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Thanks to Alberto Pomari, JD Candidate at the University of Pittsburgh School of Law, for his assistance with this post.

Two cases slated for Supreme Court’s 2024 term could boost the enforcement of foreign arbitral awards in the United States. On Friday January 13, 2023, the U.S. Supreme Court granted certiorari and consolidated the cases of Yegiazaryan v. Smagin and CMB Monaco v. Smagin. Both present the question of when an injury is foreign or domestic for purposes of RICO civil applicability. Beyond this statutory issue, however, the Supreme Court’s decision will have consequences for the enforcement of foreign arbitral awards too.

The Racketeer Influenced and Corrupt Organizations Act (“RICO”) enables private individuals injured by a racketeering violation to bring a civil suit and recover treble damages if he was “injured in his business or property.” In RJR Nabisco, Inc. v. European Cmty., the U.S. Supreme Court upheld the federal presumption against extraterritoriality to limit RICO’s private right of action to only those injuries that are “domestic” in their nature. However, no definition or test was provided to draw a bright line between domestic and foreign injuries.

In Yegiazaryan v. Smagin, the defendant (Yegiazaryan) is a Russian businessman living in California. The plaintiff (Smagin) commenced arbitration proceedings against him in London and was awarded $84 million. In 2014, Smagin successfully filed to recognize and enforce the award against Yegiazaryan in the U.S. district court where Yegiazaryan now resides. In 2020, Smagin filed a RICO action against Yegiazaryan alleging that he and various associates attempted to conceal $198 million from Smagin, which inevitably “injured in his business or property.” Specifically, Smagin alleged that his U.S. judgment confirming this prior foreign arbitral award against Yegiazaryan is intangible property located in the United States, thus making any injury thereto eligible for a RICO civil claim even though he lives abroad.

As to the location of intangible property for purposes of RICO injuries, circuits have split. The Seventh Circuit adopted the residency test, according to which an injury to intangible property must occur in the place where the plaintiff has its residence. Accordingly, a foreign-resident plaintiff like Smagin always suffers foreign injuries to intangible property and cannot recover under RICO. The Third Circuit rejected the residency test in favor of a holistic, six-factor test, with particular emphasis on where the plaintiff suffers the effect of the injurious activity. The Ninth Circuit in the Smagin cases adopted a totality-of-the-circumstances test similar to the Third Circuit’s one, yet with a particular emphasis on the defendant’s conduct. Indeed, the court concluded that Smagin had pleaded a domestic injury because much of the defendant’s alleged misconduct took place in California and the U.S. judgment confirming the foreign award could be executed against the defendant only in California.

The case also has implications for the enforcement of foreign judgments and arbitral awards in the United States. If a U.S. judgment recognizing a foreign judgment or confirming a foreign arbitral award are considered property in the United States, then RICO violations committed in the process of trying to avoid enforcement of the U.S. judgment may give rise to civil liability.

A new issue of the Revue Critique de Droit International Privé (4/2022) is out.

It contains one essay, one briefing note on the accession of the EU to the Hague Judgments Convention (by Y. El Hage, Lyon 3 University), as well as numerous case notes.

The editorial by Horatia Muir Watt (Sciences Po Law School), Dominique Bureau (University of Paris II) and Sabine Corneloup (University of Paris II) will soon be available in English on Dalloz website (Journey to Europa?).

In a comprehensive article, Symeon C. Symeonides (Alex L. Parks Distinguished Research Professor and Dean Emeritus, Willamette University College of Law) explores possible ways of reforming EU conflict-of-laws rules in torts (Rome II et la responsabilité délictuelle transfrontière : une nécessaire refonte).

Developments since the adoption of Regulation Rome II have demonstrated the need to extend the logic of Article 7 beyond environmental torts to other categories of cross-border torts. Recognizing this need, the Legal Affairs Committee of the European Parliament (JURI) proposed a similar pro-victim rule for one category of cross-border torts — those involving human rights violations — which would give victims even more choices than Article 7. Likewise, two academic groups, the Group européenne de droit international privé (GEDIP) and the European Law Institute (ELI), have also proposed a similar pro-plaintiff rule for these conflicts. This essay supports these proposals, but also goes beyond them by proposing a rule that would encompass all cross-border torts, in addition to environmental torts and those involving human rights violations. The essay will be soon available in English on Dalloz website.

More information is available here.

With my co-authors Professor Franco Ferrari and Friedrich Rosenfeld, I am pleased to announce the publication of my newest work, “Recognition and Enforcement of Foreign Arbitral Awards: A Concise Guide to the New York Convention’s Uniform Regime.” It is available for order here.

This incisive book is an indispensable guide to the New York Convention’s uniform regime on recognition and enforcement of foreign arbitral awards. Framing the Convention as a uniform law instrument, the book analyses case law from major arbitration jurisdictions to explain its scope of application, the duty to recognize arbitral agreements and awards as well as their limitations, and the procedure and formal requirements for enforcing arbitral awards.

Combining insight from arbitration practice with perspectives from private international law, the book underlines the importance of the Convention’s foundation in a treaty of international law, arguing that this entails a requirement to interpret the key concepts it sets forth based on international law rules of interpretation. However, it also demonstrates where municipal laws are relevant and discusses the private international law principles through which these instances can be identified.

Addressing one of the core treaties of international arbitration, this will be crucial reading for legal practitioners and judges working in the field. It will also prove valuable to scholars and students of commercial and private international law, particularly those focused on cross-border disputes and arbitration.

The third issue for the Journal of Private International Law for 2022 was published today. It contains the following articles:

K Takahashi, “Law Applicable to Proprietary Issues of Crypto-Assets”

Crypto-assets (tokens on a distributed ledger network) can be handled much in the same way as tangible assets as they may be held without the involvement of intermediaries and traded on a peer-to-peer basis by virtue of the blockchain technology. Consequently, crypto-assets give rise to proprietary issues in the virtual world, as do tangible assets in the real world. This article will consider how the law applicable to the proprietary issues of crypto-assets should be determined. It will first examine some of the cases where restitution was sought of crypto-asset units and consider what issues arising in such contexts may be characterised as proprietary for the purpose of conflict of laws. Finding that the conventional connecting factors for proprietary issues are not suitable for crypto-assets, this article will consider whether party autonomy, generally rejected for proprietary issues, should be embraced as well as what the objective connecting factors should be. GV Calster, “Lis Pendens and Third States: the Origin, DNA and Early Case-Law on Articles 33 and 34 of the Brussels Ia Regulation and its “forum non conveniens-light” Rules” The core European Union rules on jurisdiction have only in recent years included a regime which allows a court in an EU Member State temporarily or definitively to halt its jurisdiction in favour of identical, or similar proceedings pending before a court outside the EU. This contribution maps the meaning and nature of those articles, their application in early case-law across Member States, and their impact among others on business and human rights litigation, pre and post Brexit. F Farrington, “A Return to the Doctrine of Forum Non Conveniens after Brexit and the Implications for Corporate Accountability” On 1 January 2021, the European Union’s uniform laws on jurisdiction in cross-border disputes ceased to have effect within the United Kingdom. Instead, the rules governing jurisdiction are now found within the Hague Convention 2005 where there is an exclusive choice of court agreement and revert to domestic law where there is not. Consequently, the doctrine of forum non conveniens applies to more jurisdictional issues. This article analyses the impact forum non conveniens may have on victims of human rights abuses linked to multinational enterprises and considers three possible alternatives to the forum non conveniens doctrine, including (i) the vexatious-and-oppressive test, (ii) the Australian clearly inappropriate forum test, and (iii) Article 6(1) of the European Convention on Human Rights. The author concludes that while the English courts are unlikely to depart from the forum non conveniens doctrine, legislative intervention may be needed to ensure England and Wales’ compliance with its commitment to continue to ensure access to remedies for those injured by the overseas activities of English and Welsh-domiciled MNEs as required by the United Nation’s non-binding General Principles on Business and Human Rights. A Kusumadara, “Jurisdiction of Courts Chosen in the Parties’ Choice of Court Agreements: An Unsettled Issue in Indonesian Private International Law and the way-out”

Indonesian civil procedure law recognises choice of court agreements made by contracting parties. However, Indonesian courts often do not recognise the jurisdiction of the courts chosen by the parties. That is because under Indonesian civil procedure codes, the principle of actor sequitur forum rei can prevail over the parties’ choice of court. In addition, since Indonesian law does not govern the jurisdiction of foreign courts, Indonesian courts continue to exercise jurisdiction over the parties’ disputes based on Indonesian civil procedure codes, although the parties have designated foreign courts in their choice of court agreements. This article suggests that Indonesia pass into law the Bill of Indonesian Private International Law that has provisions concerning international jurisdiction of foreign courts as well as Indonesian courts, and accede to the 2005 HCCH Choice of Court Agreements Convention. This article also suggests steps to be taken to protect Indonesia’s interests.

 

Mohammad Aljarallah, “The Proof of Foreign Law before Kuwaiti Courts: The way forward”

The Kuwaiti Parliament issued Law No. 5/1961 on the Relations of Foreign Elements in an effort to regulate the foreign laws in Kuwait. It neither gives a hint on the nature of foreign law, nor has it been amended to adopt modern legal theories in ascertaining foreign law in civil proceedings in the past 60 years. This study provides an overview of the nature of foreign laws before Kuwaiti courts, a subject that has scarcely been researched. It also provides a critical assessment of the law, as current laws and court practices lack clarity. Furthermore, they are overwhelmed by national tendencies and inconsistencies. The study suggests new methods that will increase trust and provide justice when ascertaining foreign law in civil proceedings. Further, it suggests amendments to present laws, interference of higher courts, utilisation of new tools, reactivation of treaties, and using the assistance of international organisations to ensure effective access and proper application of foreign laws. Finally, it aims to add certainty, predictability, and uniformity to Kuwaiti court practices.

 

CZ Qu, “Cross Border Assistance as a Restructuring Device for Hong Kong: The Case for its Retention”

An overwhelming majority of companies listed in Hong Kong are incorporated in Bermuda/Caribbean jurisdictions. When these firms falter, insolvency proceedings are often commenced in Hong Kong. The debtor who wishes to restructure its debts will need to have enforcement actions stayed. Hong Kong does not have a statutory moratorium structure for restructuring purposes. Between 2018 and 2021, Hong Kong’s Companies Court addressed this difficulty by granting cross-border assistance, in the form of, inter alia, a stay order, to the debtor’s offshore officeholders, whose appointment triggers a stay for restructuring purposes. The Court has recently decided to cease the use of this method. This paper assesses this decision by, inter alia, comparing the stay mechanism in the UNCITRAL Model Law on Cross Border Insolvency. It concludes that it is possible, and desirable, to continue the use of the cross-border assistance method without jeopardising the position of the affected parties.

 

Z Chen, The Tango between the Brussels Ia Regulation and Rome I Regulation under the beat of directive 2008/122/EC on timeshare contracts towards consumer protection

Timeshare contracts are expressly protected as consumer contracts under Article 6(4)(c) Rome I. With the extended notion of timeshare in Directive 2008/122/EC, the question is whether timeshare-related contracts should be protected as consumer contracts. Additionally, unlike Article 6(4)(c) Rome I, Article 17 Brussels Ia does not explicitly include timeshare contracts into its material scope nor mention the concept of timeshare. It gives rise to the question whether, and if yes, how, timeshare contracts should be protected as consumer contracts under Brussels Ia. This article argues that both timeshare contracts and timeshare-related contracts should be protected as consumer contracts under EU private international law. To this end, Brussels Ia should establish a new provision, Article 17(4), which expressly includes timeshare contracts in its material scope, by referring to the timeshare notion in Directive 2008/122/EC in the same way as in Article 6(4)(c) Rome I.

 

Review Article

CSA Okoli, The recognition and enforcement of foreign judgments in civil and commercial matters in Asia

Many scholars in the field of private international law in Asia are taking commercial conflict of laws seriously in a bid to drive harmonisation and economic development in the region. The recognition and enforcement of foreign judgments is an important aspect of private international law, as it seeks to provide certainty and predictability in cross-border matters relating to civil and commercial law, or family law. There have been recent global initiatives such as The Hague 2019 Convention, and the Commonwealth Model Law on Recognition and Enforcement of Foreign Judgments. Scholars writing on PIL in Asia are making their own initiatives in this area. Three recent edited books are worthy of attention because of their focus on the issue of recognition and enforcement of foreign judgments in Asia. These three edited books fill a significant gap, especially in terms of the number of Asian legal systems surveyed, the depth of analysis of each of the Asian legal systems examined, and the non-binding Principles enunciated. The central focus of this article is to outline and provide some analysis on the key contributions of these books.

On 15 December 2022, the UK Government launched an open consultation on its plan for the United Kingdom to become a Contracting State to the Hague Convention of 2 July 2019 on the recognition and enforcement of foreign judgments in civil or commercial matters (the Hague Judgments Convention).

As part of the decision-making process on becoming a Contracting State, the Government is looking to gather wide-ranging perspectives, especially from who have experience of current cross-border litigation.

Based on the overall analysis, the Government will make a final decision on signing and ratifying and any declarations to be made, and commence the necessary processes to ensure that this can be achieved within a reasonable timescale, in consultation with the Devolved Administrations.

The Convention would be implemented in UK domestic law under the terms of the Private International Law (Implementation of Agreements) Act 2020, subject to appropriate parliamentary scrutiny. The Convention would enter into force for the United Kingdom 12 months after the date it deposits its instrument of ratification.

The consultation, which consists of 14 questions, is meant to remain open for eight weeks, that is, until 9 February 2023.

Further details concerning submissions are available here.

A paper summarising the responses to this consultation will be published in spring 2023. The response paper will be available on-line at gov.uk.

Dear fellow Members of the European Association of Private International Law, have you paid your annual fees?

If you haven’t, please take a moment to do so! All you need to know in this respect can be found here.

We are aware that, in the past, some of you have had troubles paying their fees by credit card, through PayPal. While we renew our sincere apologies to all those affected, we are happy to report that the EAPIL PayPal form is up and running. It is available here.

Payment by bank transfer is also possible. Please refer to this page to learn about the relevant details.

Please remember that, according to the Statutes of the Association, membership is renewed automatically every year, unless terminated by the member concerned using this form.

Those who have failed to pay the fees due last year, may now do so by the same means indicated above. Just follow the procedure twice, if you pay by PayPal. If you prefer to proceed with a bank transfer, just make a transfer for the the entire amount due.

Invoices are issued for all payments.

If you need further information or require assistance, please refer to the Treasurer of the Association, Apostolos Anthimos, at treasurer@eapil.org.

The editors of the European Yearbook of International Economic Law (EYIEL) welcome abstracts from scholars and practitioners at all stages of their career for the EYIEL 2023. This year’s focus section will be on European and International (Public) Procurement and Competition Law. Next to this, in Part II the EYIEL will consider Current Challenges, Developments and Events in European and International Economic Law.

For the Focus Section, abstracts may cover any topic relating to (public) procurement and competition law in the field of European and international economic law, though preference is given to topics focusing on the international perspective. We particularly welcome contributions addressing the following aspects:

• the WTO (Internal) Procurement Regime, 
• the UN Procurement Regime,
• the EU Procurement Regime,
• General International (Public) Procurement,
• the EU Competition Law Regime,
• the International Competition Law Regime.

For the General Section, abstracts shall address topics which are currently of relevance in the context of European and International Economic Law. Similarly, reviews of case-law or practices and developments in the context of international organisations are encouraged.

Abstracts should not exceed 500 words. They should be concise and clearly outline the significance of the proposed contribution. Abstracts together with a short bio note maybe submitted until 28 February 2023 via e-mail to eyiel@leuphana.de.

Successful applicants will be notified at the latest by 1 April 2023, that their proposal has been accepted. They are expected to send in their final contribution by 31 July 2023.

Final submissions will under go peer review prior to publication. Given that submissions are to be developed on the basis of the proposal, that review will focus on the development of the paper’s central argument.

Submissionsaddressingparticularregionalandinstitutionaldevelopmentsshould be analytical and not descriptive. Due to its character as a yearbook, the EYIEL will not publish articles which will lose their relevance quickly. Submissions should not exceed 12,000 words(including footnotes and references), though preference may be given to shorter submissions. They should include an abstract and a biographical note. Submissions need to be in conformity with the EYIEL style guidelines.

The editors of the EYIEL welcome informal enquiries about any other relevant topic in the field of international and European economic law. In case you have an idea or proposal, please submit your enquiry via e-mail to eyiel@leuphana.de.

On 22 December 2022, the CJEU ruled on the concept of civil and commercial matters in Eurelec Trading & Scabel v. (French) Ministre de l’Economie et des Finances (case C‑98/22). The case, which is not (yet?) available in English, is discussed by Geert van Calster here.

The case was again concerned with an action based on the power of a Member State to regulate anti-competitive practices. The court had already addressed the issue in Movic (case C‑73/19).

Background

The case was concerned with an action before French courts initiated by the French State (the Ministry of Economy) against two Belgian companies (Eurelec Trading and Scabel) and several French entities. The action aimed at declaring that certain practices of the defendants were anti-competitive in the meaning of French law. The remedies sought were a declaration that the practices were anti-competitive, an injunction to stop such practices, and the ordering of a fine to be paid by the offenders (for more on the facts in English, see the report by Geert van Calster).

The Belgian defendants challenged the jurisdiction of French courts on the ground that the action of the French State did not fall within the scope of the Brussels I bis Regulation, as it did not belong to civil and commercial matters. The Paris court of appeal referred the matter to the CJEU.

Judgment

As is well known, the CJEU has long defined the concept of civil and commercial matters by focusing on the powers of the relevant person (typically a public authority) and investigating whether those powers differ from the powers that private actors enjoy and are thus exorbitant compared to the latter.

In Eurelec, the CJEU discusses two separate issues. The first is the remedies sought before the French court.  The second is the method for gathering evidence.

The CJEU starts with the method used by the French State to gather evidence. It insists that, in the case at hand, the evidence was obtained by a search of French authorities in the defendants’ premises and by seizing certain documents. Although the court notes that the search was authorised by a court, it rules that such searches are an exorbitant power, as they could not have been conducted by private parties. It finally insists that obstructing such a search would be a criminal offence under French law.

With respect to the remedies, the CJEU rules that there is nothing exorbitant in seeking a declaration of violation of competition law, or an injunction from refraining from violating competititon law. It recalls that actions from a public authority seeking such remedies were found to belong to civil and commercial matters in Movic.

In contrast, the CJEU finds that an action for the ordering of a fine is exorbitant and is thus public power. It notes that, in addition, under French law, such action may only be initiated by the Ministry of Justice.

The CJEU concludes that the action of the Ministry of Justice fell entirely outside the scope of the Brussels I bis Regulation.

Assessment

The judgment is not fully convincing.

The most unsatisfactory part is the reason relating to the gathering of evidence. The proposition that it is not possible for private parties to obtain judicial authorisation to search the premises of the opponents and to seize evidence of offences against competition law or indeed torts (IP violations) is simply wrong. Such remedies are available in private disputes in many Member States: saisie-contrefaçon in France (IP violations), search orders (previously Anton Pillar orders) in common law jurisdictions. The judgment does not identify any critical difference between these orders/remedies and the specific power afforded to the French Ministry of Justice to conduct searches on the basis of a judicial authorisation. It is interesting to note that the Ministry of Justice seemed to have implicitly accepted that there was a critical difference, as it argued that the test for defining the concept of civil and commercial matters should not have been how the evidence was gathered, but how it was used in the proceedings.

The argument that obstruction to searches are criminal offences is also pretty weak. In a number of Member States, obstruction to any attachement/seizure, whether carried out by a private party in a private case or by a public authority, will be a criminal offence.

The argument on the remedies sought is more convincing. One can see how an action to fine a particular offender could appear as a public power (though that conclusion will have to be revisited if punitive damages develop in the EU). But then there is no reason to exclude the other remedies from the scope of the Brussels I bis Regulation. The judgment should thus have been that only the action seeking a fine fell outside of the scope of the Regulation.

The Federal Court Legislation Amendment Rules 2022 (Cth) (‘Amendment Rules’) came into force on 13 January 2023. Among other things, they amend the Federal Court Rules 2011 (Cth) (‘FCR’) by repealing division 10.4, which dealt with service outside Australia. The Amendment Rules replace the old division 10.4 with a new one, which brings the Federal Court’s approach to service outside Australia into alignment with all other Australian jurisdictions, except for Western Australia and the Northern Territory.[1]

The previous approach to service outside Australia in the Federal Court

Historically, Australia’s superior courts have not been uniform in their approach to service outside the jurisdiction and outside Australia. The Federal Court’s approach was somewhat unique. Unlike the position in some of the State Supreme Courts,[2] leave to serve outside Australia[3] was required before service (FCR r 10.43(2)). Nonetheless, if leave was not obtained beforehand, service could be confirmed after the fact if sufficiently explained (FCR r 10.43(6)–(7)).

Leave to serve turned on three conditions: the court had subject matter jurisdiction, the claim was of a kind mentioned in the rules, and the party had a prima facie case for any or all of the relief claimed: FCR r 10.43(4). Even if those elements were satisfied, the court may have refused leave to serve in exercise of a ‘residual discretion’: Tiger Yacht Management Ltd v Morris (2019) 268 FCR 548, [100].

The second element, that the claim is of a kind mentioned in the rules, directed attention to FCR r 10.42. That rule set out pigeonholes or connecting factors that are familiar grounds of direct jurisdiction. For example, service may be permitted for a proceeding based on a cause of action arising in Australia (item 1), or where the defendant has submitted to the jurisdiction (item 19).

Some of the connecting factors might be described as exorbitant. For example, service may have been permitted where the proceeding was ‘based on, or seeking the recovery of, damage suffered wholly or partly in Australia caused by a tortious act or omission (wherever occurring)’ (item 5). Reid Mortensen, Richard Garnett and Mary Keyes commented, ‘[i]n effect, [this ground of service] allows service outside Australia merely because of the plaintiff’s personal connection—usually be reason of residence—with the forum, despite the complete absence of any connection between the events or the defendant on the one hand, and the forum on the other’.[4]

Combined with Australian courts’ unique approach to forum non conveniens (see Puttick v Tenon Ltd (2008) 238 CLR 265), the FCR provided plenty of room for establishing personal jurisdiction over foreign defendants in matters with foreign elements, even where those matters had strong connections to foreign jurisdictions. That position continues under the new approach effected by the Amendment Rules in the amended FCR.

The new approach

The Amendment Rules provide in a note to the new div 10.4: ‘t]his Division contains rules that have been harmonised in accordance with the advice of the Council of Chief Justices’ Rules Harmonisation Committee’. Those rules have been in force in New South Wales and other Australian jurisdictions for a some years. When the rules changed in New South Wales in late 2016, Vivienne Bath and I explained the significance for that State: Michael Douglas and Vivienne Bath, ‘A New Approach to Service Outside the Jurisdiction and Outside Australia under the Uniform Civil Procedure Rules’ (2017) 44(2) Australian Bar Review 160.

As regards the Federal Court, considering the previous approach, some of the notable changes include the following.

First, in most cases, leave is not required before service, provided that the case comes within the scope of (new) defined grounds of direct jurisdiction: FCR r 10.42.

Second, the grounds of direct jurisdiction have changed: FCR r 10.42. Many of the changes seemingly involve a simple a re-wording or a re-structure rather than anything radical, although I am sure that the case law will tease out differences of substance in coming months.

One of the new grounds is worth highlighting. The new FCR r 10.42(j) provides:

(j)  if the proceeding arises under a law of the Commonwealth, a State or a Territory, and:

(i)  any act or omission to which the proceeding relates was done or occurred in Australia; or

(ii)  any loss or damage to which the proceeding relates was sustained in Australia; or

(iii)  the law applies expressly or by implication to an act or omission that was done or occurred outside Australia in the circumstances alleged; or

(iv)  the law expressly or by implication confers jurisdiction on the Court over persons outside Australia (in which case any requirements of the law relating to service must be complied with);

FCR r 10.42(j)(iii) could provide a basis for jurisdiction over subject matter with very limited connection to Australia, provided an Australian legislature has sufficiently extended the territorial operation of a statute. This pigeonhole could give rise to some more interesting questions about the proper approach to identification of the applicable law where forum statutes are involved in the Australian context.[5]

Third, even if the proceeding does not come within one of the grounds of direct jurisdiction, service outside Australia may still be permitted with leave: FCR r 10.43. Leave requires the Court to be satisfied that the proceeding has a real and substantial connection with Australia, Australia is an appropriate forum for the proceeding, and in all the circumstances the Court should exercise jurisdiction: FCR r 10.43(4)(a)–(c).

Fourth, once a person is served outside Australia, that person may apply to stay or dismiss the proceeding, or set aside service: FCR r 10.43A(1). The Court may make an order to that effect if satisfied service of was not authorised by these Rules, Australia is an inappropriate forum for the proceeding, or the claim has insufficient prospects of success to warrant putting the person served outside Australia to the time, expense and trouble of defending it: FCR r 10.43A(2)(a)–(c). This mechanism is introduced with the title, ‘Court’s discretion whether to assume jurisdiction’.

The second ground, that Australia is an inappropriate forum, turns on application of the ‘clearly inappropriate forum’ test of the Australian forum non conveniens doctrine: Chandrasekaran v Navaratnem [2022] NSWSC 346, [5]–[8]; Sapphire Group Pty Ltd v Luxotico HK Ltd [2021] NSWSC 589, [77]–[80]; Studorp Ltd v Robinson [2012] NSWCA 382, [5], [62].

Fifth, if service on a person outside Australia in accordance with the new provisions was not successful, the party may apply to serve the person substituting another method of service: FCR r 10.49(a). This may prove particularly useful for applicants chasing rogues who have absconded overseas. It might allow for service on a person outside Australia by email or even social media, contrary to historical practice: see  Yemini v Twitter International Company [2022] FCA 318, [5].

Comment

I expect that the Amendment Rules will be welcomed by litigators who frequent the Federal Court of Australia. Doing away with the need to seek leave in advance will increase efficiency and save some costs. Lawyers on the east and south coasts may appreciate not having to be across substantive differences as regards long-arm jurisdiction between the Federal Court and State Supreme Courts. (Those in glorious Western Australia continue to be in a different / superior position.)

Private international law scholars may be less enthusiastic. Writing on the 2016 equivalent reforms in New South Wales, Andrew Dickinson lamented the tenuous connection that could justify long-arm jurisdiction under the amended Uniform Civil Procedure Rules 2005 (NSW). Among other things, he noted that the ‘service without leave’ approach means that considerations of forum non conveniens might only arise if an application is brought by a person served contesting jurisdiction (under the equivalent of the new FCR r 10.43A(1)), costing them time and cost with respect to a matter with minimal connection to the forum.[6] That would be a fair objection to the new position in the Federal Court. I would argue, however, that the Federal Court’s new approach to long-arm service is a sensible innovation to better equip the Court to deal with the realities of modern commercial life (see Abela v Baadarani [2013] 1 WLR 2043, [53]). Australian courts are increasingly called on to deal with matters with a foreign element—their rules should adapt accordingly.

One of the more significant impacts of the Amendment Rules will concern a case that is currently before the High Court of Australia: Facebook Inc v Australian Information Commissioner & Anor (Case S 137/2022). Jeanne Huang and I previously blogged other decisions that have ultimately led to this appeal. Among other things, the American company behind Facebook (now Meta Platforms Inc) is challenging its service outside Australia in a proceeding brought by Australia’s privacy regulator in the wake of the Cambridge Analytica scandal. The rules on which the appeal depends are no longer in force. If the High Court’s previous grant of special leave to appeal is maintained, the forthcoming decision will be a new leading authority on long-arm jurisdiction in Australia.

Dr Michael Douglas is a Senior Lecturer at the University of Western Australia and a Consultant at Bennett, a litigation firm in Western Australia

 

[1] Civil Procedure Rules 2006 (ACT) div 6.8.9; Supreme Court Rules 2000 (Tas) div 10; Supreme Court Civil Rules 2006 (SA) pt 4 div 2; Supreme Court (General Civil Proceedings) Rules 2015 (Vic) O 7 pt 1; Uniform Civil Procedure Rules 1999 (Qld) pt 7 div 1; Uniform Civil Procedure Rules 2005 (NSW) pt 11, sch 6..

[2] Leave to serve is still required in the Supreme Court of Western Australia. See Rules of the Supreme Court 1971 (WA) Order 10. See further M Davies, AS Bell, PLG Brereton and M Douglas, Nygh’s Conflict of Laws in Australia (LexisNexis Butterworths, 20th ed, 2020) ch 3.

[3] Except with respect to service in New Zealand. See Trans-Tasman Proceedings Act 2010 (Cth).

[4] Reid Mortensen, Richard Garnett and Mary Keyes, Private International Law in Australia (LexisNexis Butterworths, 4th ed, 2019) 63–4.

[5] See Michael Douglas, ‘Does Choice of Law Matter?’ (2023) Australian International Law Journal (forthcoming).

[6] Andrew Dickinson, ‘In Absentia: The Evolution and Reform of Australian Rules of Adjudicatory Jurisdiction’ in Michael Douglas, Vivienne Bath, Mary Keyes and Andrew Dickinson (eds), Commercial Issues in Private International Law (Hart, 2019) 13, 42.

The latest issue of the Dutch Journal on Private International Law (NIPR) has been published.

Editorial

M. Zilinsky / p. 629-630

 

Article

E.N. Frohn & I. Sumner, Protecting vulnerable adults across borders: where do we stand? / p. 631-649

Abstract

The first meeting of the Special Commission to review the practical operation of the 2000 Hague Convention took place from 9-11 November 2022, after writing this publication. In preparation for this meeting, a questionnaire was send to the Member States of the Conference. One of the questions addressed to the non contracting states of the 2000 Convention was of that state is considering joining the 2000 Convention. The Netherlands replied that there is no urgent need to become a contracting party, pointing out that the rules of the treaty are applied in practice.

This article concerns the Hague Convention of 13 January 2000 on the International Protection of Adults in relation to the Dutch standard practice of anticipating application of this Convention. Furthermore, this article will provide information on the European view regarding the international protection of vulnerable adults.

 

Case note

K.J. Krzeminski, Actio iudicati onder de Brussel I-bis Vo: een open deur of een geopend ‘achterdeurtje’? HvJ EU 7 april 2022, ECLI:EU:C:2022:264, NIPR 2022, 288 (J/H Limited) / p. 650-659

Abstract

In J v. H Limited, the CJEU has held that a decision rendered by an EU Member State court on the basis of a third country judgment (actio iudicati) may, under certain circumstances, qualify as a ‘judgment’ within the meaning of Article 2(a) Brussel I-bis Regulation, thereby opening the door to EU-wide recognition and enforcement. This article explores the implications of the decision for cross-border enforcement, in particular of judgments rendered in Dutch proceedings on the basis of Article 431(2) of the Dutch Code of Civil Procedure.

In the case Rzecznik Praw Dziecka and Others, C-638/22 PPU, a Polish court asks the Court of Justice in essence whether, in accordance with the Brussels II Regulation and The 1980 Hague Convention on the Civil Aspects of International Child Abduction, a Member State may provide for the possibility of an appeal in cassation (in practice: a third judicial instance) involving a stay of enforcement of a final return order on a simple application by one of the public entities entitled to lodge such an appeal.

AG Emiliou states from the outset that this question calls for a negative answer. His Opinion explains why this is the case.

A summary of the facts of the case reported here case has been already posted online by Marta Requejo Isidro so I am happy to refer to her contribution.

The urgency of the matter has compelled the Court to submit the case, at the request for the referring court, to the urgent preliminary ruling procedure provided for in Article 107 of the Rules of Procedure of the Court of Justice.

I might add that the provision of national law that made the aforementioned stay of enforcement possible entered into force on 24 June 2022 and the request for a preliminary ruling has been brought before the Court of Justice already on 13 October 2022.

Concerning the preliminary question itself, in his Opinion, AG Emiliou recognizes that the 1980 Hague Convention and the Brussels II bis Regulation do not unify the procedural rules applicable to return applications based on that Convention. Those issues are left to the procedural law of the Member State where a request for a return order is made (point 52).

Nevertheless, the competence of the Member States has its limits. For AG Emiliou, those limits are not respected by the Polish provision in question.

Advocate General argues that by adopting the provision in question, the Polish legislator has exceeded the limits of its competence: he has rendered the return proceedings ineffective. Furthermore, in doing so, the legislator has also limited the fundamental right to respect for family life and the fundamental right to an effective remedy of the parent requesting the return, despite there being no compelling justification for such limitation and the negative consequences it entails (point 54).

All those aspects are addressed in a detailed manner in the Opinion, so there is still a lot to unpack.

The Opinion is available here (so far only in French).

On 20 January 2023, the University of Strasbourg will host a conference on the private international law aspects of the Digital Market Act (DMA) and the Digital Services Act (DSA) organised by Etienne Farnoux, Nicolas Gillet, Kansu Okyay and Delphine Porcheron.

This conference is structured in two parts. The first part will be dedicated to general presentation of the new regulations. The second will address specific topics in private international law.

Speakers include Frédérique Berrod, Stéphanie Carre, Tobias Lutzi, Yves El Hage and Nurten Kansu Okyay.

The conference will be held both in site and online. The full program and details about the location and registration can be found here.

Aukje A.H. Van Hoek (University of Amsterdam) has posted The Declaratory Judgment – Between Remedy and Procedural Technique on SSRN.

The abstract reads:

This contributions discussed a very technical issue of private international law that turned out to be crucial in several class actions held in the Netherland regarding torts committed in common law countries: Should the question whether courts in the Netherlands can issue a purely declaratory judgment on the tortiousness of certain behaviour or the liability of the defendant be considered to fall under the lex causae (the declaration being considered as a type of remedy), or rather be governed by lex fori (as being a procedural issue)? The author prefers a classification as procedural, but acknowledges that the case law on this issue doesn’t fully support this outcome. The question lost some of its relevance under the new law on class actions, but is still pertinent.

The paper was published in the Liber Amicorum Monika Pauknerová (Wolters Kluwer CR 2021).

As part of the UNIDROIT Project on Digital Assets and Private Law, UNIDROIT has launched a Public Consultation to solicit comments and feedback on a set of Draft Principles and Commentary which have been prepared by its Working Group over the course of 7 sessions between 2020-2022. These Principles have been drafted to provide guidance to legislators, judges, practitioners, and the industry involved in the digital asset economy with regard to issues of private law. This includes issues regarding the definition of a digital asset, the importance of control, matters related to transfer of digital assets, custody relationships, conflicts of law, secured transactions, enforcement, and insolvency. The text contains a detailed introduction which explains what the Principles seek to do. UNIDROIT now looks for comments. All the relevant information can be found on this page. All comments should be provided using this online form. The Secretariat is seeking wide distribution of the consultation.

A disappointing judgment was issued just before end of year 2022, when the Court, unlike its Advocate General Kokott, held that the ambient air quality Directives do not directly grant a right to compensation in the event of an infringement of the limit values.

In Case C-61/21 Ministre de la Transition écologique and Premier ministre, the CJEU essentially insisted ‘Frankovich’ liability (the power for individuals to claim compensation, on the basis of EU law, of EU Member States when the latter fail properly to implement EU law; Such liability is subject to three conditions: namely that the rule of EU law infringed is intended to confer rights on them, that the infringement of that rule is sufficiently serious and that there is a direct causal link between that infringement and the damage suffered by those individuals) can only be extended to cases where the EU secondary law at issue, grants individual rights.

The Court held however that even though [54] the air quality Directives impose clear and precise duties which the Member States need to achieve, these are aimed at protecting the environment and public health as a whole, not individuals’ right to health and environmental protection [55].

Some might see in this reasoning a strict schism suggested by the Court between the collective enjoyment of public health and a healthy environment on the one hand, and the individual availability of same. I do not think though that this is what the Court had in mind, rather, one assumes, an ambition to cap the amount of cases that might otherwise reach the CJEU.

The Court then directs individuals to the national level, so as to obtain if necessary a court order forcing the authorities to draw up relevant plans (a route confirmed by Case C‑404/13 Client Earth) and it of course confirms that national law may be more generous [63].

The unfortunate consequence of the judgment is that there will not be a level playing field for individuals when it comes to employing the right to compensation for infringement of EU law, and of course an encouragement of a certain amount of forum shopping.

Geert.

 

The third issue of the Belgian Revue de droit international privé / Tijdschrijft voor international privaatrecht is now available online. The issue contains a selection of ECHR, CJEU, and Belgian national case law posing various problems of private international law.

The ECHR selected cases concern the application of Article 8 ECHR on the right to family life and matters of filiation by surrogacy, the recognition and enforcement of a decision for the return of a child, an international adoption at which the biological father was opposed to, and Article 6 ECHR on access to a fair trial in relation to the application of the 1970 Hague Taking of Evidence Convention.

The CJEU case law selection makes reference to:

• the choice of court clause in the framework of the 2007 Lugano Convention (C-358/21, Tilman);
• the notion of ‘unaccompanied minor’ and the marriage of a minor refugee on the territory of Belgium that does not recognise such a marriage (C-230/21, X v Belgium);
• the recognition of an extrajudicial divorce decision based on an agreement between the spouses before a civil registrar (C-646/20, Senatsverwaltung für Inneres und Sport);
• the employment protection mechanism under Brussels I-bis Regulation (C–604/20, ROI Land Investments);
• the responsibility of an airline company under the 1999 Montreal Convention for bodily injure (post-traumatic stress disorder) suffered by a passenger during an emergency evacuation of an aircraft (C-111/21, BT v Laudamotion);
• the EU trademark protection according to Regulation (EU) 2017/1001 (C-256/21) KP v TV);
• the enforcement in another Member State of an arbitral award for damages based on a bilateral investment treaty (C-333/19, Romatsa);
• the application of Regulation (CE) 261/2004 to delays related to a flight between two airports situated in a third country (c-561/20 Q, R and S v United Airlines);
• the application of Article 7(2) Brussels I-bis Regulation in a collective action for damages against the grandparent company of a daughter insolvent company (Dutch ‘Peeters-Gatzen’ action) for restoring recovery opportunities for creditors (C–498/20, ZK v BMA);
• the clarification of the notion of pending lawsuits within the meaning of Article 292 Solvency II Directive for a winding-up decision abroad on an insurance compensation claim (C–724/20, Paget Approbois);
• the protection against the effects of the extraterritorial application of legislation adopted by the US against Iran concerning commercial relations with certain Iranian undertakings (C-124/20, Bank Melli Iran); and
• the effects of a European certificate of succession and its certified copy valid for an ‘unlimited’ period issued on the application of one of the two heirs concerned by the proceedings (C-301/20, UE and HC v Vorarlberger Landes- und Hypotheken-Bank).

The selection of the Belgian national case law contains several Court of Cassation decisions:

• one (Cour de Cassation, arrêt du 15 septembre 2022) assesses the jurisdiction of Belgian courts over an alleged tort and localisation of damages within the framework of Article 5(3) of the 2007 Lugano Convention in a claim involving UEFA and URBSFA regarding rules of the Financial Fair Play Regulation as contrary to EU public policy (Articles 101 and 102 TFEU). For this case several questions were sent for interpretation of the CJEU in a preliminary ruling regarding the application of Article 5(3) of the 2007 Lugano Convention in relation to a concerted practice of establishing the price of the tickets for football games and the loss of opportunities for football agents to conclude deals or their conclusion under less attractive conditions, the places where these damages take place, and whether reparation can be claimed from the national association (URBSFA) as jointly liable with UEFA;
• the second selected decision (Cour de Cassation, arrêt du 20 mai 2022) deals with the interpretation of the habitual residence of a child and parental responsibility within the framework of Article 8(1) Brussels II-bis Regulation and Article 5 of the 1996 Hague Convention in a case involving a Ukrainian mother and wife of a Belgian citizen who after a forth months stay in Ukraine with the couple’s two children refuses to return to Belgium;
• the third Court of Cassation case (Hof van Cassatie, arrest van 28 April 2022) poses an issue of international competence under Article 1 Brussels I-bis Regulation or Article 1 European Insolvency Regulation (Regulation 1346/2000) with regard to a decision in a Dutch insolvency procedure; and
• the forth selected decision (Cour de Cassation, arrêt du 3 juin 2021) concerns a situation requiring to determine whether the Belgian lex fori is applicable for reasons of urgency and public policy if the content of the provisions of the foreign law (i.e. Nigerian law) regarding the Muslim custom of Djerma as a regime of separation of financial assets of a couple following divorce or repudiation cannot be clearly proven before the Belgian court given the evolutive nature of the practice.

In addition, a number of Court of Appeal decisions were selected. These concern:

• a decision by the Brussels Court of Appeal (arrêt du 3 février 2022) on a case involving a paternity dispute in which the father declared a child to be his own and the alleged conflict of the Guinean law that does not allow the mother to subsequently contest the paternity with Article 22bis of the Belgian Constitution which gives priority to the highest interest of the child and Article 62(1) of the Belgian Code of Private International Law regarding the consent of the child Belgian national who has her habitual residence in Belgium;
• two decisions of the Court of Appeal of Liege. One (arrêt du 22 juin 2021) regards the application of the Brussels II-bis Regulation, Rome II Regulation and Regulation on matrimonial Regimes on the law applicable and competence regarding a divorce procedure for two Belgian nationals who married in Turkey. The other (arrêt du 20 janvier 2021) concerns matters of parental responsibility involving the application of Brussels II-bis Regulation and the 1996 Hague Convention on parental responsibility and protection of children.

Together with these a number of first instance decisions were selected for the interesting issues that they raise related to recognition of marriages celebrated abroad, name status and rectification of a foreign certificate of birth, maintenance, and choice of jurisdiction clause with regard to Article 25 and 8 of the Brussels I-bis Regulation.

The last part of the review is dedicated to EU and national legislative developments. This issue addresses the Decision (EU) 2022/1206 concerning the accession of the European Union to the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (2019 Hague Judgments Convention), the Belgian Law putting into application the Regulation (EU) 2019/1111 on the on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast), the Belgian Law of 20 July 2022 on the status and supervision of brokerage firms, and the European Commission Proposal of 7 December 2022 for a a Regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood (COM(2022)695 final).

One recent article on private international law was published today in International and Comparative Law Quarterly:

A Chong, “Characterisation and Choice of Law for Knowing Receipt”

Knowing receipt requires the satisfaction of disparate elements under English domestic law. Its characterisation under domestic law is also unsettled. These in turn affect the issues of characterisation and choice of law at the private international law level, as knowing receipt sits at the intersection of the laws of equity, restitution, wrongs and property. This article argues that under the common law knowing receipt ought to be considered as sui generis for choice of law purposes and governed by the law of closest connection to the claim. Where the Rome II Regulation applies, knowing receipt fits better within the tort rather than unjust enrichment category and the escape clause in Article 4(3) of the Regulation ought to apply.

 

 

La sustracción internacional de menores en el espacio jurídico europeo (International Child Abduction in the European Union), a monograh by PIL Assistant Professor Maria González Marimón (University of Valencia), has just been released by the Spanish publishing house Tirant Lo Blanch.

The book covers the landscape of sources in force the European Union, in an area characterized by the confluence of instruments of different origin and scope, some of which have recently undergone relevant changes.

It claims that a redefinition of the legal framework and of the interfaces among instruments is needed in order to adapt to new societal patterns as well as to currently prevailing values, in particular to the central role of children rights and to the principle of their best interests.

In addition, after a thorough, critical analysis of the novelties of Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast) (Brussels II ter Regulation), it argues that the opportunity has been lost of getting rid of the “overriding mechanism” under Article 29 of said Regulation.

The author has kindly provided the following summary of the contents and main thesis of the book:

International child abduction provides a paradigmatic example of the complexity of cross-border cases involving children. The profound societal changes of recent decades (the consolidation of different family models, the preponderance of a children rights-centered approach to the detriment of a parents’ rights-centered paradigm) are prompting to rethink and to reshape the legal framework of child abduction.

The EU traditional response to international child abduction can indeed be described as a complicated and fragmented body of legal sources: judges and practitioners in the field needed (and need) to have in mind the EU rules on the matter together with those of the 1980 Hague Convention, and, punctually, also the 1996 Hague Convention. The EU legislator, aware of the complexity and practical difficulties of the Brussels II bis rules on international child abduction, has tried to improve and refine them in the recast Regulation of 2019 . The obvious first sign of improvement is the completely new Chapter III, focused on international child abduction. This shift in the structure of the Regulation is accompanied by a welcomed explanation of its relationship to the 1980 Hague Convention. Also regarding the return procedure, the Brussels II ter Regulation introduces some (albeit not far-reaching) developments for its functioning in practice.

A further group of rules in the new Regulation reflects the EU legislator’s  commitment to adapting international child abduction rules to new social realities while pushing the children’s rights to the forefront. In this regard, worth noting provisions are the ones related to the age of the child; to reinforcing the child’s right to express his or her views in return proceedings; to the new faculty granted to the courts to guarantee the contact of the child with the parent requesting return; to the promotion of the child’s “safe return”; or to fostering ADR mechanisms to solve the disputes.

In contrast to the progresses alluded to, the EU legislator has missed the opportunity to do away with the very much questioned so-called “overriding mechanism”. Following this special procedure, the last word in relation to the return of a wrongfully removed or retained child is given to the court having jurisdiction under the Regulation; its decision prevails over any non-return previous one adopted by the court of another Member State pursuant to Article 13 of the 1980 Hague Convention. In principle, this priority is reinforced by the elimination of the exequatur requirement, without any ground of refusal of the return decision.

To the extent the “overriding mechanism” has been a source of headaches for legal operators and practitioners, it was legitimate to claim it should be dropped, and regrettable that it has not. A comparison of the respective case law of the CJEU and the ECtHR adds relevance to the matter. In the event of exceptional circumstances questioning the convenience of enforcing the privileged decision (i.e., the one of the court competent according to the Regulation), the Luxembourg Court has reacted backing up the system. By contrast, the ECtHR’s case-law on international child abduction supports a more substantive approach by recalling the need to assess the best interests of the child concerned in each particular case.

The awareness of the Strasbourg case law had led to the conviction that, in order to achieve the European legal integration objective while simultaneously protecting each individual child, a model flexible and predictable at a time was of the essence. In this regard, abolishing the exequatur for all decisions on parental responsibility, but maintaining certain safeguards at the enforcement procedure so as to allow for the assessment of the best interests of the child in the individual case, would strike a delicate, but adequate, balance between the free movement of judgments and the best interests of each child.

In fact, this is precisely the subtle equilibrium reflected in the Brussels II ter Regulation. In spite of retaining the privileged regime for return decisions resulting from the “overriding mechanism”, the Regulation actually tries to temper one of its most controversial aspects identified in practice, namely the automatism of the model, which had proven too rigid. Two are the ways to this aim: first, the possibility of modification and revocation of the certificate; secondly, a new cause of suspension – and even refusal – of the enforcement, in the event of an exceptional change of circumstances linked to the best interest of the child.

The amendment of the old “overriding mechanism” has great relevance from the perspective of the debate between the elimination of exequatur, on the one hand, and the adequate protection of children’s fundamental rights and of the best interests of the child when enforcement is seized, on the other. The new Regulation gives room to the evaluation of the judge in the requested Member State. By doing so, it can be said that the EU legislator deconstructs the model of abolition of the exequatur “in absolute terms”. Still, despite its foreseeable advantages, the system is not free of doubts regarding its future application: divergent doctrinal and jurisprudence interpretations are to be expected; also, there is a risk of abuse in the practice of the already mentioned cause for suspension (or even refusal) at the enforcement stage.

In conclusion, notwithstanding the continuity of the “overriding mechanism”, and, we insist, the lost opportunity to do away with it, the new international child abduction rules strike a better balance in the allocation of competences between the Member State with competence on the substance of the matter and the Member State in which the child is wrongfully located. It equally achieves a better compromise in relation to the assumption of the principle of the best interests of the child, and the interplay between the child’s immediate return and its exceptions. We will see whether the new rules, coupled with the reinforcement of communication and cooperation between the authorities involved, lead to strengthen the climate of trust among the judiciary of the Member States, and, in the end, to a better protection of children in EU cross-border cases.

In Oxford University Innovation Ltd v Oxford Nanoimaging Ltd [2022] EWHC 3200 (Pat) Daniel Alexander KC in a lengthy judgment eventually held for the University in a dispute on the validity of the University’s contractual terms claiming intellectual property over research students’ work. The case is of interest to the blog in that it contrasts the consumer provisions in the ‘Brussels (conflict of laws) regime’ with those of substantive consumer law.

[8] The thrust of ONI’s case is that Oxford’s approach to allocation of the commercial fruits of research is unfair to DPhil students and, more particularly, unfair to Mr Jing, the young researcher, in the circumstances of the case. More specifically it is said that Oxford’s policies are unfairly weighted in favour of the University and senior academics, who may have contributed less to the detail of the work than more junior researchers or inventors.

Applicability or impact of consumer protection legislation on terms relating to intellectual property rights of students is core to the case. The Unfair Terms in Consumer Contracts Regulations 1999/2083 – UTCCR are derived from the European Directive on Unfair Terms in Consumer Contracts 93/13, the ‘Unfair Consumers Terms Directive’ UCTD, which is retained EU law and the CJEU authority on same is retained EU case law [240] . They only apply to contracts between a “consumer” and a “seller or supplier”. Was Mr Jing such a ‘consumer’?

UK courts regularly made recourse to Brussels  Convention and later Brussels Ia cases in the absence of much CJEU UCTD authority. The judge correctly holds [242] that one must be cautious with such approach pro inspiratio, as indeed I have also pointed out on this blog before, and discusses ia CJEU Benincasa, Gruber, Schrems, Milivojevic, albeit not CJEU Reliantco, and the UK cases of Standard Bank v Apostolakis, AMT Futures v Marzillier and Ang v Reliantco. In the discussion on whether the Brussels case-law has an impact on the UCTD, he refers ia to Weco Projects. [288] he points out that when later CJEU authority did interpret the term ‘consumer’ in the UCTD directly (eg Karel de Grote), it made fairly little reference to Brussels authority. [306] he decides the UCTD approach to ‘consumer’ is ‘more expansive’ and ‘not as strictly’ as under the Brussels regime and [310] rejects Oxford’s submission that it is necessarily the right approach to this case under the UCTD to adopt the framework of analysis of dual-purpose contracts of the Brussels Convention/Regulation case law. This also includes [320] a different approach to the burden of proof.

[410] the final conclusion is that a ‘DPhil student is normally entitled to be treated as a consumer under the UCTD and that it does not matter for this purpose whether the student is undertaking that educational qualification with a view to her career, profession and/or professional advancement’  and [425] that ‘Oxford has not shown that Mr Jing’s circumstances were such that it would be wrong to treat him as a consumer in entering into the DPhil Contract he did.’ However eventually [639] the terms were not judged to be ‘unfair’.

Many of the issues raised are new and one imagine permission to appeal may have been sought.

Geert.

EU private International Law, 3rd ed. 2021, 2.231 ff.

1/2 Interesting IPR, research students case
651 para judgment on terms re intellectual property which @UniofOxford, other universities may validly agree with degree students relating to the fruits of their work.
Refers ia to EU consumer protection law (unfair contract terms)

— Geert Van Calster (@GAVClaw) January 3, 2023

The French Committee of Private International Law has launched the 8th edition of the Committee’s Doctoral Dissertation Award.

Eligible PhD dissertations are those written in French and defended between 15 January 2022 and 7 January 2023.

The application procedure is explained here.

The deadline for submissions is 1 March 2023.