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The UNCITRAL National Coordination Committee for Australia (UNCCA) is an organisation comprised of members of the Australian legal community, dedicated to promoting the work of The United Nations Commission on International Trade Law (UNCITRAL) in Australia.

UNCCA invites you to our 8th annual May Seminar in Canberra celebrating the 75th anniversary of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Join us for a full day conference to celebrate this anniversary whilst learning about the work of UNCITRAL and its Working Groups. We welcome Justice Kevin Lyons KC (Supreme Court of Victoria) as our keynote speaker. Our panels will include presentations by Bronwyn Lincoln (Partner, , Thomson Geer), Romesh Weeramantry (Special Counsel, Clifford Chance), Drossos Stamboulakis (Barrister, Senior Lecturer, Monash University), Dr. Benjamin Hayward (Senior Lecturer, Monash Business School). The Attorney General’s Department will also provide a presentation on their work on international trade law.

This seminar promises to be an exciting full-day event hosted at the Ann Harding Centre, located at 24 University Drive South, Bruce ACT 2617 on the 26th of May 2023. The event will likely run from 8:30am until 4pm, with lunch included. Online attendance will also be available for our May Seminar, however, in-person participation is strongly encouraged.

You can register for tickets using this link.

Pablo Quinzá Redondo, Lecturer of Private International Law at the University of Valencia, is the author of this monograph published in 2022 by Tirant Lo Blanch. The author has kindly provided the following abstract.

The European regulations concerning the property consequences of marriages and registered partnerships (Regulations (EU) 2016/1103 and 2016/1104, respectively) entered into application four years ago. Since then, many valuable research studies have been published. Most of them have departed from the provisions of the Regulation (EU) 2016/1103 to explain the Regulation (EU) 2016/1104, given their similarities -both regulations were adopted as a package-. However, not many of them have followed the opposite approach or have analyzed the later instrument independently. Alongside this, in the Spanish legal doctrine, only a few research studies have been focused on the application in Spain and/or to Spanish formalized partnerships under the Regulation (EU) 2016/1104. Pablo Quinzá saw in those circumstances an opportunity for writing the book Uniones registradas en la Unión Europea. El Reglamento (UE) nº 2016/1104 en perspectiva española.

The monograph is divided in three parts, preceded by an introduction, following a classical PIL structure.

In the introductory chapter, the author draws a general overview of the phenomenon of non-matrimonial unions in the European Union, focusing in particular on formalized partnerships and their patrimonial consequences. This substantive-law perspective will facilitate the proper understanding of the content of the Regulation (EU) 2016/1104 at a later stage.

In many jurisdictions, formalized partnerships were conceived and regulated as a functional equivalent to marriage for same-sex couples; in others, as an alternative to marriage open to all couples. In Spain, the regulation of formalized relationships emerged at a time when same-sex marriage was not yet allowed. Besides, it did with notable differences with respect to the legal framework institution for couples, marriage. This general statement, however, should be spelled out in the Spanish reality. There is no Spanish state law dealing with formalized partnerships; legislation have been enacted by the Autonomous Communities Parliaments, with a heterogeneous content -e.g., different requirements to access to the legal institution or different provisions in respect to their patrimonial consequences-. These divergences are per se a source of complexity. The situation is even trickier due to the fact that the Spanish Constitutional Court has declared some regional provisions unconstitutional, while, as of today, very similar ones remain ‘untouched’. For example, the judgment of the Spanish Constitutional Court 93/2013, of 23 April, declared Article 2.3 of the Navarre Act on formalized relationships (Foral Law 6/2000) unconstitutional. In the Court’s view, requiring Navarre civil neighborhood (vecindad civil) of one of the partners is, in fact, a conflict-of-laws rule; per Article 149.1.8 of the Spanish Constitution, only the Spanish lawmaker (as opposed to the regional one) has regulatory competence in conflict of law matters. Meanwhile, other regional laws also make registration as a couple conditional upon the vecindad civil of one of the partners. This is the case, to a greater or lesser degree, of some provisions of the laws dealing with formalized partnerships in the Basque Country, Galicia or the Balearic Islands. Until they are not declared unconstitutional, they continue being applicable in their respective territories.

In light of the foregoing, the introduction to the monograph is essential to understand that the problems of application of the Regulation (EU) 2016/1104 in Spain are strictly connected with the fragmentary regulation of formalized relationships and the internal constitutional problems.

The first chapter of the book addresses the Regulation’s scope of application from four perspectives: substantive, geographical, personal and temporal. The first two approaches are the most controversial ones. From the Spanish point of view, it is unclear which of the formalized partnerships foreseen under regional law correspond to the autonomous definition provided for in Article 3.1.a). In the author’s view, all registered formalized partnerships should fall under the scope of application of the Regulation, regardless of the constitutive or declarative effect of the registration according to regional law. A different opinion would lead to unbearable consequences: only some Spanish formalized partnerships would be covered by the Regulation; other would remain outside. It would not be surprising if, sooner rather than later, a preliminary ruling is requested from the CJEU in this subject matter.

Chapter two is devoted to international jurisdiction rules. This is one of the most complicated parts of the Regulation, since some provisions refer to jurisdictional rules enacted elsewhere (e.g., to Regulation (EU) 650/2012), while in other cases the provisions of the law applicable of the Regulation itself are invoked. For the sake of clarity, a division is made following the main subject areas provided in the Regulation: jurisdiction in the event of the death of one of the partners; jurisdiction in cases of dissolution or annulment of the registered partnership; jurisdiction in other cases (including choice of forum agreements and implicit submission) and alternative jurisdiction. From the Spanish perspective, it is important to bear in mind that the mere dissolution or annulment of Spanish formalized partnerships does not require a judicial procedure. This probably explains -but not justifies- the absence of jurisdictional rules in the Spanish legal system regarding the dissolution or annulment of formalized partnerships. By way of consequence, difficulties in the application of Article 5 of the Regulation in Spain are to be expected.

Chapter three focuses on the determination of the law applicable to the property consequences of registered partnerships under the rules of the regulation. At a first stage, both choice of law agreements and objective connecting point are studied. Later, the application of Spanish law under the conflict-of-law rules of the Regulation is stress-tested, tackling the most relevant situations in which clarification of the applicable regional law will be needed. It is important to bear in mind that in Spain there are not ‘internal conflict-of-laws’ for the dissolution or annulment of formalized partnerships -in terms of Article 33.1 of the Regulation-, so the application of one regional law or another would depend on the subsidiary connections of Article 33.2. Nevertheless, as mentioned before, as of today the validity itself of some regional laws is a very controversial topic, where the constitutional perspective and the solutions of the jurisprudence should be taking into account.

In short, this book raises, and proposes solutions to, the legal problems arising from the application of the Regulation (EU) 2016/1104, from the Spanish legal system point of view. An issue which is not only relevant for Spanish legal operators, but also for foreign ones, as long as a member of the couple is connected with the Spanish legal system or Spanish law is applicable.

Online event

When making decisions, adults should think about how their decisions will affect children. Recent years have witnessed, in private international law cases and legislation, the protection of children is increasingly mingled with gender, indigenous issues, refugees, violence, war, surrogacy technology, etc. This is evidenced by the US Supreme Court 2022 judgment Golan v. Saada, the Australian case Secretary, Department of Communities & Justice v Bamfield, the 2023 German Constitutional Court decision, the Chinese Civil Code, the Australia Family Law (Child Abduction Convention) Amendment (Family Violence) Regulations 2022, and developments at the Hague Conference on Private International Law (HCCH Children Conventions) and the United Nations (Convention on the Rights of the Child and its additional Protocols).

On this International Children’s Day, let us join this CAPLUS webinar in cooperation with conflictoflaws.net and American Society of International Law Private International Law Interest Group to hear voices of children in private international law.

Speakers

• Ms. Anna Mary Coburn

After 22-years of public service as a U.S. Department of State Attorney-Advisor for Children’s Issues as well as a USAID Regional Legal Advisor/Senior Advisor for Children/Youth in Conflict, Anna has transitioned to practicing international family law with a focus on child rights cases and issues.

• Mr. Philippe Lortie

Philippe is co-head of the International Family and Child Protection Law Division at the Hague Conference on Private International Law Permanent Bureau and has more than 30 years’ experience in the field of child protection.

• Dr. Miranda Kaye

Dr Miranda Kaye is an academic at the Faculty of Law in the University of Technology Sydney in Australia and a member of Hague Mothers, a project aiming to end the injustices created by the Hague Child Abduction Convention. She also has experience in the public service (Law Commission of England and Wales) and as a practicing solicitor (family law in the UK).

• Professor Lukas Rademacher

Lukas is a Professor of Private Law, Private International Law, and Comparative Law in Kiel, Germany. He studied law at the Universities of Düsseldorf and Oxford, and received his PhD at the University of Münster. He wrote his postdoctoral thesis at the University of Cologne.

• Ms. Haitao Ye

Haitao is a lawyer at the Shanghai Office of the Beijing Dacheng Law LLP specializing in marriage and family dispute resolution, family wealth inheritance and management. She is a former experienced judge in civil and commercial trials at the Shanghai Pudong New District People’s Court in China.

Moderators/commentators

• Dr. Jie (Jeanne) Huang (Associate Professor at Sydney Law School, University of Sydney)

 

Thursday 1 June, 6-7.30pm AEST

(4-5.30am Washington D.C./9-10:30am London/10-11.30am the Hague/4-5.30pm Beijing)

This event is proudly co-presented by the Centre for Asian and Pacific Law at the University of Sydney, conflictoflaws.net and the American Society of International Law Private International Law Interest Group.

The Peter Nygh Round (2023) of the Pax Moot court was held in Antwerp from 3 to 5 May – the preliminary days at the University of Antwerp and the semi-finals and finals at the Antwerp court.

This year saw the highest number of registered teams yet for the PAX Competition (37 teams). 28 teams made it to the oral rounds. 48 judges, lawyers and academics invited took up the role as judge in the competition.

The winner of the oral rounds was the University of Ljubljana, with the University of Vienna as runner-up. The teams of the University of Maastricht and Singapore Management University made it up to the semi-finals.

The University of Vienna won the prize for the best written memorials, with the University of Ghent in second place and the University of Sofia third.

Best pleader was Matej Iglicar (University of Ljubljana), followed by Maximilian Murtinger and in third place Gustav Kirchauer (both of the University of Vienna).

The European Commission co-funds the competition.

Next year’s Pax Moot court competition will take place from 24 to 26 April in Ljubljana.

On May 17th, 2023, the Department of Law  of the University of Urbino (Italy), will host an event titled “The Digital Services Act (DSA): International Aspects – Aspects Internationaux” co-organized with the Centre de recherche de droit international privé et du commerce international de l’Université Paris-Panthéon-Assas and the University of Malaga.

The DSA (Regulation (EU) 2022/2065), submitted along with the Digital Markets Act (DMA), has been approved on October 19th, 2022, and shall apply from February 17th, 2024. It will amend the Directive 2000/31/EC (Directive on Electronic Commerce) and introduce a wide-ranging set of new obligations on digital platforms regarding illegal content, transparent advertising and disinformation.

Confirmed speakers include Marie-Elodie ANCEL (Université Paris-Panthéon-Assas, CRDI), Maria Isabel TORRES CAZORLA (University of Malaga), Basile DARMOIS (Université de Brest), Federico FERRI (Université de Bologne); Valère NDIOR (Université de Brest, IUF), Edoardo Alberto ROSSI (University of Urbino), Massimo RUBECHI (University of Urbino).

The main topics that will be discussed include the European legal framework within the DSA has been adopted, the conflict of laws methods, online content moderation, the cooperation between relevant national and European authorities and the available remedies in case of violation of the rights of users.

The event can be followed both face-to-face and remotely, on the Zoom platform.

See here for information about the program and how to register

The author of this post is Lydia Lundstedt, who is a Senior Lecturer at the Stockholm University.

On 27 April 2023, the Court of Justice delivered its judgment in Lännen MCE (C-104/22) (no written opinion by the Advocate General) (also mentioned here on this blog) on factors relevant for establishing international jurisdiction over an infringement action pursuant to Article 125(5) of Regulation 2017/1001 (EU Trade Mark Regulation) when advertising, displayed on a website accessible from a territory covered by the trade mark, does not unambiguously specify the geographical area of supply.

Article 125(5) is a lex specialis rule on jurisdiction in relation to the rules in Regulation 1215/2012 (Brussels I bis) that allows the proprietor of a EU trade mark to bring a targeted action in the courts of the Member State in which the ‘act of infringement’ has been committed or threatened in respect of acts committed or threatened within the territory of that Member State. As the concept of ‘act of infringement’ in Article 125(5) relates to active conduct on the part of the alleged infringer, the CJEU held in AMS Neve and Others (C-172/18) that acts of infringement are committed in the territory where the consumers or traders to whom advertising and offers for sale are directed are located. In that case, the CJEU specifically stated that a relevant factor for the national courts to consider is whether the advertising contained details of the geographical areas of supply. The CJEU did not however provide guidance on other possible relevant factors.

This lacuna was addressed in Lännen MCE (C-104/22), where the CJEU held that a proprietor of a EU trade mark may bring an infringement action if an alleged infringer has paid for referencing on a search engine website which uses a national top-level domain name of the Member State in which the court seised is situated, but not if an alleged infringer has merely used meta tags to organically reference images of its goods on an online photo-sharing service under a generic top-level domain.

Facts

Lännen, a company established in Finland that sells amphibious dredgers under the EU trade mark WATERMASTER, brought an action before the Finnish Market Court against two companies established in Germany (Senwatec and Berky) both of which belonged to the same group. Lännen alleged that Senwatec committed an act of infringement in Finland by purchasing its trademark as an Adword on Google’s search engine website operating under the Finnish top-level domain to sell competing products. While neither the link nor Senwatec’s website specifically mentioned Finland or specified the geographical area of supply, the website indicated that Senwatec’s products are used worldwide and included a world map highlighting the countries in which Senwatec claimed to be active. The map did not highlight Finland. Lännen alleged that Berky infringed its trade mark by using it as a meta tag to enable internet search engines to identify images of Berky’s machines accessible on the internet.

Lännen argued that because Senwatec and Berky’s products are sold throughout the world, the advertising, which is in English, is addressed to an international public which extends beyond the areas covered by the map, and is directed at every country in which it is visible. In contrast, Berky and Senwatec, who objected to jurisdiction of the Finnish court, argued that there must be a relevant connecting factor with Finland and that the accessibility of the allegedly illegal content in Finland is not decisive. They maintained that they do not offer their products for sale in Finland and their marketing activities did not target Finland as evidenced by the map.

The Finnish Market Court asked the CJEU what factors were relevant, and specifically whether the nature of the products concerned, the scope of the market in question and the fact that that display occurred on the website of a search engine operating under the national top-level domain of that Member State were relevant factors for determining jurisdiction pursuant to Article 125(5).

The Court’s ruling

The CJEU recalled its previous case law holding that the determination of jurisdiction does not amount to an examination of the substance of that action (see e.g. Universal Music International Holding (C‑12/15)). It thereafter held that evidence which gives rise to ‘a reasonable presumption’ that acts of infringement may have been committed or threatened on the territory of a Member State is sufficient to establish jurisdiction under Article 125(5) (para 39). The CJEU stated that ‘where the display of online content is, even if only potentially, directed at consumers or traders located in the territory of a Member State’, the proprietor of an EU trade mark is entitled to bring an action pursuant to Article 125(5) as these courts are particularly suited to assessing whether the alleged infringement exists (para 42).

The CJEU stated that the map on Senwatec’s website cannot, in itself, establish a connecting factor with Finland, since the context of which that map forms part does not support the conclusion that Senwatec directs its activity towards the Finnish market (para 43).

With regard to other relevant factors, the CJEU stated that its judgment in Pammer and Hotel Alpenhof (C 585/08 and C 144/09) interpreting what is now Article 17(1)(c) Brussels Ia Regulation on jurisdiction over consumer contracts may be relevant. In that case the CJEU held that the international nature of the activity, use of a language or a currency other than the language or currency generally used in the Member State in which the trader is established, mention of telephone numbers with an international code, outlay of expenditure on an internet referencing service in order to facilitate access to the trader’s site or that of its intermediary by consumers domiciled in other Member States, use of a top-level domain name other than that of the Member State in which the trader is established, and mention of an international clientele composed of customers domiciled in various Member States were relevant factors (paras 46-47). The CJEU emphasized however that the mere fact that a website is accessible from the territory covered by the trade mark is not a sufficient basis for establishing jurisdiction (para 48).

Accordingly, the CJEU held that an undertaking that pays the operator of a search engine website with a national top-level domain of a Member State other than that in which it is established, in order to display, for the public of that Member State, a link to that undertaking’s website, directs its activity to the public of that Member State in the meaning of Article 125(5). In contrast, the CJEU stated that the use of the trade mark as a meta tag on an online photo-sharing service under a generic top-level domain was not sufficient to establish jurisdiction. The CJEU noted that this situation was different because a website with a generic top-level domain is not intended for the public of any specific Member State and, also, that the meta tag is intended only to enable search engines better to identify the images contained on that website so as to increase their accessibility.

As regards the nature of the products in question and the extent of the geographical market, the CJEU stated that it is for the court hearing the infringement action to assess on a case-by-case basis the extent to which those matters are relevant in order to conclude that referencing accessible on the territory covered by the trade mark is targeted at consumers in that territory.

Analysis

As an initial matter, one might ask whether the CJEU lowered the threshold for establishing jurisdiction from ‘if it is apparent … ’ as stated in AMS Neve and others to ‘a reasonable presumption’ as stated in Lännen MCE. What, if anything, this means in a specific case is difficult to say.

Under either threshold, it seems clear that buying a Adword on a search engine website with a national top-level domain of a Member State is sufficient evidence to establish a connecting factor with that Member State. Likewise, it seems clear that using a meta tag on an online photo-sharing service under a generic top-level domain is of itself not sufficient evidence to establish a connecting factor with any specific Member State under either threshold.

However between these two extremes exist a number of fact constellations that are not as clear.  For instance, would it be sufficient if the alleged infringer buys an Adword on a search engine website which uses the top-level domain for the European Union (.eu)? What about if a trademark is used as a meta tag on an online photo-sharing service under a national top-level domain?

In addition, while the CJEU made clear that ‘mere accessibility’ of a website in a territory covered by the EU trademark was not sufficient, it did not specifically answer the referring court’s question whether the fact that that display occurred on the website of a search engine operating under the national top-level domain of that Member State was a relevant factor. If a search in Finland on http://www.google.fi using the term ‘Watermaster’ produced an organic search result whereby links to Senwatec’s website and images of Berky’s products were displayed first in the list, might this not create a reasonable presumption that acts of infringement may have been committed or threatened on the territory of that Member State?

As I have stated elsewhere, it seems reasonable that in cases of ambiguity the burden is placed on a trader to take steps to ‘exterritorialise’ its websites by making clear that it is not directing its advertising and offers for sale to certain Member States. Failing this, the trader should be deemed to have targeted those Member States. A generous approach will minimise the risk that jurisdiction is foreclosed even though the right holder – if given a chance – would have been able to prove that an infringement occurred in the forum Member State. At the same time a clear threshold will exclude the cases where the right holder is making a frivolous claim.

Sarah McKibbin and Anthony Kennedy (editors) recently published a book with Hart titled: Common Law Jurisprudence in Conflict of Laws. The blurb reads as follows:

This book presents a collection of leading common law cases in private international law ranging from the 18th to the 21st century. The cases traverse issues of jurisdiction, choice of law and the recognition and enforcement of foreign judgments. Questions of marital validity, domicile, foreign immovable property and choice of law in contract are just some of the topics that this collection examines. The ‘unusual factual situations’ of some 18th- and 19th-century English cases also reveal compelling human interest stories and political controversies worthy of further exploration.

Drawing on a diverse team of contributors, this edited collection showcases the research of eminent conflicts scholars together with emerging scholars from the United Kingdom, Australia, Canada, Ireland and South Africa.

A groundbreaking judgment was rendered last October by the Greek Supreme Court. Relatives of two Greek crew members killed in Los Llanos Air Base, Spain, initiated proceedings before Athens courts for pain and suffering damages (solatium). Although the action was dismissed by the Athens court of first instance, and the latter decision was confirmed by the Athens court of appeal, the cassation was successful: The Supreme Court held that both the Brussels I bis Regulation and the Lugano Convention are establishing international jurisdiction in the country where the relatives of persons killed are domiciled, because they must be considered as direct victims.

 

THE FACTS

On 26 January 2015, an F-16D Fighting Falcon jet fighter of the Hellenic Air Force crashed into the flight line at Los Llanos Air Base in Albacete, Spain, killing 11 people: the two crew members and nine on the ground.

The relatives of the Greek crew members filed actions for pain and suffering damages before the Athens court of first instance against a US (manufacturer of the aircraft) and a Swiss (subsidiary of the manufacturer) company. The action was dismissed in 2019 for lack of international jurisdiction. The appeals lodged by the relatives before had the same luck: the Athens court of appeal confirmed in 2020 the first instance ruling. The relatives filed a cassation, which led to the judgment nr. 1658/5.10.2022 of the Supreme Court.

 

THE JUDGMENT OF THE SUPREME COURT

Out of a number of cassation grounds, the Supreme Court prioritized the examination of the ground referring to the international jurisdiction deriving from Articles 7(2) Brussels I bis Regulation and 5(3) Lugano Convention 2007. Whereas the analysis of the court was initially following the usual path, established by the CJEU and pertinent legal scholarship, namely, that third persons suffering moral (immaterial) damages are classified as indirect victims of torts committed against their relative, when the accident results in the death of the relative, they have to be considered as direct victims, which leads to their right to file a claim for damages (solatium) in the courts of their domicile.

In particular, the analysis of the Supreme Court is the following:

1. Articles 7(2) Brussels I bis Regulation and 5(3) Lugano Convention 2007

‘With regard to the mental suffering caused by the incident as a result of the tort, after his death, the relative can no longer be subject to rights (and obligations) and, therefore, have claims against the wrongdoer.

In this case, the relatives of the deceased have by law a personal claim against the defendants, since the infliction of mental suffering is a primary and direct damage to their person; therefore, the place of its occurrence is important for the establishment of the court’s international jurisdiction in the court which this place is located, for the adjudication of their respective claim.

In other words, the infliction of mental suffering is a direct injury to the persons close to the deceased; it is separate and independent from the primary injury suffered by the latter, without this mental suffering being considered, due to the previous injury of the deceased, as indirect damage. The wrongdoer’s behavior, considered independently, also constitutes an independent reason for an obligation towards them for monetary satisfaction (and compensation), without the mental suffering caused presupposing any other damage to the above persons, so that it could be characterized as a consequence of it, and, consequently , as indirect with respect to this damage.

The place where the mental suffering comes from is not the place, where by chance the person was informed of the death of his relative and felt the mental pain, but the place of his main residence, where he mainly and permanently suffers this pain, which certainly has a duration of time and, therefore, burdens him not all at once, but for a long, as a rule, period of time.

It should be noted that, according to Greek law, in the case of tortious acts, a claim for compensation and monetary satisfaction due to moral damage is only available to the person immediately harmed by the act or omission, and not by the third party indirectly injured. Hence, where Article 932 of the Civil Code states that, in the event of the death of a person, monetary compensation may be awarded to the victim’s family due to mental distress, it clearly considers the relatives of the deceased as immediately damaged and, in any case, fully equates them with their primary affected relative.

In view of the above, articles 7(2) of Regulation 1215/2012 and 5(3) of the Lugano Convention, have the meaning that the mental suffering, which is connected to the death of a person as a result of a tort committed in a member state, and which is suffered by the relatives of this victim, who reside in another member state, constitutes direct damage in the place of their main residence. Therefore, the court, in whose district the person, who suffered mental anguish due to the death of his relative, has his residence, has territorial competence and international jurisdiction to adjudicate the claim arising from the mental suffering caused for the payment of damages.

The above conclusion also results from the grammatical interpretation of the above provisions, given that they do not make any distinction as to whether the damage concerns the primary sufferer or other persons, but only require that the damage caused to the plaintiff may be characterized as direct.

An opposite opinion would necessarily lead in this case to the international jurisdiction only of the court of the place where the damaging event occurred, a solution, however, that is not in accordance with the interpretation of the above rules by the CJEU, which accepts, without distinction or limitation, equally and simultaneously, the international jurisdiction of the place where the direct damage occurred.

 

2. The interdependence of Brussels I bis Regulation and Rome II Regulation

It is true that in the interpretation of Article 4(1) Regulation 864/2007 on the law applicable to non-contractual obligations, the CJEU ruled that, damages connected with the death of a person due to such an accident within the Member State of the trial court, suffered by the victim’s relatives residing in another Member State, must be characterized as “indirect results” of the said accident, under the meaning of the provision in question (case Florin Lazar v Allianz SpA, C-350/14).

However, in addition to the fact that this judgment concerned the choice of applicable law, the same court has accepted that, according to recital 7 Regulation 864/2007, the intention of the EU legislator was to ensure consistency between Regulation 44/2001 (already 1215/2012), and the material scope as well as the provisions of Regulation 864/2007; however, “it does not follow in any way that the provisions of Regulation 44/2001 must, for this reason, be interpreted in the light of the provisions of Regulation 864/2007. In no case can the intended consequence result in an interpretation of the provisions of Regulation 44/2001, inconsistent with the system and its purposes.

And the Supreme Court concluded:

According to all of the above, pursuant to the provision of article 35 of the Civil Code, as interpreted in the light of articles 7(2) Regulation 1215/2012 and 5(3) Lugano Convention, the Greek courts have international and local jurisdiction to adjudicate claims for payment of reasonable monetary satisfaction due to mental anguish, as a result of the death of a relative of the claimants, committed in another Member State, if the claimants reside in the court’s district.

 

THE MINORITY OPINION

One member of the Supreme Court distanced himself from the panel, and submitted a minority opinion, which was founded on the prevailing opinion followed by the CJEU and legal scholarship. In particular, according to the minority report, the damage caused to the claimants due to the death of their relative remains an indirect one, given that the damage caused was of a reflective and not of a direct nature. The minority opinion emphasized also on the predictability factor, which was not elaborated by the panel.

 

COMMENTS

The judgment of the Supreme Court opens the Pandora’s box in a matter well settled so far. An earlier judgment rendered by the Italian Supreme Court followed the prevailing view [see Corte di Cassazione (IT) 11.02.2003 – 2060 – Staltari e altre ./. GAN IA Compagnie française SA ed altri, available in: unalex Case law Case IT-19].

In matters where national courts wish to deviate from the prevalent, if not unanimous view taken by the CJEU and European legal scholarship, the most prudent solution would be to address the matter to the Court, by filing a request for a preliminary ruling. The latter applies to both international jurisdiction, and interdependence between the Brussels I bis and the Rome II Regulation.

The EAPIL blog will report about the conference on The Law of Treaties as Applied to Private International Law in Milan by a dedicated post at the end of each conference day. Please follow us on Twitter (@eapilorg) and LinkedIn for updates as the conference unfolds. Check out our Instagram account, too!

The conference on The Law of Treaties as Applied to Private International Law, under the auspices of the Italian Society of International Law and EU Law (SIDI) and the European Association of Private International Law (EAPIL), has continued today.

Frascesco Bestagno (Catholic University of the Sacred Heart of Milan; Legal advisor at the Permanent Representation of Italy to the European Union) opened the second conference day offering a key-note speech.

Burkhard Hess (Director of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law) chaired the fourth panel, on The management of conflicts between private international law treaties, with Jan Klabbers (University of Helsinki) and Alex Mills (University College London) as speakers.

Finally, with Etienne Pataut (University Paris I – Panthéon-Sorbonne) chairing, Malgosia Fitzmaurice (Queen Mary University of London), Chiara Tuo (University of Genova) and Zeno Crespi Reghizzi (University of Milan) discussed issues in connection with Avoiding, exiting and litigating commitments arising from private international law treaties.

A roundtable on The role of IGOs in the elaboration, implementation and coordination of private international law treaties, chaired by Fausto Pocar (University of Milan, Emeritus), followed, with Nicolas Nord (Secretary-General of the International Commission on Civil Status), Andreas Stein (Head of Unit (Civil Justice) at the European Commission Directorate-General for Justice and Consumers – Civil and commercial justice), Ignacio Tirado (Secretary-General of the International Institute for the Unification of Private Law (Unidroit), Philippe Lortie (First Secretary of the Hague Conference on Private International Law), and Luca Castellani (Secretary of Working Group IV (Electronic Commerce) – Uncitral).

Stefania Bariatti (University of Milan) offered some concluding remarks.

Catholic University of the Sacred Heart of Milan: Pious XI Room

Francesco Bestagno

Burkhard Hess, Jan Klabbers and Alex Mills

Etienne Pataut, Malgosia Fitzmaurice, Chiara Tuo and Zeno Crespi Reghizzi

Discussion with the audience

Fausto Pocar, Nicolas Nord, Andreas Stein, Ignacio Tirado, Philippe Lortie and Luca Castellani

Stefania Bariatti

Host University: Catholic University of the Sacred Heart of Milan

The EAPIL blog will report about the conference on The Law of Treaties as Applied to Private International Law in Milan by a dedicated post at the end of each conference day. Please follow us on Twitter (@eapilorg) and LinkedIn for updates as the conference unfolds. Check out our Instagram account, too!

The conference on The Law of Treaties as Applied to Private International Law, under the auspices of the Italian Society of International Law and EU Law (SIDI) and the European Association of Private International Law (EAPIL), has started! Many people are attending in person today’s session. A warm welcome to all from the editors of the blog!

The President of the European Association of Private International Law, Gilles Cuniberti, together with Pasquale De Sena (President of SIDI – the Italian Society of International and EU Law) and Stefano Solimano (Catholic University of the Sacred Heart), started with their welcome address.

The conference has been opened by two general presentations. Catherine Brölmann (University of Amsterdam) presented the rules of public international law relating to treaties and discuss the manner in which, and the extent to which, they can reflect the specificities of the subject-matter of the treaty concerned. Patrick Kinsch (University of Luxembourg) outlined the relevance of the law of treaties to the development and implementation of international conventions in the field of private international law.

The first panel has followed, on The conclusion and entry into force of private international law treaties, chaired by Hans Van Loon (former Secretary-General of the Hague Conference on Private International Law). Presentations were delivered by Jean-Marc Thouvenin (University of Paris Nanterre; Secretary-General of The Hague Academy of International Law) and Antonio Leandro (University of Bari).

Then, in the afternoon, the second panel, chaired by Sergio Carbone (University of Genova, Emeritus), dealt with The observance, application and interpretation of private international law treaties. Luigi Crema (University of Milan), Pedro De Miguel Asensio (Complutense University of Madrid) and Paul Beaumont (University of Stirling) spoke on the topic.

Finally, the third panel was about The amendment and succession of private international law treaties: Catherine Kessedjian (University Paris II Panthéon-Assas, Emerita) moderated a discussion between Jan Wouters (KU Leuven) and Andrea Schulz (German Federal Ministry of Justice).

A lively discussion followed the presentations.

The first day of the conference ended with University’s Studium Musicale of the Catholic University of the Sacred Heart of Milan which offered in the inspiring main hall a performance with music by Saint-Saëns, Bartok, Ravel and Poulenc.

 

Host University: the Catholic University of the Sacred Heart of Milan

Gilles Cuniberti, Pasquale de Sena and Stefano Solimano

Catherine Brölmann and Patrick Kinsch

Hans Van Loon, Jean-Marc Thouvenin and Antonio Leandro

Discussion with the audience

Sergio Carbone, Luigi Crema, Pedro De Miguel Asensio and Paul Beaumont  

Catherine Kessedjian, Jan Wouters and Andrea Schulz 

University’s Studium Musicale: Musical performance

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published. The table of contents is available here. The following abstracts have been kindly provided to us by the editor of the journal.

Th. Pfeiffer, Judicial Presumptions: Finding of Facts or Application of Law? The characterization of so-called factual presumptions in private international law

This article discusses whether so-called factual presumptions and prima facie-evidence rules qualify as substantive or procedural rules for choice of law purposes. Having analyzed typical situations such as rear-end collisions and the use of standard terms as well as provisions in the Rome I- and II-Regulation, differentiated solution is submitted: Factual presumptions and prima facie evidence are to be qualified procedurally, unless they are exceptionally based on a specific substantive rationale and not on fact related judicial experience.

D. Moura Vicente, The Role of the Brussels I-bis Regulation in European Private International Law and the Challenges Facing it

The 1968 Brussels Convention sought to promote mutual trust between Member States in jurisdictional matters by adopting uniform rules on judicial competence in civil and commercial matters, with a view to implementing a principle of automatic recognition of foreign judgments among them. Such rules could however be formulated only in respect of a limited number of subjects, which explains the Convention’s relatively narrow scope of application. Over the half century since the Brussels Convention’s conclusion, both its nature and that of the Regulations that succeeded it have changed substantially. From an instrument originally restricted to patrimonial matters, the Convention and its successor Regulations became the backbone of a system aimed at ensuring the free movement of judgments and judicial cooperation in a broad spectrum of matters. The Brussels I-bis Regulation has provided the conceptual foundations of the other instruments that integrate that system, which at times replicate its notions and rules or simply refer to it, thereby ensuring the system’s coherence. The Regulation has moreover had a modernising effect on the domestic legal systems of its Member States. The Regulation’s referential role in European Private International Law role nevertheless faces significant challenges arising inter alia from certain shortcomings of its substantive and subjective scope of application, as well as of the available heads of jurisdiction under its rules. It is submitted that these challenges, which this paper seeks to identify, call for a limited reform of the Regulation, the opportunity for which is provided by its review as foreseen in Article 79.

A. Dutta, Reform of German private international law for the names of persons

German private international law dedicates much (probably too much) attention to the names of persons. Based on earlier ideas for a European instrument on the law applicable to names and taking into account the current debate on German substantive law, the article argues for at least a unilateral reform of the current German conflict rules, in particular, for replacing nationality by habitual residence as the primary connecting factor and for a new approach to party autonomy.

T. Helms, German Private International Law and Co-Parenthood

German law of descent does not recognise co-parenthood between two women or two men. This article examines the conditions under which co-parenthood is nevertheless accepted in international cases on the basis of German Private International Law.

M. Pika, On the pathway to European arbitration law or to non-European seats?

In Prestige, the CJEU held that judgments confirming arbitral awards under sect. 66(2) English Arbitration Act 1996 are “decisions” for the purposes of Art. 45(1) lit. c Brussels Ibis-Regulation. In addition, the CJEU held that those judgments cannot prevent recognition of an irreconcilable, earlier judgment if the arbitral tribunal (i) disregarded the lis pendens principles of the Brussels Ibis-Regulation and/or (ii) unduly extended the arbitration agreement to third parties. This is the most significant restriction of the Brussels Ibis-Regulation’s carve-out of arbitration matters in Art. 1(2) lit. d ever since the West Tankers judgment.

T. Kindt, The Pechstein-Decision of the German Federal Constitutional Court

In a long-awaited decision on June 3, 2022, the German Federal Constitutional Court annulled the contested Pechstein-judgment of the German Federal Court of Justice from 2016 that had upheld the validity of an arbitration agreement between Germany’s most prominent speed skater and the International Skating Union (ISU) in favor of the Court of Arbitration for Sport (CAS) in Lausanne. The Constitutional Court holds that the Federal Court of Justice failed to attribute sufficient weight to the claimant’s right to a public hearing as part of her fundamental right of access to justice. Considering the imbalance of power in the contractual relationship between individual athletes and international sports federations, a resort to arbitration could only be accepted if the arbitral proceeding lives up to the minimum standards of constitutionally protected procedural safeguards. In the Constitutional Court’s view, this requirement had not been met by the applicable procedural rules of the CAS at the time, given that they did not provide individual athletes with the right to one-sidedly request a public hearing. This paper argues that the Constitutional Court’s decision, despite its laudable intentions, leaves more questions open than it answers (especially with regard to the question of impartiality and neutrality of the CAS), fails to take into account an important trait of the international arbitral system and will likely only be of limited importance for the further reform of sports arbitration.

R. Geimer, Exclusive international Jurisdiction of Germany based on article 25 (1) Brussels I bis-Regulation without an additive prorogation of a local forum

A German Company registered in Mannheim and a Spanish Company registered in Barcelona had prorogated “the civil courts in Frankfurt, Germany” in a International Distributor Agreement (IDA). It was unclear, which Frankfurt was chosen: Frankfurt on the Main or Frankfurt on the Or? The Higher Regional Court of Frankfurt on the Main ruled that Frankfurt on the Main is the prorogated forum arguing as follows: The representatives on the Spanish Company came by plane over the airport Frankfurt on the Main to Mannheim for signing the International Distributor Agreement including the prorogation clause. They did not know anything about Frankfurt on the Or. Therefore also the representatives of the Spanish Company have nominated Frankfurt on the Main as the exclusively competent forum.

L. Hornkohl, Group Liability in EU Competition Law and International Jurisdiction

In Sumal, the ECJ for the first time applied the single economic entity doctrine in private enforcement of competition law towards corporate groups. According to the ECJ, a subsidiary is liable for the cartel violations of the parent company in descending order if the parent and subsidiary are linked by corresponding economic, organisational and legal relationships. Furthermore, the ECJ requires a connection between the economic activity of the subsidiary and the object of the parent’s infringement to transfer liability. The case law in Sumal has severe international and local jurisdictional consequences. Especially concerning EU-wide cartel agreements, the jurisprudence gives claimants the possibility to sue each legal entity belonging to a single economic entity jointly and severally and thus offers huge potential for forum shopping under the Brussels Ibis Regulation.

C. Mayer, (Supposed) Competing paternities in private international law

Time and again, German courts are confronted with cases in which, as a result of the alternative links in Art. 19 Para. 1 EGBGB, several legal systems are applicable to the parentage of a child. This can result in the child being assigned different legal fathers. The German Federal Court of Justice has already had several opportunities to comment on such conflicting paternity situations and to develop basic structures. Its decision to be discussed here regarding a postnatal acknowledgment of paternity, which competes with a presumption of paternity, fits seamlessly into this line of case law, but raises the interesting question as to where newborns have their habitual residence at the time of birth. The Higher Regional Court Brandenburg, on the other hand, had to clarify the more difficult constellation of whether a prenatal acknowledgment of paternity can take precedence over a presumption of parentage resulting from foreign law, although both become effective at the same time at birth.

D. Henrich, Recognition of private divorces

Private divorces are divorces not by judgment but by agreement of the parties. Art. 21 of the Brussels IIa-Regulation prescribes the automatic recognition of all Member States decisions without any procedure being required. Whether this includes the recognition of non-judicial divorces was unclear. The European Court of Justice decided, that whenever a Member State provides a special proceeding for the recognition of a private divorce, the recognition is a question of procedural law. Whenever a civil status officer of a Member State records the agreement of the parties about their divorce and the parties confirm that the procedure has been performed according to the regulations of the Member State, the record is a judgment in the sense of Art. 2 No. 4 of the Brussels IIa-Regulation. Object of the recognition is here not the decision of a court but a special procedure.

P. Scholz, Mandatory Family Protection in Succession and Ordre Public

In almost every jurisdiction today, rules on mandatory family protection qualify the principle of freedom of testation. However, not only the beneficiaries of such laws vary from country to country. Moreover, over time, different systems of mandatory protection have evolved – and they span from fixed shares in the testator’s estate (like in Austria, Germany, or France) to needs-based judicial awards for the testator’s next of kin (like in England or New Zealand). Under the choice of law regime of the EU Succession Regulation, courts in fixed-share systems will eventually have to decide whether the application of needs-based rules is incompatible with the forum’s public policy where such laws do not result in sufficient claims of the disinherited next of kin. On February 2, 2021, Austria’s Supreme Court positioned itself against such ideas. This stands in stark contrast to the decision of the Cologne Higher Regional Court issued just a few weeks afterwards, which the German High Court upheld with a questionable judgement of June 29, 2022.

Membership in the European Association of Private International Law comes with a small burden: the annual fees!

If you’re a member, and have not paid your fees for 2023, please take a moment to do so.

The amount of the fees is reasonable (and has not changed since the Association was created), and the process is rapid and straightforward: you may pay by bank transfer, or use PayPal.

All information is found here.

Thank you!

This short post on Agora v SPA Italiana Lastre ECLI:FR:CCASS:2023:C100265 at the French SC could suffice with referring to para 2.331 of the Handbook. That para asks exactly the question on which the SC has now referred to the CJEU:

The insertion into the Regulation of the lex fori prorogati rule often does not assist. In particular, where parties expressly make choice of court non-exclusive (non-exclusive choice of court), or where they designate a plurality of specifically identified courts, the lex fori prorogati is not immediately ascertainable.[1] Neither is it in the event of so-called ‘unilateral’ or ‘one-sided’ choice of court, which I review below. In my opinion, therefore, at the very least for these cases which are not solved with the new lex fori prorogati rule, parties are best advised to continue to (or start to) make separate and express choice of law for unilateral and non-exclusive choice of law.

[1]               An argument also made by counsel for the defendants in Commerzbank Aktiengesellschaft v Liquimar Tankers Management Inc [2017] EWHC 161 (Comm).

Please refer to François Mailhé’s post who has background to the issues here, referring ia to Banque de Rothschild. Note that Mary Keyes edited a whole volume on asymmetric aka hybrid aka unilateral choice of court.

Like François I do not think the CJEU will entertain all the questions referred. I cannot imagine it finding the very acceptability of unilateral choice of court to be covered by Article 25. That is simply not within the Article’s remit. (The CJEU might make an exception for the issue in those consumer contracts not covered by the protective regime of Brussels Ia, eg pure contracts of transport; here it might refer to secondary EU consumer law on unfair terms).

I do also wonder whether the Court will say anything about recital 20’s odd inclusion of renvoi, and whether parties may take away the uncertainty by designating a specific lex causae for the choice of court clause, and in doing so may also exclude renvoi (the answer to both in my view should be ‘yes’).

Geert.

EU Private International Law, 3rd ed. 2021, 2.331.

Agora v SPA Italiana Lastre

French SC refers to the Court of Justice of the EU on the application of A25 Brussels Ia's lex fori prorogati rule, in the event of hybrid aka asymmetric choice of court

(Effectively referring (2.331) of the 3rd ed of the Handbook). https://t.co/tHJVnTCLii

— Geert Van Calster (@GAVClaw) April 18, 2023

This post was authored by François Mailhé, who is Professor of Private Law at the University of Picardie Jules Verne.

At last !

It has been more than 10 years since the French Cour de cassation decided to declare war on asymmetric forum selection clauses in the Banque de Rothschild case (Cass. fr. civ. 1, 26 September 2012, No. 11-26.022). In the span of those 10 years, no less than 7 judgments were rendered by the Cour de cassation itself. And if it found its rationale in 2015 (Cass. fr. civ. 1, 25 March 2015, No. 13-27.264, ICH), almost each new judgment tested and tried a different angle, a different legal basis. At last, two weeks ago, the Cour de cassation chose the path of wisdom and referred a prejudicial question to the European Court of Justice (Cass. fr. civ. 1, 13 April 2023, No. 22-12.965)! 

Once upon a Time: The Brussels Convention

Let’s remember the surprise most felt at reading the Banque de Rothschild decision in 2012. Even if some French court of appeal decisions in maritime cases had already excluded the clause as “potestative” in the 1990s, paragraph 3 of Article 17 of the Brussels Convention seemed to set them aside as a marginal and wrong stream of cases.

Why “potestative”? Because those clauses characteristically consist of two limbs : one, restrictive, pointing in general to only one court and which binds one party, another, liberal, offering the other party a much vaster choice of forum.

The Brussels convention used to hold a specific rule on such clauses, implicitly accepting such imbalance (Article 17, §3 : “If an agreement conferring jurisdiction was concluded for the benefit of only one of the parties, that party shall retain the right to bring proceedings in any other court which has jurisdiction by virtue of this Convention”), but its existence and the reasons of its disappearance from the texts (uselessness, as it seems…) was progressively forgotten by French courts, who became suspicious of such clauses.

From Potestative to Imbalance

This suspicion grew at the same time as the generalization of the “significant imbalance” test. Starting in consumer law, it later appeared in French business law (today at L. 442-6, I, 2° of the French Commercial Code) and last as a general norm of contractual law for standard form contracts (art. 1171 of the Civil Code). The same concern for imbalance in asymmetric forum selection clauses was clear when the Banque de Rothschild decision set one aside as “potestative” (i.e. to the sole power of one of the parties, a much criticized legal ground) but also later, when the ICH case changed the standard from potestativity to foreseeability, as the Cour expressly refer to imbalance as the justification for this new standard.  

It would be a long reading if this post was to detail all the different phrasings, legal grounds and sometimes even contradictory decisions that the Cour de cassation employed to keep its case-law. One may only refer, in English, to the excellent work of Brooke Marshall, published last month, to study the whole case law in depth. Just to give a hint as to its subtlety (or confusion, depending on the point of view), a clause stating that “the bank is nevertheless entitled to bring an action against the borrower before any other competent court” was set aside for unforeseeability (the ICH case), while a clause that “reserved for Apple the possibility of bringing an action, at its choice, before the Irish courts, the courts of the place where eBizcuss has its registered office or the courts of the countries in which Apple suffered damage” was validated (Cass. 1re civ, 7 October 2015, No. 14-16.898, eBizcuss). 

However, the solution still raised many difficulties. The first is, and will perhaps remain for a long time, its inadequacy to the problem. In the terms of the case law, the “potestative” character first, the “imbalance” second, betrays the fact that the solution aimed primarily at restoring a certain fairness to the clauses, a fairness defended by the Brussels texts for employees, insureds and consumers, but absent for SMEs and other non-consumers, who are often without sufficient jurisdictional protection in the face of these clauses. On this point, one can only hope for a reform of the texts, but this does not yet seem to be part of the debate (see the Study to support the preparation of a report on the application of Regulation (EU) No 1215/2012).

What Legal Basis?

The second difficulty is of source: where to find the normative support of this solution? The Cour has used several bases, some of which are taken from European case law, but none of which is very solid (see e.g. Cass. 1re civ., 3 October 2018, No. 17-21.309. I discussed that in Lexisnexis’ JCP G 2018, 1300: among other things, in my opinion, the ECJ never really required selected forums to be foreseeable as a condition of their validity). 

This difficulty has been deepened by Brussels I bis regulation, introducing a specific rule for such clauses substantial validity: “unless the agreement is null and void as to its substantive validity under the law of that Member State” as stated by Article 25.

A new question arose : was this French case-law the national proposition of a European uniform solution, interpreting Article 25, or could it be a French solution, by extension of the scope of this referral to the national law of the chosen court (provided French courts are chosen)?

And, as a problem never comes alone, the asymmetric nature of the clause made the application of the second limb of the question even more complex : in case asymmetry was a substantive problem to be dealt with by the national law of the chosen court, which court must be taken into account?

Those two questions are asked, at last, by the Cour de cassation in this 13 April decision. A third one completes the package: whether the enforceability of such asymmetric clause (more specifically one which allows one of the parties to choose any objectively competent court) is an issue to be governed by a uniform European rule.

The Questions Referred

From this very debatable French case-law were therefore born three interesting questions.  

First, the ECJ will have to interpret the scope of the substantial validity rule : what is to be governed by uniform European rules, and what may be delegated to national laws? 

Second, in case the ECJ decides for a uniform rule, what is to be the future of asymmetric clauses? Will the Court draw from the old versions of the Brussels convention? Will it be sensitive to problems of imbalance beyond consumer-professional relationships? 

Last, in case the ECJ decides for the inclusion in the scope of Article 25 conflict rule, how to apply this conflict rule, relying on the chosen court, when the clause actually points at several chosen courts or, worse, an undetermined number of courts? 

Three very interesting and important questions were asked. Now it is up to the ECJ to pick up the glove. Let’s hope (perhaps with moderate expectations though) that its answer fits the challenge. 

The Special Interest Group on Family and Succession Law of the European Law Institute invites everyone interested to participate in the webinar titled Application of the EU Succession Regulation in the Member States.

The webinar will present the results gathered during the five webinars on the application of the EU Succession Regulation in the Member States organized in 2022 ( which EAPIL blog covered here).

The webinar will take place on 15 May 2023 between 3 and 5 pm CET.

Attendance is free of charge. A Zoom link will be sent to those who register by sending an e-mail to: zivilrecht@uni-graz.at.

The second issue of the Journal du droit international for 2023 was released. It contains two articles and several case notes relating to private international law issues.

In the first article, Guillaume Payan (University of Toulon) analyses the recent recast of the EU regulation in matrimonial matters, the matters of parental responsibility and on international child abduction (“Brussels II ter”) in the broader context of EU judicial cooperation in civil matters.

The English abstract reads:

As its title indicates, Regulation (EU) 2019/1111 – known as “Brussels II ter” – of 25 June 2019 has three clearly identified sections: marital disunity, parental responsibility and wrongful removal or retention of a child. Within the limits of its scope thus circumscribed, it contains interesting provisions relating to the recognition and enforcement of court decisions and extrajudicial titles. Either classic or innovative, the solutions adopted converge towards the objective of a generalized abolition of the exequatur. While this development, characterized by an intensification of the principle of mutual recognition, is appropriate, it nevertheless appears insufficient with regard to the issues targeted in Regulation (EU) 2019/1111 and, by extension, the objective of creating a genuine European civil judicial area. Although it identifies the contributions of this new text in the light of Regulation (EC) n°2201/2003 – known as “Brussels II bis” – which preceded it, this study provides an opportunity to question the overall consistency of action of the European Union legislator in the field of civil judicial cooperation.

In a second article, Éric A. Caprioli (Avocat à la Cour and  Member of the French UN Delegation in the field of e-commerce) discusses the UNCITRAL Model Law on Electronic Transferable Records (MLETR), since some countries such as France and Germany are currently working on its implementation into national law.

The English abstract reads:

The UNCITRAL Model Law on Electronic Transferable Records (MLETR) has been adopted on July 13, 2017, during the 50th session of the Commission. The purpose of this document is to develop provisions about electronic equivalents of transferable paper records or instruments. This mainly relates to bills of landing, bills of exchange and promissory notes, insurance policies, and warrants. These documents are essential in the financing of international trade. UNCITRAL has used the three general principles of electronic commerce in its instruments since the Model Law of 1996: non-discrimination against the use of electronic means, technological neutrality, and functional equivalence. Two Articles of the MLETR are fundamental. According to Article 10, Electronic Transferable Record (ETR) must meet two main requirements: the document must contain information required by instrumentum (written documents) and use a reliable method. The second one requirement imposes three other requirements: (i) identify the electronic record as the ETR, (ii) render the ETR capable of being subject to control from its creation until it ceases to have any effect or validity; and (iii) retain the integrity of the electronic record. Another key concept, the Article 11 discusses the control of the electronic record, which constitutes the functional equivalent of possession in the paper environment. Indeed, the individual who has the exclusive control over the document will be allowed to request the performance of the obligation or to transfer the document. Therefore, a reliable method must be used to establish the exclusive control over this ETR and identify this person as an individual who has the control. France has launched a transposition process of the MLETR into its national legislation like other countries of G7 (UK, Germany,…).”

The table of contents of the issue can be accessed here.

We are delighted to announce a lecture hosted by Matthias Weller at the University of Bonn in cooperation with ConflictofLaws.net. Professor Amnon Lehavi (Harry Radzyner Law School, Reichman University, Israel) is going to speak on ‘Globalization through the re-codification of property law?’.

The globalization of markets, technology, and interpersonal networks poses a growing challenge for national legal systems. Property law is traditionally considered a “domestic” field of law, not only because of its structural features (such as the in rem or numerus clausus principles), but also because it promotes cultural, economic, and social values. The decision if property law should be globalized also requires a choice among potential globalization strategies (how to do so). This lecture examines four globalization strategies: (1) soft law / private ordering; (2) conflict of laws; (3) approximation; and (4) supranationalism. It does so by comparing three types of assets: land, digital assets, and cultural property – which have all been dramatically affected by current processes of globalization, albeit in diverging ways. It is argued that different strategies of globalization, and corresponding forms of re-codification of national property laws, should be adopted for land, digital assets, and cultural property.

The event will take place on 17 May at 6.30pm at the Senate Hall of the University of Bonn; it can also be joined via Zoom. The flyer can be found here.

As noted earlier on this blog, on 3 May 2023, from 6 pm to 8 pm (MET), the first webinar of the series that has been organised under the title The Future of Cross-Border Parenthood in the EU – Analyzing the EU Parenthood Proposal will take place. The webinar, chaired by Claire Fenton-Glynn, will deal with the following relations: Surrogacy in comparative perspective (Jens Scherpe), and The EU Proposal on Parenthood: What’s in it? Subject matter, scope and definitions (Cristina González Beilfuss).

Those wishing to attend have time until 2 May 2023 at noon (MET) to register. The registration form is available here.

Registered participants will receive the details to join the webinar by e-mail (please note the e-mails with these details occasionally end up in the spam folder).

The form, then, will remain open for registration for the subsequent webinars of the series.

The updated and final version of the program is available here.

Boughajdim v Hayoukane [2022] EWHC 2673 (Fam) is a good case to illustrate qualification as an essential part of the private international law exercise. I had the case as one of the many open windows on my desktop. Despite my tardiness in reporting, I still do so, seeing as it is exam season and students are likely to start grapling with the course materials.

Core question is whether the Petitioner’s (the wife) divorce petition should be allowed to proceed in E&W, based on a marriage that has been recognised by the Moroccans court and registered in Morocco pursuant to legislation designed to provide retrospective recognition of marriage in that jurisdiction. The retrospective element is the result of the (alleged) spouses, of which the husband has dual Moroccan-UK citisenship, becoming aware that the absence of a marriage certificate was precluding an application for British Citizenship for one of their children.

The wife argues that the lex loci celebrationis in this case is Morocco, that the formal validity of the marriage falls to be determined by reference to the local form under Moroccan law and that this court is dealing with a valid foreign marriage, acknowledged as such by a foreign court and affirmed following failed proceedings by the husband for perjury and on appeal. By contrast, the husband contends that a proper analysis of the lex loci celebrationis means that the formal validity of the marriage falls to be determined by reference to the domestic Marriage Acts. In this context, he submits that the Moroccan marriage cannot be recognised as valid in E&W either as to form or as to capacity, the husband submitting in respect of the latter that the law governing questions of capacity is, in any event, the law of the husband’s domicile, under which law the husband did not validly consent to the marriage. Finally, the husband argues, in any event, that in the context of the special character of marriage there are cogent reasons for refusing to recognise the Moroccan marriage on the ground of public policy.

There is a convoluted procedural background to the case which this post does not engage with, for it is not relevant to the outcome of current judgment. (This also includes nb a number of res judicata elements, held [98], arising out of concurrent Moroccan proceedings.  Clearly, whether or nor there was a valid marriage at all is of relevance for all sorts of reasons, including financial ones.

[85] English law [like much of the world, GAVC] distinguishes between the form of the marriage (formal validity), which is governed by the lex loci celebrationis and the questions of capacity to marry to marry (essential validity, aka material or substantive validity). It is well settled that in English PIL the question of the capacity to marry is determined by the law of the party’s antenuptial domicile (Dicey Rule 75; note the contrast with continental Europe which tends to opt for lex patriae). Note however that what part of the validity question is a formal one and what part a substantive one, is not unequivocally clear. In E&W, there is no authority that conclusively answers the question of which system of law will govern the question of consent to marriage, i.e. whether consent is a matter of form governed by the lex loci celebrationis or a matter of capacity governed by the law of domicile.[86]

MacDonald J holds [90]

that the lex loci celebrationis in this case is the Kingdom of Morocco. I am further satisfied, on the facts as I have decided them, that the parties complied with the local form in the lex loci celebrationis sufficient for the court to be satisfied that it is dealing with a valid marriage having regard to the principle of locus regit actum. Further, I am satisfied that the husband has not demonstrated to the satisfaction of the court in this case that grounds exist for refusing to recognise the Moroccan marriage on the basis of public policy. In the circumstances, I am satisfied that the wife’s petition can proceed.

A difficultly is [100] that neither party contends for a marriage ceremony, or any other celebratory event, on an ascertainable date or at an ascertainable place giving rise to a marriage. The wife relies on the operation of a retrospective statute in a foreign jurisdiction as having constituted a valid marriage. There was no ‘marriage ceremony or other similar celebration’: then wat is the locus celebrationis? [105] The existence of a course of conduct by which some but not all of the legal steps necessary to conclude a marriage in a jurisdiction in which a ceremony is not required might, depending on the facts of the case, also assist in identifying whether there is a lex loci celebrationis and its location in a case concerning the operation of retrospective marriage legislation. Here, the judge decides that in 2000, on the balance of probabilities, the husband proposed marriage to the wife in Morocco, that there was an engagement party held, that there was a dowry agreed and paid and that the wife and husband considered themselves to be engaged and were to be married.

[114] ff the judge holds Moroccan formal procedure (including an element of service) following the retrospective Act, was properly complied with.

[139] ff and much more briefly, consent by both parties is established.

Finally [148] the ordre public exception looks at the consequences in England and Wales of recognising the decision of a foreign court that a marriage subsists as the result of retrospective legislation in respect of a British Citizen domiciled in E&W. [149] The Judge holds that the marriage to which the husband now objects arose by operation of law as the result of legal proceedings in respect of which, as the court has found, he was aware, in which he was represented, in which he had the opportunity to make representations and in which he did make, albeit cursory, representations objecting to the relief sought by the wife.

In conclusion, an earlier pronounced stay on the divorce petition was lifted.

A good case to illustrate qualification and its consequences.

Geert.

In May 2023, the Court will decide on C-264/22, Fonds de Garantie des Victimes des Actes de Terrorisme and d’Autres Infractions. The decision is expected on 16 May.

The request for a preliminary ruling from the Tribunal da Relação de Lisboa (Portugal) concerns the interpretation of the Rome II Regulation. It was lodged in April 2022.

A French citizen was hit by a boat at Alvor Beach (Portugal) in 2020; as a result, he suffered serious bodily injuries and underwent a number of medical treatments. He sued in France the Fonds de Garantie des Victimes des Actes de Terrorisme et d’Autres Infractions, in its capacity as the French body which covers, inter alia, compensation due for accidents, claiming compensation for the damage suffered. The parties agreed compensation of EUR 229 480.73.

The civil liability of the boat’s owner was insured by Victoria Seguros, S.A., the defendant in the Portuguese proceedings, where the Fonds de Garantie des Victimes des Actes de Terrorisme et d’Autres Infractions seeks an order that the defendant must reimburse to the applicant the abovementioned amount paid. According to the applicant, Portuguese law should apply in relation to the accident and the obligation to pay compensation, and French law should apply in relation to the rules on the limitation period and the calculation of time limits, as is apparent from Article 19 of the Rome II Regulation. In its defence, the defendant put forward a substantive plea that the claim is time-barred. As regards the merits, it denied many of the facts relating to the accident and claimed that the action should be dismissed.

The national court considers it necessary to decide whether French law is applicable (in accordance with which the limitation period for the right claimed has not expired), or whether, in the alternative, if it is decided to apply Portuguese law, the right has not lapsed either, in view of the date of the last payment to the injured party. In this context, the national court is referring the Court of Justice of the EU the following question for a preliminary ruling:

Is the law applicable to the limitation rules for the right to claim compensation that of the place of the accident (Portuguese law), in accordance with Articles 4(l) and 15(h) of [the Rome II Regulation], or, if the injured party’s place is taken by subrogation, is the ‘law of the third person’ subrogee (French law) applicable in accordance with Article 19 of that Regulation?

The decision will be taken by a chamber of three judges (L.S. Rossi, J.C. Bonichot, O. Spineanu-Matei as reporting judge). The opinion of an advocate general was not requested.