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Presta v VLEP (23 june 2023) illustrates the application of the CEJU’s Gruber Logistics (Case C-152/20, 15 July 2021) by the Dutch Supreme Court. In order to determine the law applicable to an individual employment contract under article 8 Rome I, one must compare the level of protection that would have existed in the absence of a choice of law (in this case, Dutch law) with the level of protection offered by the law chosen by the parties in the contract (in this case, the laws of Luxembourg), thereafter, the law of the country offering the highest level of employee protection should be applied.

 

Facts

Presta is a Luxembourg based company. It employs workers of different nationalities who carry out cross-border work in various EU countries. Their employment contracts contain a choice of Luxembourg law.

From 2012 to 2017, Presta provided employees to Dutch companies working in the meat processing industry. This industry has a compulsory (Dutch) pension fund VLEP. Membership in VLEP and payments to the fund are compulsory for the meat processing industry companies, even for the companies, which are not bound by the collective labour agreement.

According to VLEP, Presta falls within the scope of the compulsory membership in the pension fund. Based on this assertion, VLEP sent payment notices to Presta for the period from 2012 to 2017, but Presta left the invoices unpaid.

Proceedings

In 2016, VLEP obtained a writ of execution against Presta for the payment of €1,779,649.86 for outstanding pension premiums, interest, a fine, and costs. Presta objected, filing a claim before a Dutch court. The first instance court dismissed its claim. Presta appealed, but the appellate court has also dismissed its claims, reasoning as follows.

On the one hand, the employment contracts between Presta and the employees contained a choice of Luxembourg law as referred to in Article 8(1) Rome I. Therefore, Dutch law would apply if the parties had not made a choice of law. On the other hand, the employees ‘habitually’ carried out work in the sense of Article 8(2) Rome I Regulation in the Netherlands. Although some factors assessed pointed to Luxembourg, the court considered that these factors carried insufficient weight to apply Article 8(4) Rome I.

Based on this, the court held that Dutch law would apply if the parties had not made a choice of law, but that the employees should not lose the protection of mandatory Dutch law, including the rules which oblige Presta to pay the pension premiums. The court went on to apply the said Dutch rules and confirmed Presta’s obligations to pay VLEP.

EU freedom of services?

On a side note: noteworthy is that one of Presta’s arguments relied on article 56 Treaty on the Functioning of the European Union (TFEU) on freedom of services. According to Presta, Dutch rules that oblige to participate in VLEP’s pension scheme constituted a restriction on the freedom to provide services, violating article 56 TFEU. The argument was rejected: as the relevant legal provisions cover all employees working in the meat industry in the Netherlands, excluding workers employed by foreign employers would result in an unjustified difference in their treatment.

Cassation based on Gruber Logistics

Back to Presta’s main argument in cassation: Presta filed a cassation claim, invoking the CJEU ruling of 15 July 2021, C-152/20 Gruber Logistics. In that case, the CJEU has ruled that under Article 8 Rome I Regulation, the court must compare the level of protection that would have existed in the absence of a choice of law with the level of protection offered by the law chosen by the parties in an employment contract. The CJEU has thereby dismissed an interpretation of article 8 Rome I, according to which courts need not to compare the two relevant legal systems, but have to apply, next to chosen law, mandatory law of the country where the employee habitually carries out work. According to Presta, lower courts had to compare the level of employees’ protection provided by the Dutch law to the level of protection under the Luxembourg law.

As the lower courts made no such comparison, the Dutch Supreme Court has followed Gruber Logistics. Presta’s cassation claim has been honoured, and the dispute is referred back to a lower court. It shall have to determine whether the Dutch law or the law of Luxembourg offers a higher level of protection and thereafter apply the law to the dispute.

Presta v VLEP offers an illustration of a dispute in which a national court has followed CJEU’s reasoning in Gruber Logistics. Article 8 Rome I, as interpreted by the CJEU, charges national judges or anyone who needs to define applicable law, with a task that is by no means an easy one. It requires to engage with two legal systems:  identify the relevant sets of rules, determine the parameters of comparison, and make the actual comparison, before drawing conclusions in a specific case. This is a proper comparative law exercise. For example, in this case, may the comparison be limited to specific pension payments? May it be extended to a broader range of issues forming in their entirety high level of protection? Answering such questions requires a rigorous method. Given the various existing methods and diverging views on the proper way(s) to conduct a comparative law study, it can also generate new uncertainties. Meanwhile, the task reconfirms the relevance of comparative law for private international law, and has the potential to offer the highest possible tailor-made solutions.

A late note on ClientEarth v Shell Plc & Ors (Re Prima Facie Case) [2023] EWHC 1137 (Ch) in which Trower J refused to give permission to Client Earth (qualitate qua Shell shareholders) to bring a derivative claim in lieu of Shell, against the corporation’s directors.

The breaches alleged in ClientEarth’s claim are said to arise out of the Directors’ acts and omissions relating to Shell’s climate change risk management strategy as described in relevant corporate documentation. It also alleges breaches relating to the Directors’ response to the order made by the Hague District Court in Milieudefensie v Royal Dutch Shell plc which I reviewed here.

[3]:

The reason the legislation imposes an obligation on a shareholder to obtain permission to bring a derivative claim is that such a claim is an exception to one of the most basic principles of company law: it is a matter for a company, acting through its proper constitutional organs, not any one or more of its shareholders, to determine whether or not to pursue a cause of action that may be available to it. ClientEarth must therefore show that the limited and restricted circumstances in which it is appropriate for the court to authorise it, as a shareholder of Shell, to continue a derivative action against the Directors for breach of duty are present.

Current stage of the process is said to provide a filter for “unmeritorious” or “clearly undeserving” cases, with importantly [5] the applicant having to show that its application establishes a prima facie case before a substantive hearing is held. The substantive application for permission is set out in s.263 of CA 2006, as to which:

i) s.263(2) provides that an application for permission must be refused if the court is satisfied (a) that a person acting in accordance with his duty to promote the success of the company would not seek to continue the claim or (b) / (c) that any act or omission from which the cause of action arises has been authorised or ratified by the company before or since it occurred;

ii) s.263(3) makes provisions for a number of discretionary factors which the court must take into account in reaching its decision – they are (a) whether the member concerned is acting in good faith in seeking to continue the claim, (b) the importance which a person acting in accordance with his duty to promote the success of the company would attach to continuing it, (c) / (d) whether any act or omission from which the cause of action arises would be likely to be authorised or ratified by the company, (e) whether the company has decided not to pursue the claim and (f) whether the act or omission in respect of which the claim is brought gives rise to a cause of action that the member could pursue in his own right rather than on behalf of the company; and

iii) the court is also required by section 263(4) of CA 2006 to have particular regard to any evidence before it as to the views of members of the company who have no personal interest, direct or indirect, in the matter.

[14] The duties relied on by ClientEarth include two of the statutory general duties owed by the Directors to the Company pursuant to s.170 of CA 2006: the duty to promote the success of the Company (s.172 of CA 2006) and the duty to exercise reasonable care, skill and diligence (s.174 of CA 2006s).

[16] The duties owed by the Directors are also said to include what are pleaded as six necessary incidents of the statutory duties “when considering climate risk for a company such as Shell”. These are said by ClientEarth to be:

i) a duty to make judgments regarding climate risk that are based upon a reasonable consensus of scientific opinion;

ii) a duty to accord appropriate weight to climate risk;

iii) a duty to implement reasonable measures to mitigate the risks to the long-term financial profitability and resilience of Shell in the transition to a global energy system and economy aligned with the global temperature objective of 1.5°c under the Paris Agreement on Climate Change 2015 (“GTO”);

iv) a duty to adopt strategies which are reasonably likely to meet Shell’s targets to mitigate climate risk;

v) a duty to ensure that the strategies adopted to manage climate risk are reasonably in the control of both existing and future directors; and

vi) a duty to ensure that Shell takes reasonable steps to comply with applicable legal obligations.

[21] ClientEarth is not proposing any specific strategy which it requires the Board to adopt. Instead, it alleges that the Board’s current approach falls outside the range of reasonable responses to climate change risk. [26] ClientEarth needs to show that that the Directors’ current approach falls outside the range of reasonable responses to climate change risk and will cause harm to Shell’s members.

Conflicts lawyers will be interested in the two additional duties which are referred to as the further obligations [22]. They are that, pursuant to the common law of England and Dutch law respectively, a director who is aware of a court order is under a duty to take reasonable steps to ensure that the order is obeyed. This is pleaded as a precursor to ClientEarth’s allegation that Shell has failed to comply with the Dutch Order. Shell argue that there is no recognised duty owed by directors to a company in which they hold office to ensure that they comply with the orders of a foreign court and Trower J agrees there is no such authority:  [23] he holds that

while a director of a company is under a legal obligation to take reasonable steps to ensure that an order made by an English court is obeyed, the case on which ClientEarth relied (Attorney-General for Tuvalu v Philatelic Distribution Corpn [1990] 1 WLR 926 at 936E-F) is not authority for the proposition that there is any such duty owed by the directors to the company itself, which is separate or distinct from the duties they owe to the company as codified in Part 10 Chapter 2 of CA 2006. 

and [24]

the nature and extent of the Directors’ duties to Shell are governed by English law as the law of Shell’s incorporation, as to which the underlying point is the same. There is no established English law duty separate or distinct from the general duties owed by the Directors to Shell under CA 2006, which requires them to take reasonable steps to ensure that the order of a foreign court is obeyed, let alone to ensure compliance with that order. It follows that, even if as a matter of Dutch law, the Directors were to owe duties to Shell to take reasonable steps to ensure that the Dutch Order is obeyed, that would be irrelevant to the claims sought to be made in these proceedings, governed as they are by English law. So far as Shell’s potential claims against the Directors are concerned, the only question is whether their response to the Dutch Order rendered them in breach of an English law duty.

No reference here to anything like mutual trust such as by the Dutch courts in Heirs to the Sultan of Sulu v Malaysia.

[25] the judge refers to Lord Wilberforce in Howard Smith Ltd v Ampol Ltd [1974] AC 821 at 832E/F:  “There is no appeal on merits from management decisions to courts of law: nor will courts of law assume to act as a kind of supervisory board over decisions within the powers of management honestly arrived at.” A classic reminder of merits review v judicial review, in other words.

Then follows a discussion of the evidence (I do not think CPR would have allowed expert evidence at this stage nb so the evidence is provided by in-house-experts) put to the court by ClientEarth and the long and the short of it is the judge’s finding [47] that

“the evidence does not support a prima facie case that there is a universally accepted methodology as to the means by which Shell might be able to achieve the targeted reductions referred to in the ETS. This means that it is very difficult to treat what is said as providing a proper evidential basis for alleging that no reasonable board of Directors could properly conclude that the pathway to achievement is the one they have adopted.”

In the light of Shell’s effective abandonment of climate engagement beyond greenwashing (I realise I am not mincing my words here yet the company’s climate reversal under its new CEO is marketed purposely to attract investors), this is imho a wrong approach to the test. It also underscores the tragedy of climate change’s multi-facetted challenges: because of the extent of the challenge, no singular approach is singlehandedly either efficient or sufficient, yet the opponents of climate action use that as a smokescreen to bedazzle judges with a labyrinth of inaction. Industry’s Merchants of Doubt approach has clearly worked here.

As for the Dutch judgment, the judge is not convinced of the nature of what the judgment really orders, and here, too, CPR rules on evidence seem to have put a spanner in the works (prof Toon van Mierlo’s Opinion not being addressed to the court etc: [53]).

[63] the judge adds obiter that in light of the de minimis extent of ClientEarth’s shareholder interest in Shell, some doubt must be cast on its ulterior rather than derivative interest in the claim. [64]

“it seems to me that where the primary purpose of bringing the claim is an ulterior motive in the form of advancing ClientEarth’s own policy agenda with the consequence that, but for that purpose, the claim would not have been brought at all, it will not have been brought in good faith. The reason for this is that it will be clear to ClientEarth that it is using an exceptional procedure in the form of a derivative action, for a purpose other than the purpose for which the legislation has made it available. If, on the evidence adduced by the applicant, that remains an open and unanswered question irrespective of what Shell might say at the substantive hearing, the court cannot be satisfied that ClientEarth is acting in good faith, a situation which will count strongly against a conclusion that it has established a prima facie case for permission.”

I.a. the judge’s approach [65] of the collateral motive of the shareholder I imagine must be appealable as a point of law.

Geert.

Judgment in Client Earth v #Shell is now here

ClientEarth v Shell Plc & Ors (Re Prima Facie Case) [2023] EWHC 1137 (Ch)https://t.co/vYTtbJgc5T #climatelitigation https://t.co/9RS3k2gNtX

— Geert Van Calster (@GAVClaw) May 17, 2023

Update 6 July 2023 my thoughts on the funding issue are here.

The Heirs of the Sultan of Sulu v Malaysia at the end of June saw both the Paris Court of Appeal declare as inadmissible (due to late introduction) their appeal against the earlier decision suspending the exequatur, in France, of the final arbitral award (issued in Paris as locus arbitri, but under Spanish law as lex arbitrii) granting them close to 15 billion USD in a saga dating back to colonial times, and the Hague courts (also upon appeal) confirm the unenforceability of the same award in The Netherlands.

The latter judgment found that

a Madrid court judgment of 19 June 2021  annulling the appointment of the sole arbitrator has to be recognised in The Netherlands on the basis of the Dutch Supreme Court’s criteria in Gazprom; of note is the court’s confirmation of the issue not being included in CJEU Marc Rich (and see also CJEU Gazprom), however it also [6.7] emphasises that even outside the scope of Brussels Ia, there is mutual trust between the courts of Member States of the EU;

the relevant agreement at issue (confirmed in 1903) did not include an agreement to arbitrate; and

the stay (in the meantime confirmed by the Paris Court of Appeal: see above) in enforcement of the award by the French courts would likely also lead to the annulment of the award.

The heirs may still consider a further appeal to the French Supreme Court and the award itself has not yet been annulled however the case is notorious in international arbitration and, it is suggested, can only have been this long running due to what is said to be inappropriate third party funding.

Geert.

Confirmation of unenforceability of the Heirs of the Sultan of Sulu v Malaysia #arbitration award in The Netherlandshttps://t.co/w3OLK9xVep pic.twitter.com/7wyOdQOJH3

— Geert Van Calster (@GAVClaw) July 4, 2023

Horatia Muir Watt’s latest book has recently been published by Hart in its Hart Monographs in Transnational and International Law, under the title The Law’s Ultimate Frontier: Towards an Ecological Jurisprudence (the subtitle reads A Global Horizon in Private International Law).

Here’s the publisher’s blurb:

This important book offers an ambitious and interdisciplinary vision of how private international law (or the conflict of laws) might serve as a heuristic for re-working our general understandings of legality in directions that respond to ever-deepening global ecological crises. Unusual in legal scholarship, the author borrows (in bricolage mode) from the work of Bruno Latour, alongside indigenous cosmologies, extinction theories and Levinassian phenomenology, to demonstrate why this field’s specific frontier location at the outpost of the law – where it is viewed from the outside as obscure and from the inside as a self-contained normative world – generates its potential power to transform law generally and globally.

Combining pragmatic and pluralist theory with an excavation of ‘shadow’ ecological dimensions of law, the author, a recognised authority within the field as conventionally understood, offers a truly global view. Put simply, it is a generational magnum opus. All international and transnational lawyers, be they in the private or public field, should read this book.

See here for more information. The publisher offers a 20% discount to those buying the book through its website using GLR BE1US for US orders and GLR BE1UK for all other orders.

Thank you Anil Yilmaz, whose reply to a Tweet made me aware of the judgments of end of February in the claim brought by a number of NGOs against Total viz its activities in Uganda. The claim is an ex ante claim brought on the basis of the French statute which introduced the so-called devoir de vigilance or duty of care in the business and human rights sector. It argues that Total’s plan for the Ugandan activities at issue, fail the standard of the Act.

I had earlier flagged the procedural issue in the case and Cédric Helaine has review and links to the judgments here. The court (p.18) notes that the implementing decree which is supposed to detail the requirements of the law, has still not been adopted and that the law itself does not offer a blueprint, a decision tree, a list of indicators, merely indicating that the plan needs to include a ‘reasonable’ list of both pressure points and measures to address these, and that the plan moreover is to be drafted in consultation with stakeholders. In the absence of Government clarification of what this might entail, the court then points out that the reasonable or not character of the plan needs to be assessed by the courts themselves yet (p.20-21) and that a judge in an interlocutory proceeding in particular, can only be asked to discipline those plans which are non-existent, or clearly insufficient (which the judge finds is not the case here), yet cannot be expected to judge the plan’s reasonableness:

S’il entre dans les pouvoirs du juge des référés de délivrer une injonction en application des dispositions susvisées lorsque la société, soumise au régime du devoir de vigilance n’a pas établi de plan de vigilance, ou lorsque le caractère sommaire des rubriques confine à une inexistence  du plan, ou lorsqu’une illicéité manifeste est caractérisée, avec
l’évidence requise en référé, en revanche, il n‘entre pas dans les pouvoirs du juge des référés de procéder à l’appréciation du caractère raisonnable des mesures adoptées par le plan, lorsque cette appréciation nécessite un examen en profondeur des éléments de la cause relevant du pouvoir du seul juge du fond.

The judge concludes that in the case at issue, there is no such obvious shortcoming and that the request therefore is inadmissible given the role of the interlocutory proceedings.

This judgment of course says little on the role of the Act in claims on the merits of duty of care in which Acts such as these play a role (as opposed to claims merely arguing the planning stage is insufficient) however it clearly puts pressure on the French government urgently to produce its more detailed order, and it confirms the need to introduce detail either in these Acts (including in the recently adopted EU Directive) themselves or, swiftly, in executive follow-up. This avoids that judges use trias politica as a way out of having to judge the issues on their merits.

Geert.

Droit de vigilance, #bizhumanrights #mHRDD
French SC in tribunal de conflits role, assigns jurisdiction to civil court of first instance, not the commercial court.
Case may now finally continue on the merits. https://t.co/ERbD6r6Lsm

— Geert Van Calster (@GAVClaw) December 16, 2021

On 30 June 2023, the Supreme Court of Poland issued an interlocutory order (II CSKP 1518/22) in a case regarding the enforcement in Poland of a Dutch judgment.

The order provides fresh evidence of how the long-lasting tensions between Poland and EU with respect to rule of law and independence of judiciary in Poland is having an impact on the operation of EU instruments on judicial cooperation (for a recent analysis of those tensions, see M. Taborowski, P. Filipek, Mustard After Lunch? Polish ‘Muzzle Law” before the Court of Justice, on EULawLive).

The Order in a Nutshell

The order of the Supreme Court was given in the framework of proceedings brought against a ruling rendered by the Court of Appeal of Poznań in 2020 (I ACz 444/20, unreported). The latter ruling had dismissed, in turn, an appeal against a District Court decision regarding the enforceability in Poland of a judgment rendered by the Rechtbank Limburg, in the Netherlands.

According to the Supreme Court’s press release, the order was based on Article 1153(24) of the Polish Code of Civil Procedure. The latter provision deals with recognition and enforcement of judgments given in a Member State of the Union pursuant to EU legislation on judicial cooperation in civil matters.

Little is known, at this stage, about the merits of the case. Rather, the decision is interesting for the way in which the Supreme Court decided to approach the issue of the enforceability of the Dutch judgment in Poland. In fact, the Supreme Court decided to stay the proceeding and ask the Ministry of Justice of Poland and the Dutch Judiciary Council (Raad voor de Rechtspraak) for clarifications regarding the independence of Dutch judicial authorities, in general, and – specifically – the magistrate who handed down the judgment.

Reasons Given by the Supreme Court to Justify the Request for Clarification

The Supreme Court justified its request for clarification by referring to a number of EU primary law provisions. These include Article 2 TEU (“which entrusts the courts of the Member States of the EU with the task of ensuring the full application of  EU law in all its Member States as well as the judicial protection of the subjective rights of individuals, and therefore having regard to the need to verify of its own motion (ex officio) the fulfilment of the requirements of effective judicial protection/effective remedy and the existence in the legislation of the Member State of guarantees of judicial independence”) and Article 47(2) of the Charter of Fundamental Rights of the European Union, which provides the relevant standards for the assessment (“in conjunction with the second subparagraph of Article 19(1) of the TEU, given the imperative for the Supreme Court to follow the interpretation of these provisions made by, inter alia, the Court of Justice”).

The Court also stressed “the principle of consistency and the resulting need for the uniform application of EU law throughout the EU, that is in all Member States and therefore also on the territory of the Kingdom of the Netherlands”.

To corroborate its reasoning, the Supreme Court listed various rulings given by the Court of Justice of the European Union in proceedings against Poland, such as Commission v Poland, C-791/19 and  Commission v Poland, C-204/21, together with rulings concerning the question of independence of judiciary in Poland (A.B. and others, C-824/18).

Nothing in the order or in the press release indicates that the Supreme Court had concerns regarding the independence of the particular Dutch court (or the particular Dutch magistrate) in question, or had reasons to believe that the particular proceedings which resulted in the Dutch judgement were conducted in breach of fundamental procedural guarantees.

Clarification Requested

The Dutch Judiciary Council (Raad voor de Rechtspraak) was asked to provide, inter alia, “copies of documents supporting and relating to the procedure for the appointment of X.Y. [anonymized name of the Dutch magistrate of the judge of the Rechtbank Limburg]”, in particular as regards:

(a) the procedure for his appointment, indicating the competent bodies involved in the appointment procedure, their composition and the functions performed by their members, including an indication of the extent, if any, of the influence of legislative or executive representatives on the judicial appointment, and a copy of the appointment document, a copy of the application for appointment and the opinions, if any, on the candidacy of X.Y. for the office of judge,

(b) information about the competition for the office of judge at the Rechtbank Limburg in which X.Y. participated as a candidate, the number of competing other candidates for the judicial post to which X.Y. was appointed at the Rechtbank Limburg, and the appeal procedure, if any, for candidates who were not recommended by the competent authorities and were not appointed, as well as the evaluation criteria, if any,

(c) assessments of Judge X.Y.’s performance during his judicial service (also possibly prior to his appointment as a judge at the Rechtbank Limburg, if he has held office at another court) and any judicial, investigative or disciplinary proceedings pending against him, or allegations concerning the assessment of his independence and attitude in the performance of his judicial duties and outside his judicial service (insofar as this remains relevant)

(d) any activities of Judge X.Y. of a political nature, including political party affiliation, irrespective of its duration and employment in the legislative or executive branches of government …

The Ministry of Justice of Poland was asked, instead, to provide information, among other things, on the Dutch rules that govern, in relation to the judiciary:

(a) the procedure for nomination to the office of judge considering the constitutional and statutory standard of the Kingdom of the Netherlands and resulting from the case law of the CJEU (…), including the standards in force in this respect in the period before 2019 and currently, with particular regard to the transparency of the criteria and the conduct of the procedure,

(b) the influence of the legislative or executive power on the procedure for the nomination of judges of common courts in the Netherlands and its scope, with particular reference to the Raad voor de Rechtspraak (Council for the Judiciary) and the formal binding nature of its recommendations (opinions) on candidates for the office of judge, and, possibly, disciplinary or other proceedings concerning the disciplinary or criminal liability of a judge,

(c) the avenue of appeal for candidates not appointed to the office of judge,

(d) the composition and method of election of members of the Raad voor de Rechtspraak …

We are pleased to present the newest Commentaries on Private International Law (Vol. 6, Issue 1), the newsletter of the American Society of International Law (ASIL) Private International Law Interest Group (PILIG). The primary purpose of our newsletter is to communicate global news on PIL. Accordingly, the newsletter attempts to transmit information on new developments on PIL rather than provide substantive analysis, in a non-exclusive manner, with a view of providing specific and concise information that our readers can use in their daily work. These updates on developments on PIL may include information on new laws, rules and regulations; new judicial and arbitral decisions; new treaties and conventions; new scholarly work; new conferences; proposed new pieces of legislation; and the like.

This issue has two sections. Section one contains Highlights on the application of the CISG in Latin American countries, and PIL and the protection of children. Section two reports on the recent developments on PIL in Africa, Asia, Europe, North America, Oceania, and South America.

 

The latest PILIG newsletter can be accessed here Summer 2023 ASIL Newsletter

The University of Kiel will host a conference on EU Insolvency Law and Third Countries: Which Way(s) Forward? on 26-28 October 2023. A special forum for young scholars is scheduled to take place on 26 October 2023 .

The conference is part of a coordinated research project on this topic endorsed by Uncitral and conducted in cooperation with representatives of the European Commission and the Hague Conference on Private International Law.

The goal of the conference, and of the underlying research project in general, is not so much to analyse the law as it stands today, but to discuss ideas how to further develop rules on coordination of EU insolvency law with insolvency law or insolvency proceedings in non-EU countries (e.g. the UK, Switzerland, the US, China and others).

The conference will be organized in a hybrid format, in presence in Kiel and online via Zoom. The deadline for registrations for the conference is 1 October 2023. The deadline to propose papers for oral presentations is 31 July (15 September for the Young Researchers Forum).

Further info on the project and the conference is available here.

Queries can be addressed to the organisers of the conference, Alexander Trunk and Jasnica Garašić, at office-eastlaw@law.uni-kiel.de or at intins@law.uni-kiel.de.

On 30 June 2023, the European Commission presented a proposal for a Council decision on the signing, on behalf of the European Union, of the United Nations Convention on the International Effects of Judicial Sales of Ships, adopted on 7 December 2022, also known as the Beijing Convention on the Judicial Sale of Ships.

The Convention sets out a uniform regime for giving effect to judicial sales internationally, while preserving domestic law governing the procedure of judicial sales and the circumstances in which judicial sales confer clean title, that is, title free and clear of any mortgage or charge. By ensuring legal certainty as to the title that the purchaser acquires in the ship, the Convention aims to maximize the price that the ship is able to attract in the market and the proceeds available for distribution among creditors, and to promote international trade.

The key rule of the Convention is that a judicial sale  in one State Party which has the effect of conferring clean title on the purchaser has the same effect in every other State Party, subject only to a public policy exception. Various provisions are found in the Convention which establish how a judicial sale is given effect after completion, including a requirement that the ship registry deregister the ship or transfer registration at the request of the purchaser, and a prohibition on arresting the ship for a claim arising from a pre-existing right or interest (i.e. a right or interest extinguished by the sale). To support the operation of the regime and to safeguard the rights of parties with an interest in the ship, the Convention provides for the issuance of two instruments: a notice of judicial sale and a certificate of judicial sale. It also establishes an online repository of those instruments which is freely accessible to any interested person or entity.

The Council decision that the Commission proposing is based on Article 81(2)(a) and (b) of the Treaty in the Functioning of the European Union, on the recognition and enforcement of judgments and the cross-border service of documents, in conjunction with Article 218(5) (concerning the conclusion of international agreements by the Union). In fact, some of the matters dealt with in the Beijing Convention affect the Brussels I bis Regulation and the Recast Service Regulation. The conclusion of the Convention comes, for those aspects, with the purview of the exclusive external competence of the Union.

The other matters covered by the Convention do not fall under that competence (the Convention includes provisions that deals with other issues of private international law, including jurisdiction, but they do not affect the operation of existing EU legislation). This means that that Member States should join the Convention alongside the Union, in order to ensure the full application of the Convention between the Union and third states.

Before the judicial holiday starting mid July the Court will deliver (as of today) decisions on two private international law cases and hold a hearing on another one.

The first decision is scheduled for on 6 July 2023. It corresponds to case C-462/22, BM, on a request from the German Bundesgerichtshof for a preliminary ruling on the interpretation of Article 3(1)(a) of the Brussels II bis Regulation on matrimonial matters and matters of parental responsibility. The question reads:

Does the waiting period of one year or six months under the fifth and sixth indents, respectively, of Article 3(1)(a) of the [Brussels II bis Regulation] begin to run with respect to the applicant only upon establishment of his or her habitual residence in the Member State of the court seised, or is it sufficient if, at the beginning of the relevant waiting period, the applicant initially has mere de facto residence in the Member State of the court seised, and his or her residence becomes established as habitual residence only subsequently, in the period before the application was made?

The proceedings concern the divorce of an individual of German nationality, and his wife, who is a Polish national. They married in Poland in 2000, and have twin sons born in 2003. The couple moved to Poland in the mid-2000s, into a house in Konstancin-Jeziorna in which the wife still lives today. They are also the joint owners of a dwelling in Warsaw.

The husband was a senior executive of a pharmaceutical manufacturer. Since April 2010, he has been employed as managing director for the Central Europe region, which includes Poland and the Netherlands, but not Germany. His activity is largely characterised by business trips and working from home. He resided on an occasional basis until the end of 2013 in the Netherlands; he also has a self-contained dwelling in a house occupied by his parents, in Hamm (Germany). He moved out of the house in Poland in June 2012, and since then, he has deepened his relationship with his new cohabiting partner in Hamm and has been caring for his sick parents. During his stays in Poland, which were always tied in with business trips, he was limited to having contact with his two sons.

On 27 October 2013, the husband filed a divorce application with the Amtsgericht Hamm (District Court, Hamm) submitting that his habitual residence had been there since mid-2012 at the latest.

The wife challenged the international jurisdiction of the German courts claiming that the husband did not move out of the house in Konstancin-Jeziorna until the beginning of April 2013, then lived in the jointly owned dwelling in Warsaw, and resided almost exclusively in the Netherlands or Poland between April and November 2013.

On 19 November 2013, she filed her own divorce application in Poland, with the Sad Okręgowy w Warszawie (Regional Court, Warsaw).

The Amtsgericht Hamm (District Court, Hamm) considered that the German courts lack international jurisdiction, and it dismissed the husband’s application as inadmissible. On appeal, the Oberlandesgericht (Higher Regional Court) held that according to the fifth and sixth indents of Article 3(1)(a) of the Brussels II bis Regulation, an applicant must have already established his or her habitual residence in the Member State of the court six months (or, respectively, one year) before the filing of the divorce application. A mere de facto residence in the Member State of the court is not sufficient for the commencement of the waiting period. The husband contests this interpretation.

L.S. Rossi is reporting judge; the decision will be taken by a chamber of five judges.

The second ruling, in case C-87/22, TT, also concerns the Brussels II bis Regulation. It is scheduled for Thursday 13. The referring court – the Regional Court Korneuburg (Austria) – asks the following:

1. Must Article 15 of [the Brussels II bis Regulation] be interpreted as meaning that the courts of a Member State having jurisdiction as to the substance of the matter, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, may request such a court to assume jurisdiction even in the case where that other Member State has become the place of habitual residence of the child following wrongful removal?

2. If Question 1 is answered in the affirmative, must Article 15 of [the Brussels II bis Regulation] be interpreted as meaning that the criteria for the transfer of jurisdiction that are set out in that article are regulated exhaustively, without the need to consider further criteria in the light of proceedings initiated under Article 8(f) of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction?

I summarized the facts of the case here. AG P. Pikamäe’s opinion was published in March. No English translation is available. He proposed the Court to answer that (my translation):

1. Article 15 of [the Brussels II bis Regulation] must be interpreted in the sense that, pursuant to Article 15(1)(b) of the Regulation, the court of a Member State, whose jurisdiction to rule on the custody of a minor is based on Article 10 of that Regulation, as the court of the Member State in which that minor had his habitual residence immediately before his wrongful removal, is empowered to request, exceptionally, the court of the Member State to which one of the parents wrongfully transferred the minor and in which he resides with him to exercise jurisdiction, provided it has duly ascertained, in view of the specific circumstances of the case, that the referral meets the three cumulative requirements established in Article 15 (1) of the same Regulation, among which the essential one that the referral responds to the best interests of the minor in question.

2. Article 15(1) of [the Brussels II bis Regulation] must be interpreted in the sense that, on the one hand, the requirements provided for in said provision are exhaustive and, on the other, the existence of a request for the return of a minor filed pursuant to article 8, first and third paragraphs, letter f), of the Convention on civil matters of international child abduction, made in The Hague on October 25, 1980, on which a final resolution has not yet been adopted, does not preclude the applicability of article 15 of said Regulation. However, the existence of such a claim for restitution is a factual circumstance that may be taken into account by the competent court when assessing the requirements, provided for in Article 15 (1), of the aforementioned Regulation, relating to the existence of a court better placed to hear the matter and to respect the best interests of the minor in case of referral to the court of another Member State with which the minor has a special relationship.

L.S. Rossi acts as reporting judge in a chamber of five judges (the same as in case C-462/22).

Finally, a hearing is taking place on Thursday 13 as well, in case C-394/22, Oilchart International, on the Brussels I bis Regulation and insolvency. The ruling has been requested by the Hof van beroep te Antwerpen (Court of Appeal Antwerp, Belgium). The underlying facts are the following. OW Bunker (Netherlands) BV (‘OWB NL’) is one of the companies of the Danish OWB Group. On the instructions of OWB NL, Oilchart International NV appellant supplied fuel to the ocean-going vessel Ms Evita K in the port of Sluiskil (the Netherlands), and issued an invoice  which remained unpaid due to the insolvency of OWB NL.

As Oilchart International NV, following the insolvency of OWB NL, had had a number of vessels attached in an effort to obtain payment for the fuel supplied, he had obtained bank guarantees from the ship owners concerned in order to effect a release of that attachment. Those guarantees provided that they could be invoked on the basis of ‘a court ruling or an arbitral award handed down in Belgium against either OWB NL’ or the ship owner.

It is alleged that, prior to the insolvency, ING Bank NV (‘ING’), together with others, had granted a loan. As security, the various entities of the OWB group, including OWB NL, had allegedly assigned their current and future claims on end customers to ING. ING intervened in the proceedings and sought to prohibit the invocation of the bank guarantees or other securities relating to the bunkered vessel before the conclusion of the insolvency proceedings relating to OWB NL.

The court at first instance declared the appellant’s claim against OWB NL inadmissible. With regard to ING’s claim, the court declared that it lacked international jurisdiction. On appeal, the referring court finds that, by not entering an appearance on the first day of the hearing, as was the case at first instance, the respondent OWB NL is deemed to have challenged the court’s international jurisdiction under Article 28(1) of the Brussels I bis Regulation.

The referring court asks:

(a) Must Article 1(2)(b) of the [Brussels I bis Regulation] in conjunction with Article 3(1) of the Insolvency Regulation (Regulation No 1346/2000) be interpreted as meaning that the term ‘bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings’ in Article 1(2)(b) of the Brussels Ia Regulation includes also proceedings in which the claim is described in the summons as a pure trade receivable, without any mention of the respondent’s previously declared bankruptcy, whereas the actual legal basis of that claim is the specific derogating provisions of Netherlands bankruptcy law (Article 25(2) of the Wet van 30 september 1893, op het faillissement en de surséance van betaling (Law of 30 September 1893 on bankruptcy and suspension of payment; ‘NFW’)) and whereby: it must be determined whether such a claim must be considered a verifiable claim (Article 26 NFW in conjunction with Article 110 thereof) or an unverifiable claim (Article 25(2) NFW); it appears that the question whether both claims can be brought simultaneously and whether one claim does not appear to exclude the other, taking into account the specific legal consequences of each of those claims (inter alia, in terms of the possibilities of calling for a bank guarantee deferred after the bankruptcy), may be determined in accordance with the rules specific to Netherlands bankruptcy law?

And further

(b) Can the provisions of Article 25(2) [NFW] be regarded as compatible with Article 3(1) of the Insolvency Regulation, in so far as that legislative provision would allow such a claim (Article 25(2) NFW) to be brought before the court of another Member State instead of before the insolvency court of the Member State in which the bankruptcy was declared?

The case has been allocated to a chamber of five judges, with F. Biltgen as reporting judge. It will be accompanied by an opinion by AG L. Medina.

Conventions & Instruments

On 23 June 2023, Paraguay deposited its instrument of accession to the 1965 Service Convention and the 1970 Evidence Convention. With the accession of Paraguay, the 1965 Service Convention now has 82 Contracting Parties. It will enter into force for Paraguay on 1 January 2024 subject to the Article 28 procedure. As for the 1970 Evidence Convention, with the accession of Paraguay it now has 66 Contracting Parties. It will enter into force for Paraguay on 22 August 2023. More information is available here.

 

Publications & Documentation

On 6 June 2023, the Permanent Bureau of the HCCH announced the publication of the Toolkit for Preventing and Addressing Illicit Practices in Intercountry Adoption. The Toolkit is intended to assist in the proper implementation and operation of the 1993 Adoption Convention, by providing practical guidelines on what must be done to identify, prevent, and address illicit practices and their enabling factors. More information is available here.

On 21 June 2023, the Permanent Bureau of the HCCH announced the publication of the HCCH’s Strategic Plan for 2023-2028. The Strategic Plan 2023-2028 outlines the mandate and mission of the HCCH, sets out the three strategic goals pursued by the Organisation to fulfil them, and enshrines the guiding principles behind all aspects of the HCCH’s operations. More information is available here.

 

Meetings & Events

On 9 and 10 June 2023, the Permanent Bureau of the HCCH and the University of Bonn, with the generous support of the Federal Ministry of Justice of Germany, successfully co-organised the Conference “The HCCH 2019 Judgments Convention: Cornerstones – Prospects – Outlook”, in Bonn, Germany. A book on the 2019 Judgments Convention was published in the lead up to the conference. The book can be ordered here.

On 12 June 2023, the kick-off meeting of the HCCH-UNIDROIT Joint Project on Law Applicable to Cross-Border Holdings and Transfers of Digital Assets and Tokens was held in The Hague in hybrid format. The Joint Project will examine the desirability of developing coordinated guidance and the feasibility of a normative framework on the law applicable to cross-border holdings and transfers of digital assets and tokens, covering relevant private law aspects. More information is available here.

On 15 June, the Permanent Bureau of the HCCH organised a conference on “The HCCH and its relevance for Africa” for Ambassadors of African States to the Kingdom of the Netherlands, with the generous support of the Municipality of The Hague.

On 27 June 2027, the Permanent Bureau of the HCCH and the Asian Business Law Institute co-hosted the webinar “Cross-border Commercial Dispute Resolution – HCCH 1965 Service Convention”. Among other topics, the discussion focused on the Service Convention’s interaction with other HCCH Conventions for cross-border dispute resolution, the Convention’s operation in practice, and Singapore’s accession to the Convention.

From 26 to 28 June 2023, the Working Group on the Financial Aspects of Intercountry Adoption met for the first time. The mandate of the Working Group is to take stock of current practices, identify possible coordinated, targeted, practical approaches, and to prioritise them with the aim of raising standards. More information is available here.

 

Upcoming Events

Save-the-date: On 5 October 2023, the Permanent Bureau of the HCCH will organise an online colloquium on the private international law implications of Central Bank Digital Currencies (CBDCs). More information will be available soon.

 

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

The readers of the blog are aware of the European Commission proposal for a Regulation on the digitalisation of judicial cooperation and access to justice in cross-border civil, commercial and criminal matters and, and the associated proposal for a Directive amending several existing directives with a view to improving digitalisation and ensuring secure, reliable and time-efficient communication between courts and competent authorities.

Presented in December 2021, the two proposals aim to ensure access to justice in the EU including in the events of force majeure, such as pandemics, and adapt judicial cooperation between Member States for such situations.

On 28 June 2023, Parliament and Council negotiators reached an agreement on the use of digital technology in the judicial cooperation among Member States. Negotiators of the Legal Affairs Committee (JURI) and the Committee on Civil Liberties, Justice and Home Affairs (LIBE) agreed with Council negotiators on its future shape. The agreement, once formally approved by the Council, will be confirmed by a vote in the European Parliament.

The Parliament press note, which provides few details, highlights two aspects: one relating to electronic documents and videoconferencing, the other regarding inclusive digitalisation.

In relation to electronic documents and videoconferencing, the proposed legislation enables the use of digital technology for exchange of information, documents, payments of fees and videoconferencing. Communication between citizens, companies and national authorities would be ensured by an IT system, created and maintained by the European Commission and financed through the Digital Europe Programme with an access point in each Member State. The European e-Justice portal will provide information to individuals and companies on their rights and the European electronic access point will enable their direct communication with authorities.

Inclusive digitalisation refers to efforts to ensure that digitalisation does not lead to exclusion and is implemented in a way to ensure right to a fair trial for everyone. Equivalent access for people with disabilities is also stressed.

The Council press note specifies that the new rules, once adopted, will improve cross-border judicial procedures by:
-allowing parties and other relevant persons in civil, commercial and criminal hearings to participate by means of videoconferencing or other distance communication technology;
-establishing a European electronic access point through which natural and legal persons can file claims, send and receive relevant information, and communicate with the competent authorities;
-accepting electronic communication and documents from natural and legal persons;
-recognising documents with electronic signatures or seals;
-promoting the payment of fees through electronic means.

Negotiators further agreed on the need for additional training for justice professionals when it comes to the use of digital tools such as videoconferencing and the IT system and encouraged Member States to share their best practices on the use of digital tools.

On behalf of our former editor Brooke Marshall, we are happy to share the invitation to the UNSW Law & Justice Book Forum, which will host the launch of her book on Asymmetric Jurisdiction Clauses.

The event will feature the following speakers:

• Professor Mary Keyes, Director of the Law Futures Centre; Professor, Griffith Law School, Griffith University
• Professor Caroline Kleiner, Professor, Centre for Business Law and Management (CEDAG), Faculty of Law, Université Paris Cité, Paris, France
• Chaired by Professor Justine Nolan, Director, Australian Human Rights Institute; Professor, UNSW Faculty of Law & Justice

It will take place in a hybrid setting on Wednesday, 5 July, at 4:30pm AEST = 8:30am CEST = 7:30am BST. You may register using this link.

Should a foreign judgment entail in the requested State the res judicata effect that it has in the country of origin? Or should one rather substitute the foreign procedural effects of the judgment to fit with the law of the country where recognition is sought?

This issue was put to the test for the Court of Justice of the European Union (CJEU) in its judgment of 8 June 2023 in the French-English employment law matter BNP Paribas v. TR, C-567/21.

Claiming unfair dismissal, an employee first filed a lawsuit in England. After having been successful there, the employee claimed further compensation for the same dismissal in French courts. According to the CJEU’s judgment, the extent of res judicata under the Brussels I Regulation shall follow the country of origin of the judgment. However, not all national procedural rules can be characterised as res judicata rules with international effect. Only rules concerning the ‘authority and effectiveness’ can have international res judicata effect according to the CJEU’s judgment.

In previous posts for this blog, Fabienne Jault-Seseke has reported on the questions referred to by the CJEU and criticised the opinion of Advocate General Priit Pikamäe. François Mailhé has also written in this blog about a parallel French Cour de Cassation case where questions regarding res judicata were referred to the CJEU. That case (Recamier v. BR, C-707/21) is still pending before the CJEU. As the discussion of res judicata in EU private international law can easily be deepened, the following post will focus on the judgment of the CJEU in the BNP Paribas case only.

Facts

In 1998, the French bank BNP Paribas hired an employee to work for the bank in London. That employment contract was governed by English law. In 2009, the parties entered a new employment contract to regulate the secondment of the employee to Singapore. The new employment contract was governed by French law. After a little more than a year in Singapore, the employee was relocated back to London. The relocation was regulated with an amendment to the French employment contract.

A few years after the return to London, the employee was dismissed for serious misconduct that had taken place during his secondment to Singapore. The dismissal was challenged by the employee, who brought an action in an English court claiming compensation for unfair dismissal. In its judgment, the English court held that the claim was well founded. In the English judgment, it was clear that the employer had taken disciplinary measures based on French law. Under English law, which was agreed to be applied by the parties in the case, those measures were unlawful. Consequently, the bank was ordered to pay a compensatory award of GBP 81,175.

Two months after the English judgment was delivered, the employee initiated new legal proceedings against the bank demanding additional compensation for the same dismissal that the English court had based its judgment on. The new lawsuit was filed in a French labour court. With reference to res judicata due to the English judgment, the French labour court held that the claims were inadmissible. This decision was appealed and the French court of appeal came to a different conclusion. Holding that the claim settled by the English court was limited in scope, the French court of appeal stated that the claims made in France were not precluded on the grounds of res judicata. Even if res judicata generally means that a legally settled matter is precluded and cannot be litigated again, there are different understandings of the concept in different jurisdictions. As the case was brought to the French Supreme Court (Cour de Cassation), the private international law issue of the law applicable to res judicata was referred to the CJEU for a preliminary ruling.

Judgment

First, the CJEU held that the old 2001 Brussels I Regulation (44/2001) was applicable in the case, as the English judgment was given in a legal proceeding instituted before 10 January 2015. According to the transitional provisions in article 66(2) of the Brussels I bis Regulation (1215/2012), it is that date that is decisive in the application of the two regulations.

As regards judgments delivered in other member states, the main principle of the Brussels I Regulation is that such judgments shall be recognised and enforced in all other member states. However, as the CJEU noted in its judgment, the notion of ‘recognition’ is not defined in the regulation. Recognition of judgments in the EU rests on the principle of mutual trust. Therefore, a judgment from another member state may not be reviewed in substance. With reference to this line of purposive and systematic argumentation, as well as to the fact that the explanatory report from 1979 (the Jenard report) explicitly stated that judgments shall have the ‘authority and effectiveness accorded to them in the State in which they were given’, the CJEU held that it is the law in the country of origin of the judgment that determines the extent of res judicata.

Even if it is the law in the country of origin of the judgment that determines the extent of res judicata, the CJEU noted in its judgment that national procedural rules must be classified (characterised) as res judicata rules for this choice of law rule to be applicable. In the case at hand, the issue was whether an English procedural rule that required the parties to centralise all their claims relating to the same legal relationship to a single procedure was a res judicata rule with an inadmissibility effect for the subsequent French procedure. In its judgment, the CJEU stated that one must – as a legal test of whether a national procedural rule is a res judicata rule – assess whether the national procedural rule ‘concerns the authority and effectiveness’ of the judgment (para. 49). Using this legal test, the CJEU held that the English rule on centralisation of claims served the interest of sound administration of justice rather than being intended to govern the authority and effectiveness of a judgment. Therefore, the English rule was not considered to be a res judicata rule that should have any inadmissibility effect for the subsequent French procedure.

Analysis

By its judgment, the CJEU has confirmed that res judicata follows the law of the country where the judgment was delivered. This is the same principle as delivered already in Hoffman, 145/86. It is not the choice of law rule that is new in the BNP Paribas case, but the characterisation methodology that the CJEU seems to embrace. What is special to characterisation in private international law is that the issue itself contains a choice of law problem.

Traditionally, a legal notion should either follow the law where the issue arose (lex causae) or the law of the forum (lex fori). In setting an autonomous legal test for what national procedural rules can be characterised as res judicata rules, the CJEU has chosen a lex fori approach to the issue of characterisation for determining what aspects of res judicata that follow from the country of origin. Ultimately, this approach will improve foreseeability and harmonisation.

However, until the framework of the notion is known, it may be hard to assess what really is a national procedural rule that has international res judicata effect. Perhaps further guidance will be given already in the forthcoming Recamier case mentioned above.

A big thank you to those among the members of the European Association of Private International Law – actually, the vast majority of members – who have already paid their fees for 2023!

And a kind request to the others: please take a moment to pay your fees, too!

The amount is reasonable and has remained unchanged since the Association was set up. You may pay by bank transfer, or use PayPal. The details are available here.

Don’t forget that, according to the Statutes of the Association, membership begins upon admission and only ends by termination on the part of the member concerned. Put in another way, once you have become a member, you retain that status (and are expected to pay your fees) until you let us know you do not wish to stay with us any longer.

Thank you!

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

(These abstracts can also be found at the IPRax-website under the following link: https://www.iprax.de/en/contents/)

 

B. Heiderhoff: Care Proceedings under Brussels IIter – Mantras, Compromises and Hopes

Against the background of the considerable extension of the text of the regulation, the author asks whether this has also led to significant improvements. Concerning jurisdiction, the “best interests of the child” formula is used a lot, while the actual changes are rather limited and the necessary compromises have led to some questions of doubt. This also applies to the extended possibility of choice of court agreements, for which it is still unclear whether exclusive prorogation is possible beyond the cases named in Article 10 section 4 of the Brussels II ter Regulation. Concerning recognition and enforcement, the changes are more significant. The author shows that although it is good that more room has been created for the protection of the best interests of the child in the specific case, the changes bear the risk of prolonging the court proceedings. Only if the rules are interpreted with a sense of proportion the desired improvements can be achieved. All in all, there are many issues where one must hope for reasonable clarifications by the ECJ

 

G. Ricciardi: The practical operation of the 2007 Hague Protocol on the law applicable to maintenance obligations

Almost two years late due to the COVID-19 pandemic, in May 2022 over 200 delegates representing Members of the Hague Conference on Private International Law, Contracting Parties of the Hague Conventions as well as Observers met for the First Meeting of the Special Commission to review the practical operation of the 2007 Child Support Convention and the 2007 Hague Protocol on Applicable Law. The author focuses on this latter instrument and analyses the difficulties encountered by the Member States in the practical operation of the Hague Protocol, more than ten years after it entered into force at the European Union level. Particular attention is given to the Conclusions and Recommendations of the Applicable Law Working Group, unanimously adopted by the Special Commission which, in light of the challenges encountered in the implementation of the Hague Protocol, provide guidance on the practical operation of this instrument.

 

R. Freitag: More Freedom of Choice in Private International Law on the Name of a Person!

Remarks on the Draft Bill of the German Ministry of Justice on a Reform of German Legislation on the Name of a PersonThe German Ministry of Justice recently published a proposal for a profound reform of German substantive law on the name of a person, which is accompanied by an annex in the form of a separate draft bill aiming at modernizing the relevant conflict of law-rules. An adoption of this bill would bring about a fundamental and overdue liberalization of German law: Current legislation subjects the name to the law of its (most relevant) nationality and only allows for a choice of law by persons with multiple nationalities (they max designate the law of another of their nationalities). In contrast, the proposed rule will order the application of the law of the habitual residence and the law of the nationality will only be relevant if the person so chooses. The following remarks shall give an overview over the proposed rules and will provide an analysis of their positive aspects as well as of some shortcomings.

 

D. Coester-Waltjen: Non-Recognition of “Child Marriages“ Concluded Abroad and Constitutional Standards

The Federal Supreme Court raised the question on the constitutionality of one provision of the new law concerning “child marriages” enacted by the German legislator in 2017. The respective rule invalidated marriages contracted validly according to the national law of the intended spouses if one of them was younger than 16 years of age (Art. 13 ss 3 no 1 EGBGB). The Federal Supreme Court requested a ruling of the Federal Constitutional Court on this issue in November 2018. It took the Federal Constitutional Court nearly five years to answer this question.

The court defines the structural elements principally necessary to attain the constitutional protection of Art. 6 ss 1 Basic Law. The court focuses on the free and independent will of the intended spouses as an indispensable structural element. The court doubts whether, in general, young persons below the age of 16 can form such a free and independent will regarding the formation of marriage. However, as there might be exceptionally mature persons, the protective shield of Art. 6 ss 1 Basic Law is affected (paragraphs 122 ff.) and their “marriage” falls under the protective umbrella of the constitution. At the same time, the requirement of a free and meaning ful will to form a marriage complies with the structural elements of the constitutionally protected marriage. This opens the door for the court to examine whether the restriction on formation of marriage is legitimate and proportionate.

After elaborating on the legitimacy of the goal (especially prevention and proscription of child marriages worldwide) the court finds that the restriction on the right to marry is appropriate and necessary, because comparable effective other means are missing. However, as the German law does not provide for any consequence from the relationship formed lawfully under the respective law and being still a subsisting marital community, the rule is not proportionate. In addition, the court demurs that the law does not provide for transformation into a valid marriage after the time the minor attains majority and wants to stay in this relationship. In so far, Art. 13 ss 3 no 1 affects unconstitutionally Art. 6 ss 1 Basic Law. The rule therefore has to be reformed with regard to those appeals but will remain in force until the legislator remedies those defects, but not later than June 30, 2024.

Beside the constitutional issues, the reasoning of the court raises many questions on aspects of private international law. The following article focuses on the impact of this decision.

 

O.L. Knöfel: Discover Something New: Obtaining Evidence in Germany for Use in US Discovery Proceedings

The article reviews a decision of the Bavarian Higher Regional Court (101 VA 130/20), dealing with the question whether a letter rogatory for the purpose of obtaining evidence for pre-trial discovery proceedings in the United States District Court for the District of Delaware can be executed in Germany. The Court answered this question in the affirmative. The author analyses the background of the decision and discusses its consequences for the long-standing conflict of procedural laws ( Justizkonflikt) between the United States and Germany. The article sheds some light on the newly fashioned sec. 14 of the German Law on the Hague Evidence Convention of 2022 (HBÜ Ausführungsgesetz), which requires a person to produce particular documents specified in the letter of request, which are in his or her possession, provided that such a request is compatible with the fundamental principles of German law and that the General Data Protection Regulation of 2018 (GDPR) is observed.

 

W. Wurmnest/C. Waterkotte: Provisional injunctions under unfair competition law

The Higher Regional Court of Hamburg addressed the delimitation between Art. 7(1) and (2) of the Brussels Ibis Regulation after Wikingerhof v. Book ing.com and held that a dispute based on unfair competition law relating to the termination of an account for an online publishing platform is a contractual dispute under Art. 7(1) of the Brussels Ibis Regulation. More importantly, the court considered the requirement of a “real connecting link” in the context of Art. 35 of the Brussels Ibis Regulation. The court ruled that in unfair competition law disputes of contractual nature the establishment of such a link must be based on the content of the measure sought, not merely its effects. The judgment shows that for decisions on provisional injunctions the contours of the “real connecting link” have still not been conclusively clarified.

 

I. Bach/M. Nißle: The role of the last joint habitual residence on post-marital maintenance obligations

For child maintenance proceedings where one of the parties is domiciled abroad, Article 5 of the EuUnterhVO regulates the – international and local – jurisdiction based on the appearance of the defendant. According to its wording, the provision does not require the court to have previously informed the defendant of the possibility to contest the jurisdiction and the consequences of proceeding without contest – even if the defendant is the dependent minor child. Article 5 of the EuUnterhVO thus not only dispenses with the protection of the structurally weaker party that is usually granted under procedural law by means of a judicial duty to inform (such as Article 26(2) EuGVVO), but is in contradiction even with the other provisions of the EuUnterhVO, which are designed to achieve the greatest possible protection for the minor dependent child. This contradiction could already be resolved, at least to some extent, by a teleological interpretation of Article 5 of the EuUnterhVO, according to which international jurisdiction cannot in any case be established by the appearance of the defendant without prior judicial reference. However, in view of the unambiguous wording of the provision and the lesser negative consequences for the minor of submitting to a local jurisdiction, Article 5 of the EuUnterhVO should apply without restriction in the context of local jurisdiction. De lege ferenda, a positioning of the European legislator is still desirable at this point.

 

C. Krapfl: The end of US discovery pursuant to Section 1782 in support of international arbitration

The US Supreme Court held on 13 June 2022 that discovery in the United States pursuant to 28 U.S.C. § 1782 (a) – which authorizes a district court to order the production of evidence “for use in a proceeding in a foreign or international tribunal” – only applies in cases where the tribunal is a governmental or intergovernmental adjudicative body. Therefore, applications under Section 1782 are not possible in support of a private international commercial arbitration, taking place for example under the Rules of the German Arbitration Institute (DIS). Section 1782 also is not applicable in support of an ad hoc arbitration initiated by an investor on the basis of a standing arbitration invitation in a bilateral investment treaty. This restrictive reading of Section 1782 is a welcome end to a long-standing circuit split among courts in the United States.

 

L. Hübner/M. Lieberknecht: The Okpabi case — Has Human Rights Litigation in England reached its Zenith

In its Okpabi decision, the UK Supreme Court continues the approach it developed in the Vedanta case regarding the liability of parent companies for human rights infringements committed by their subsidiaries. While the decision is formally a procedural one, its most striking passages address substantive tort law. According to Okpabi, parent companies are subject to a duty of care towards third parties if they factually control the subsidiary’s activities or publicly convey the impression that they do. While this decision reinforces the comparatively robust protection English tort law affords to victims of human rights violations perpetrated by corporate actors, the changes to the English law of jurisdiction in the wake of Brexit could make it substantially more challenging to bring human rights suits before English courts in the future.

 

Notifications:

H. Kronke: Obituary on Jürgen Basedow (1949–2023)

C. Rüsing: Dialogue International Family Law on April 28 and 29, 2023, Münster

The latest issue of the RabelsZ (Rabels Zeitschrift für ausländisches und internationales Privatrecht) has been published. As always, it contains a number of insightful articles, this time also many in English language. Here are the authors, titles and abstracts:

Eva-Maria Kieninger, Ralf Michaels, Jürgen Basedow * 29.9.1949 † 6.4.2023

Felix Berner, Implizite Qualifikationsvorgaben im europäischen Kollisionsrecht (Implicit Characterization in European Conflict of Laws)

Most German scholars assume that problems of characterization in European choice of law are to be resolved by means of functional characterization. This essay challenges that assumption. Quite often, European choice-of-law rules themselves require a certain treatment of a characterization problem. This can follow from the rules or recitals of European regulations. In such cases, the required approach is more or less explicitly given. However, the required analysis can also be implicitly established, especially when it is derived from the purpose of certain choice-of-law rules. The approach towards characterization is of both practical and theoretical significance. In practice it determines the outcome of a characterization inquiry. On a theoretical level, the approach towards characterization embodies a conceptual change: The more rules on characterization there are, the more the classic problem of characterization is marginalized. Questions of characterization turn into questions of “simple statutory interpretation”.

Frederick Rieländer, Die Anknüpfung der Produkthaftung für autonome Systeme (The Private International Law of Product Liability and AI-related Harm)

As the EU moves ahead with extensive reform in all matters connected to artificial intelligence (AI), including measures to address liability issues regarding AI-related harm, it needs to be considered how European private international law (PIL) could contribute to the EU’s objective of becoming a global leader in the development of trust-worthy and ethical AI. To this end, the article examines the role which might be played in this context by the conflict-of-law rule concerning product liability in Article 5 of the Rome II Regulation. It shows that the complex cascade of connecting factors in matters relating to product liability, although providing legal certainty for market players, fails to consistently support the EU’s twin aim of promoting the up-take of AI, while ensuring that injured persons enjoy the same level of protection irrespective of the technology employed. Assessing several options for amending the Rome II Regulation, the article calls for the introduction of a new special rule concerning product liability which allows the claimant to elect the applicable law from among a clearly defined number of substantive laws. Arguably, this proposal offers a more balanced solution, favouring the victim as well as serving the EU’s policies.

Tim W. Dornis, Künstliche Intelligenz und internationaler Vertragsschluss (Artificial Intelligence and International Contracting)

Recently, the debate on the law applicable to a contract concluded by means of an AI system has begun to evolve. Until now it has been primarily suggested that the applicable law as regards the “legal capacity”, the “capacity to contract” and the “representative capacity” of AI systems should be determined separately and, thus, that these are not issues falling under the lex causae governing the contract. This approach builds upon the conception that AI systems are personally autonomous actors – akin to humans. Yet, as unveiled by a closer look at the techno-philosophical foundations of AI theory and practice, algorithmic systems are only technically autonomous. This means they can act only within the framework and the limitations set by their human users. Therefore, when it comes to concluding a contract, AI systems can fulfill only an instrumental function. They have legal capacity neither to contract nor to act as agents of their users. In terms of private international law, this implies that the utilization of an algorithmic system must be an issue of contract conclusion under art. 10 Rome I Regulation. Since AI utilization is fully subject to the lex causae, there can be no separate determination of the applicable law as regards the legal capacity, the capacity to contract or representative capacity of such systems.

Peter Kutner, Truth in the Law of Defamation

This article identifies and examines important aspects of truth as a defence to defamation liability in common law and “mixed” legal systems. These include the fundamental issue of what must be true to establish the defence, whether the defendant continues to have the burden of proving that a defamatory communication is true, the condition that publication must be for the public benefit or in the public interest, “contextual truth” (“incremental harm”), and the possibility of constitutional law rules on truth that are different than common law rules. The discussion includes the emergence of differences among national legal systems in the operation of the truth defence and evaluation of the positions that have been adopted.

The table of contents in German is available here.

In Popescu v Essers the Antwerp Court of Appeal has confirmed jurisdiction in a claim by a Romanian driver against a Belgian-incorporated freight company, and applied Belgian labour law to the their contract.

The case echoes social dumping issues, relevant earlier posts on the blog include CJEU Gruber Logistics, and Altun. Outside of Brussels Ia and Rome I, CJEU AFMB and others is of note.

I do not have access  to the first instance judgment and the Court of Appeal’s judgment is a touch cryptic on a first issue of note which is the impact of the earlier decision by the Romanian courts and the extent of res judicata: I cannot say much about that for want of the first instance judgment and /or further info in the court of appeal’s judgment, however that issue seems to have engaged factual findings in the Romanian courts.

What is clear is that on the basis of Article 21 BIa, jurisdiction in the domicile of the employer was easily established [p.6].

With respect to applicable law and Rome I, the Court of Appeal refers to the CJEU in Koelzsch [42] holding “in so far as the objective of Article 6 of the Rome Convention is to guarantee adequate protection for the employee, that provision must be understood as guaranteeing the applicability of the law of the State in which he carries out his working activities rather than that of the State in which the employer is established. It is in the former State that the employee performs his economic and social duties and, as was noted by the Advocate General in point 50 of her Opinion, it is there that the business and political environment affects employment activities. Therefore, compliance with the employment protection rules provided for by the law of that country must, so far as is possible, be guaranteed.” (emphasis added by me, GAVC). The Court of Appeal also recalls the criteria of the CJEU in C-64/12 Schlecker, notes that the contract does not have a lex voluntatis (although the contract does refer to Romanian law in a number of instances) and holds p.12 ff that Belgium, not Romania was the place of habitual employment:

on-board diagnostics and trip reports reveal that most of Mr Popescu’s routes started from the corporation’s headquarters in Belgium, most of them to and fro Belgium’s neighbouring countries, and even if they were further afield, return was always to Belgium; no routes led him to and /or fro Romania;

dispatch for the routes was organised from Belgium, with largely the Belgian corporations of the group as the contracting party for the freight concerned;

the work tools, i.e. the trucks, even if they carried a Romanian number plate, were put at the the disposal of the drivers, and serviced, in Belgium, and (off)loading largely took place in Belgium.

Other factors pointing to Romania, were held not to displace the finding of Belgium as the place of employment: this includes Mr Popescu’s Romanian nationality and domicile; and his contract being subject to Romanian national insurance and income tax: these two latter elements, the Court held, simply reflect Mr Popescu’s domicile, not his place of employment.

The Court of Appeal also held [p.17-18] that it need not apply the posted workers Directive, with reference to CJEU FNV v Vanden Bosch, and that instead of a temporary posting there is a clear place of habitual employment with all the consequences of Rome I.

The remainder of the judgment then deals with the consequences of the application of Belgian law.

A case of note!

Geert.

Judgment (Court of Appeal in fact) is here https://t.co/JpvhwEBlzI h/t @jurinfo_eric) and analysis forthcoming on my blog. https://t.co/LWyYwbZ73B

— Geert Van Calster (@GAVClaw) June 27, 2023

This post is by Maggie Gardner, a professor of law at Cornell Law School. It is cross-posted at Transnational Litigation Blog.

The U.S. Supreme Court yesterday upheld the constitutionality of Pennsylvania’s corporate registration statute, even though it requires out-of-state corporations registering to do business within the state to consent to all-purpose (general) personal jurisdiction. The result in Mallory v. Norfolk Southern Railway Co. re-opens the door to suing foreign companies in U.S. courts over disputes that arise in other countries. It may also have significant repercussions for personal jurisdiction doctrine more broadly.

The Case

Robert Mallory worked for Norfolk Southern for nearly twenty years in Ohio and Virginia. He has since been diagnosed with cancer, which he alleges was caused by the hazardous materials to which he was exposed while in Norfolk Southern’s employ. Although he currently lives in Virginia, he sued Norfolk Southern (a company then incorporated and based in Virginia) in state court in Pennsylvania, asserting claims under the Federal Employers’ Liability Act (FELA).

Norfolk Southern contested personal jurisdiction. But Mallory argued that by registering to do business in Pennsylvania, it had agreed to appear in Pennsylvania courts on any cause of action. While the Pennsylvania Supreme Court agreed with that interpretation of Pennsylvania’s corporate registration statute, it held that the statute violated the Due Process Clause of the Fourteenth Amendment in light of the Supreme Court’s caselaw since International Shoe Co. v. Washington (1945).

The Holding

A majority of the Supreme Court disagreed. Justice Alito joined Justice Gorsuch’s plurality (with Justices Thomas, Sotomayor, and Jackson) to hold that the question was controlled by a pre-International Shoe decision, Pennsylvania Fire Ins. Co. v. Gold Issue Mining & Milling Co. (1917). Pennsylvania Fire approved a Missouri statute that required out-of-state insurance companies to appoint a state official as an agent for service of process for any suit. In Pennsylvania Fire, that Missouri statute was invoked to establish jurisdiction over a Pennsylvania insurance company regarding a contract formed in Colorado to insure a Colorado facility owned by an Arizona company. The five Justices agreed that the Supreme Court has never overruled Pennsylvania Fire and that it thus controls this case.

There is another, broader point on which the five Justices also seem to agree: Pennsylvania Fire does not conflict with International Shoe because International Shoe only addressed jurisdiction over non-consenting defendants. As Alito put it, “Consent is a separate basis for personal jurisdiction”—or as Gorsuch put it, “International Shoe simply provided a ‘novel’ way to secure personal jurisdiction that did nothing to displace other ‘traditional ones.’” An entirely separate avenue for establishing personal jurisdiction exists outside of International Shoe’s framework, which includes (according to the plurality) “[f]ailing to comply with certain pre-trial court orders, signing a contract with a forum selection clause, accepting an in-state benefit with jurisdictional strings attached,” or making a general appearance. And in this consent-based track, the five Justices also seem to agree that federalism concerns are no longer applicable.

Points of Disagreement

Alito wrote separately, however, to argue that Pennsylvania’s statute runs afoul of the dormant Commerce Clause. Even if the statute didn’t discriminate against out-of-state businesses, Alito explained, it significantly burdens interstate commerce, and it does so without any legitimate local interest. While a state “certainly has a legitimate interest in regulating activities conducted within its borders,” and while it “also may have an interest ‘in providing its residents with a convenient forum for redressing injuries inflicted by out-of-state actors,’” a state “generally does not have a legitimate local interest in vindicating the rights of non-residents harmed by out-of-state actors through conduct outside the State.”

It is not particularly surprising that Alito was alone in elaborating this dormant Commerce Clause concern, given the split opinions earlier this Term in National Pork Producers Council v. Ross. As I discussed in a preview of the Mallory decision, Gorsuch and Thomas in that case found the balancing approach required by the dormant Commerce Clause jurisprudence to simply be infeasible. (Perhaps Alito hoped he might win them over if he could establish a complete lack of legitimate local interest, which would obviate the need for balancing). And if Sotomayor was unconvinced by the plaintiffs’ showing of a substantial burden on interstate commerce in National Pork Producers, she was unlikely to sign onto Alito’s rather vague paragraph about how statutes like Pennsylvania’s could burden small companies.

But why did Alito not join more of the plurality opinion? The plurality embraced a framing of the case that emphasized Norfolk Southern’s significant and permanent presence in Pennsylvania, including its 5,000 employees, 2,400 miles of track, and three locomotive shops (including the largest in North America). That framing is reminiscent of Sotomayor’s emphasis on fairness in her prior personal jurisdiction writings, as well as her questions at oral argument last fall. The plurality opinion also begins by contrasting this case with Mallory’s ability to “tag” an individual employee of Norfolk Southern in Pennsylvania, asking why Mallory shouldn’t be able to assert personal jurisdiction as easily over Norfolk Southern itself. That framing recapitulates a key point in Gorsuch’s concurrence in Ford Motor Co. v. Montana Eighth Judicial District Court (2021).

But neither of those framings resonates with Alito’s prior writings, to say the least. He tends to be more skeptical of litigation and court access policies, and he notably did not join Gorsuch’s concurrence in Ford. Further, both framings would have undermined Alito’s argument that Pennsylvania lacked any legitimate local interest in this case.

Jackson also wrote a brief concurrence that emphasized that personal jurisdiction is a waivable right, focusing on the Court’s opinion in Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee (1982). Her invocation of “waiver” rather than “consent” was clearly purposeful (and a distinction that Robin Effron and John Coyle have recently explored).

The Dissent

Justice Barrett’s dissent (joined by Chief Justice Roberts and Justices Kagan and Kavanaugh) staunchly defended the International Shoe paradigm. “For 75 years,” it begins, “we have held that the Due Process Clause does not allow state courts to assert general jurisdiction over [out-of-state] defendants merely because they do business in the State.” The Court’s decision in Mallory, Barrett explains, invites states to evade International Shoe’s limits on personal jurisdiction by simply rewording their long-arm statutes to include implied consent. Indeed (she notes), this case is remarkably like BNSF Railway Co. v. Tyrrell (2017), another FELA suit involving out-of-state parties and a cause of action that arose out of state as well. In Tyrell, the Court rejected the state’s assertion of personal jurisdiction in light of the Court’s recent decisions in Daimler AG v. Bauman (2014) and Goodyear Dunlop Tires Operations, S.A. v. Brown (2011). Approving Pennsylvania’s statute effectively robs all three of those precedents of meaning.

Foreign Defendants in U.S. Courts

The dissent is at least right about the practical implications of the Court’s holding: states that are inclined to do so now have a roadmap for evading the limits on general personal jurisdiction that the Court staked out in Goodyear, Daimler, and BNSF. While the mere fact of doing business is still not enough to subject a “non-consenting” business to jurisdiction in a forum, the mere fact of doing business plus a broadly worded statute might be. Indeed, it’s possible that Sotomayor joined the majority precisely because of her consistent concern that the Roberts Court has gone too far in paring back both general and specific jurisdiction under International Shoe. As the lone justice who refused to join the Court’s opinion in Daimler, she has now helped reclaim some of that state power.

Daimler, itself a case involving a foreign defendant, made it much harder for plaintiffs to hale non-U.S. companies into U.S. courts. After Daimler, plaintiffs have had to establish specific jurisdiction over foreign defendants, which can be hard to do even when the plaintiff resides in the U.S. forum and was injured there, as in J. McIntyre Machinery, Ltd. v. Nicastro (2011). Mallory gives states a different avenue for protecting their citizens’ ability to sue foreign defendants. As the plurality asserts, “all International Shoe did was stake out an additional road to jurisdiction over out-of-state corporations,” separate from the consent-based road upon which states can now rely.

It will be interesting to see how many states take up this invitation. My prediction is that we will see few open-ended statutes like Pennsylvania’s, but that we will see some more tailored statutes, for example asserting all-purpose jurisdiction over any claims brought by in-state residents against companies doing business in the state.

Broader Implications for Personal Jurisdiction Doctrine

It will also be interesting to see how much of a sea change Mallory makes in personal jurisdiction doctrine more broadly. While the holding may appear narrow, five Justices have agreed to limit the ambit of International Shoe’s paradigm to non-consenting defendants—a rather significant restriction. And given how broadly the Court construes “consent” in the age of forum selection clauses and compelled arbitration (and now corporate registration statutes), that could render International Shoe largely obsolete.

The approach of the plurality may also signal that there is more to come. Gorsuch’s opinion focuses on history and tradition and encourages reliance on pre-International Shoe cases. He has found a way to wind back the clock without having to directly overrule International Shoe—but would a future case encourage these Justices to wind back the clock even further?

I do worry that Gorsuch and his like-minded colleagues are too sanguine about the challenges that a return to broad general jurisdiction would entail. As I have written with others, there are real systemic costs to a paradigm of general jurisdiction—precisely the costs that International Shoe was written to address. A fundamental flaw in the plurality’s approach is its syllogism that because the Court approved tag jurisdiction over individuals in Burnham v. Superior Court (1990), it should also continue to recognize broad general jurisdiction over corporations. First, Burnham was a splintered decision, and a majority of the Justices did not agree that tag jurisdiction was completely unmoored from International Shoe’s framework. But second, why isn’t Burnham itself the mistake? Why not level up the protections for individual defendants, requiring some connection between the forum, the dispute, and the defendant greater than the defendant’s fleeting physical presence?

Conclusion

I have started wondering if the binary distinction between general and specific jurisdiction might have outlived its usefulness as a legal construct. Perhaps registration statutes and tag jurisdiction (and some modified forum of doing business jurisdiction?) belong in an intermediate category—but one that must still satisfy International Shoe’s overarching command that the defendant have minimum contacts with the forum such that notions of fair play and substantial justice will not be offended.

It has already been reported on this blog that EU Commission has launched infringement procedure against Poland for failure to fulfil its obligations under the Brussels II bis Regulation.

As stated by the Commission, this “infringement case concerns the non-conformity of the Polish law with the Brussels IIa Regulation, specifically the provisions relating to the enforcement of judgments or orders that require the return of abducted children to their place of habitual residence”.

Apart from the very general statement that “there is a systematic and persistent failure of Polish authorities to speedily and effectively enforce judgments ordering the return of abducted children to other EU Member States” no further information is unfortunately made publicly available.

The expression “enforcement of judgments or orders that require the return of abducted children” might relate to two kinds of situations: when a court of the country to which the child was abducted (Poland) decides that the child should be returned to the country of the child’s habitual residence (another EU Member State), or at a later stage of the procedure when a court of the country of the child’s habitual residence (another EU Member State) orders a return after the non-return decision was given in the country to which the child was abducted (Poland).

Enforcement of a Return Decision Handed Down in Poland

Article 11(3) Brussels II bis Regulation requires the court to which an application for return of a child is made to act expeditiously, using the most expeditious procedures available in national law. For this purpose, the general six weeks period was established.

The Practice Guide to Brussels IIa Regulation explains in more details how to understand the six-week period:

With regard to decisions ordering the return of the child, Article 11(3) does not specify that such decisions, which are to be given within six weeks, shall be enforceable within the same period. However, this is the only interpretation which would effectively guarantee the objective of ensuring the prompt return of the child within the strict time limit. (…) Member States should seek to ensure that a return order issued within the prescribed six-week time limit is “enforceable”.

Hence, it follows from the above that, in general, the procedure itself should be expeditious, and if the court hands down a return order, it should be enforceable within the six-week period… and successfully enforced.

Without going into details of the civil procedure in Poland concerning child abduction cases (which was meticulously described by J. Pawliczak, Reformed Polish court proceedings for the return of a child under the 1980 Hague Convention in the light of the Brussels IIb Regulation, JPIL 2021/3, available in open access), it might be indicated, as an example, that child abduction decisions might be subject to appeal and then, since 2018, to cassation appeal to the Supreme Court. The cassation appeal may be filed by designated authorities only, namely General Prosecutor, Commissioner for Children (Rzecznik Praw Dziecka) and Ombudsman (Rzecznik Praw Obywatelskich) within 4 months period since the order became final (Article 5191 § 21 and § 22 Code of Civil Procedure). This period seems quite long as for the requirement of “expeditiousness”, especially when compared to the general one, applicable to all other cassation appeals, which is two months.

Additionally, in 2022 the Civil Procedure Code was amended to provide for the suspension for two months of the enforceability of the return order on the application of one of the above mentioned designated authorities filed within two weeks since the order become final (Article 388(1) § 1 and § 2 Code of Civil Procedure), and its automatic prolongation if the designated authority indeed filed later a cassation appeal (Article 388(1) § 3 Code of Civil Procedure). This suspension of enforceability was found incompatible with Brussels II bis Regulation in a recent judgement given by the Court of Justice of the EU in February 2022 in Rzecznik Praw Dziecka case (C‑638/22 PPU).

Enforcement in Poland of a Decision Given in the Country of the Child’s Habitual Residence

Pursuant to Article 11(8) Brussels II bis Regulation, even if a judgement of non-return was handed down in the country to which the child was abducted, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under the regulation becomes enforceable in accordance with Section 4 of Chapter III. Article 42(1) Brussels II bis Regulation requires that such an enforceable judgment must be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with the regulation.

In Rinau case (C-195/08), the Court of Justice of the EU, underlined that:

an application for non‑recognition of a judicial decision is not permitted if a certificate has been issued pursuant to Article 42 of the Regulation. In such a situation, the decision which has been certified is enforceable and no opposition to its recognition is permitted.

In accordance with Article 598(14) § 1 Code of Civil Procedure, general rules on enforcement of foreign judgements are applicable to recognition and enforcement of a return order given in another EU Member State. These general rules provide, among others, that a decision on enforcement may be subject to appeal and then cassation appeal (this “particularity” of the procedure was already signaled on this blog in a previous post). It seems that the non-return order should be subject to special provisions allowing for the full effectiveness of Article 42(1) Brussels II bis Regulation.

The above shows that there are provisions in the Code of Civil Procedure which give rise to doubts as to their compatibility with Brussels II bis Regulation (and the new Brussels II ter Regulation equally). The question remains open whether and when Poland will be willing to address them.