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Dorota Leczykiewicz, Human Rights and the Area of Freedom, Security and Justice: Immigration, Criminal Justice and Judicial Cooperation in Civil Matters, available here through on SSRN.

[Abstract] – The chapter considers the rich acquis of the EU falling within the Area of Freedom, Security and Justice from the perspective of human rights. It starts by looking at human rights issues arising from EU asylum and migration law and moves on to the EU’s prevention of crime measures, where it focuses on the judicial cooperation in criminal matters. It finishes by considering the human rights issues arising in the context of judicial cooperation in civil matters. The chapter explains the double role of human rights in the AFSJ – as a policy objective realised through legislative measures and a standard of review of acts adopted as part of this EU activity. It also explains why so many human rights issues arise in the AFSJ and investigates the way in which they have been addressed by the Court of Justice of the EU. The chapter argues that the Court’s case law exhibits an extreme version of utilitarianism, which is incompatible with a corrective justice conception of human rights, underlying the ECHR and the Charter of Fundamental Rights. It concludes that the Court of Justice is far from usurping a human rights jurisdiction for itself and that the full potential of the Charter of the Fundamental Rights to infuse EU law in the AFSJ with content inspired by human rights has not yet been realised. Instead, the chapter observes, the Court is often using the argument of effectiveness to resist arguments of human rights, which, as a result, are protected in the AFSJ only in so far as they are recognised and codified in secondary law.

The CJEU has held in Case C-521/14 Sovag that Article 6(2) Brussels I (Article 8(2) in the Recast) applies regardless of whether the proceedings are brought against (which is what inter alia the English language version suggests) or by a third party.

A, the victim of a traffic accident that took place in Germany, brought an action in Finland against SOVAG, with which the vehicle responsible for the damage was insured. That traffic accident also constituting a work accident under the Law on accident insurance, If, which is established in Finland, paid A compensation for the accident in accordance with that law. After A had brought the action against SOVAG, If itself sued SOVAG before the same court of first instance.

The national court in first instance held that, in accordance with Article 8 of Regulation 44/2001, in matters relating to insurance jurisdiction may be determined by the provisions of Section 3 of Chapter II of that Regulation alone. According to SOVAG, Article 6(2) of Regulation 44/2001 is indeed not applicable because Section 3 of Chapter II of the same Regulation establishes an autonomous system for the conferring of jurisdiction in matters of insurance. On this issue, the CJEU (at 30) reminded the national court of earlier case-law that where the action at issue in the main proceedings concerns relations between professionals in the insurance sector, and will not affect the procedural situation of a party deemed to be weaker, the insurance title does not apply. The objective of protecting a party deemed to be weaker being fulfilled once jurisdiction is established on the basis of Section 3 of Chapter II of Regulation 44/2001, subsequent procedural developments concerning only relations between professionals cannot fall within the ambit of that section.

Next, the wording of several of the language versions of Article 6(2), in particular the German, French, Finnish and Swedish versions, does not prevent the court before which the original proceedings are pending from having jurisdiction to hear and determine an action brought by a third party against one of the parties to the original proceedings.  However, other language versions of that provision, particularly the English language version, appear to restrict its scope to actions brought against third parties (‘a person domiciled in a Member State may also be sued: … as a third party’).

While the CJEU acknowledged that the special jurisdictional rules need to be applied restrictively, ie not going beyond their purpose, here the purpose of Article 6(2) is the harmonious administration of justice, namely minimising the possibility of concurrent proceedings and ensuring that irreconcilable judgments will not be given in two Member States. Therefore Article 6(2) must also apply where the third party brings the proceedings, not just where it is drawn into those proceedings by others.

However, the Court also sanctioned the Finnish rule of civil procedure that the right of a third party to bring an action in connection with pending judicial proceedings, is contingent on that action being linked to the original proceedings. Given that Article 6(2) does not apply where the proceedings were brought ‘solely with the object of removing’ the party concerned from the jurisdiction of the court which would ordinarily have jurisdiction to hear the case,  the CJEU OK-ed the Finnish rule as being one that assist in helping to avoid abuse of the rule on joinders.

I would have thought the Court would have made that rule one of EU law, given its insistence on autonomous interpretation. (Rather than simply OK-ing a national rule). Whether there is such a European rule therefore must stay into the open a little longer.

Geert.

It has already been mentioned on this blog that the European Commission is funding an international research project on “European Private International Law – Legal Application in Reality” (EUPILLAR). The project, which is led by Prof. Paul Beaumont and Dr. Katarina Trimmings from the University of Aberdeen (UK), will last for two years and involves six research partners from the Universities of Freiburg (Germany), Antwerp (Belgium), Wroclaw (Poland), Leeds (UK), Milan (Italy) and Complutense (Madrid, Spain), examining the case law and legal practice on the main EU private international law instruments in the Court of Justice of the European Union and in the participating Member States. The key objectives of the project are to consider whether the selected Member States’ courts and the CJEU can appropriately deal with the relevant cross-border issues arising in the European Union context and to propose ways to improve the effectiveness of the European PIL framework.

After a practitioners‘ workshop has already been conducted in Freiburg last year, the German branch of the project (Prof. Jan von Hein) is now organizing an academic conference which focuses on the experience gathered in German court practice so far. The conference will take place on 14-15 April 2016 in Freiburg and features high-level academics dealing with pervasive issues such as European and domestic court organization, the methods of evaluating PIL instruments and the application of foreign law in practice. Moreover, court practice on PIL instruments such as Rome I and II, Brussels I(bis) and II(bis) will be analyzed and discussed. The conference language is German and the proceedings will be published in the „Zeitschrift für Vergleichende Rechtswissenschaft“. Participation is free of charge, but requires a prior registration. For the full programme and further details, see here. For registration, please click here.

Sucesiones internacionales. Comentarios al Reglamento (UE) 650/2012, a cura di José Luis Iglesias Buigues e Guillermo Palao Moreno, Tirant lo Blanch, 2015, ISBN 9788490867891, pp. 276, € 89.

[Dal sito dell’editore] El 4 de julio de 2012 se aprobó el Reglamento N° 650/2012 del Parlamento Europeo y del Consejo, relativo a la competencia, la ley aplicable, el reconocimiento y la ejecución de las resoluciones, a la aceptación y la ejecución de los documentos públicos en materia de sucesiones mortis causa y a la creación de un certificado sucesorio europeo. La aplicación plena de este instrumento legislativo adoptado en el ámbito del Espacio de Libertad, Seguridad y Justicia se producirá el 17 de agosto de 2015, momento a partir del cual nuestro modelo de Derecho internacional privado de sucesiones pasará a regirse por esta nueva norma, cuyo análisis pormenorizado, disposición a disposición, constituye el objeto de esta obra. El estudio que presentamos no es un trabajo exclusivamente académico, sino que se ha buscado ofrecer al profesional del Derecho un comentario de cada una de sus disposiciones en cuanto Derecho positivo, presidido por su confrontación con el Derecho español, con el fin de fundamentar la interpretación y aplicación en la práctica del Reglamento en España.

Maggiori informazioni, compreso l’indice del volume, sono disponibili qui.

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 laws 2015: Reappraisal
The article provides an overview of developments in Brussels in the field of judicial cooperation in civil and commercial matters from December 2014 until November 2015. It summarizes current projects and new instruments that are presently 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 ECJ 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.

K. Kroll-Ludwigs, Conflict between the Hague Protocol on the law applicable to maintenance obligations (2007) and the Hague Maintenance Convention (1973): lex posterior derogat legi priori?
On 18.6.2011, the European Union set into force the Hague Protocol on the law applicable to maintenance obligations of 23 November 2007 and established common rules for the entire European Union aiming to determine unanimously the applicable law where debtor and creditor are in different countries. The Protocol replaced the Hague Convention of 2 October 1973 on the Law applicable to maintenance obligations. Due to its universal application, its rules apply even if the applicable law is the law of a non-Contracting State. However, note that non-EU-States, as Turkey, Switzerland, Japan and Albania are not bound by the Protocol. As well as Germany they are Contracting States of the Hague Maintenance Convention. From the German perspective, in relation to these States the question raises whether the rules of the Hague Maintenance Convention still apply. Taking into account that the Protocol – unlike the Hague Maintenance Convention – enables the parties to choose the applicable law, determining the relevant legal instrument is of great practical importance.

F.M. Wilke, The subsequent completion of German judgments to be enforced abroad
Under certain conditions, a German court can pass a judgment without a statement of facts and even without reasons. This can lead to problems abroad if the decision is to be recognized and enforced there. This is why the implementing statute concerning recognition and enforcement (AVAG) contains provisions that cover the subsequent completion of such decisions in light of certain international conventions and, so far, the Brussels regime. After the reform of the German Code of Civil Procedure (ZPO) in light of the Brussels I Recast, however, the scope of application of the AVAG does not extend to the Brussels I Regulation anymore. At first sight, this may seem plausible because of the abolition of exequatur. Yet it might be necessary for a court of an EU member state to examine the facts of a case and/or the reasons behind a decision in order to determine if its recognition/enforcement should be refused (Articles 45, 46 Brussels I Recast). This short article analyses for which cases the legal basis for subsequent completion seems to have vanished and how to deal with them. Essentially, the solutions de lege lata are to bypass the scope of application of the AVAG or to proceed by analogy. In a potential future reform, the respective AVAG provisions simply should be integrated into the ZPO.

S. Kröll, The law applicable to the subjective reach of the arbitration agreement
Defining the parties to an arbitration agreement, in particular whether nonsignatories are bound by the agreement, is one of the pervasive problems in international arbitration. It generally involves a number of conflict of laws questions some of which have been addressed by the German Supreme Court in its decision of 8 May 2014. A party’s reliance on the „group of companies doctrine“ does not relieve the courts from a detailed analysis of the various relationships involved. In most cases, it is the law governing the arbitration agreement which also determines who are the true parties to the arbitration agreement.

M. Weller, No effect of foreign mandatory provisions on arbitration agreements under German law according to § 1030 ZPO
The material scope of arbitration agreements, in particular with regard to tort claims, is a constant point of controversy before state courts. The note on the judgment by the Upper Regional Court Munich identifies opposing trends in German and European case law. The judgment also decides on the (lack of) influence of foreign mandatory provisions, arbitrability according to foreign law and the foreign ordre public on arbitration agreements, subject to German law.

C. Althammer/J. Wolber, Cross-border enforcement of coercive fine orders in Europe and limitation on enforcement
The European Court of Justice ruled in the case of Realchemie Nederland BV./. Bayer CropScience AG that decisions ordering a coercive fine fall within the scope of the Brussels I Regulation. This ruling made the German Federal Court of Justice decide upon the effects of a limitation on the crossborder enforcement of such an order. The judgment of the German Federal Court of Justice reveals a traditional understanding of the international law of enforcement and provokes the question if this approach is still appropriate for cross-border enforcement in Europe, especially as the recast of the Brussels I Regulation abolished the exequatur proceeding. The article examines the effects of obstacles resulting from national law of enforcement on the conditions of cross-border enforceability under the Brussels I and Ia Regulation. In this way the article leads into an issue that has so far not been discussed to a sufficient extent: the relationship between the cross-border enforceability of judgments and the national laws of enforcement.

P. Mankowski, Inhibitions against arrest of ships abroad inside or outside an insolvency context?
Sometimes seemingly technical cases at first instance open up a plethora of questions touching upon basics and fundamentals of international procedural law. Whether a court can inhibit parties from pursuing enforcement or arresting ships abroad in- or outside an insolvency context is precisely such a case. It touches upon the permissibility of measures against enforcement abroad and upon the universality approach in modern international insolvency law. Furthermore, it is inexplicably linked with the question to which extent (registered) ships are to be treated like real estate.

D. Otto, Internationale Zuständigkeit indischer Gerichte bei Markenverletzungen
In its decision of 15.10.2014, the Delhi High Court had to resolve whether it had competence in the international sense for a lawsuit by a U.S.-based claimant without a presence in India against an Indian-based defendant, who had his business in a different state. Under Indian civil procedure rules, a court has jurisdiction in the international sense against a defendant residing within the jurisdiction of the court. As per such rule, claimant would have to litigate before the Bombay High Court, not the Delhi High Court. The Claimant invoked a new legal provision that gives jurisdiction in disputes involving copy right or trademark violations in India also to a court at the place where the claimant carries on business. Claimant argued that it did “carry on business” within the jurisdiction of the Delhi court because its website could be accessed in Delhi. The court accepted that. This Article questions such decision as previous jurisprudence by Indian courts required that an “essential” part of claimant’s business is carried out in India; access to a website alone was deemed insufficient.

F. Heindler, Austrian Supreme Court on Remuneration of Heir Locators
The Austrian Surpreme Court in Civil Matters (Oberster Gerichtshof) has changed its jurisdiction on claims by commercial heir locators. Under Austrian law, according to the Oberster Gerichtshof, commercial heir locators are still entitled to reimbursement for expenses in negotiorum gestio. However, the amount of remuneration is no longer calculated in relation to the heir’s inheritance right.

Is the relationship between two insurers, having covered liability for a towing vehicle cq a trailer, each subrogated in their insured’s rights and obligations, one of them currently exercising a claim against the other in partial recovery of the compensation due to the victim, non-contractual? I reviewed Sharpston AG’s Opinion here. I believe the Court has confirmed her Opinion. However I am not entirely certain for the judgment is awkwardly phrased.

Like its AG, the CJEU dismisses a suggestion that Directive 2009/103 (relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability) includes a conflict of laws (applicable law) rule which is lex specialis vis-a-vis the Rome I Regulation. Indeed the Directive’s provisions do not indicate whatsoever that they can be stretched.

Then comes the core of the issue, the nature of the relationship underlying the claim. The AG had suggested this is contractual, using as I noted in my earlier posting, ‘centre of gravity’ (‘the centre of gravity of the obligation to indemnify is in the contractual obligation’); ‘rooted in’ (‘the recourse action by one insurer against the other…is rooted in the contracts of insurance’); and ‘intimately bound up’ (‘[the action] is intimately bound up with the two insurers’ contractual obligation‘). (at 62).

The Court did not repeat any of this terminology. It first suggests that the national court where the case is pending, needs to determine using Article 4 of Rome II (lex locus damni) whether the law so determined ‘provides for apportionment of the obligation to compensate for the damage’. This the AG had not expressly pondered, rather it may be implicit in her use of the conditional ‘where two or more insurers are jointly and severally liable’ ((only) used at 71 of her Opinion). Next, the Court holds, if there is such apportionment, the law applicable to the action for indemnity between the insurers of the tractor cq the trailer, needs to be determined using Article 7 of Rome I (which applies to insurance contracts).

The referring courts were looking I believe for more straightforward advice. Instead I fear the many conditions precedent expressed in the judgment may well leave plenty of room for counsel to further confuse these national courts. This arguably may have a knock-on effect given the repeated insistence by the CJEU that the provisions of Brussels I (Recast) on contract and tort, need to be applied in parallel with those of Rome I and II (not something I necessarily agree with but have come to accept as standing CJEU precedent).

Geert.

Anche quest’anno, la Società Italiana di Diritto Internazionale e di Diritto dell’Unione Europea (SIDI) indice il Premio di Laurea “Daniele Padovani” per la migliore tesi di laurea in materia di diritto internazionale privato e processuale.

L’ammissione al concorso è riservata ai candidati che abbiano conseguito una laurea specialistica o magistrale in giurisprudenza successivamente al 30 maggio 2014, con votazione non inferiore a 105.

Il termine per la presentazione delle domande è fissato al 4 marzo 2016.

Maggiori informazioni sono disponibili a questo indirizzo.

The procedural context of C&F Green Energy v Bakker Magnetic BV is an attempt at making the courts preliminarily decide the isuse of applicable law to the contract between the parties. Gearóid Carey  explains the Irish civil procedure context here. In this posting I just want to flag one or two Rome I/II issues.

Plaintiffs (an Irish company), wind turbine manufacturers, seek declaratory relief and damages arising out of an alleged breach of contract and negligence on the part of the defendant in connection with the supply of magnets to the plaintiffs for use in the turbines. Defendant denies liability and has counterclaimed in respect of unpaid invoices and loss of profit.

The issue sought to be resolved at a preliminary hearing is whether it is Irish or Dutch law which governs the contract and should be applied by the court when the case comes on for full hearing. It was not for the High Court to determine the applicable law issue at this stage but rather to decide whether this crucial issue is to be decided at a preliminary hearing or whether it should be dealt with as one of the issues at the trial. Hedigan J decided it should be the latter. He dismissed i.a. the argument that much time will be saved because the parties will only have to prepare the case on the basis of one applicable law whatever the result of the preliminary issue, as ‘a little overblown’: expert opinion of one or two Dutch lawyers may be sought, however the facts of the case once the applicable law issue is settled, ought not to be overly complicated.

What interests me here is the ease with which, wrongly, the Court (however presumably just paraphrasing counsel at this point) applies the cascade or waterfall of Article 4 Rome I.  Parties’ views on applicable law are summarised in the judgment as follows: (at 5.2-5.3)

‘The defendant argues that the issue is a very discrete question of law relatively easily established. It argues that pursuant to Article 3.1 of the Rome I Regulation, a contract shall be governed by the law chosen by the parties. It argues that the defendant’s general conditions of sale were incorporated into the contract because of their attachment to a series of quotations delivered by email and their inclusion in their order confirmation forms. Thus, Dutch law was chosen by the parties to govern their contract. It argues that if they succeed on this point then little remains to be decided because certain clear time limits will apply and these, they claim, have clearly not been met….

The plaintiffs argue that it is not Article 3 but Article 4(3) of the Rome I Regulation that should apply. This Article provides that it is the law of the country most closely connected to the contract that shall apply. Although Article 4 provides for the applicable law only in the absence of a choice of law, the plaintiff argues that this Article will fall to be considered if they can establish that the orders for the goods were not, in fact, made subject to the condition importing Dutch law. In this regard, they characterised the emails relied upon by the defendant as merely pre-contract correspondence. They will rely upon the evidence of the parties to demonstrate that Dutch law was never accepted as the law of the contract. They will argue that the choice of law should be determined pursuant to Article 4(3) by an examination of all the numerous connections between the contract and Ireland. This, they argue, will involve a consideration of all the evidence of the negotiations that took place between the parties. In relation to their claim in tort, they argue that the general rule under Rome II Article 4(1)(i) should apply i.e. the law of the country where the damage occurred. They argue that Article 4(3) of Rome II further brings into play evidence as to manifest proximity. Both of these, they argue, will involve evidence of the parties.’

Which of these will prevail will now be settled at trial stage. Defendant will have to show that what it refers to as the pre-contractual quotations of its general conditions of sale, seemingly by e-mails and eventually in the confirmation forms, amounts to a choice of law clearly established, per Article 3(1) Rome I.  There is considerable case-law on the mirror issue of choice of Court under Brussels I, also in an e-mail context (see e.g. here) however  to what degree one can simply apply the same principles to choice of law, is not clearly established in case-law.

An interesting point is that the Court (and counsel with it, one presumes) jumps straight to Article 4(3) Rome I should choice of law per Article 3(1 not be clearly established. Article 4(3) however is the escape clause (referred to by Hedigan J as ‘manifest proximity’), which must only apply in exceptional circumstance. The correct next steps following failure to establish clearly established choice of law, are firstly the assumptions made under Article 4(1)  (Article 4(1) (a) would seem most obvious here); should that fail, Article 4(2)’s characteristic performance test; and failing that, Article 4(4)s ‘proper law of the contract’ consideration. Article 4(3) only corrects Article 4(1) or (2)s more mechanical (‘objective’ as it is also called) choice of law determination. The judgment mixes Article 4(3)’s ultimate and exceptional correction, with the proper law of the contract test.

My concerns here should likewise not be overblown. Actual determination of the applicable law was not the court’s task. However now that the issue goes back to trial, correct application of Rome I must be made.

Geert.

The Oberlandesgericht of Düsseldorf has recently lodged a request for a preliminary ruling concerning the interpretation of Article 97(1) of Regulation No 207/2009 on the Community trade mark (Case C-617/15, Hummel Holding). Specifically, the request concerns the meaning of the term “establishment” as used in the Regulation.

According to Article 97(1), proceedings in respect of the actions and claims referred to in Article 96 — ie infringement actions, actions for declaration of non-infringement etc. — “shall be brought in the courts of the Member State in which the defendant is domiciled or, if he is not domiciled in any of the Member States, in which he has an establishment”.

The facts of the case may be summarised as follows. The applicant, a Danish company, sues a German company before a German court, alleging that the latter has infringed its Community trade mark. The defendant complains that German courts lack jurisdiction, relying on the circumstance that the German company is a subsidiary of a Dutch company, which is itself a subsidiary of an American holding company.

In connection with the foregoing, the Oberlandesgericht asks the ECJ to clarify “(u)nder which circumstances is a legally distinct second-tier subsidiary, with its seat in an EU Member State, of an undertaking that itself has no seat in the European Union to be considered as an ‘establishment’ of that undertaking within the meaning of Article 97(1)” of the Regulation.

This post has been written by Ilaria Aquironi.

On 15 April 2016 the Law Faculty of the University of Santiago del Compostela will host an international conference on Security Rights and the European Insolvency Regulation: from Conflicts of Laws towards Harmonization. The event is part of the Security Rights and the European Insolvency Regulation Project.

Speakers include Paul Beaumont (Univ. of Aberdeen), Francisco Garcimartín Alferez (Univ. Autonoma of Madrid), Juana Pulgar Esquerra (Univ. Complutense of Madrid) and Anna Veneziano (Unidroit).

With a view to promote scientific debate on the topic, a call for papers has been issued. The organizers will consider papers addressing, in particular: (a) Security Rights, Set-Off, Transactional Avoidance and Conflict-of-Laws Issues; (b) Security Rights and Insolvency Law in National Legislation, in particular taking into account the New Approach to Business Failure and Insolvency as proposed by the 2014 European Commission Recommendation; (c) Harmonization Trends at an international level.

Submissions should be sent by 11 March 2016 either to Marta Carballo Fidalgo (marta.carballo@usc.es) or to Laura Carballo Piñeiro (laura.carballo@usc.es).

Further information about the project is available here. The call for papers can be downloaded here.

On 15 April 2016 the Law Faculty of the University of Santiago del Compostela hosts an international conference on Security Rights and the European Insolvency Regulation: from Conflicts of Laws towards Harmonization. The event is part of the Security Rights and the European Insolvency Regulation Project.

Speakers include Paul Beaumont (Univ. of Aberdeen), Francisco Garcimartín Alferez (Univ. Autonoma of Madrid), Juana Pulgar Esquerra (Univ. Complutense of Madrid) and Anna Veneziano (Unidroit).

With a view to promote scientific debate on the topic, a call for papers has been issued. The organizers will consider papers addressing, in particular: (a) Security Rights, Set-Off, Transactional Avoidance and Conflict-of-Laws Issues; (2) Security Rights and Insolvency Law in National Legislation, in particular taking into account the New Approach to Business Failure and Insolvency as proposed by the 2014 European Commission Recommendation; (3) Harmonization Trends at an international level.

Submissions should be sent by 11 March 2016 either to Marta Carballo Fidalgo (marta.carballo@usc.es) or to Laura Carballo Piñeiro (laura.carballo@usc.es).

Further information about the project is available here. The call for papers can be downloaded here.

Il 15 gennaio 2016 la Serbia ha depositato il proprio strumento di adesione alla Convenzione dell’Aja del 19 ottobre 1996 sulla competenza, la legge applicabile, l’efficacia delle decisioni e la cooperazione in materia di responsabilità genitoriale e di misure di protezione dei minori.

La Convenzione, che è in vigore per altri 42 Stati, fra cui l’Italia (dal 1° gennaio 2016: si veda questo post), entrerà in vigore per la Serbia il 1° novembre 2016, conformemente a quanto previsto all’art. 61, par. 2, lett. b), della Convenzione stessa.

Questo lungo lasso di tempo si spiega alla luce dell’art. 58, par. 3, della Convenzione, il quale stabilisce che per gli Stati a cui è data la possibilità di aderire alla Convenzione (tutti gli Stati che non erano membri della Conferenza dell’Aja all’epoca dell’adozione del testo), l’adesione è efficace solo nei riguardi di quegli Stati contraenti che non abbiano obiettato all’adesione nei sei mesi successivi alla notifica della stessa.

Clotilde Camus, La distinction du droit public et du droit privé et le conflit de lois, L.G.D.J., 2015, ISBN: 9782275047676, pp. 396, Euro 45.

[Dal sito dell’editore] – Cette étude a pour objet d’analyser les implications des mutations de la distinction du droit public et du droit privé pour le droit international privé, et plus particulièrement pour le conflit de lois. En effet, dans la mesure où l’on enseigne traditionnellement que la méthode du conflit de lois prend pour point de départ la summa divisio, ses transformations influencent nécessairement le conflit de lois.  Plus précisément, cette recherche est fondée sur le constat de la résistance de la distinction du droit public et du droit privé, en dépit des remises en cause récurrentes dont elle fait l’objet. Quand bien même son tracé et son rôle évoluent sans cesse, elle ne nous semble pas avoir perdu sa raison d’être, tant que subsiste la res publica. Il nous a dès lors paru pertinent de transposer à la summa divisio la formule de Maurice Hauriou relative à l’existence de la juridiction administrative : «c’est peine perdue de la discuter ; au contraire, il faut en accepter la donnée et en observer le jeu».  L’observation du jeu de la distinction du droit public et du droit privé nous a conduit à analyser ses mutations à partir de trois paradigmes – libéral, post-étatique et constitutionnel -, chacun éclairant sous un jour particulier l’opposition du droit public et du droit privé. Il a alors fallu étudier au sein de chacun de ces trois paradigmes l’influence de ces évolutions sur le conflit de lois.

L’indice completo è consultabile al seguente indirizzo. Maggiori informazioni sono disponibili sul sito dell’editore.

In Ecobank Transnational v Tanoh, the Court of Appeal refused an anti-enforcement injunction because of the applicant’s delay in filing it. Nigel Brook reviews the judgment’s findings on the issue of the anti-enforcement injunction here. The issue in this appeal is whether the High Court was wrong to refuse to grant Ecobank Transnational Incorporated (“Ecobank”), an injunction restraining Mr Thierry Tanoh (“Mr Tanoh”) from enforcing two judgments which he had obtained in Togo and Côte d’Ivoire. In substance the case concerned the relationship between arbitration, proceedings in the court in ordinary, and submission: it is to the latter that I turn my attention in this posting.

The Brussels regime does not apply – at stake is the application of the Civil Jurisdiction and Judgments Act 1982, which reads in relevant section

“33 For the purposes of determining whether a judgment given by a court of an overseas country should be recognised or enforced in England and Wales or Northern Ireland, the person against whom the judgment was given shall not be regarded as having submitted to the jurisdiction of the court by reason only of the fact that he appeared (conditionally or otherwise) in the proceedings for all or any one or more of the following purposes, namely

(a) to contest the jurisdiction of the court;

(b) to ask the court to dismiss or stay the proceedings on the ground that the dispute in question should be submitted to arbitration or to the determination of the courts of another country.”

Whilst the section states that a person shall not be regarded as having submitted by reason only of the facts there mentioned it is silent as to what additional facts are sufficient to establish submission. The Court of appeal confirms the feeling expressed in earlier case-law that Section 33 needs to be applied in parallel with Article 18 of the Brussels Convention, now Article 26 of the Brussels I Recast (and before that, Article 24 in the Brussels I Regulation). That is because Section 33 is largely derived from Article 18 of the Brussels Convention.

In the High Court judgment Burnton LJ said that it would be unfortunate if the principles applied by the courts of England and Wales on whether a litigant had submitted to the jurisdiction of a foreign court in non-EU cases were different from the principles applied by the Court of Justice, and therefore those courts, in cases under the Brussels and Lugano Conventions and now the Judgments Regulation.

In current appeal, Clarke LJ held (at 66) ‘I would go further. The decision of the court in Harada in relation to section 33 was heavily influenced by the decision of the European Court in relation to Article 18 of the Brussels Convention. But, now that section 33 has been interpreted in the way that it has, it cannot be right that it should bear a different meaning in cases outwith the European context.‘

Submission was not found to exist.

Do be aware of the limits to the relevant findings: Section 33 was largely borrowed, it appears, from the Brussels Convention. Many parts of English private international law, statutory or not, are no so borrowed. In those areas, the courts of England happily continue to follow their own course.

Geert.

In un decreto del 26 agosto 2015, il Giudice Tavolare del Tribunale di Trieste ha annoverato l’ingiunzione di pagamento europea di cui al regolamento n. 1896/2006, dichiarata esecutiva in conformità all’art. 18 del regolamento stesso, tra le possibili fonti del diritto all’ipoteca giudiziale ex art. 2820 del codice civile, ammettendo che sulla base di essa possa essere autorizzata l’iscrizione del relativo diritto nei registri del conservatore immobiliare.

Una tale conclusione verrebbe a discendere, nell’opinione del giudice disponente, dai principi posti alla base dello stesso regolamento n. 1896/2006, il quale – pur configurando, in termini espressi, il procedimento da esso istituito come un meccanismo supplementare e facoltativo rispetto a quelli previsti dalla legislazione nazionale per il recupero di crediti non contestati – mira, tuttavia, a garantire l’effettività della tutela del credito così realizzata.

Tale effettività, in particolare, andrebbe preservata, anche per via interpretativa, riconoscendo ai creditori che decidano di avvalersene la possibilità di rivendicare, sulla base dell’ingiunzione, i diritti e le facoltà che spetterebbero loro in base a un analogo titolo nazionale.

Una conclusione opposta, che negasse l’attitudine dell’ingiunzione europea a fungere da base per l’iscrizione di un’ipoteca giudiziale nei confronti del debitore ingiunto, si porrebbe del resto in contrasto, ad avviso del giudice triestino, con le indicazioni date dalla Corte di Giustizia nel caso Szyrocka, poiché finirebbe col dissuadere il creditore dall’avvalersi del procedimento europeo, diminuendone l’appetibilità rispetto al più favorevole procedimento nazionale esperibile in situazioni analoghe (segnatamente, il procedimento di ingiunzione di cui agli articoli 633 e seguenti del codice di procedura civile).

In definitiva, stando al provvedimento, è la necessità di assicurare l’effettivo esercizio dei diritti conferiti dal diritto dell’Unione che impone di riconoscere all’ingiunzione europea di pagamento non opposta – al pari del decreto ingiuntivo non opposto (cfr. l’art. 647 del codice di procedura civile e l’art. 2817 e seguenti del codice civile) – l’efficacia di titolo per l’iscrizione dell’ipoteca giudiziale.

Ana Fernández Pérez, Funciones de las cláusulas de excepción en el proceso de localización de la norma en conflicto, in Revista española de derecho internacional (REDI), 2015, pp. 83-109.

[Abstract] – An important aspect of flexibility is that, without abandoning the localization process, it counteracts the rigidity of the connections of the rule of conflict that may appoint, in certain circumstances, a legal system with weak links to the assumption and producing adverse situations. In national and international codification of private international law some texts have turned to so-called “exception clause” from which the judge has an institutionalized power to determine the applicable law, as long as the situation  provides unequivocally a very loose connection with another law designated by the rule of conflict laws. The exception clauses designed for specific situations have been proved to be useful and, therefore, have been welcomed as an important correction instrument and as the best mechanism for specialization due to the degree of heterogeneity. Its use helps to consolidate the necessary certainty and predictability of the rules of conflict and therefore the satisfaction of the proximity principle. Naturally, this loca-tion must be understood in a material sense character. The exception clause will deploy its usefulness if it acts as a technical localization inside the confrontational mechanism that seeks the right answer, given the physical objectives that seeks solution of the case.

Lazar v Allianz, Case C-350/14, was held on 10 December last. It addressed the issue of ‘ricochet’ damage in the Rome II Regulation on the law applicable to non-contractual obligations. Ricochet or ‘reflective’ or ‘indirect’ losses occur when someone suffers losses as a result of a tort directly causing damage to someone else.

The request has been made in a dispute between Mr Lazar, who resides in Romania, and the Italian insurance company Allianz SpA regarding compensation for material and non-material damage which Mr Lazar claims to have suffered in jure proprio by reason of the death of his daughter, a Romanian national who was resident in Italy, which occurred in Italy as a result of a road traffic accident caused by an unidentified vehicle. For Mr Lazar, it is more interesting for Italian law to be considered the lex causae.

The Opinion of Wahl AG neatly summarised the two opposing views: (at 40-41 of his Opinion):

According to the first view, (…) material and non-material damage suffered by the family members of a person who has died in another Member State does not necessarily constitute indirect consequences of the tort/delict for the purposes of Article 4(1) of the Rome II Regulation. It would follow in particular that, because it is based on an obligation that is distinct from the obligation as between the opposing party and the person who died in the accident, a claim for compensation in respect of material rights claimed by the close relatives of a person who has died as a result of a traffic accident which occurred in the State of the court seised must be assessed by reference to the law of the place in which the damage sustained by those relatives occurred, namely the place of their habitual residence, unless it can be demonstrated that, in accordance with Article 4(3) of the Rome II Regulation, it is clear from all the circumstances of the case that there are manifestly closer connections with another country.

According to the second view (…) the damage sustained, in their country of residence, by the close relatives of a person who has died in a road accident which occurred in the State of the court seised must be regarded as constituting indirect consequences of the damage suffered by the immediate victim of the accident. The term ‘country in which the damage occurs’ must be interpreted as referring to the place which caused the damage, which, in the main proceedings, is the place of the road accident.

He eventually opined in favour of the second view, taking inspiration ia from CJEU case-law on Article 7(2) of the Brussels I Recast (previously Article 5(3) Brussels I)- even though at 51 he cautioned against lifting interpretation from the jurisdictional Regulation for use in the applicable law Regulation. His main arguments were as follows:

(at 74) the interpretation whereby the general rule under which the expression ‘country in which the damage occurs’ in Article 4(1) of the Rome II Regulation extends to the place of the direct damage — in this case the place of the fatal collision — has the benefit of simplicity and objectivity where all the damage alleged actually originates from the same source.

(at 75) this is consistent with the foreseeability pursued by the drafting of the Rome II Regulation. In most cases, the person liable is able to anticipate the consequences in other countries of his conduct or of the conduct of persons for whom he is responsible. Similarly, the victim is generally informed of the legal context to which he was exposed or exposed his property. In other words, both the person liable and the victim were informed and took the necessary steps, in particular with regard to insurance, in connection with the applicable law in the country or countries in which damage might potentially occur.

(at 76) the general rule for determining the applicable law in the Rome II Regulation is characterised by neutrality. Taking the example of the material damage suffered by the survivors of a person who has died as a result of a traffic accident, it may be considered that the neutrality of the law would be jeopardised in so far as that damage is still located in the victim’s place of residence. (The AG notes that in other instances Rome II is not neutral: he refers in particular to Articles 6 (on acts of competition) and 7 (on environmental damage).

(at 77) such an interpretation is also consistent with the other idea underlying connecting factors in private international law, namely the idea of proximity, which is intended, as far as possible, to connect a situation to the law of the country with which it is most closely connected. Whilst the place of the accident is undeniably related to the other components of the liability, the domicile of the indirect victim is not necessarily so related. 

(at 79) the Rome II Regulation introduces corrective mechanisms which make it possible, in several respects, to avoid the apparent rigidity of the rule of the place in which the damage occurs.

Conclusion (at 83) ‘The term ‘place in which the damage occurs’ must, further to the case-law on the Brussels Convention and the Brussels I Regulation, be understood as meaning the place of the occurrence of the event, in this case the road accident, which directly produced its harmful effects upon the person who is the immediate victim of that event.’

The Court itself, much more succinctly, agrees.

A singular event, therefore, leads to one applicable law, even if its ricochet effect causes damage elsewhere. That such damage is actionable separately (for it may create multiple obligations in tort) or even iure proprio does not impact that analysis.

A word of caution, however: the judgment only holds for singular events. More complex events, especially of a continuing kind, are much more likely to create direct harmful effects in a multitude of persons, potentially therefore also leading to more loci damni. The ricochet effect therefore is highly likely to echo again at Kirchberg.

Geert.

On 25 and 26 February 2016 a conference titled From common rules to best practices in European Civil Procedure will be held in Rotterdam, jointly organised by the Erasmus University and the  Max Planck Institute for European, International and Regulatory Procedural Law of Luxembourg.

The conference will bring together experts in the field of civil procedure from the European Union and beyond. It seeks to facilitate in-depth discussion and sharing of knowledge, practical experiences, and solutions, with the aim of reinforcing mutual trust and contributing to the further development of European civil procedure.

The focus is on how to move beyond common rules and towards best practices that give body to mutual trust and judicial cooperation, which can in turn feed the further development of the European civil procedure framework from the bottom up.

For more information see here.

Horatia Muir Watt, Private International Law and Public Law, Edward Elgar Publishing, 2015, ISBN 9781782547792, pp. 2072, GBP 605.

[Dal sito dell’editore] – The conspicuous absence of private international law from the current global governance debate may be traced in part to its traditional ‘public law taboo’, fed by liberal understandings of statehood and its characteristic public/private divide, in the context of the modern schism between the public and private branches of international law. Alongside an original introduction, the materials assembled in this important collection are of immediate interest to both public and private international lawyers, and more broadly to all those interested in new forms of global governance and the theory of law beyond the state.

Ulteriori informazioni, compreso l’indice dell’opera, sono disponibili qui.

R (Seiont, Gwyrfai and Llyfni Anglers’ Society) v Natural Resources Wales has a long history. That’s not meant to be a fairy tale opening: it actually has legal relevance.

Article 2(2) of the environmental liability Directive provides the following definition: “ ‘damage’ means a measurable adverse change in a natural resource or measurable impairment of a natural resource service which may occur directly or indirectly.” ‘Environmental damage’ is further defined in Article 2(1), providing a variety of layers which need ‘unpacking’ in the words of Hickinbottom J. He concludes, after lengthy and instructive analysis, that  “damage” as defined in article 2(2) of the EL Directive is restricted to a deterioration in the environmental situation, and does not in addition include the prevention of an existing, already damaged environmental state from achieving a level which is acceptable in environmental terms – or a deceleration in such achievement. Since “environmental damage” is a subset of “damage”; “environmental damage” necessarily has that same restriction.

The judgment is very considered and there is not much point in repeating it here: please refer to the text for a thorough read on the ELD, the water framework Directive, habitats and much more.

Geert.