misunderstanding and misapplication of article 3 of the PILC […].”

IV. Comments

The principle established by the Joint Chamber regarding the role of the defendant’s Tunisian nationality as a ground for international jurisdiction can be considered a welcome clarification of the interpretation and application of Tunisian law. However, it must also be said that the decision commented on here contains some intriguing and to some extent confusing features, particularly in the parts of the decision not reproduced above relating to the meaning of and the distinction between “domicile (maqarr)” and “residence (iqama)”. For the sake of brevity, only the issue of nationality as a ground of international jurisdiction will be commented on here.

1. Prior to the Enactment of the PILC

Prior to the enactment of a PILC, nationality – especially that of the defendant – was used as a general ground for international jurisdiction in all disputes brought against Tunisians, even if they were domiciled abroad (former art. 2 of the CCPC). This rule is common in the MENA region and is generally followed even if it is not explicitly stated in the law (For the case of Bahrain, see here, for the case of Morocco, where a new draft code of civil procedure proposes to introduce a similar rule ex lege, see here).

2. Nationality as a ground for international jurisdiction under the PILC

The PILC, adopted in 1998, introduced a radical change in this regard by completely excluding nationality as a ground for international jurisdiction (see eg. Imen Gallala-Arndt, “Tunisia”, in J. Basedow et al. (eds.) Encyclopedia of Private International Law – Vol. III (Elgar Editions, 2017) p. 2586). Henceforth, the PILC recognizes only one legitimate ground of general ground of jurisdiction over any civil or commercial dispute (including family law disputes) arising between persons regardless of their nationality, if the defendant has its “residence (iqama)” in Tunisia, although the semi-official French version of the PILC (as officially published in the Official Gazette) refers to “domicile” (maqarr in Arabic). In literature, there is a general consensus among Tunisian scholars that the word iqama (residence) in the Arabic version of article 3 actually means “maqarr (domicile)”. Case law is, however, quite inconsistent on this issue, with Tunisian courts, including the Supreme Court itself, reaching contradictory decisions on the interpretation and application these basic notions. This issue was addressed in the decision commented here (although in a quite unsatisfactory manner as the Joint Chambers, while distinguishing between “residence” and “domicile”, used both notions interchangeably in a particularly intriguing manner). However, this aspect of the decision will not be discussed here.

It is worth mentioning that the solutions introduced in the PILC have attracted the attention of renowned foreign scholars, who have highlighted the peculiarity of the Tunisian solutions in this regard, describing the Tunisian solutions as “interesting” and the exclusion of nationality as ground for international jurisdiction in all matters, including family law disputes, as “courageous”  (see eg., Diego P. Fernando Arroyo, “Compétence exclusive et compétence exorbitantes dans les relations privées internationales” 323 Collected Courses 2006, pp. 140-141).

3. Judicial Application

However, as soon as the PILC entered into force, a trend developed in judicial practice whereby Tunisian courts at all levels showed a willingness to extend their jurisdiction when the dispute involved Tunisian nationals. At the same time, there has been a parallel trend whereby some courts, also at all levels, have strictly adhered to the new policy of international jurisdiction and have refused to assume jurisdiction whenever it appeared that the defendant (whether a a Tunisian national or not) was domiciled abroad. (For a detailed analysis with different scenarios and cases, see Souhayma Ben Achour, “L’accès à la justice tunisienne en droit international privé tunisien” in Ben Achour/Ben Jemia (dir.), Droit fondamentaux & droit international privé (La Maison du Livre, 2016) pp. 11 ff).

a. Regarding the former, Tunisian judges have used various approaches and methods to circumvent the law and extend their jurisdiction beyond the limits set by the PILC. For example:

• In some cases, the courts have simply denied the international nature of the dispute on the grounds that all the parties were Tunisian, even though it was established that all or some of the parties (particularly the defendant) were domiciled abroad (see eg. Supreme Court, Ruling No. 12295 of 14 February 2002).
• In other cases, the courts have inferred a tacit submission to the jurisdiction of the Tunisian courts, even in the absence of the appearance of the defendant (often a foreign wife) (see eg. First Instance Court of Tunis, Ruling No. 30605 of 18 January 2000).
• In some other cases, the courts have confirmed their jurisdiction either on the basis of
  • the choice-of-law rules, according to which personal status shall be governed by the lex patriae of the parties (Supreme Court, Ruling No. 3181 of 22 October 2004), or,
  • on the basis of the rules of indirect jurisdiction laid down in bilateral conventions on mutual judicial assistance, knowing that these conventions do not contain rules of direct jurisdiction (see eg., Supreme Court, Ruling No. 6238 of 23 December 2004).
• More problematically, some courts have relied on the “place of performance” as a ground for international jurisdiction in contractual matters, considering the marriage to be a “contract” and its “performance” to have taken place in Tunisia when the parties consummated the marriage or established their matrimonial residence/domicile there (see eg. First Instance Court of Tunis, Ruling No. 77280 of 12 July 2010).
• In some cases, the courts have invoked forum necessitatis to extend their jurisdiction without indicating whether the requirements of its invocation were met (see eg. First Instance Court of Tunis, Ruling No. 75738 of 22 February 2010).
• Last but not least, in some cases, and in direct violation of the law, the courts have declared themselves to be the “natural” courts in family law disputes involving Tunisians, and that their jurisdiction could be based on the idea of “jurisdictional privilege” based on the Tunisian nationality of the defendant (see eg., Tunis Court of Appeal, Ruling No. 76011 of 12 November 2008) (interestingly, the grounds invoked here are similar to those invoked by the Bahraini courts here).

All these cases, and many others (see eg., Ben Achour op. cit.), have given the impression that Tunisian courts would go to any lengths to assume jurisdiction over disputes involving Tunisians in family law matters (cf., eg., Sami Bostanji, “Brefs propos sur un traité maltraité” Revue tunisienne de droit, 2005, p. 347).

b. This trend should not, however, be allowed to overshadow another that has also developed in parallel as mentioned above. The Supreme Court itself, despite some inconsistencies in its case law, has reaffirmed on several occasions that the jurisdiction of the Tunisian courts can be established only on the basis of the rules laid down in the CPIL, thereby rejecting the idea of nationality as an additional ground of jurisdiction in disputes involving Tunisian nationals (see eg., Supreme Court, Ruling No. 32684 of 4 June 2009).

c. In this respect, the decision of the Joint Chambers is likely to bring some order to the judicial cacophony on this issue, although it may not put an end to the ongoing debate and divergence of opinions among legal practitioners and scholars on the relevance of nationality as a criterion of international jurisdiction. Moreover, the tendency of some judges – sometimes described as “conservative” (cf. Arroyo op. cit.) – to continue to assume jurisdiction in disputes involving Tunisians (particularly in family law disputes) seems to be so entrenched that some scholars in Tunisia have described it as a “movement of resistance” against the legislative policy of the State (cf. eg. Lotfi Chedly, “Droit d’accès à la justice tunisienne dans les relations internationales de famille et for nationalité” in Mélanges offerts à Dali Jazi (Centre de Publication Universitaire, 2010) p. 264). This state of affairs has led some leading authors in Tunisia to question the state’s policy of excluding nationality altogether, even in family law disputes. One of the arguments put forward is that nationality in family law disputes is not an excessive ground for jurisdiction and is widely used in other legal systems (for the various arguments in favor of nationality, see Triki, op. cit.).

4. Legislative amendment?

These voices found their way into two legislative proposals in 2010 and 2019 to amend the PILC and introduce nationality as a ground for international jurisdiction in divorce cases (on the 2019 proposal, its background and peculiarities, see Triki, op. cit.). However, these attempts were unsuccessful, mainly due to the unstable political situation in Tunisia (the outbreak of the Tunisian revolution at the end of 2010 and the political crisis that led to the dissolution of the parliament and the suspension of the post-revolutionary constitution of 2014 in 2021). In this general context, and despite the decision of the Joint Chambers, it would not be surprising if some courts persisted in extending their jurisdiction in a disguised manner, based on the methods they themselves have developed to circumvent the constraint imposed by the PILC, when the dispute – particularly in matters of family law – involves Tunisians.

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

H.-P. Mansel/K. Thorn/R. Wagner: European Conflict of Law 2023: Time of the Trilogue

This article provides an overview of developments in Brussels in the field of judicial cooperation in civil and commercial matters from January 2023 until December 2023. It presents newly adopted legal instruments and summarizes current projects that are making their way through the EU legislative process. It also refers to the laws enacted at the national level in Germany as a result of new European instruments. Furthermore, the authors look at areas of law where the EU has made use of its external competence. They discuss both important decisions and pending cases before the CJEU as well as important decisions from German courts pertaining to the subject matter of the article. In addition, the article also looks at current projects and the latest developments at the Hague Conference of Private International Law.

H. Kronke: The Fading of the Rule of Law and its Impact on Choice of Court Agreements and Arbitration Agreements

Against the background of declining standards of the rule of law in an increasing number of jurisdictions, the article identifies and discusses problematic choices of a forum or of an arbitral seat as well as solutions developed by courts and legal doctrine in private international law, civil procedure and arbitration law. Businesses and their legal advisers are encouraged to anticipate risks and consider appropriate measures when drafting contracts.

L. van Vliet/J. van der Weide: The Crimean treasures

In 2013, a collection of highly important archaeological objects, the “Crimean treasures” had been loaned by four Crimean museums to the LVR-Landesmuseum in Bonn, Germany, and the Allard Pierson Museum in Amsterdam for exhibition purposes. During the exhibition at the Allard Pierson Museum, the Crimean Peninsula was illegally annexed by the Russian Federation. The question then arose to whom the Crimean treasures should be returned by the Allard Pierson Museum: to the Crimean museums (de facto in possession of the Russian Federation) or to the State of Ukraine? The legal proceedings concentrated on the interpretation of the notion of “illicit export” in the UNESCO Convention 1970 and on the application of the concept of overriding mandatory rules in the area of property law. As to the UNESCO Convention 1970, the question was whether the concept of illicit export includes the case where protected cultural property is lawfully exported on the basis of a temporary export licence and is not returned to the country that issued the licence after the expiry of the term in the licence. The drafters of the UNESCO Convention did not consider this case. These proceedings are most probably the first to raise and answer this question. The 2015 Operational Guidelines to the UNESCO Convention contain a definition of illegal export that explicitly includes the case of non-return after temporary export. In our opinion, this allows for a broad interpretation of the UNESCO Convention.

The Dutch courts had international jurisdiction because the claims of the Crimean museums were based on the loan agreements and the real right of operational management falling within the scope of the Brussels I Regulation. For the claims of the State of Ukraine, a clear basis for international jurisdiction does not exist when it acts in its state function. Claims iure imperii do not fall under Brussels I or Brussels I bis.

Having ruled that there was no illicit export, the Court of Appeal Amsterdam had to decide whether the contractual and property rights of the Crimean museums to restitution might be set aside by Ukrainian laws and regulations, including Order no. 292 requiring that the Crimean treasures be temporarily deposited with the National Museum of History of Ukraine in Kiev. The Court held that this Order applied at least as an overriding mandatory rule within the meaning of art. 10:7 of the Dutch Civil Code. The Dutch Supreme Court upheld the Court of Appeal’s judgment, agreeing with the Court of Appeal’s application of the concept of overriding mandatory rules. However, the Supreme Court could not give its view on the interpretation of the UNESCO Convention 1970.

W. Hau: Litigation capacity of non-resident and/or foreign parties in German civil proceedings: current law and reform

This article deals with the litigation capacity (Prozessfähigkeit) of non-resident and/or foreign parties in German civil proceedings, both de lege lata and de lege ferenda. This question can arise for minors and for adults who are under curatorship or guardianship. Particular attention is paid here to the determination of the law applicable to the litigation capacity in such cases, but also to the relevance of domestic and foreign measures directed to the protection of the party.

S. Schwemmer: Jurisdiction for cum-ex liability claims against Non-EU companies

In the context of an action for damages brought by investors in a cum-ex fund against the Australian bank that acted as leverage provider, the German Federal Supreme Court (BGH) had to deal with questions regarding the application of the Brussels Ibis Regulation to non-EU companies. The court not only arrived at a convincing definition of the concept of principal place of business (Article 63 (1) c) Brussels Ibis-Regulation), but also ruled on the burden of proof with regard to the circumstances giving rise to jurisdiction. However, one core question of the case remains open: How should the conduct of third parties, especially senior managers, be taken into account when determining the place of action in the sense of Article 7(2) of the Brussels Ibis Regulation?

M. Fehrenbach: In the Thicket of Concepts of Establishments: The Principal Place of Business within the Meaning of Art. 3 (1) III EIR 2017

The Federal Court of Justice (Bundesgerichtshof) referred to the CJEU, among other things, the question whether the concept of principal place of business (Hauptniederlassung) within the meaning of Art. 3 (1) III EIR 2017 presupposes the use of human means and assets. This would be the case if the principal place of business were to be understood as an elevated establishment (Niederlassung) within the meaning of Art. 2 (10) EIR 2017. This article shows that the principal place of business within the meaning of Art. 3 (1) III EIR 2017 is conceived differently from an establishment within the meaning of Art. 2 (10) EIR 2017. Neither follows a requirement of the use of human means and assets from the desirable coherent interpretation with Art. 63

M. Lieberknecht: Jurisdiction by virtue of perpetuatio fori under the Insolvency Regulation

In this decision, the German Federal Supreme Court weighs in on the doctrine of perpetuatio fori in the context of international insolvency law. The court confirms that, once the insolvency filing is submitted to a court in the Member State that has international jurisdiction under Art. 3(1) EU Insolvency Regulation, the courts of that Member State remain competent to administer the insolvency proceedings even if the debtor shifts its centre of main interest (COMI) to a different Member State at a later point in time. In line with the EJC’s recent decision in the Galapagos case, the ruling continues the approach to perpetuatio fori established under the previous version of the EU Insolvency Regulation. In addition, the court clarifies that international jurisdiction established by way of perpetuatio fori remains unaffected if the initial insolvency filing has been submitted to a court lacking local jurisdiction under the respective national law.

D. Martiny: Arbitral agreements on the termination of sole distribution agreements in Belgium

The Belgian Supreme Court has ruled that disputes on the termination of sole distribution agreements can be submitted to arbitration (April 7, 2023, C.21.0325.N). The Court followed the reasoning of the Unamar judgment of the European Court of Justice of 2013 and applied it to the relevant provisions of Article X.35–40 of the Belgian Code of Economic Law. According to the judgment, these provisions mainly protect “private” interests. Since they are not essential for safeguarding Belgian fundamental public interests, they are therefore not to be considered as overriding mandatory provisions in the sense of Article 9 para. 1 Rome I Regulation. Hence, the question whether a dispute can be subject to arbitration does not depend on whether the arbitrator will apply Belgian law or not. It is also not necessary that foreign law gives the distributor the same level of protection as Belgian law. This means that disputes on the termination of exclusive distribution agreements with Belgian distributors are now arbitrable and that choice of law clauses will be respected.

Th. Granier: The Strabag and Slot judgments from the Paris Court of Appeal: expected but far-reaching decisions

In two decisions issued on 19.4.2022, the Paris Court of Appeal held that it was sufficient for an investment protection agreement not to expressly exclude the possible application of laws of the European Union to establish the incompatibility of dispute settlement clauses in investment protection treaties with laws of the European Union. That incompatibility therefore applies to all clauses in those treaties that do not expressly exclude the application of the laws of the European Union by the arbitral tribunal. The Court of Appeal followed decisions of the ECJ in Achmea, Komstroy and PL Holding, by which it is bound. These decisions highlight the increasing difficulties in the recognition and enforcement of arbitral awards rendered pursuant to investment treaties in the European Union.

E. Schick/S. Noyer: Acquisition of property according to the law applicable to contracts? A critical analysis of thte existing French private international property law in the light of oft he 2022 draft law

While the private international law of contracts is unified in the Rome I Regulation, the conflict of laws rules for property are still defined individually by member states of the European Union. Autonomous French private international law remains largely uncodified and the product of the jurisprudence of the Cour de cassation, with significant regulatory gaps. The draft legislation for private international law issued by the responsible committee on 31.3.2022 aims to codify large parts of this established jurisprudence and therefore also sheds new light on the conflict rules applicable in France de lege lata. In the field of private international property law, the proposed art. 97–101 feature conflicts rules which do not only appear to the German jurist as exotic, but even raise questions as to the scope of application of the Rome I Regulation. Focusing on the contractual transfer of movable property – an area where contract law and property law are intricately linked – this article offers an account of the applicable French conflicts of laws rules by examining the relevant jurisprudence and scholarly doctrine. The codification proposal and the problems it creates will also be critically analysed.

N. Dewitte/L.Theimer: A century of the Hague Academy, 31 July to 18 August 2023, The Hague.

Conventions & Instruments

On 1 February 2024, the 2007 Child Support Convention entered into force for Canada. At present, 49 States and the European Union are bound by the 2007 Child Support Convention. More information is available here.

On 13 February 2024, Albania signed the 2005 Choice of Court Convention and the 2007 Maintenance Obligations Protocol. The Convention and the Protocol will respectively enter into force for Albania only after it deposits an instrument of ratification, pursuant to Art. 31(2) of the Convention and to Art 25(2) of the Protocol. The 2005 Choice of Court Convention currently binds 32 States and the European Union, while the 2007 Maintenance Obligations Protocol currently binds 31 States and the European Union. More information is available here.

On 28 February 2024, the 2007 Child Support Convention entered into force for Azerbaijan. At present, 49 States and the European Union are bound by the 2007 Child Support Convention. More information is available here.

Meetings & Events

From 29 January to 2 February 2024, the Working Group on Matters Related to Jurisdiction in Transnational Civil or Commercial Litigation met for the sixth time. Pursuant to its mandate, the Working Group made further progress on the development of draft provisions on parallel proceedings and related actions or claims. More information is available here.

Publications

On 27 February 2024, the Permanent Bureau announced the publication of the Recommended Model Forms for use under the 1993 Adoption Convention. The Model Forms are intended to simplify and facilitate compliance with the 1993 Adoption Convention by assisting Contracting Parties in the collection of relevant information. More information is available here.

Vacancies

Applications are now open for the position of Project Coordinator (full-time). The deadline for the submission of applications is 13 March 2024. More information is available here.

Applications are now open for three- to six-month legal internships for the period from July to December 2024. The deadline for the submission of applications is 29 March 2024 (18:00 CET). More information is available here.

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

Applications are now open for three- to six-month legal internships at the Permanent Bureau’s headquarters in The Hague, for the period from July to December 2024!

Interns work with our legal teams in the areas of International Family and Child Protection Law, Transnational Litigation and Legal Cooperation, and International Commercial, Digital and Financial Law. Duties may include carrying out research on particular points of private international law and/or comparative law, taking part in the preparation of HCCH meetings and contributing to the promotion of the HCCH and its work.

Applications should be submitted by Friday, 29 March 2024. For more information, please visit the Internships Section of the HCCH website.

This post is published by the Permanent Bureau of the Hague Conference of Private International Law (HCCH).

This post was contributed by Horatia Muir Watt and Dominique Bureau, who are respectively professors at Sciences Po Law School (Paris) and Paris II Law Faculty. This is the fourth contribution to the EAPIL’s online symposium on the ruling of the Court of Justice in Inkreal, after the posts of  Sergi Gimenez, Gilles Cuniberti and Pedro de Miguel Asensio.

The ECJ’s ruling enables parties to an intra-European domestic contract (meaning, connected solely to one Member state) to submit their future disputes to the courts of another Member state. The broad justification for this new step is the respect for party autonomy and the subsequent need for effectiveness of exclusive choice of court agreements within the common judicial area (judgment, §26, §36). While the reference to such principles does not come as a surprise in the latter context, their relevance with regard to the specific problem at the heart of the ongoing dispute is hardly convincing. Not that there is any lack of other, more technical, arguments. However, the dialectics are somewhat circular, to say the least. This may be linked to the fact that the Advocate General’s Opinion had proposed the opposite solution, possibly indicating in turn an internal division within the Court.

The novelty in the solution is that a choice of foreign forum in a purely domestic or uni-located situation is governed by Article 25-1 of the Brussels I bis Regulation and permissible thereunder. There is no need, then, for the underlying agreement to have any “foreign elements”. Indeed, in this case, not only was there was no link with the Member State whose courts had been chosen (as now uncontroversially allowed in the case of international forum agreements, whether otherwise intra-European or not), but further, there was no circumstance, past or present, which might attach the disputed contract to any country (whether or not a Member State) other than the one in which the parties were already established at the time the contract was concluded and were still so at the date of the court proceedings.

We see this as problematic. Not only by reason of the pattern of argument deployed here (I), but also because of the epistemology at work (II), and, most importantly, the underlying political economy of the final outcome (III).

The problem affecting the reasoning in the judgment lies in a methodological slippage. At first glance, the Court carries out a classical exercise in legal hermeneutics: the wording of article 25-1 is examined (pt. 21), consolidated thereafter by a teleological analysis (pt. 26), then a logical justification (pt. 32), and finally the confrontation with a counter-example in the form of the 2005 Hague Convention (pt. 36). Why the latter did not serve, rather, as an analogy; why the silence of the text was taken to be permissive rather than as an implicit reference to the content or practice of other EU instruments, including Regulation Rome I; why there was no consideration of the delicate balance struck between the policy of free movement and the protection of domestic regulatory objectives in Member States…can of course all be ascribed to the normal mysteries of judicial interpretation.

Nevertheless, given the controversial nature of the legal issue and the potential import of the outcome, the location of the tipping point of the argument (pt. 22-23) comes as a surprise. From this point onwards, all the justifications put forward, whether teleological, logical or contextual, all presuppose a conception of the relationship between the internal and the international, which is precisely at the heart of the dispute.

The latter comprises two successive questions. Does the applicability of Article 25 of Regulation Brussels I bis require the contractual relationship (to which the choice of forum agreement pertains) to be international (or at least non-exclusively domestic, as under its twin article 3§3 of Regulation Rome I on choice of law)? If so, does the sole choice of a foreign court by the parties to such a relationship suffice to fulfill this condition? But answering the second question in the affirmative quite simply negates any prior requirement and merges the two problems into one. As Advocate General J. Richard de la Tour observed, if we hold that recourse to a provision of Regulation No 1215/2012 presupposes the existence of a condition of internationality, it would be fallacious to assume that this is fulfilled through an agreement between the parties. In other words, this way of framing the question puts an end to any further, non subjective, requirement of “internationality”. With the sequence of questions reversed, the reasoning then becomes circular.

This objection could be disqualified as merely aesthetic if it were not for a series of interconnected consequences. These may differ of course according to the structure of the court system in any given country. But let us take France as an example. In the case of an exclusively domestic contract, subject to French law, some forum agreements of which the effect would be to modify the rules of domestic territorial venue – for instance, choosing a court in Paris rather than in Marseilles – would be void under article 48 French Code of Civil Procedure. But then, according to the ECJ’s new ruling, an agreement between the same parties in the same circumstances, but conferring jurisdiction on a court in Rome (rather than in Paris), would be perfectly valid. If the parties are attempting (together or separately) to shop, for various reasons, for a more favorable forum than Marseilles, this opening comes as a godsend.

Indeed, following the ruling, it means that the agreement to take the dispute to a foreign court would have to be enforced – meaning that the court of a Member State other than the one designated under the otherwise applicable rules of domestic civil procedure would have to stay and then possibly decline jurisdiction – assumedly, even if the dispute falls within the scope of mandatory provisions of the (domestic) law of that forum. Thus, in the French example above, the same contract might also contain a choice of (any) foreign law. The latter choice would normally be subject (without prejudice) to the mandatory provisions of local (French) law, under article 3 § 3 of Regulation Rome I. However, if the court of the other Member State designated in the choice of forum agreement were to disregard such provisions – or, rather, since this whole situation is henceforth to be thought of as international, if it were to decline to exercise the option offered by article 9§3 of Regulation Rome I in favour of an overriding statute at the place of performance-, there is no guarantee that a “second look” could make them effective at the ultimate, enforcement stage. Indeed, the violation of an overriding or mandatory rule – and even less a domestic mandatory provision – does not necessarily prevent a judgment handed down in one Member State from becoming effective in another. Moreover, the proviso in article 25 is hardly a protection when it states, in relation to the effectiveness of parties’ choice of court: “unless the agreement is null and void as to its substantive validity under the law of that Member State”, that is, the law of the chosen forum!

In other words, since, it is easy to see how given domestic legal provisions – both substantive and procedural – become irrelevant unless the parties have decided otherwise.  For the moment we must put aside some insidiously nagging questions, beyond the scope of article 25 of Brussels Ibis Regulation: will this expansive permission to engage in jurisdictional barrier-crossing grow into a common understanding as to the merits of party autonomy, so as to apply to cases in which the chosen forum is in a third country? And in such cases is the protection of European mandatory laws (as in the ECJ’s Ingmar line of case-law) sufficient to ensure “jurisdictional touchdown” (“Transnational Liftoff and Juridical Touchdown: The Regulatory Function of Private International Law in an Era of Globalization.” Columbia Journal of Transnational Law 40.2 (2002): 209-274)?  Presumably, a contractual choice in favour of a Member State by parties to a domestic contract in a third country will also be upheld, even if void under the law of the latter?

To come back for the time being to agreements subject to article 25, it might be argued, in response to our objection, that the erasure of the distinction between the domestic and the international as far as choice of court clauses are concerned increases the protection of weaker parties within the European Union, by reason of  the various special asymmetrical fora contained in Chapter II, Section 2 of the Regulation (which might be absent under local rules of civil procedure). A worker or consumer who is obliged to sue in the court of the professional defendant’s domicile in a purely domestic case could, simply by “internationalising” the contract – albeit with the unlikely consent of the employer or seller/service provider – benefit from the availability of a forum closer to home. But if such an advantage is truly important, it would surely be better to oblige Member States to provide the relevant protective forum by means of secondary EU legislation to that effect (as for detached workers, for instance), rather than upsetting the existing general equilibrium between international jurisdictional freedom and domestic procedural and regulatory constraints, with far wider ripple effects.

It could also be said that the “special” jurisdictional rules of article 7 of Regulation Brussels I bis already intrude into local rules of venue. But these have, until now, been triggered only in international cases, that is, when there is, initially, a “conflict of jurisdictions”, in other words a doubt, given the multiple connections of the substantive agreement between the parties, as to which court is apt to decide the case (as the Court accepts: judgment §22). Henceforth, in a domestic context, economic actors can opt out of local rules of venue in contract cases. They are not usually free to change the rules, say in tort cases, within a given Member State.  But, as from now, we may wonder why they should not be able to do so, with a little help from further analogizing. Or is there really something specific about contracts that mandates a more expansive approach to party autonomy?

How then to understand the Court of Justice’s resolute erasure of the distinction between the domestic and the international – in the very specific context of Article 25 of the Brussels I bis Regulation, but of which the thrust could be significantly broader? Of course, the alternative approach would have meant defining an objective parameter to trigger the liberal regime – free choice of forum – defined therein. Where exactly to place the threshold of the international? This is undeniably a challenge in itself, as we well know from the long endeavor behind the Rome Convention/Regulation Rome I to define the thrust of party autonomy in respect of choice of law. But at this point one may simply wonder why the Court did not borrow from the (albeit imperfect) definition of article 3 § 3 of the latter, twin, instrument.

This approach sets a limit to freedom of choice of a foreign law in cases that are wholly domestic “but for” the choice itself. Arguably, the terms of the difficulty are not identical when it comes to jurisdiction: in matters of choice of law, it is easier to set a limit to party freedom by subjecting the contract to the domestically mandatory rules of the country in which, but for the agreement,  all the other conceivable connecting factors converge. However, applied to choice of forum agreements under article 25 of the Brussels Ibis Regulation, the “but-for” approach would have allowed each Member State to decide, similarly, for itself, whether party autonomy should or not prevail over countervailing considerations (linked inter alia, in turn, to the content of the applicable substantive law under art. 3§3 of Regulation Rome I).

If party autonomy has conquered new ground with such apparent ease, it is probably because the trend embodied in the ECJ’s new judgment was already present in a series of steps that appeared to need only a little prompting to expand in the same direction. From the contrat sans loi to a forum without a jurisdiction… the Court seems to have fallen into the trap of the “authority paradigm” (an epistemological difficulty amply explored by G.H. Samuel (‘Is Law Really a Social Science? A View from Comparative Law’ (2008) 67 Cambridge Law J. 288), in the sense that the solution is represented as dictated by its own specific legal logic, leading as it were in a straight line to an inescapable outcome: the blurring of the boundary between the internal and the international (or European). Given the silence of the text of article 25 on this point (which nevertheless constitutes the framework for the reasoning adopted), arguments beyond a purely literal interpretation were necessary. As observed above, the analogies and counterexamples supplied by the Court tended to cancel each other out and could have worked both ways. Are there further possible justifications?

Arbitration as an area of investigation provides food for thought. Arguably, there is a certain parallelism between choice of forum agreements and arbitration, which both allow, broadly speaking, an opt-out by private actors from a given legal system. It might be said, therefore, that, since domestic arbitration is permitted in many Member States (but it is difficult to generalise in a field that is not subject to European Union law), there is no reason to be more restrictive in respect of a domestic forum agreement in favour of a foreign court. However, such an argument is hardly convincing. Firstly, and precisely, because domestic arbitration is only permitted under the conditions laid down by a given national legal system, which decides for itself the extent it allows parties to exit its own court system. Secondly, because even in pro-arbitration jurisdictions such as France, the will of the parties is powerless to transform a domestic arbitration into an international one.

What can be said, however, is that the expansion of international arbitration is certainly at the root of a pervasive and under-theorized conception of party autonomy, perceived or used as a generalized derogation from any regulation or control originating in the public sphere (“regulatory lift-off” in the terms of Robert Wai, cited above). It is true that arbitration serves to free the parties from the public domain and by doing so encourages the privatization of the dispute resolution industry. This is not exactly the case here, since the freedom granted is exercised to the benefit of the courts of another Member State. However, the dual phenomena of artificial internationalization of domestic agreements and privatization of the access to justice are not unrelated. More rarely analyzed in this light, unfettered free movement serves an identical political and economic function with regard to both. It authorizes what we have previously called “metaphorical mobility”.  In other words, the license given to economic actors to insert choice-of-forum and choice-of-law clauses in their contracts, and thus tailor the applicable legal regime, is but a different instantiation of the free movement of goods and services in the common market: a form of legal and jurisdictional mobility without moving.

But the distinction between domestic and international cannot be erased – with the wave of a magic wand aka the will of the parties – without counting the costs downstream. At least, if we wish to preserve a measure of pluralism of national legal orders (or if we are legally obliged to do so, where competences are divided and layered, as in the European Union). Even liberal antitrust law teaches us that healthy competition (whether between players or, internationally, between laws) encounters its limits in the risk of creating a monopoly. Thus, outside this framework, it would have been possible to reflect on the very meaning of the boundary between the domestic and the international in the context of jurisdictional conflicts and elsewhere, or to consider more broadly (which amounts to the same thing) the scope to be conferred on party autonomy, which nothing – not even the competitive paradigm of the internal market in which the law unfolds here – obliged the Court to extend. Furthermore, in the silence of a text (and even then…) alternative and equally plausible schemes of intelligibility always exist. In this case, other avenues were perfectly conceivable. This is borne out by the conclusions of the Advocate General – without reference, which is regrettable, to the various debates within the field. It is not as if there has not been critique, and for a long time, of the autonomy/privatization/mobility nexus and its political economy, both within and beyond the confines of the European Union. The terms of this discussion deserved to be taken up. We can only regret the absence of any trace of such considerations in the judgment – if only to refute the objections – in what is undoubtedly a radical move in the evolution of the ECJ’s case law on contractual matters. The legitimacy of the Court’s role in the careful construction of a pluralist European legal and judicial area, is at this price, when it is called upon to rule, on the basis of an individual dispute, on a legal issue of much wider political, social and economic import. To present the position taken on this point as being dictated by legal logic is to flatten or depoliticize the difficulty.

At this point, then, we are prompted to look further into the ideological dimension of the outcome. As with free choice, or the distinction between the public and the private spheres, the problem is less in the principle itself (of mobility, party autonomy, private agency…) than in the disqualification of all types of local regulation, perceived exclusively as hindrances to the fulfillment of a higher political and economic goal. From this point of view, erasing the difference between the domestic and the international obeys a classic competitive paradigm, promoted with regard to a certain conception, now largely called into question, of neoliberal economic analysis of law. Thus, allowing the choice by the parties of a forum in another country in domestic contracts (already the principle when the situation is pluri-located) would supposedly create the conditions for an “upward” competitive spiral, thus improving the quality of jurisdictional services across the board as a result of this pressure.

Indeed, the ECJ’s ruling uses the tools of private international law to implement a project based on a specific, and by no means undebatable, economic rationality. Thus, the linchpin of the regulatory competition thesis was largely theorized within Chicago law and economics in the area of the (largely post-war) market for corporate charters. Thereafter, echoing such ideas from across the Atlantic, free metaphorical mobility, or “barrier-crossing” from the public to the private (the very definition of neoliberalism), empowered the unhindered movement of companies within the European internal market. From that point, was there any good reason to distinguish the fate of internal mandatory rules in company law from that of those governing mere commercial contracts: one might even be said to imply the other? Indeed, while most of the prohibitions enshrined in domestic commercial contract law in liberal regimes are presented as exceptions to the freedom of the parties, whereas large swathes of company law is mandatory in the domestic order with the aim of protecting third parties (rules relating to minimum capital, for example, or “blue sky” statutes..). Yet these provisions are largely neutralized by free circulation (as in Centros etc). If the founders of a company can choose to opt out of an applicable regulatory regime by artificially “internationalizing” or moving (formally) across borders, why not allow other forms of metaphorical mobility in contractual cases, through the insertion of choice of law and forum agreements in domestic agreements?

Reminiscent of the neoliberal model of economic analysis just mentioned, such was the plea by J. Damman and H. Hansmann, inspired by the real or supposed virtues of the legislative or regulatory competition induced by the American intra-federal market for corporate charters (‘Globalizing Commercial Litigation’, 94 Cornell L. Rev. 1 (2008)). In vogue at the neoliberal end of the last century when redistributional and environmental concerns were largely ignored, this now outdated, or highly contested, economic analysis of law, still has its supporters, including in France (counterintuitively… but is this the effect of the arbitration lobby, or merely of an academic fashion lag?). Interestingly, the same authors had initially advocated the introduction of a generalized system of “extraterritorial” courts (in other words, established outside their country of origin but administering the justice of the latter, abroad) precisely to enable competition between legal orders through an unfettered access to multiple, competing courts, even in purely domestic situations (perhaps forgetful that such a technique was actually implemented across colonial and neocolonial empires, including by the United States in China, until surprisingly recently…). But of course, a choice of forum agreement does the job in terms of competition, nearly as well.

It is precisely this model – the competitive paradigm – that may have inspired the Court of Justice here, as it has all those who continue to approve a very liberal use of contractual freedom of choice, whether of court or law. But despite the astonishing and recurrent success of the very idea of the “law market”, the difficulty remains of determining the threshold of the license to opt out of local regulatory limits in domestic cases. In the case of jurisdiction agreements, it could be explained by the impulse, in the long term, to standardize all the rules governing “special” jurisdiction among Member States, and thus, indirectly (as seen above) all contract law. Without going back over all the ground already covered in the fierce debates at the turn of the century on the unification of European private law, we shall simply observe that the prerequisite for successful legal harmonization (within the European Union) is the existence of a minimum of shared (equivalent) ground. The failure of the project to codify European private law (even in the sole area of contract) is perhaps an indication that such a consensus does not exist.

Moreover, if we adopt a structural approach to the problem, and move on from the indirect unification of domestic law to the circulation of judgments resulting from choice-of-court clauses, we can only point out that there is no such thing as complete “fungibility” of Member State judgments under the Brussels I bis Regulation itself, which, even after the abolition of exequatur, still allows for the ultimate intervention of local public policy (and on issues involving fair and equitable process is obliged to do so under relevant human or fundamental rights law). It is therefore to be expected that freeing up elective clauses ex ante will only multiply the number of cases of refusal to enforce the resulting decisions ex post. In other words, the lower the threshold of autonomy at the outset, the greater the degree of control at the end. The well-known example of the two contrasting perspectives, French and American, on “arbitrability” or the extent of party freedom in international arbitration (preventive threshold or control of awards) illustrates this phenomenon of “communicating vessels”. In respect of the new regime of jurisdictional clauses under the ECJ’s ruling, we can bet that the threshold issue – i.e., the reappearance of legitimate impediments to the free exercise of will – will quickly reappear downstream.

We also know that corporate mobility within the internal market has not been without its problems. The case law of the European Court of Justice bears witness to a long, shifting and subtle negotiation between the requirements of free movement and the aims protected by the legislative “obstacles” raised by member states in the name of various equally legitimate aims or policies (be they economic, social, environmental, etc.). Such judicial negotiation in case of conflict is the very “dynamic” of the principle of proportionality within the internal market (to use A. Marzal Yetano’s excellent expression in La dynamique du principe de proportionnalité. Essai dans le contexte des libertés de circulation du droit de l’Union européenne, Institut Universitaire de Varenne, 2014). This tension between multiple values is apparent both in corporate matters and in the field of contractually provided services, whether in terms of jurisdiction or applicable law. This is because any legal rule adopted in a democratic regime is the fruit of complex compromises between potentially contradictory interests, so that in the event of conflict in a particular case, no simplistic equation by which one should prevail other the other makes any sense – if to do so means ignoring the balance previously achieved…