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Written by Eduardo Silva de Freitas (Erasmus University Rotterdam), member of the Vici project Affordable Access to Justice, financed by the Dutch Research Council (NWO), www.euciviljustice.eu.  

 

Introduction

In the final weeks leading up to Christmas in 2023, the District Court of Amsterdam referred a set of questions to the CJEU (DC Amsterdam, 20 December 2023, ECLI:NL:RBAMS:2023:8330; in Dutch). These questions, if comprehensively addressed, have the potential to bring clarity to longstanding debates regarding jurisdictional conflicts in collective actions. Despite being rooted in competition law with its unique intricacies, the issues surrounding the determination of online damage locations hold the promise of illuminating pertinent questions. Moreover, the forthcoming judgment is expected to provide insights into the centralization of jurisdiction in collective actions within a specific Member State, an aspect currently unclear. Recalling our previous discussion on the Dutch class action under the WAMCA in this blog, it is crucial to emphasize that, under the WAMCA, only one representative action can be allowed to proceed for the same event. In instances where multiple representative foundations seek to bring proceedings for the same event without reaching a settlement up to a certain point during the proceedings, the court will appoint an exclusive representative. This procedural detail adds an additional layer of complexity to the dynamics of collective actions under the WAMCA.

Following a brief overview of the case against Apple, we will delve into the rationale behind the court’s decision to refer the questions.

The claim against Apple

The claim revolves around Apple’s alleged anticompetitive behavior in the market for the distribution of apps and in-app products on iOS devices, such as iPhones, iPads, and iPod Touch. The foundations argue that Apple holds a monopoly in this market, as users are dependent on the App Store for downloading and using apps.

According to the foundations, Apple’s anticompetitive actions include controlling which apps are included in the App Store and imposing conditions for their inclusion. Furthermore, Apple is accused of having a monopoly on payment processing services for apps and digital in-app products, with the App Store payment system being the sole method for transactions.

The foundations argue that Apple charges an excessive commission of 30% for paid apps and digital in-app products, creating an unfair advantage and disrupting competition. They assert that Apple’s dominant position in the market and its behavior constitute an abuse of power. Users are said to be harmed by being forced to use the App Store and pay high commissions, leading to the claim that Apple has acted unlawfully. The legal bases of the claim are therefore abuse of economic dominance in the market (Article 102 TFEU) and prohibited vertical price fixing (Article 101 TFEU).

The jurisdictional conundrum

Apple Ireland functions as the subsidiary tasked with representing app suppliers within the EU. The international nature of the dispute stems from the users purportedly affected being located in the Netherlands, while the case is lodged against the subsidiary established in Ireland. The District Court of Amsterdam has opted to scrutinize the jurisdiction of Dutch courts under Article 7(2) Brussels I-bis Regulation. This provision grants jurisdiction to the courts of the place where the harmful event occurred or may occur, encompassing both prongs of the Bier paradigm. However, Apple contends that, within the Netherlands, the court would only possess jurisdiction under Article 7(2) Brussels I-bis Regulation with regard to users residing specifically in Amsterdam.

In the court’s view, the ascertainment of the Handlungsort should pertain only to allegations under Article 102 TFEU. In relation to Article 101 TFEU, the Netherlands was not considered the Handlungsort. This is due to the necessity of identifying a specific incident causing harm to ascertain the Handlungsort, and the absence of concrete facts renders it challenging to pinpoint such an event.

The court’s jurisdictional analysis commences with a reference to Case C?27/17 flyLAL-Lithuanian Airlines (ECLI:EU:C:2018:533), in which the CJEU established that the location of the harmful event in cases involving the abuse of a dominant position under Article 102 TFEU is closely linked to the actual implementation of such abuse. In the present case, the court observes that Apple’s actions, conducted through the Dutch storefront of the App Store tailored for the Dutch market, involve facilitating app and in-app product purchases. Acting as the exclusive distributor for third-party apps, Apple Ireland exerts control over the offered content.

Applying the criteria from flyLAL, the court concludes that the Handlungsort is situated in the Netherlands. However, the court agreed that the specific court within the Netherlands responsible for adjudicating the matter remains unspecified.

The court initiated its analysis of the Erfolgsort based on the established premise in CJEU case law which posits that there is no distinction between individual and collective actions when determining the location of the damage. The court clarified that the concept of the place where the damage occurs does not encompass any location where the consequences of the event may be felt; rather, only the damage directly resulting from the committed harm should be considered. Moreover, the court emphasized that when determining the Erfolgsort, there is no distinction based on whether the legal basis for the accusation of anticompetitive practices is grounded in Article 101 or Article 102 TFEU.

The court reiterated that the App Store with Dutch storefront is a targeted online sales platform for the Dutch market. Functioning as an exclusive distributor, Apple Ireland handles third-party apps and in-app products, contributing to an alleged influence of anticompetitive behavior in the Dutch market. It’s acknowledged that the majority of users making purchases reside in the Netherlands, paying through Dutch bank accounts, thus placing the Erfolgsort within the Netherlands for this user group. Nevertheless, the court reiterated that the particular court within the Netherlands tasked with adjudicating this case remains unspecified.

The questions referred

Despite the court having its perspective on establishing jurisdiction under Article 7(2) Brussels I-bis Regulation, it opted to seek clarification from the CJEU for the following reasons.

First, the court expresses reservations regarding the complete applicability of the flyLAL precedent to the current case. It emphasizes that the flyLAL case involved a precise location where the damage could be pinpointed. In contrast, the present case involves anticompetitive practices unfolding through an online platform accessible simultaneously in every location within a particular Member State and globally. The court is uncertain whether the nature of this online distribution makes a significant difference in this context, especially when considering whether the case involves a collective action.

Second, as mentioned above, the WAMCA stipulates that only a single representative action can be allowed to proceed for a given event. In situations where multiple representative foundations aim to commence legal proceedings for the same event without reaching a settlement by a specific stage in the proceedings, the court will designate an exclusive representative. In addition to that, Article 220 Dutch Code of Civil Procedure offers the opportunity to consolidate cases awaiting resolution before judges in various districts and involving identical subject matter and parties, allowing for a unified hearing of these cases.

Nevertheless, the court has reservations about the compatibility of relocating from the Erfolgsort within a Member State under the consolidation of proceedings, as Article 7(2) Brussels I-bis Regulation impacts the establishment of jurisdiction within that Member State. In questioning whether such relocation would run contrary to EU law, the court highlights the Brussels I-bis Regulation’s overarching objective of preventing parallel proceedings. This triggers a skepticism towards the interpretation that each District Court within the Netherlands would have competence to adjudicate a collective action pertaining to users situated in the specific Erfolgsort within their jurisdiction.

However, the court finds it necessary to refer these questions to the CJEU, considering that, in its assessment, the CJEU’s rationale in Case C?30/20 Volvo (ECLI:EU:C:2021:604) is not easily transposable to the current case. In Volvo, the CJEU permitted the concentration of proceedings in antitrust matters within a specialized court. This is not applicable here, as the consolidation of proceedings under the described framework arises from the efficiency in conducting the proceedings, not from specialization.

These are, in a nutshell, the reasons why the District Court of Amsterdam decided to refer the following questions to the CJEU:

 Question 1

1. What should be considered as the place of the damaging action in a case like this, where the alleged abuse of a dominant position within the meaning of Article 102 TFEU has been implemented in a Member State through sales via an online platform managed by Apple that is aimed at the entire Member State, with Apple Ireland acting as the exclusive distributor and as the developer’s commission agent and deducting commission on the purchase price, within the meaning of Article 7, point 2, Brussels I bis? Is it important that the online platform is in principle accessible worldwide?
2. Does it matter that in this case it concerns claims that have been instituted on the basis of Article 3:305a of the Dutch Civil Code by a legal entity whose purpose is to represent the collective interests of multiple users who have their seat in different jurisdictions (in the Netherlands: districts) within a Member State under its own right?
3. If on the basis of question 1a (and/or 1b) not only one but several internally competent judges in the relevant Member State are designated, does Article 7, point 2, Brussels I bis then oppose the application of national (procedural) law that allows referral to one court within that Member State?

 Question 2

1. Can in a case like this, where the alleged damage has occurred as a result of purchases of apps and digital in-app products via an online platform managed by Apple (the App Store) where Apple Ireland acts as the exclusive distributor and commission agent of the developers and deducts commission on the purchase price (and where both alleged abuse of a dominant position within the meaning of Article 102 TFEU has taken place and an alleged infringement of the cartel prohibition within the meaning of Article 101 TFEU), and where the place where these purchases have taken place cannot be determined, only the seat of the user serve as a reference point for the place where the damage has occurred within the meaning of Article 7, point 2, Brussels I bis? Or are there other points of connection in this situation to designate a competent judge?
2. Does it matter that in this case it concerns claims that have been instituted on the basis of Article 3:305a of the Dutch Civil Code by a legal entity whose purpose is to represent the collective interests of multiple users who have their seat in different jurisdictions (in the Netherlands: districts) within a Member State under its own right?
3. If on the basis of question 2a (and/or 2b) an internally competent judge in the relevant Member State is designated who is only competent for the claims on behalf of a part of the users in that Member State, while for the claims on behalf of another part of the users other judges in the same Member State are competent, does Article 7, point 2, Brussels I bis then oppose the application of national (procedural) law that allows referral to one court within that Member State?

 [Translation from Dutch by the author, with support of ChatGPT]

Discussion

The CJEU possesses case law that could be construed in a manner conducive to allowing the case to proceed in the Netherlands. Notably, Case C?251/20 Gtflix Tv (ECLI:EU:C:2021:1036) appears to be most closely aligned with this possibility, wherein the eDate rule was applied to a case involving French competition law, albeit the CJEU did not explicitly address this aspect (though AG Hogan did). Viewed from this angle, the Netherlands could be deemed the centre of interests for the affected users, making it a potential Erfolgsort.

Regarding the distinction between individual and collective proceedings, the CJEU, in Cases C-352/13 CDC (ECLI:EU:C:2015:335) and C-709/19 VEB v. BP (ECLI:EU:C:2021:377), declined to differentiate for the purpose of determining the locus of damage. We find no compelling reason for the CJEU to deviate from this precedent in the current case.

The truly intricate question centers on the feasibility of consolidating proceedings in a single court. In Case C-381/14 Sales Sinués (ECLI:EU:C:2016:252), the CJEU established that national law must not hinder consumers from pursuing individual claims under the Unfair Contract Terms Directive (UCTD – 93/13) by employing rules on the suspension of proceedings during the pendency of parallel collective actions. However, it is unclear whether this rationale can be extrapolated to parallel concurrent collective actions.

Conclusion

This referral arrives at a good time, coinciding with the recent coming into force of the Representative Actions Directive (RAD – 2020/1828) last summer. Seeking clarification on the feasibility of initiating collective actions within the jurisdictions of affected users for damages incurred in the online sphere holds significant added value. Notably, the inclusion of both the Digital Services Act and the Digital Markets Act within the purview of the RAD amplifies the pertinence of these questions.

Moreover, this case may offer insights into potential avenues for collective actions grounded in the GDPR. Such actions, permitted to proceed under Article 7(2) Brussels I-bis Regulation, as exemplified in our earlier analysis of the TikTok case in Amsterdam, share a parallel rationale. The convergence of these legal frameworks could yield valuable precedents and solutions in navigating the complex landscape of online damages and collective redress.

Albert Henke (University of Milan), Marco Torsello (University of Verona) and Elena Zucconi Galli Fonseca (University of Bologna) edited a book titled International Commercial Courts. A Paradigm for the Future of Adjudication? with Edizioni Scientifiche Italiane.

International commercial courts are specialized judicial bodies designed to provide a forum for adjudicating complex cross-border business disputes efficiently and fairly for operators acting across different jurisdictions.

Based on the enriching experience of a webinar jointly organized by the Universities of Bologna, Milan, and Verona, this volume collects papers of renowned specialists in the field of cross-border dispute resolution, divided into three parts. The first part of the volume addresses the phenomenon of international commercial courts in the EU, with particular attention to the German, French, Dutch, and Italian experiences. The second part includes papers that shed light on the experience of extra-European countries, such as those of the Gulf area, Singapore, China, and the OHADA States. The third part of the volume compares the structure and functioning of international commercial courts with international commercial arbitration.

Not unlike arbitral tribunals, international commercial courts aim to provide a more predictable and consistent legal environment for international business transactions. This volume aims to provide a comparative overview of this emerging phenomenon. Only time will tell whether international commercial courts will establish themselves as relevant players in international dispute resolution.

The contributions featured in the book were authored by E.A. Ontanu, M. Lamandini, D. Ramos Muñoz, M. Stürner, A. Biard, X. Kramer, G. Antonopoulou, M.A. Lupoi, M. Torsello, G. Dimitropoulos, G.F. Bell, X. Qian, S. Mancuso, J. Monaci Naldini, and A. Tanzi.

More information available here.

Marco Buzzoni, Doctoral Researcher at the Luxembourg Centre for European Law (LCEL) and PhD candidate at the Sorbonne Law School, offers a critical analysis of some recent rulings by the Court of Justice of the European Union in matters of data protection.

In a series of three preliminary rulings issued on 14th December and 21st December 2023, the Court of Justice of the European Union (‘CJEU’) was called upon again to rule on the interpretation of Article 82 of the General Data Protection Regulation (‘GDPR’). While these rulings provide some welcome clarifications regarding the civil liability of data controllers, their slightly inconsistent reasoning will most likely raise difficulties in future cases, especially those involving cross-border processing of personal data.

On the one hand, the judgments handed down in Cases C-456/22, Gemeinde Ummendorf, and C-340/21, Natsionalna agentsia za prihodite, explicitly held that three elements are sufficient to establish liability under Article 82 GDPR. In so doing, the Court built upon its previous case law by confirming that the right to compensation only requires proof of an infringement of the Regulation, some material or non-material damage, and a causal link between the two. On the other hand, however, the Court seemingly swayed away from this analysis in Case C-667/21, Krankenversicherung Nordrhein, by holding that a data controller can avoid liability if they prove that the damage occurred through no fault of their own.

In reaching this conclusion, the Court reasoned that imposing a strict liability regime upon data controllers would be incompatible with the goal of fostering legal certainty laid out in Recital 7 GDPR. By introducing a subjective element that finds no mention in the Regulation, the Court’s latest decision is nonetheless likely to raise difficulties in cross-border cases by introducing some degree of unpredictability with respect to the law applicable to data controllers’ duty of care. In time, this approach might lead to a departure from the autonomous and uniform reading of Article 82 that seemed to have prevailed in earlier cases.

The Court’s Rejection of Strict Liability for Data Controllers

According to the conceptual framework laid out by the CJEU in its own case law, compensation under Article 82 GDPR is subject to three cumulative conditions. These include an infringement of the Regulation, the presence of some material or non-material damage, and a causal link between the two (see Case C-300/21, UI v Österreichische Post AG, para 32). In the cases decided in December 2023, the Court was asked to delve deeper into each of these elements and offer some additional guidance on how data protection litigation should play out before national courts.

In case C-456/22, the CJEU was presented with a claim for compensation for non-material damage filed by an individual against a local government body. The plaintiff alleged that their data protection rights had been breached when the defendant intentionally published documents on the internet that displayed their unredacted full name and address without their consent. Noting that this information was only accessible on the local government’s website for a short time, the referring court asked the CJEU to clarify whether, in addition to the data subject’s mere short-term loss of control over their personal data, the concept of ‘non-material damage’ referred to in Article 82(1) of the GDPR required a significant disadvantage and an objectively comprehensible impairment of personal interests in order to qualify for compensation. Rather unsurprisingly, the Court (proceeding to judgment without an Opinion) answered this question in the negative and held that, while Article 82(1) GDPR requires proof of actual damage, it also precludes any national legislation or practice that would subject it to a “de minimis threshold” for compensation purposes.

In doing so, the Court followed the road map outlined in UI v Österreichische Post AG, which had already held that the concept of damage should receive an autonomous and uniform definition under the GDPR (Case C-456/22, para 15, quoting Case C-300/21, paras 30 and 44) and should not be limited to harm reaching a certain degree of seriousness. Arguably, however, the Court also went beyond its previous decision by stating that the presence of an infringement, material or non-material damage, and a link between the two were not only “cumulative” or “necessary” but also “sufficient” conditions for the application of Article 82(1) (Case C-456/22, para 14). Remarkably, the Court did not mention any other condition that could have excluded or limited the data subject’s right to compensation. Taken literally, this decision could thus have been understood as an implicit endorsement of a strict liability regime under the GDPR.

This impression was further strengthened by the judgment handed down in Case C-340/21, where the Court was asked to weigh in on the extent of a data controller’s liability in case of unauthorised access to and disclosure of personal data due to a “hacking attack”. In particular, one of the questions referred to the CJEU touched upon whether the data controller could be exempted from civil liability in the event of a personal data breach by a third party. Contrary to the Opinion delivered by AG Pitruzzella, who argued that the data controller might be exonerated by providing evidence that the damage occurred without negligence on their part (see Opinion, paras 62-66), the CJEU ignored once more the question of the data controller’s fault and rather ruled that the latter should establish “that there [was] no causal link between its possible breach of the data protection obligation and the damage suffered by the natural person” (Case C-340/21, para 72).

A few days later, however, the CJEU explicitly endorsed AG Pitruzzella’s reading of Article 82 GDPR in Case C-667/21. In a subtle yet significant shift from its previous reasoning, the Court there held that the liability of the data controller is subject to the existence of fault on their part, which is presumed unless the data controller can prove that they are in no way responsible for the event that caused the damage (Case C-667/21, holding). To reach this conclusion, The Court relied on certain linguistic discrepancies in Article 82 of the GDPR and held, contrary to the Opinion by AG Campos Sánchez-Bordona, that a contextual and teleological interpretation of the Regulation supported a liability regime based on presumed fault rather than a strict liability rule (Case C-667/21, paras 95-100). Formulated in very general terms, the holding in Case C-667/21 thus suggests that a controller could be released from liability not only if they prove that their conduct played no part in the causal chain leading to the damage but also — alternatively — that the breach of the data subject’s rights did not result from an intentional or negligent act on their part.

Lingering Issues Surrounding the Right to Compensation in Cross-Border Settings

According to the CJEU, only a liability regime based on a rebuttable presumption of fault is capable of guaranteeing a sufficient degree of legal certainty and a proper balance between the parties’ interests. Ironically, however, the Court’s approach in Case C-340/21 raises some significant methodological and procedural questions which might lead to unpredictable results and end up upsetting the parties’ expectations about their respective rights and obligations, especially in cases involving cross-border processing of personal data.

From a methodological perspective, the CJEU’s latest ruling does not fit squarely within the uniform reading of the GDPR that the Court had previously adopted with respect to the interpretation of Article 82 GDPR. In the earlier cases, in fact, the CJEU had consistently held that the civil liability requirements laid out in the Regulation, such as the notion of damage or the presence of an actual infringement of data protection laws, should be appreciated autonomously and without any reference to national law (on the latter, see in particular Case C-340/21, para 23). On the other hand, however, the Court has also made clear that if the GDPR remains silent on a specific issue, Member States should remain free to set their own rules, so long that they do not conflict with the principles of equivalence and effectiveness of EU law (on this point, see eg Case C-340/21, para 59).

Against this backdrop, the Court’s conclusion that the civil liability regime set up by the legislature implicitly includes the presence of some fault on the defendant’s part begs the question of whether this requirement should also receive a uniform interpretation throughout the European Union. In favour of this interpretation, one could argue that this condition should be subject to the same methodological approach applicable to the other substantive requirements laid out in Article 82 GDPR. Against this position, it could nonetheless be pointed out that in the absence of explicit indications in this Article, the defendant’s fault should be assessed by reference to national law unless another specific provision of the Regulation (such as Articles 24 or 32 of the GDPR) specifies the degree of care required of the data controller or processor. In the context of cross-border cases, the latter interpretation would thus allow each Member State to determine, based on their own conflict-of-laws rules, the law applicable to the defendant’s duty of care in cases of violations of data protection laws. If generalised, this approach might in time lead to considerable fragmentation across the Member States.

In addition to these methodological difficulties, the Court’s decision in Case C-340/21 also raises some doubts from a procedural point of view. In holding that the data controllers’ liability is subject to the existence of fault on their part, the CJEU calls into question the possible interaction between national court proceedings aimed at establishing civil liability under Article 82 GDPR and administrative decisions adopted by data protection authorities. With respect to the latter, the CJEU had in fact ruled in Case C-683/21, Nacionalinis visuomenés sveikatos centras, that Article 83 GDPR must be interpreted so that an administrative fine may be imposed pursuant to that provision “only where it is established that the controller has intentionally or negligently committed an infringement referred to in paragraphs 4 to 6 of that article” (Case C-683/21, holding). In other words, national supervisory authorities are also called upon to assess the existence of fault on the part of the data controller or processor before issuing fines for the violation of data protection laws.

At first glance, the CJEU’s decision in Case C-340/21 fosters some convergence between the private and public remedies set out in the GDPR. In reality, however, this interpretation might potentially create more hurdles than it solves. Indeed, future litigants will likely wonder what deference, if any, should be given to a supervisory authority’s determinations under Article 83 GDPR within the context of parallel court proceedings unfolding under Article 82. In a similar context, the Court has already held that the administrative remedies provided for in Article 77(1) and Article 78(1) GDPR may be exercised independently and concurrently with the right to an effective judicial remedy enshrined in Article 79 GDPR, provided that national procedural rules are able to ensure the effective, consistent and homogeneous application of the rights guaranteed by the Regulation (see Case C-132/21, Nemzeti Adatvédelmi és Információszabadság Hatóság v BE). Should the same principles apply to actions brought under Article 82 GDPR? If so, should the same rule also extend to conflicts between national court proceedings and decisions issued by foreign supervisory authorities (and vice-versa), even though each of them might have a different understanding of the degree of protection afforded by the Regulation?

Despite the CJEU’s laudable attempt to strike a balance between the interests of personal data controllers and those of the individuals whose data is processed, it is not certain that the Court has fully assessed all the consequences of its decision. Ultimately, in fact, the choice to reject a strict liability rule could lead not only to unequal protection of individual rights within the EU but also to major uncertainties for economic operators regarding the extent of their own liability under the GDPR.

I am much annoyed one has to refer to cases like these yet again as X v Y (see also here, also on Article 22 Rome II). I understand the need for anonymisation in this particular case, ECLI:NL:PHR:2023:1114, which concerns the liability of a Dutch mother, guardian of a (young) adult son with mild autism and ADHD and a number of mental health challenges, who stabbed and otherwise attacked a Russian (immaterial to the attack) boy living in Germany but holidaying with his family in Crete. Yet some kind of acronym might be helpful.

At any rate, the interest of this tragic case for the blog lies in Advocate General Vlas discussing Rome II particularly the evidence and procedure carve-out as qualified by Article 22 Rome II’s inclusion of the burden of proof in the lex causae:

Article 22 Rome II

Burden of proof

1.   The law governing a non-contractual obligation under this Regulation shall apply to the extent that, in matters of non-contractual obligations, it contains rules which raise presumptions of law or determine the burden of proof.

2.   Acts intended to have legal effect may be proved by any mode of proof recognised by the law of the forum or by any of the laws referred to in Article 21 under which that act is formally valid, provided that such mode of proof can be administered by the forum.

Parties agree Greek law is the lex causae. Dutch law applies procedurally as the lex fori, with the A22 Rome II caveat. (3.25) the AG cites the relevant burden of proof issue in the Greek Civil Code: Article 923:

 “Whoever has the supervision of a person under age or of a person placed under judicial assistance is liable for the damage that such persons unlawfully cause to a third party, unless he proves that he has exercised properly the duty of supervision or that the damage could not have been avoided. (…)”. (…)’

(3.26) the AG summarises the implications of A22 as follows (translated by me, and omitting his references (ia to prof Peters, Magnus/Mankowski/Queirolo, Kramer, and Bart-Jan van het Kaar) 

In brief, it follows from A22(1) Rome II that the lex causae applies to the burden of proof. A22 concerns substantive issues of the law of evidence, such as the distribution of the burden of proof. It does not concern issues relating to the formal elements of the burden of proof, such as admissibility and the appreciation of evidence. These issues are subject (see A10:3 Dutch Civil Code) to Dutch law as the lex fori.

A relevant consideration, one will have to wait and see whether the Supreme Court itself will engage with the A22 issue, which is only a small part of the appeal.

Geert.

EU Private International Law, 4th ed 2024, 4.79 ff.

X v Y (parental responsibility). Vlas AG (of the Supreme Court of The Netherlands) ia on the evidence and procedure carve-out and Article 22 Rome II.https://t.co/OGt1m04LPx

— Geert Van Calster (@GAVClaw) January 17, 2024

In a previous post, I presented the traditional approach of the French Supreme Court in civil and criminal matters (Cour de cassation) on the applicable law to the time limit to enforce foreign judgments, which was confirmed by a judgment of 11 January 2023. But the central issue addressed by this judgment was whether the action to seek a declaration of enforceability of a foreign judgment (exequatur) was itself governed by any time limit.

Background

The case was concerned with an acte de défaut de biens issued by a Swiss authority. This peculiar act of Swiss law is a public document issued by a Swiss enforcement authority (office des poursuites) when a debtor was unable to meet its debts. The acte is an enforceable title, which as such can be enforced in other European States under the Lugano Convention.

In this case, the creditor had sought a declaration of enforceability in France of an acte de défaut de biens 15 years after it was issued in Lausanne. The debtor argued that the action to seek the declaration was time barred. The lower court had ruled that it was not, on the ground that the time limit to enforce an acte de défaut de biens was 20 years under Swiss law. In contrast, the debtor argued that the French time limit of 10 years should have been applied.

Judgment

The case raised the novel issue of the time limit to seek a declaration of enforceability, which is distinct from the issue of the time limit to actually enforce a foreign judgment in France, on the basis of such declaration.

Time Limit to seek exequatur

The Court de cassation ruled that there is no applicable time limit to seek exequatur in France. The rule is formulated in general terms, by referring to exequatur. The applicability of the Lugano Convention, and the fact that the Swiss judgment was to be declared enforceable, and not granted exequatur, is not mentionned, and seems irrelevant for the court.

French scholars debated which law should apply to the determination to the time limit to seek exequatur of a foreign judgment. But none of them had considered the possibility that there might be none. Certainly, by ruling that there is no time limit to seek exequatur of a foreign judgment in France, the court implicitly ruled that the issue is governed by French law.

In a context where the time limit applicable to the enforcement of the foreign judgment is provided by the law of the State of origin (as it is under Swiss law), the practical consequence of having no time limit to seek exequatur is limited. The creditor has no particular incentive to wait to seek exequatur, since it does not impact the time limit to enforce the judgment, which is running.

But the French rule is different. The applicable time limit to enforce a foreign judgment in France is the French 10 year time limit, and it starts running from the French exequatur decision. This means that any creditor with a foreign judgment the time limit of which is about to expire may seek exequatur in France and get a new 10 year period to enforce in France. In the foreign time limit was already quite long (for instance, 30 years in Luxembourg), the result could be to offer the possibility to the creditor to enforce the judgment for a remarkably long time period (40 years).

Should the Rule Be Different Under the European Law of Judgments?

The Lugano Convention and EU regulations on foreign judgments are silent on the time limit to seek exequatur (including, obviously, the Brussels I bis Regulation, which does not provide for any exequatur). Does that mean that there should be none, or that the issue is governed by national law? If it is governed by national law, it would seem, however, that too short a time period might not comport with the European freedom of circulation of judgments. In contrast, it is hard to criticise the French rule in that respect.

The Croatian Academy of Science and Art organises the roundtable titled “Private international law and global trends“, which will be held on Monday, 22 January 2024, at 11 h, in the premises of the Faculty of Law in Zagreb in Cirilometodska street, 4 (due to ongoing renovation of the Academy’s building which suffered damage in the earthquake of 2020, as visible in the photo when expanded). Attendance is open to all, but your intention to join should be communicated to Ms. Muhek at zmuhek@hazu.hr.

The programme includes the following topics:
Prof. Dr. Ines Medic, University of Split, Faculty of Law
Challenges of globalization of private international law for national judiciary

Prof. Dr. Ivana Kunda, University of Rijeka, Faculty of Law
Have frontier digital technologies surpassed the boundaries of private international law?

Prof. Dr. Mirela Zupan, Assoc. Prof. Dr. Paula Poretti, Jura Golub, University of J. J. Strossmayer in Osijek, Faculty of Law
Foreign public documents in the digital age

Asst. Prof. Dr. Danijela Vrbljanac, University of Rijeka, Faculty of Law
Breach of personal data in private international law

Asst. Prof. Dr. Tena Hosko, University of Zagreb, Faculty of Law
Protection of workers in private international law

Assoc. Prof. Dr. Dora Zgrabljic Rotar, University of Zagreb, Faculty of Law
The effect of the Hague Judgments Convention of 2019 on the recognition and enforcement of foreign court decisions in the Republic of Croatia

The proceeds from the conference will be edited by Prof. Dr. Mirela Zupan and published in a book within the series Modernisation of Law whose general editor is Academy Member Prof. Dr. Jakša Barbic.

On Tuesday, February 6, 2024, the Hamburg Max Planck Institute will host its 41st monthly virtual workshop Current Research in Private International Law at 11:00-12:30 (CET). Heinz-Peter Mansel (Universität zu Köln) will speak, in German, about

Supply Chains and Conflict of Laws – Selected Issues

The presentation will be followed by an open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

As announced on this blog, registrations for the EAPIL Winter School, which is taking place in Como between 12 and 16 February 2024, will close on 25 January 2024

Organised by the University of Insubria, in cooperation with the Jagiellonian University in Kraków, the University of Murcia and the University of Osijek, this year’s edition of the Winter School will be devoted to Personal Status and Family Relationships.

The detailed programme can be found here.

The School is aimed primarily at law graduates, law practitioners and PhD candidates with an interest in private international law, EU law and human rights law.

Those interested in attending the School are invited to submit their application through this form before 25 January 2024. The admission fees amount to 250 Euros.

For information: eapilws@gmail.com.

The Max Planck Institute for Social Anthropology in Halle (Saale), Germany, is advertising two PhD positions in Private Law within the context of a research project on “Cultural Diversity in
Private Law” lead by Dr Mareike Schmidt.

More information can be found here.

This blogpost is written by Stichting IJI (The Hague Institute for private international law and foreign law)

On 13 June 2023 the Amsterdam Court of Appeal addressed the scope of Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes (hereinafter: Regulation 2016/1103) (ECLI:NL:GHAMS:2023:1358).

The court had to rule on the matter of jurisdiction regarding the division of real estate located in New Zealand between parties who had agreed upon the exclusion of marital property. In this post, we will discuss the court’s assessment of the substantive scope of Regulation 2016/1103 with regard to the jurisdiction of the Dutch court.

Regulation 2016/1103: Overview

Regulation 2016/1103 entered into application on 29 January 2019 following the objective of certain Member States to establish a more enhanced cooperation between themselves aimed at adopting common rules on jurisdiction, applicable law and the recognition and enforcement of decisions with regard to property regimes of international couples, covering both marriages and registered partnerships.

The Regulation has been adopted under the special regime of enhanced cooperation, as provided for by Article 20 of the Treaty on European Union (TEU) and Articles 326 to 334 of the Treaty on the Functioning of the European Union (TFEU). The territorial scope of the Regulation is therefore limitedly binding for the Member States participating in this cooperation.

According to Article 69 of Regulation 2016/1103 the regulation applies only to legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded on or after 29 January 2019.

Its substantive scope should include all civil-law aspects of matrimonial property regimes, both the daily management of matrimonial property and the liquidation of the regime, in particular as a result of the couple’s separation or the death of one of the spouses. For the purposes of the Regulation, the term ‘matrimonial property regime’ should be interpreted autonomously and should encompass not only rules from which the spouses may not derogate but also any optional rules to which the spouses may agree in accordance with the applicable law, as well as any default rules of the applicable law. It includes not only property arrangements specifically and exclusively envisaged by certain national legal systems in the case of marriage but also any property relationships, between the spouses and in their relations with third parties, resulting directly from the matrimonial relationship, or the dissolution thereof (Recital 18).

The Facts

The parties involved in this case got married in New Zealand in 1993. At that time, both parties had the Dutch nationality. Additionally, the woman had also the New Zealand citizenship. The parties lived in New Zealand and three children were born during their marriage.

Before marriage, the parties drew up prenuptial agreements in the Netherlands. The parties chose to apply Dutch law to their marital property and, regarding their marital property regime, decided on the exclusion of community of property in accordance with Dutch law.

On 31 March 1999 the man purchased a house in New Zealand. The parties lived in this accommodation from 2000 to 2008 with their three children. In 2007 the man paid off his mortgage on this property. Before relocating to the Netherlands, the parties drew up a ‘property agreement’ with regards to the house, stating that the parties were now co-owners of the property. This was necessary as the applicable Dutch marital property regime of the exclusion of community of property would not result in co-ownership over the property. In the property agreement the parties agreed on the following:

(…)

BACKGROUND

(…)

1. 1976. The parties wish to record their agreement as to the ownership of the home pursuant to Section 21(2) of the Property (Relationships) Act 1976.

AGREEMENT TERMS

1. 1. The husband declares that the home is relationship property.
   2. As from the date of this agreement the husband and the wife shall own the home as joint tenants and the husband declares that he now holds ownership of the home, as registered proprietor, as trustee for the husband and the wife accordingly.
   3. (…)
   4. Ownership of the home, and any transfer, is subject to all existing registered encumbrances, but the mortgage to the ASB Bank is to be discharged, as it has been repaid in full.
   5. This agreement is made pursuant to Section 21(2) of the Property (Relationships) Act 1976 and is specific to the home and is not attempting to determine ownership of any other property (separate or relationship) which may also be owned by the husband and/or the wife, nor does it otherwise effect the pre-nuptial agreement signed by the parties prior to their marriage.
   6. This agreement is binding on the parties in all circumstances including (…) dissolution of marriage (…).
   7. Each party:

(a) (…)

(b) acknowledges that before signing this agreement he or she has had independent legal advice as to the nature, effect and implications of this agreement.

(…)

The parties eventually got divorced on 18 November 2019 in the Netherlands.

First Instance Judgment

As an ancillary provision to the divorce petition the man requested the Amsterdam District Court to divide the property in New Zealand and to grant him compensation for his private investments in this property. The court retained itself competent to decide on this request based on Article 6 of Regulation 2016/1103. The court recognized the co-ownership of the property and applied Dutch law to the division of the property in line with the choice of law in the prenuptial agreement of the parties.

The court then ordered the sale of the property and ordered the woman to cooperate with that sale. If the woman would not cooperate, the court granted the man the power to act solely with regards to the sale of the property. In addition, the court ruled that both parties would share the revenue and would be held responsible for the costs regarding the sale. The woman appealed the court’s decision on the matter of the court’s competence and the applicable law to the division of the house.

Appeal Request

According to the woman, the Dutch court should have never considered itself competent under Article 6 (a) of Regulation 2016/1103 because that Regulation did not apply to the matter at hand. Accordingly, the Amsterdam District Court could not establish its jurisdiction based on the application of the Regulation.

According to the woman the parties shared no marital property in light of their prenuptial agreement. Therefore, the request regarding the division of the property could not fall within the scope of Articles 1 and 3 of Regulation 2016/1103. Instead, the woman argued that any community of property should be dissolved under “common” property law specifically related to proprietary rights and interests, since the marital property regime stipulated the full exclusion of community of property.

Court of Appeal Judgment

The Amsterdam Court of Appeal stated that with regard to legal claims in the field of international matrimonial property law that are brought on or after 29 January 2019, the Dutch court shall establish its jurisdiction on the basis of Articles 4 to 19 of Regulation 2016/1103. This applies even if the claim relates to a marriage that was concluded prior to this date. Materially, Regulation 2016/1103 covers “matrimonial property regimes” (Article 1(1) of Regulation 2016/1103). This includes all property relationships which, as a result of the marriage or its dissolution, exist between the spouses or in relation to third parties (Article 3 (1) (a) of the Regulation). The Court of Appeal then explained then the scope of the Regulation with regards to the property agreement at hand, as follows:

The parties entered into the Property Agreement in 2008. With this agreement the parties became co-owners of the property in New Zealand. Under subsection D of the Property Agreement, the parties recorded that they entered into the agreement “pursuant to Section 21(2) of the Property (Relationships) Act 1976.” It is further recorded under Section 5 of the Property Agreement that “This agreement is made pursuant to Section 21(2) of the Property (Relationships) Act 1976 and is specific to the home and is not attempting to determine ownership of any other property (separate or relationship) (…) nor does it otherwise effect the pre-nuptial agreement signed by the parties prior to their marriage.”

The Court of Appeal considered that the property agreement refers explicitly to the Property (Relationships) Act 1976. The Property (Relationships) Act 1976 pertains to the division of property of married couples (or cohabitating couples) in the event of divorce or death in New Zealand. In addition, the parties signed the property agreement as “husband” and “wife”. Thus, with the referral to the Act and the signing of the agreement in their official capacity as husband and wife, the parties had chosen to establish proprietary consequences through their marital status. With that in mind, the Court of Appeal established that the request for the division of the property in New Zealand falls within the scope of Regulation 2016/1103. Then, the Court of Appeal concluded that since the spouses were habitually resident in the Netherlands at the time the case was brought before the first instance court, the Dutch court had jurisdiction pursuant to Article 6 (a) of the Regulation. The fact that the property is established in New Zealand does not alter the foregoing.

Conclusion

This decision of the Amsterdam Court of Appeal clarifies the broad scope of Article 1 in relation with Article 3 of the Regulation 2016/1103 and Recital 18 of the preamble. Art 1(1) provides that this Regulation applies to matrimonial property regimes. This Article should be read in conjunction with Article 3(1)(a), which defines the notion of ‘matrimonial property regime’ as ‘a set of rules concerning the property relationships between the spouses and in their relations with third parties, as a result of marriage or its dissolution.’  The Court of Appeal explains in its decision that the Regulation 2016/1103 may apply even in cases where the marital property regime includes an exclusion of community of property. The exclusion of community of property might entail that an issue relating to assets of the spouses does not fall within the material scope of the Regulation. After all, it can be argued that there is no connection with the marriage of the persons concerned. However, if the spouses made an agreement with respect to a certain asset and opt for a property relationship as a result of – or in connection with – their marriage, the provisions of Regulation 2016/1103 may be applied for the division of such property.

As the Regulation is still quite young, it will be interesting to monitor rulings on similar subjects from the courts of the participating countries.

This post is part of a series regarding Colonialism and the general structure of (German) Private International Law, based on a presentation I gave in spring 2023. See the introduction here.

As mentioned in the introduction, this series does not intent to automatically pass judgment on a norm or method influenced by colonialism as inherently negative. Instead, the aim is to reveal these influences and to initiate a first engagement with and awareness of this topic and to stimulate a discussion and reflection.

The first post (after the introduction) dealt with classic PIL and colonialism. This second considered structures and values inherent in German or European law, implicitly resonating within the PIL and, thus, expanding those values to people and cases from other parts of the world.  The third category discusses an imagined hierarchy between the Global North and Global South that is sometimes inherent in private international law thinking. The fourth and for the moment last (but not least) category deals with PIL rules that allow or at least contribute to the exploitation of a power asymmetry between parties from the Global North and the Global South. For example, this power and negotiation asymmetry, in conjunction with generous rules on party autonomy, can lead to arbitration and choice of law clauses being (ab)used to effectively undermine rights of land use under traditional tribal law.

After the first post, in the comment section a discussion evolved regarding the (non-)application of tribal law. One question asked for an example. This post can also (hopefully) serve as such an example.

1. Party Autonomy in German and EU PIL

One value inherent to the German and EU legal systems is that of private and party autonomy. It reflects and expresses the individualism of the Enlightenment and a neo-liberal social order and is recognised today, at least in part, as one of the “universal values” of PIL. However, the choice of law and, thus, party autonomy as a core connecting factor or method of PIL can lead to the exploitation of negotiation asymmetries in the relationship between companies in the Global North and states or companies in the Global South, particularly to the detriment of the population in the Global South, by avoiding state control and socially protective regulations.

2. “Land Grabbing” as an Example

“Land grabbing” refers to, among other things, the procedure used by foreign investors to acquire ownership to or rights to exploit territories in former colonies. The contract is concluded with the landowner, often the state, and includes an arbitration and choice of law clause, often within the framework of bilateral investment protection agreements. The use of the land can conflict with the collective, traditional use by certain local groups, which is based on customary and tribal law. Such rights of land use were often only fought for politically after the former colony gained independence, while the original colonial legal system overrode indigenous rights of use (see also former posts here and see the  discussion in the comment section of the post). These land use rights of indigenous groups often stem from public law and are conceived as protection rights of the indigenous population, who are thus authorised to live on their traditional land.

The arbitration agreement and the choice of law clause make it possible for legal disputes to be settled before a private arbitration tribunal. The tribes concerned, as they are not part of the treaty on the land and its use, can only become parties to the legal dispute with difficulty. Furthermore, they may not have knowledge of the treaty and the arbitration clause or the possibility to start a proceeding at the tribunal. In addition, a law applicable to the contract and its consequences may be chosen that does not recognise the right of land use based on tribal law. If the arbitrator, not knowing about the not applicable tribal law or the existence of the tribe, makes a decision based on the chosen law, the decision can subsequently become final and enforceable. This may force the tribes using the land having to vacate it as property disturbers without being able to take legal action against it.

3. Party Autonomy and Colonialism

This possibility of “land grabbing” is made possible by the fact that a state – often a former colony – has a high interest in attracting foreign investment. She, therefore, tries to organise its own legal system, and therefore also her conflict of laws, in an investment-friendly manner and accommodate the investor in the contract. The generous granting of party autonomy and individual negotiating power plays a key role here. A domino effect can be observed in former colonies, where a legal system follows that of neighbouring states once they have attracted foreign investment in order to be able to conclude corresponding agreements. The endeavours of states to introduce a liberal economy form, which is reflected in party autonomy in PIL, can therefore also express a structural hierarchy and form of neo-colonialism. It also indirectly revives the original behaviour of the colonial rulers towards the indigenous peoples with the support of the central state (see former post).

4. Assessment of “Land Grabbing”

If the aforementioned power asymmetry is not counter weighted, arbitration and choice of law clauses can lead to an avoidance of unwanted laws, such as those granting traditional land use rights to local tribes. From a German domestic perspective, the problem arises that the enforcement of (one’s own) local law is a matter for the foreign state. A case where local law will be addressed before German courts will be scarce, esp. in the case of an arbitration proceeding. German courts only come into contact with the legal dispute if an arbitration proceeding has already resulted in a legally binding award and this award is now to be enforced in Germany. In my opinion, this case has to be handled in the same procedure proposed in a former post for the integration of local, non-applicable law. If foreign tribal law is mandatory in the state in question, for example, because there is an obligation under international and domestic law, the arbitral tribunal should be presumed to also observe this obligation as an internationally mandatory norm, irrespective of which lex causae applies. When enforcing the arbitral award domestically, the declaration of enforceability should be prohibited on the grounds of a violation of public policy if the arbitral tribunal has not complied with this obligation.

Furthermore, the use of party autonomy could be more strictly controlled and restrictively authorised when special domestic values and interests of third parties are at stake, as can be the case in particular with the use of land. The lex rei sitae might be more appropriate without allowing for a choice of law.

Finally, restrictions on party autonomy in cases in which negotiation asymmetries are assumed are not unknown to German and European PIL. So, ideas from these rules could be taken up and consideration could be given to which negotiation asymmetries could arise in relation to non-European states. For example, certain types of contract that are particularly typical of power asymmetries could be provided with special protection mechanisms similar to consumer contracts under Art. 6 Rome I Regulation. But that is an international problem that should be discussed on the international level. Therefore, the international community could work towards an international consensus in arbitration proceedings that, for example, property law issues are subject to the lex rei sitae and are not open to a choice of law. Similarly, there could be a discussion whether safeguards should ensure that no choice of law can be made to the detriment of third parties and that, where applicable, participation rights must be examined in arbitration proceedings. Many legal systems already provide those saveguards, so this would not come as a huge novelty.

However, it would also be paternalistic and neo-colonialist if such considerations originated in the Global North without involving the countries to which they refer. It would therefore be desirable to have a stronger and more enhanced dialogue with countries from the Global South that also allows representatives of the local population and local communities to have their say, so that these interests and possibilities for exploiting negotiation asymmetries can be better taken into account.

5. Epilogue

This series has tried to start a debate about Colonialism and Private International Law from the point of view of German PIL. Posts from other jurisdictions might follow. It is a very complex topic and this series only scratched on its surface. As writen in the introduction, I welcome any comments, experiences and ideas from other countries and particularly from countries that are former colonies.

As announced in a previous post, a seminar series on the recast of Brussels I bis Regulation, is taking place during the 2023-2024 academic year, both in Paris at the Cour de cassation and online (in French), under the scientific coordination of Marie-Elodie Ancel (University of Paris-Panthéon-Assas) and Pascal de Vareilles-Sommières (University of Paris 1 Panthéon-Sorbonne).

The second seminar will take place on 18 January 2024 from 16.00 to 18.00 (UTC+1).

It will be devoted to the recast of the Brussels I bis Regulation’s provisions on special jurisdiction. The main topics to be discussed include jurisdiction on contractual matters, in litigation over financial damage and in disputes relating to collective redress.

The list of speakers includes David Sindres (University of Angers), Bernard Haftel (University of Sorbonne Paris Nord), Caroline Kleiner (University of Paris Cité) and Valérie Pironon (University of Nantes).

The programme, as well as registration and access details can be found here.

The recording of the first seminar (30 November 2003) is now available online.

The other seminars will take place from 16.00 to 18.00 (UTC+1) on 26 February, 18 March, 22 April, 30 May and 24 June 2024.

The seminar series is organised by the Research Centre for Private International Law and International Trade (CRDI, University of Paris Panthéon Assas) and the Sorbonne Department Study of International Private Relationships (SERPI, University of Paris 1 Panthéon-Sorbonne), together with the Société de Législation Comparée (SLC), the French national school for the judiciary (ENM) and the French Supreme Court for civil and criminal matters (Cour de cassation).

The University of Stirling is bringing together academics, practitioners and other stakeholders to present research examining the role of Scots law in the international legal landscape. It is hoped this will promote the ways in which Scots law can offer solutions to global legal challenges but also to offer critiques of the way in which Scots law can or must evolve to preserve and promote its value.

With many Law Schools diversifying their programme offerings beyond Scots law it is a critical time to explore the interactions between Scots law and other jurisdictions. It is also necessary to consider the relationships between the curriculum within Law Schools and the needs of legal practice.

Seminars will be delivered in hybrid format to enable busy stakeholders to engage with these discussions.

Please register for each event in the series individually here, and find out more about a seminar by emailing internationalisationofscotslaw@stir.ac.uk.

This seminar series has been generously funded by the Clark Foundation for Legal Education.

On 12 January 2024, the United Kingdom has signed the 2019 Judgments Convention (Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters), as announced in the press release of the Hague Conference on Private International Law.

This a milestone for private international law within the coming about of the worldwide framework for recognition and enforcement of foreign judgments and potentially a valuable instrument in the post-Brexit legal landscape.

This post is part of a series regarding Colonialism and the general structure of (German) Private International Law, based on a presentation I gave in spring 2023. See the introduction here.

As mentioned in the introduction, this series does not intent to automatically pass judgment on a norm or method influenced by colonialism as inherently negative. Instead, the aim is to reveal these influences and to initiate a first engagement with and awareness of this topic and to stimulate a discussion and reflection.

The first post (after the introduction) dealt with classic PIL and colonialism and already sparked a vivid discussion in the comments section. This second considered structures and values inherent in German or European law, implicitly resonating within the PIL and, thus, expanding those values to people and cases from other parts of the world.  The third category discusses an imagined hierarchy between the Global North and Global South that is sometimes inherent in private international law thinking, for instances where courts or legislators abstractly or paternalistically apply the public policy to “protect” individuals from foreign legal norms. This is especially evident in areas like underage marriages and unilateral divorce practices found inter alia in Islamic law.

1. The public policy exception – abstract or concrete control?

The public policy exception is intended to prevent the application of foreign law by way of exception if the result of this application of law conflicts with fundamental domestic values. Such control is necessary for a legal system that is open to the application of foreign law and, in particular, foreign law of a completely different character. German law is typically very restrictive in its approach: The public policy control refers to a concrete control of the results of applying the provisions in question. In addition, the violation of fundamental domestic values must be obvious and there must be a sufficient domestic connection. In other countries, the approach is less restrictive. In particular, there are also courts that do not look at the result of the application of the law, but carry out an abstract review, i.e. assess the foreign legal system in the abstract. For a comparison of some EU Member States see this article.

2. Explicit paternalistic rules

Furthermore, there are some rules that exercise an abstract control of foreign law. Article 10 of the Rome III Regulation contains a provision that analyses foreign divorce law in the abstract to determine whether it contains gender inequality. According to this (prevailing, see e.g. conclusions of AG Saugmandsgaard Øe) interpretation, it is irrelevant whether the result of the application of the law actually leads to unequal treatment. This abstract assessment assumes – even more so than a review of the result – an over-under-ordering relationship between domestic and foreign law, as the former can assess the latter as “good” or “bad”.

Even beyond the ordre public control, there has recently been a tendency towards “paternalistic rules”, particularly triggered by the migration movements of the last decade. The legislator seems to assume that the persons concerned must be protected from the application of “their” foreign law, even if they may wish its application. In particular, the “Act to Combat Child Marriage” which was only partially deemed unconstitutional by the Federal Constitutional Court (see official press release and blog post), is one such example: the legislator considered the simple, restrictive ordre public provision to be insufficient. Therefore, it created additional, abstract regulations that block the application of foreign, “bad” law.

3. Assessment

In the described cases as a conceptual hierarchy can be identified: The impression arises that foreign legal systems, particularly from the “Global South”, are categorised in the abstract as “worse” than the German/EU legal system and that persons affected by it must be protected from it (“paternalistic norms”). As far as I can see there is a high consensus in the vast majority of German literature (but there are other voices) and also the majority of case law that the abstract ordre public approach should be rejected and that the aforementioned norms, i.e. in particular Art. 13 III EGBGB (against underage marriages) and Art. 10 Rome III-VO (different access to a divorce based on gender), should ideally be abolished. It would be desirable for the legislator to take greater account of the literature in this regard.

On 12 January 2024, the United Kingdom signed the Hague Convention of 2 July 2019 on the recognition and enforcement of foreign judgments in civil or commercial matters. As reported by Ugljesa Grusic on this blog, the UK government had announced some weeks ago its intention to move towards joining the Convention.

The next step will consist for the UK in ratifying the Convention.

The Convention will then enter into force for the UK pursuant to Article 28(2), that is, “on the first day of the month following the expiration of the period during which notifications may be made in accordance with Article 29(2)” with respect to the UK.

The notifications referred to in Article 29(2) are statements whereby a Contracting State may inform the depositary, within twelve months, that the ratification of another State (the UK, in the circumstances) “shall not have the effect of establishing relations between the two States pursuant to this Convention”. In practice, Contracting States may decide that they will not be bound by the Convention vis-à-vis any State that would later join the Convention. The Convention is currently in force for the European Union and Ukraine (since 1 September 2023), and is set to enter into force for Uruguay on 1 October 2024. None of the latter States is expected to make use of this opportunity as regards the UK.

The eighteenth annual bibliography of private international law, compiled by Symeon C. Symeonides, Willamette University, is now available.

The bibliography lists 124 books and 288 journal articles on private international law or conflict of laws and related fields, such as prescriptive jurisdiction, extraterritoriality, federal-state conflicts, as well as certain aspects of arbitration, the law of foreign relations, and international human rights.

The books and articles included in the list appeared in print in 2023, in English.

The bibliography has been posted on SSRN and can be found here.

This interesting case comment has been kindly provided to the blog by Nicolás Zambrana-Tévar , LLM, PhD, KIMEP University

The United States Court of Appeals for the Ninth Circuit has found in favor of Spain as defendant in a property case spanning several decades. A panel of three judges has unanimously ruled that, applying California conflict of law rules, Spain has a stronger interest than the claimants in the application of its own domestic law, including its own rules on prescriptive acquisition of property and the statute of limitations, thus confirming the ownership of a stolen painting, now owned by a Spanish museum.

1. Background information

In 1939, Lilly Cassirer traded a Pissarro painting to the Nazis in exchange for her family´s safe passage out of Germany. In 1954, a tribunal set up by the Allied forces established that the Cassirer family were the rightful owners of the painting. However, believing that the painting had been lost during the war, the family accepted 13,000 US dollars in compensation from the German government, which would be the equivalent of 250,000 US dollars today.
After the painting was looted, it found its way into the United States and, in 1976, Baron Hans Heinrich Thyssen-Bornemisza bought it from the Hahn Gallery of New York, where the painting was publicly in display, allegedly ignoring its origin. The Museum Thyssen-Bornemisza purchased the painting from the Baron in 1993. Claude Cassirer – the grandson of Lilly Cassirer – found out that the painting was being exhibited in Madrid and commenced proceedings under the Foreign Sovereign Immunities Act (FSIA) in 2005. The Museum is the actual defendant in the suit but it is considered an instrumentality of the Kingdom of Spain.

2. Court decisions

In 2019, a US District Judge for the Central District of California, applying Spanish law, found that court filings did not demonstrate a “willful blindness” on the part of the Museum, when it added the painting to its collection. Moreover, the judge found that it could not force Spain or the Museum to comply with the “moral commitments” of international agreements concerning the return of works of art looted by the Nazis.
In 2020, the US Court of Appeals for the Ninth Circuit found in favor of Spain, again applying Spanish law. The court ruled that, regardless of the test applied by the district judge to determine the degree of care employed by the purchaser to determine the origin of the painting, both the Baron in 1976 and the Museum in 1993, lacked actual knowledge of the theft. It is important to note that both the district judge and the court of appeals determined the application of Spanish law because they were applying federal choice of law rules.
In 2022, the US Supreme Court ruled that this case did not involve any substantive federal law issues because it basically dealt with property law. Therefore, the choice of law rules that the district judge and the court of appeals should have applied were the conflict rules of the forum state, i.e. the conflict rules of California. The Supreme Court argued that Spanish law “made everything depend on whether, at the time of acquisition, the Foundation knew the painting was stolen”. On the other hand, the claimants argued that California conflict rules led to the application of California property law, in accordance with which “even a good-faith purchaser of stolen property cannot prevail against the rightful pre-theft owner.” Basically, the Supreme Court said that in an FSIA case, the foreign state defendant has to be treated like a private defendant and that if the Museum had been a purely private entity, it would have had to return the painting. The case was returned to the Court of Appeals.

3. Conflict-of-law analysis

On 9 January 2024, the US Court of Appeals ruled that, even applying California choice of law rules, Spanish law was applicable. The court came to this conclusion applying the “governmental interest approach”. In accordance with this approach, the court first had to ascertain that the two laws in conflict – Spain and California law – were different. They were because the Spanish law provision that the defendant was relying on was article 1955 of the Spanish Civil Code, which provides that “Ownership of movable goods prescribes by three years of uninterrupted bona fide possession. Ownership of movable goods also prescribes by six years of uninterrupted possession, without any other condition”. Therefore, in accordance with Spanish law “three years of uninterrupted possession in good faith” are enough for the acquisition of title whereas California law has not expressly adopted a doctrine of adverse possession for personal property – such as works of art – and, moreover, “thieves cannot pass good title to anyone, including a good faith purchaser”. Besides, California law extends to six years the statute of limitations for claims involving the return of stolen property and Cassirer brought the claim only five years after it discovered the painting hanging at the Museum in Madrid.
Having determined that the laws in conflict were different, the court of appeals then examined and agreed that both jurisdictions – Spain and California – “have a legitimate interest in applying their respective laws on ownership of stolen personal property”. “Spanish law assures Spanish residents that their title to personal property is protected after they have possessed the property in good faith for a set period of time, whereas California law seeks to deter theft, facilitate recovery for victims of theft, and create an expectation that a bona fide purchaser for value of movable property under a ‘chain of title traceable to the thief,’ … does not have title to that property.” Therefore, there was a true conflict of laws, as both jurisdictions had real and legitimate interests in applying their respective law. Additionally, the court had to determine which jurisdiction’s interest “would be more impaired if its policy were subordinated to the policy of the other state.” Otherwise said, “which jurisdiction should be allocated the predominating lawmaking power under the circumstances of the present case”.
To do this, the interests of each jurisdiction were to be measured based on “the circumstances of the particular dispute, not the jurisdiction’s general policy goals expressed in the laws implicated”. The factors to be taken into consideration in this analysis were the “current status of a statute… the location of the relevant transactions and conduct… and the extent to which one jurisdiction’s laws either impose similar duties to the other jurisdiction’s laws, or are accommodated by the other jurisdiction’s laws, such that the application of the other jurisdiction’s laws would only partially—rather than totally—impair the interests of the state whose law is not applied”.
With respect to the first factor, the court said that it was inappropriate to judge which law is better. Also, in reply to the alleged archaism of the Spanish rule, that says that property is acquired after six years of possession, regardless of the stolen nature of the asset, the court replied that the defendant was relying on the possession with good faith during three years.
With respect to the second factor, the court of appeals reasoned that, in accordance with several precedents from the Supreme Court of California, a “jurisdiction ordinarily has the predominant interest in regulating conduct that occurs within its borders”, i.e. on Spanish territory, whereas “where none of the relevant conduct occurs in California, a restrained view of California’s interest in facilitating recovery for one of its residents is warranted.” In the case at hand, “California’s sole contact to the dispute was the happenstance of the plaintiff’s residence there.” Similarly, “California’s governmental interest rests solely on the fortuity that Claude Cassirer moved to California in 1980, at a time when the Cassirer family believed the Painting had been lost or destroyed.” Therefore, “California’s interest in facilitating recovery for that resident was minimal and the extraterritorial reach of its laws was restrained.” Since “no relevant conduct with respect of the Painting occurred in California, the impairment of California’s interest that would result from applying Spanish law would be minimal.”
The court went on to say that, in contrast, “applying California law would significantly impair Spain’s interest in applying Article 1955 of the Spanish Civil Code. For one, because the relevant conduct [the purchase of the painting] occurred in Spain” so that “Spain has the “predominant interest in applying its laws to that conduct.” Furthermore, “applying California law would mean that Spain’s law would not apply to property possessed within Spain’s borders, so long as the initial owner (1) happened to be a California resident (a fact over which… the defendant has no way of knowing or controlling…, and (2) the California resident did not know where the property is located and who possessed it. Applying California law based only on Claude Cassirer’s decision to move to California would strike at the essence of a compelling Spanish law.”
With respect to the third factor and also in accordance with past precedents of the California Supreme Court, “the court should look to whether one jurisdiction’s laws accommodate the other jurisdiction’s interests or imposes duties the other jurisdiction already imposes… A state’s laws can more readily be discarded if the failure to apply its laws would only partially—rather than totally—impair the policy interests of the jurisdiction whose law is not applied…. Here, the failure to apply California’s laws would only partially undermine California’s interests in deterring theft and returning stolen art to victims of theft, which provides further support for limiting the extraterritorial reach of California’s laws to this dispute.
On the other hand, “applying Spanish law would only partially undermine California’s interests in facilitating recovery of stolen art for California residents. California law already contemplates that a person whose art—or other personal property—is stolen may eventually lose the ability to reclaim possession: namely, if the person fails to bring a lawsuit within six years after he discovers the whereabouts of the art… Similarly, Article 1955 of the Spanish Civil Code accommodates California’s interest in deterring theft. As we have explained, Spanish law makes it more difficult for title to vest in an “encubridor,” which includes, “an accessory after the fact,” or someone who “knowingly receives and benefits from stolen property…. If the possessor is proven to be an encubridor, Spanish law extends the period in which the property must be possessed before new prescriptive title is created.”

4. Concluding remarks

This complex and interesting case seems to be coming to an end. In brief, and despite the complexity of the application of the theory of interest analysis, it seems that the US court has given the same solution which a civil court would have given, applying the usual rule that the law applicable to property rights is the law of the place where the property is located at the time of the transfer. So far, it appears that the increasing sensitivity towards cultural property and towards unraveling war crimes has not fully displaced this conflicts rule.

An unintended consequence of the war in Ukraine is that a number of Ukrainian surrogate mothers have travelled to other countries to give birth.

The French press has reported that surrogate mothers who had entered into agreements with French residents were repatriated to France to give birth there.

The problem is that surrogacy is prohibited in France. This is why the French Court of Cassation initially ruled that the entire enterprise aimed at evading French law, and that the parenthood resulting from the surrogacy should thus be denied recognition in France. But, as readers will know, the ECtHR ruled that this result violates the child’s right to respect for private life within the meaning of Article 8 of the European Convention on Human Rights.

Does the fact that the birth takes place in France as opposed to a country where surrogacy is legal change anything?

Establishing Parenthood

The first problem arising in this case scenario is that French law (obviously) does not establish the parenthood of the intended mother and cancel the parenthood of the surrogate mother. Quite to the contrary, if a Ukrainian woman gives birth in France, she is automatically the mother.

As a consequence, the intended parents put in place the following scheme:

1. The intended (and typically biological) father recognised the child before birth, in accordance with French law and before a French authority.
2. The surrogate mother gave birth after declaring that she does not want to be on record and wants to remain anonymous. This is allowed under French law, and should normally lead to the child being adopted by one of the many couples waiting for this. But here, the father is known.
3. The partner of the father, typically the intended mother, files an application to adopt the child.

Is This Still a Foreign Surrogacy?

An interesting question is whether one could still claim that the surrogacy was validly constituted abroad.

Two major differences between this case scenario and the more traditional one is that the birth occurred in a country were surrogacy is illegal, and that no foreign document establishes the parenthood of the intended mother. It is therefore difficult to say that the issue is one of ‘recognition’ of a foreign situation, or of a foreign official act.

But even this is not so, which law should a French court apply to determine the validity of the surrogacy? To my knowledge, this is an issue of first impression, but one would tend to think that the choice of law applicable to parenthood should be applied. This would lead, in France, to the application of the national law of the mother. Although the relevant provision does not define the concept of mother, it seems clear that the French lawmaker had in mind the biological mother. Thus, Ukrainian law might apply, and the surrogacy might be foreign irrespective of where the birth took place.

The next steps of the reasoning would then be whether the result would comport with French public policy, and whether you would need to determine separately the applicable law to the parenthood of the intended parent.

Does it Matter?

Maybe not, at least from the perspective of PIL.

The European Court of Human Rights has repeatedly insisted that the fundamental right of the children demand some form of acceptance of surrogacy. And it does not seem that the court has limited the scope of this right to cases where the surrogacy was validly constituted abroad.

Why should it, after all? The problem of the children is not fundamentally different if the parents acted illegally.

What about Criminal Law?

The issue might be different from the perspective of criminal law. It is easier to argue that a surrogacy eventually resulting in a birth in France falls within the territorial scope of French criminal law than a surrogacy organised from France by the intended parents.

The French press has reported that a French organisation has informed prosecutors in five different cities, and that one prosecutor has initiated criminal investigations in one of them. There are a number of French criminal offences which might apply to the process of surrogacy: “provocation à l’abandon d’enfant”, “entremise entre un couple et une personne acceptant de porter l’enfant”, “substitution volontaire, simulation ou dissimulation ayant entraîné une atteinte à l’état civil d’un enfant”.

The prosecutor, however, closed the case in October 2023. Remarkably, he did so on the ground that the surrogacy was “carried out” in a country where it is legal, and that the constitutive elements of the offences had thus taken place abroad. The French criminal code provides that it is enough that one constitutive element of the offence took place in France for French criminal law to apply. It is hard to see how the birth could not be one of the constitutive elements of all of these offences.

Is the case law of the ECtHR relevant in this context? Probably not: the criminal consequences of the actions of the parents will be personal, and will not directly affect the children.

Should French Social Security Pay for the Costs of the Delivery?

Two hospitals where Ukrainian surrogate mothers gave birth have sent an invoice to the intended parents for the costs of the delivery.

French social security covers the medical costs of birth for women entitled to such benefit. The French couples who organised Ukrainian surrogacies would likely be entitled to see most of the costs of their delivery being paid by social security, but not women covered by a foreign social security (although there might be rules for covering emergency birth on French territory: comments from specialists of international social security law welcome).

Several French intended parents have refused to pay the invoice, and have announced that they will challenge the decision of the hospitals to issue the invoices in administrative courts. Will French courts accept that evasion of French law should be funded by French taxpayers?

On 11 January 2024, the Apostille Convention entered into force for Canada. The accession of Canada to the Apostille Convention on 12 May 2023 was a milestone for the Apostille Convention and it is perhaps a development that has gone under the radar.

Considering that the Apostille Convention was adopted in 1961 (EIF: 24-I-1965), one may wonder why Canada took so long to join the Apostille Convention. This is primarily because there is no statutory requirement for the legalisation of incoming public documents in Canada. In its response to the 2021 Questionnaire, Canada indicated:

“There is no Canadian statutory requirement to legalise foreign public documents. In some cases, Canadian public authorities have the discretion to determine the applicable authentication requirements. These authorities could require these documents to be legalised.

“In Québec, Article 2822 of the Civil Code of Québec (CCQ) exempts foreign public documents from legalisation by providing that neither the quality nor the signature of a foreign officer issuing a document need [to] be proved. The presumption of authenticity provided by article 2822 CCQ is rebuttable as prescribed by article 2825 CCQ.

“Private-sector organisations and individuals may require legalised foreign public documents, as no law prevents them from doing so. While not a requirement under Canadian law, Canadian embassies and consulates legalise foreign public documents when requested to do so.”

 

Nevertheless, Canadian – and other – citizens needed to overcome the obstacle of getting Canadian public documents legalised (e.g. by Global Affairs Canada, Authentication Services Section in Ottawa, plus a foreign mission in Canada). What in the lingo is referred to as “outgoing public documents”. This system will continue to operate when the receiving State is not a Contracting Party to the Apostille Convention or in the – rare – case that the public document falls outside the scope of the Apostille Convention e.g. documents executed by diplomatic and consular agents (Art. 1(3)(a) of the Apostille Convention).

No declarations were filed by Canada (apart from the designated Competent Authorities). As expected, no Contracting Party objected to the accession of Canada.

I take the opportunity to also make reference to another milestone for the Apostille Convention: the recent accession of the People’s Republic of China. The People’s Republic of China acceded to the Convention on 8 March 2023 and entered into force on 7 November 2023.

The Apostille Convention has continued to apply to both the Special Administrative Regions of Hong Kong and Macao given the declarations of the People’s Republic of China. The Apostille Convention first applied to Hong Kong (EIF-1965) and Macao (EIF-1969) when they were both under the international responsibility of the United Kingdom and Portugal, respectively.

As indicated in its declaration, the Apostille Convention will not be applicable between the People’s Republic of China and those Contracting States that China does not recognize as sovereign states (i.e. no bilateral application) and understandably, no list was provided. India objected to the accession of the People’s Republic of China in accordance with Article 12 of the Apostille Convention, and as a result, the Convention will not apply between these two States.

With the accession of both Canada and the People’s Republic of China, the Apostille Convention applies in -an additional- area of approximately 19 million square kilometers. These developments and the existence of the e-APP (electronic Apostille Programme) show that the Apostille Convention remains relevant and continues to grow from strength to strength.