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On 30 March 2023, just before the Easter holidays, the Court of Justice will deliver two judgments on the interpretation of private international law instruments.

The first ruling refers to case C-343/22 PT (Injonction de payer de droit suisse), where the German Bundesgerichtshof required the interpretation of the Lugano Convention of 2007:

Must Article 34(2) of the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters of 30 October 2007 (‘the Lugano Convention’) be interpreted as meaning that the statement of claim in an action seeking repayment of a debt, which was brought after a Swiss order for payment (Zahlungsbefehl) had been issued previously and which did not include an application for the annulment of the objection (Rechtsvorschlag) lodged against the order for payment, constitutes the document which instituted the proceedings?

The facts of the case can be summarized as follows. Upon application by the claimant, the Debt Enforcement Office of Geneva issued an order for payment in respect of claims for rent against the defendant, resident in Germany. The order was served on the defendant on 19 January 2013. On 28 January 2013, he lodged an objection (Rechtsvorschlag) against it in accordance with Swiss Law.

The claimant subsequently brought an action against the defendant before the Court for Lease and Tenancy Matters of the Canton of Geneva; he did not include an application for the annulment of the objection. The court attempted to serve the statement of claim, written in French, on the defendant at the address where he resides in Germany. The defendant refused to accept service because a German translation was not attached. In the further course of the procedure, the defendant did not receive any further information about the proceedings.

By a judgment of 30 January 2014, the court ordered the defendant to pay CHF 4 120.70 plus interest. The objection to the order for payment was not annulled. The judgment was served by public notice.

The claimant applied for a declaration of enforceability of the judgment in Germany in accordance with Articles 38 and 53 of the Lugano Convention. The Regional Court granted the application; the appeal brought by the defendant before the Higher Regional Court was dismissed. According to the Higher Regional Court, Article 34(2) of the Lugano Convention does not preclude recognition of the judgment: the defendant had been served in a manner that precluded the ground for refusal under Article 34(2) of the Lugano Convention. In this regard, the order for payment served on the defendant on 19 January 2013 is to be considered as the document instituting the proceedings. By virtue of that order, the defendant was informed about the claims for rent against him, and, as demonstrated by the objection of 28 January 2013, he was also able to participate in the proceedings in a manner that safeguarded his rights.

Moreover (always according to the Higher Regional Court) the recognition of the Swiss judgment does not infringe Article 34(1) of the Lugano Convention. A breach of public policy was ruled out in any event because the defendant did not assert the defences by means of which he would have defended himself against the claims asserted.

The Court of Justice will decide represented by a chamber of three judges, with M. Safjan reporting.

On the same day, the Court will publish its decision on case C-651/21 М. Ya. M. (Renonciation à la succession d’un cohéritier). I reported on the facts here. The Sofiyski rayonen sad (District Court, Sofia, Bulgaria) had referred these questions for a preliminary ruling on Regulation 650/2012:

(1) Is Article 13 of [Regulation No 650/2012], read in conjunction with the principle of the protection of legal certainty, to be interpreted as precluding, after an heir has already had registered with a court of the [Member] State in which he or she is habitually resident his or her acceptance or waiver of the succession of a deceased person who was habitually resident in another [Member] State of the European Union at the time of his or her death, a request to have that waiver or acceptance subsequently registered in the latter State?

(2) If the answer to the first question is that such registration is permissible, is Article 13 of [Regulation No 650/2012], read in conjunction with the principles of the protection of legal certainty and the effective implementation of EU law, and the obligation of cooperation between [Member] States under Article 4(3) TEU, to be interpreted as permitting a request for the registration of a waiver of the succession of a deceased person effected by an heir in the [Member] State in which he or she is habitually resident by another heir residing in the State in which the deceased was habitually resident at the time of his or her death, irrespective of the fact that the procedural law of the latter State does not provide for the possibility of having a waiver of a succession registered on behalf of another person?

In his opinion, delivered on 10 November 2022, Advocate General M. Szpunar had proposed that the Court answers:

(1) Article 13 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession does not preclude, after an heir has had registered with a court of the Member State in which he or she is habitually resident his or her acceptance or waiver of the succession of a deceased person who was habitually resident in another Member State at the time of death, another heir from subsequently requesting registration of that declaration in the latter Member State.

(2)     Article 13 of Regulation No 650/2012 must be interpreted as not precluding a co-heir other than the person who made the declaration of waiver in the Member State of his or her habitual residence from informing the court dealing with the succession of the existence of that declaration.

Here, a chamber of three judges will decide with M. Ilešič acting as reporting judge.

This summary was provided by the author, Naivi Chikoc Barreda, Assistant Professor at the Faculty of Law of the University of Ottawa.

The book Succession internationale et dispositions spéciales de la lex rei sitae. Contribution à l’étude de l’impérativité internationale en matière successorale  by Naivi Chikoc Barreda (L’Harmattan, Paris, December 2022) offers an in-depth reflection on the subject of overriding mandatory provisions in matters of succession, through an analysis of the clause allowing the application of the special provisions of the lex rei sitae which derogate from the unitary law of succession.

In Part I, the author traces the historical origins of the “territorial exception” to the unitary system in German legal literature and studies its subsequent development in the Introductory Act to the German Civil Code and in the convention drafts drawn up by the Hague Convention between 1900 and 1928. Theorized by Savigny under the concept of “Gesetze von zwingender, strengthe positiver Natur“, these special rules were associated with the public policy clause by the Hague drafts, under the influence of the Mancinian doctrine. To explain this convergence, the author analyzes the relationship between public policy and territoriality in the period in which these projects were conceived. The clause concerning the special regimes of the situs was finally detached from the public policy exception in the 1989 Convention. However, the methodological transformations in the field of Private international law during the second half of the XXth century left the phenomenon in a shadowy area. Unable to fit into the “new” approaches to public policy and overriding mandatory provisions, the derogatory application of the lex rei sitae took the form of a substantially oriented conflict rule. When the European legislator decided to insert the clause in Article 30 of Regulation 650/2012, it discarded the conflictual model and adopted the method of “lois de police”, thus restoring the Savignian understanding of this exception. The author discusses the reasons for this methodological choice, by exploring the family, economic and social purposes of these rules in accordance with the principles underlying the autonomous interpretation of the regulation.

Part II addresses the complex issues arising out of the interaction between succession and other choice-of-law categories involved in the transfer of certain assets upon death. Most of the special provisions examined are at the intersection of several categories, their goal being precisely to ensure the stability of the function that the assets have been serving before the opening of the succession. Thus, it appeared important to distinguish between the ways in which property can be transferred otherwise than by succession, the rules for the distribution of particular assets of the estate, and the rules “affecting” the succession on such property. In the light of the CJEU case law, the author examined the treatment of the constitution of rights in rem by way of succession, the restriction on the acquisition of property by foreigners or non-residents, the transmission of the tenant’s rights after his death, the transfer of company shares, and the succession of the author’s droit de suite. An analytical framework is then proposed to delineate the respective scopes of the lex successionis, the lex rei sitae, the law governing matrimonial property regimes, the law applicable to maintenance obligations, the lex contractus, the lex societatis and the lex loci protectionis.

An extensive analysis is devoted to the compatibility between the clause on the special rules of the lex rei sitae and the concept of overriding mandatory provisions, as formulated in various regulations and interpreted by the CJEU. Two fundamental obstacles seem to prevent such integration: the absence of any reference to the protection of public interests and to the mandatory nature of the rules. Indeed, many of the special rules dealing with the transfer of particular assets for socio-economic purposes are either limited to enabling the owner to allocate the property according to some criteria or are default rules that apply absent a contrary disposition by the deceased. Despite the wording of the clause, the author argues for a shared intertextual interpretation of lois de police that brings the succession regulation in line with the position of other regulations on this issue. The traditional distinction between lois de police and the rules which are only mandatory at a domestic level is subject to a critical analysis from a new angle. The comparative study of the special rules of the lex rei sitae that intervene in succession matters leads the author to deconstruct the concentric circles theory that explain the convergence of both concepts on a core of super-imperative rules. Based on the interaction between the nature of the rule and its purpose in the law of succession, she explains the differences in the relationship of these special rules with party autonomy on a substantive and a PIL level. From this perspective, some permissive and default rules of the situs are consistent with a functional conception of lois de police, freed from a concrete regulatory technique that is supposedly the only one suited to the pursuit of a public interest policy, and therefore deserve to be recognized as potentially having an overriding effect on the lex causae.

The journal, Current Legal Problems yesterday, inter alia, published an open access article on private international law:

Alex Mills, “The Privatisation of Private (and) International Law”

Privatisation is much studied and debated as a general phenomenon, including in relation to its legal effects and the challenges it presents to the boundaries of public and private law. Outside the criminal context there has however been relatively limited focus on privatisation of the governmental functions which are perhaps of most interest to lawyers—law making, law enforcement and dispute resolution—or on the international legal implications of privatisation. This article argues that modern legal developments in the context of private law and cross-border private legal relations—generally known as party autonomy in private international law—can be usefully analysed as two distinct forms of privatisation. First, privatisation of certain allocative functions of public and private international law, in respect of both institutional and substantive aspects of private law regulation, through the legal effect given to choice of court and choice of law agreements. Second, privatisation of the institutional and substantive regulation of private legal relationships themselves, through arbitration and the recognition of non-state law. Together, these developments have established a global marketplace of state and non-state dispute resolution institutions and private laws, which detaches private law authority from its traditional jurisdictional anchors. Analysing these developments through the lens of privatisation highlights a number of important critical questions which deserve greater consideration—this article further examines in particular whether this form of privatisation in fact increases efficiency in either private international law decision-making or private law dispute resolution, as well as its distributive and regulatory effects.

Lotario Benedetto Dittrich (University of Trieste) has written a Study at the request of the JURI committee of the European Parliament on Ensuring Efficient Cooperation with the UK in civil law matters.

The abstract reads:

This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the JURI Committee, analyses the implications of Brexit in relation to the profile of judicial cooperation in civil matters. It examines the existing legal framework in order to identify the areas of law in respect of which there is a gap in the relationship between the EU and the UK. It assesses the consequences of the UK’s failure to accede to the 2007 Lugano Convention. Concludes that the conclusion of new treaties between the EU and the UK should be pursued in relation to those areas where there is a regulatory gap, with particular reference to the area of human rights.

And from the executive summary:

The paper is divided into seven chapters.

In the first chapter, the effects of the Withdrawal Agreement in the field of civil judicial cooperation are outlined, with particular reference to the residual applicability of the individual European Regulations in relations with the UK in the so-called transitional period, that is, from the entry into force of the Withdrawal Agreement until December 31, 2020. The reasons why the revival of the 1968 Brussels Convention is not conceivable are also explained.

It then goes on to examine the “body of law” consisting of the Hague Conventions (1961 Apostille Convention; 1965 Service Convention; 1970 Evidence Convention; 1970 Divorce Convention; 1980 Child Abduction Convention; 1996 Child Protection Convention; 2005 Choice of Court Convention; 2007 Child Support Convention) to see which of them and to what extent still apply to the relationship between the EU and the UK.

The third chapter discusses the content of the so-called EU Reitaned Laws, i.e., the set of UK rules transposing sectors of EU legislation into that country’s legal system. The continued applicability of the Rome I and Rome II Regulations and their effects in relations with the EU will be the subject of analysis, as well as, conversely, the superseded inapplicability of European simplified procedures and exclusion from the European Judicial Network.

The fourth chapter is specifically devoted to an analysis of the most relevant gaps left by Brexit in the area of, in particular, the following matters: legal separation and divorce, maintenance obligations, successions, notifications, taking of evidence, public documents, access to justice, mediation, and insolvency.

Particular attention is paid in Chapter Five to the effects resulting from the United Kingdom’s non accession to the 2007 Lugano Convention.

Indeed, as is well known, on June 28, 2021, the European Commission submitted a Note Verbale to the Swiss Federal Council as the Depositary of the Lugano Convention, in which it denied its consent to the UK’s application for accession.

The effect of the UK’s accession to the aforementioned Lugano Convention would have been that
Regulation No. 44/2001, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (so-called Brussels I), would also apply to it. This accession would have entailed renewed UK participation in the European judicial area, albeit without the automatic recognition of court decisions introduced only by the subsequent Regulation No. 1215/2012 (so-called Brussels I bis).

The effects on the legal services market of the UK’s exclusion from the European legal system are also analysed. Indeed, there is the emergence of specialized commercial courts, located in several EU countries, which are bidding to be alternative judicial hubs to the London courts. Such competition would be fostered by the easier circulation of judicial orders rendered by EU courts in the European legal space than judicial orders rendered by UK courts.

The study dwells on the actual likelihood of success of such initiatives, raising the possibility in the
future of the establishment at the EU level of a single court specializing in commercial matters, which could more effectively undermine the continued attractiveness of London courts.

The study then turns to viable remedies to prospectively reduce the impact of Brexit in the area of rights protection, with particular reference to individuals, families and Small Medium Enterprises (SMEs).

In particular, a possible path is outlined, as a result of which covenanted regulations can be introduced in the following matters: divorce and legal separation, alimentary obligations, Small Claims, and cross border insolvencies.

Finally, special attention is given to the phenomenon of Strategic Lawsuits Against Public Participation (SLAPPs), the subject of a European Commission proposal for a directive, concluding as to the desirability of agreements involving the UK as well, in order to ensure broader protection for freedom of the press and opinion, limiting phenomena of forum shopping and possible circumvention of decisions on the subject.

In summary, the study pragmatically suggests that the parties establish negotiations on specific and limited matters of particular social relevance as a first step in rebuilding a system of international cooperation between the EU and the UK.

At the same time, the study points to the existence of areas in which economic competition is currently taking place in the area of legal services.

Thanks to Jorg Sladic for the pointer.

The Chinese lawmakers published the draft Foreign Relations Law and the draft Foreign States Immunities Law in December 2022. The English version of the two drafts published in this post is translated by Jingru Wang at the Wuhan Unviersity Institute of International Law.

Foreign Relations Law of China

Law on Foreign State Immunity of China

 

 

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

H.-P. Mansel, K. Thorn and R. Wagner, European conflict of laws 2022: Movement in international family law

This article provides an overview of developments in Brussels in the field of judicial cooperation in civil and commercial matters from January 2022 until December 2022. It presents newly adopted legal instruments and summarizes current projects that are making their way through the EU legislative process. It also refers to the laws enacted at the national level in Germany as a result of new European instruments. Furthermore, the authors look at areas of law where the EU has made use of its external competence. They discuss both important decisions and pending cases before the CJEU as well as important decisions from German courts pertaining to the subject matter of the article. In addition, the article also looks at current projects and the latest developments at the Hague Conference of Private International Law.

N. Elsner and H. Deters, Of party requested service by post and courts as transmitting agencies under the EU Service Regulation

On 1 July 2022, the EU Regulation on the Service of Documents No. 1784/20 (Recast) (EU Service Regulation) took effect and changed the law on service by postal services in cross-border proceedings. This calls for a revisiting of the divergent opinions and ways of interpretation of service by postal services according to Art. 14 EU Service Regulation 2007 and its relation to Art. 15 EU Service Regulation 2007. Against this background, this article discusses a decision of the Higher Regional Court Frankfurt (OLG Frankfurt) holding that service by postal services pursuant to Art. 14 EU Service Regulation 2007 is in principle only open to a court when effecting service in cross-border proceedings. A party shall affect service according to Art. 15 EU Service Regulation 2007 by contacting directly the foreign authorities designated to effect service in the other member state.
Firstly, the reasoning of the court and the opinions in legal scholarship on the admissibility of service by postal services effected by parties are assessed critically. Subsequently, the authors propose a different application of Art. 14 and 15 EU Service Regulation 2007 in Germany. It will be argued that the OLG Frankfurt was indeed correct in stating that service by postal services must be effected through a transmitting agency according to Art. 2 EU Service Regulation 2007. Under German law, only courts are considered transmitting agencies. However, this does not preclude parties from effecting this type of service. When parties are required to effect service themselves under German law, they may send the documents to the court, inform the court of the address of the other party and apply for service in accordance with Art. 14 EU Service Regulation 2007. The court then acts as a mere transmitting agency on behalf of the party, and thus, in its administrative capacity.

S. Schwemmer, Direct tort claims of the creditors of an insolvent company against the foreign grandparent company

In its ruling of 10 March 2022 (Case C-498/20 – ZK ./. BMA Nederland), the ECJ had to deal with a so-called Peeters/Gatzen-claim under Dutch law brought by the insolvency administrator. The court had already ruled in an earlier judgement that these claims fall under the Brussels I Regulation (recast). So the main question was now where the harmful event occurred within the meaning of Art. 7 para. 2 of the Regulation. The ECJ opts for the seat of the insolvent company, basing its analysis on the differentiation between primary damage and consequential damage. The same analysis is also used to determine the applicable law under the Rome II Regulation. In this context, however, the ECJ examines more closely the specific breach of duty of care to determine whether the claim falls under the scope of the Rome II Regulation or under the rules of international company law.

A. Kronenberg, Disapproved overriding mandatory provisions and factual impossibility

Two years after the Higher Regional Court (Oberlandesgericht, OLG) of Frankfurt am Main, the OLG Munich also had to rule on a lawsuit filed by an Israeli against Kuwait Airways. The plaintiff had demanded to be flown from Munich to Sri Lanka with a stopover in Kuwait City in accordance with the contract the parties had concluded. The OLG Munich dismissed the claim with regard to a Kuwaiti Israel boycott law, which, although inapplicable, according to the court had the effect that it was factually impossible for the defendant airline to transport Israeli nationals with a stopover in Kuwait. The ruling shows that in cases of substantive law level consideration of disapproved foreign overriding mandatory provisions the legally required result can be undesirable. However, this result depends on the circumstances of the individual case as well as on certain prerequisites that must be observed when taking into consideration overriding mandatory provisions. The article sets out these prerequisites and shows why the OLG Munich probably should have ordered the defendant to perform its obligation. It also explains why, in cases in which factual impossibility indeed exists, the result of the dismissal of the action most likely cannot be changed even by enacting a blocking statute.

C. Thomale and C. Lukas, The pseudo-foreign British one man-LLC

The Higher Regional Court of Munich has decided that a Bristish one man-LLC, which has its real seat in Germany, under German conflict of laws and substantive rules lacks legal personality altogether. This case note analyzes this decision’s implications for the conflict of company laws, notably for the interpretation of the TCA and application of the so-called “modified real seat theory”.

M. Brinkmann, Discharge in England and subsequent declaratory judgement against debtor in Germany – Binding effects of judgement trump recognition of prior bankruptcy proceedings

The Higher Regional Court Düsseldorf (OLG Düsseldorf) had to decide upon an action for the payment of damages based on a declaratory judgement. The declaratory judgement had established the defendant’s liability and was, at the time, not challenged by the defendant. In his defense against the action for payment the defendant now tries to invoke a discharge, which he had already obtained in insolvency proceedings in the UK in March 2012, i.e. prior to the declaratory judgement.
The OLG argued that under the applicable EIR, the English insolvency proceedings were, in principle, subject to automatic recognition. Under Art. 17 EIR 2002, these proceedings produce the same effects in all Member States. The OLG Düsseldorf nevertheless precluded the defendant from invoking the discharge. As the English bankruptcy proceedings were concluded before the action for the declaratory judgement was initiated, the defendant should have invoked the discharge already in the proceedings that led to the declaratory judgement in March 2013.
The OLG correctly found that the declaratory judgement was procedurally binding between the parties and hence barred the defendant from invoking the discharge in subsequent proceedings.

M. Andrae, Modification or suspension of enforcement of a decision under Article 12 of the Hague Child Abduction Convention?

The article discusses which procedural options exist if, after a final decision pursuant to 12 Hague Convention on the Civil Aspects of International Child Abduction, circumstances arise which would justify the refusal of an application for the return of the child. A procedure to change the decision is only permissible if the international jurisdiction of the German courts exists. For child abduction from EU Member States, this is determined in principle according to Art. 9 of the Regulation (EU) n 1111/2019 and for child abduction from other Contracting States of The Hague Protection of Children Convention according to Art. 7 of the Convention. As long as jurisdiction thereafter lies with the courts of the state in which the child was habitually resident immediately before the removal or retention keep, the German courts are limited to ordering the temporary stay of enforcement.

J. Oster, Facebook dislikes: The taming of a data giant through private international data protection law

Just as the Data Protection Directive 95/46/EC, the General Data Protection Regulation (GDPR) suffers from a deficit concerning both its public and its private enforcement. Among other things, this deficit is owed to the fact that European data protection law still raises many questions regarding jurisdiction and the applicable law. In its interlocutory judgment that will be discussed in this article, the Rechtbank Amsterdam established its jurisdiction and declared the GDPR as well as Dutch data protection and tort law applicable to a lawsuit by the Dutch Data Protection Foundation for alleged violations of rules of data protection and unfair competition. This article agrees with the Rechtbank’s findings, but it also draws attention to weaknesses in its reasoning and to unresolved questions of European private international data protection law.

The issues surrounding the possible extension of the rules of jurisdiction in the Brussels I bis Regulation to non-EU domiciliaries will be discussed at a conference that will take place in Turin on 3 May 2023.

The topic formed the object of the third project of the EAPIL Young Research Network, which resulted in a collection of essays due to be published in the coming weeks by Bloosmbury. One of the purposes of the Turin conference is to present the results of that project.

Speakers include Marisa Attollino, Silvia Bortolotti, Raffaele Caterina, Stefano Dominelli, Pietro Franzina, Enrico Maggiora, Ennio Piovesani, Margherita Salvadori and Dora Zgrabljić Rotar.

The conference will be held mostly in Italian. Both on-site and on-line attendance are possible. Those wishing to attend remotely should write to Ennio Piovesani at ennio.piovesani@unito.it.

For further information see here.

This post was written by Gilles Cuniberti and Anna Wysocka-Bar.

On 26 January 2023, the European Commission has launched an infringement procedure against Poland for violation of the Brussels II bis Regulation.

The EAPIL Blog has learnt about the details of one of the cases which has triggered this procedure. It is described below.

Background

The case is concerned with a girl born in 2013 from a British father residing in England, and a Polish mother. The child has been living with her mother in Poland since 2017.

First English Return Order

In 2017, an English family court issued an order of return of the child to England and Wales.

The English court found that the child was habitually resident in England in 2017, and that her removal to Poland was wrongful.

Polish Dismissal of Return Order

The father applied in Poland for a return order based on the 1980 Hague Convention.

The application was allowed in first instance, but dismissed by a Polish regional court in June 2018, on the ground that there was a defence under Article 13(b) of the Hague Convention.

Although the EAPIL Blog could not read this decision, it seems that the mother of the child was blaming the father of a child for being aggressive towards her and seeking revenge instead of being truly interested in the happiness and wellbeing of the child. The religion of the father of the child was also discussed, as the mother suggested that he hates Catholics. The mother alleged that she was also afraid that the father might discriminate against the child only because she is a girl. The mother also alleged that the father of the child has a family and a wife in another country. With respect to the child, the mother also alleged that she is surrounded by love in Poland, is in a very close relationship with her grandparents and is perfectly adapted in the society. The mother argued that the child never misses her father and never asks about him. Hence, the mother concluded, the return to the father to the UK would have a devastating effect on the child.

Second English Return Order

Later in 2018, the Polish mother then wrote an email to the English court that she would not bring the child back to England notwithstanding the 2017 return order.

The father then applied to the English family court for a return order of the child to England and Wales into the care of her father in accordance with Article 11(8) of the Brussels II bis Regulation.

The court noted that the mother had failed to abide to the 2017 return order, and had written to the court that she would not.

The court ruled that given the age and immaturity of the child, it was inappropriate to hear her.

The court then ruled that it was satisfied that the mother was properly served, by email, by post by the Polish lawyer of the father, and by the Polish court itself, in accordance with the EU Service Regulation.

The court noted that the mother worked as an English interpreter and as a English teacher in Poland, and thus did not need an interpreter in the English proceedings, that she had not required in any case.

Finally, the court noted that the mother was offered the possibility to be heard and participate in the English proceedings by telephone.

The return order was issued in October 2018 and was supplemented with a certificate on the form provided in the Annex IV of Brussels II bis Regulation.

Non-Recognition of the English Return Order in Poland 

In February 2019, pursuant to Article 42 of the Brussels II bis Regulation, the Polish local court obtained, through the Polish Ministry of Justice, the application from the father for the enforcement of the English child return order.

Then, the local court in March 2020 refused the enforcement basing its decision on (interestingly) Article 23 of the Brussels I bis Regulation. Later, the court of the second instance, to which the father of the child filed an appeal, upheld the decision on non-enforcement of the English return order. The reasons provided by both courts are numerous and might be categorized as follows.

First, the court explained that the mother of the child has not participated in the UK proceeding and was not duly informed about it. Even though, the UK court asked Poland for the correspondence to be served on the mother through legal aid procedure, the documents were not duly served. The documents were served to the mother’s attorney-at-law, whose power of attorney was already revoked on the date of service. Even if theoretically – the lawyer would have a mandate to receive a correspondence addressed to the mother of the child, the time between the service and the issuance of the UK return order was too short to prepare for the defense. Consequently, neither the mother, nor the child were heard during the UK proceeding.

Secondly, the principle of the best interest of the child was raised. The court explained that the child had no contact with the father since 2017. The child lives in Poland with the mother, takes violin lessons and horseback riding classes in Poland, started primary education in Poland, has family and friends in Poland. The child should not be abruptly taken from such environment. The child is now rooted in Poland and has the center of life interests in Poland.

Thirdly, other, not explained in detail, arguments were raised. The court underlined that the ongoing pandemic should also be considered, however without stating what is exactly the influence of the pandemic on its decision. The court submitted that the English return order does not indicate the deadline by which the child should be returned to the UK. Also, the fact of Brexit was contemplated. The court stated that it is not sure whether English courts are still correctly applying the Brussels II bis Regulation after the Brexit referendum, and any doubts to that respect should be interpreted to the benefit of the citizens of the EU Member States (presumably, the mother of the child in this case).

Assessment

It seems that the problematic stage of the proceedings is what happened in Poland after the English return order delivered in accordance with Article 11(8) of the Brussels II bis Regulation and supplemented with the certificate from Annex IV of the Brussels II bis Regulation was transferred to the local court in Poland in order to be enforced.

As explained by the Court of Justice of the EU in Inga Rinau (C-195/08 PPU), the enforceability of a judgment requiring the return of a child following a judgment of non‑return enjoys procedural autonomy. It means that once the certificate has been issued, the judgment requiring the return of a child referred to in Article 40(1)(b) is to be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition (see: para. 68, Inga Rinau).  Hence, opposition to the recognition of the decision ordering return is not permitted and it is for the requested court only to declare the enforceability of the certified decision and to allow the immediate return of the child (see: para. 89, Inga Rinau).

In this case, the Polish courts of two instances were analyzing the procedure before English court, the current situation of the child, the influence of the pandemic and Brexit to conclude that the English return order should not be enforced. No such review is admissible under the Brussels II bis Regulation.

We cannot help but pick up the argument that English courts might have lost their competence in EU law after Brexit. Are Polish judges fully aware that the EU was not established in 2004, and that, at that time, English courts had already been applying EU law for almost 20 years?

It might be easier to understand how the factual background of the case fits into the provisions of Brussels II bis Regulation making use of the schema included in the EU Practice Guide for the Application of Brussels II bis Regulation below.

Jalla & Anor v Shell International Trading and Shipping Company Ltd & Anor [2023] EWHC 424 (TCC) is a follow-up of earlier, procedural (including jurisdictional) issues which I discuss here.

[1]-[2] The 2011 Bonga Spill emanated from an offshore floating production, storage and off-loading facility (“the Bonga FPSO”), located approximately 120 kilometres off the Nigerian coastline of Bayelsa State and Delta State within the Nigerian Exclusive Economic Zone. The Spill was caused by a rupture of one of the pipelines connecting the Bonga FPSO to a single point mooring system (“SPM”), both of which were operated and controlled by one of the defendants, Shell Nigeria Exploration and Production Company Ltd (“SNEPCo”), a Nigerian company regulated by the Nigerian governmental authorities. The technical manager of the vessel, the MV Northia, that was loading from the Bonga FPSO at the time of the spill was another defendant, Shell International Trading and Shipping Company Ltd, (“STASCO”), a company domiciled and registered in the UK.

Anchor defendant is STASCO. SNEPCo is co-defendant.

The High Court had determined that the claims for damage caused by the Spill  could not constitute a continuing nuisance until any pollution was remedied, so as to extend the limitation period and defeat the defendants’ limitation defence; it held claimants each had a single claim in nuisance in respect of any damage caused by the Bonga Spill, such cause of action accruing when their land and/or water supplies were first impacted by the oil. Claimants’ appeal against that part of the judgment as I reported earlier was dismissed by the Court of Appeal [2021] EWCA Civ 63  and this “Continuing Nuisance Appeal” is now being appealed to the Supreme Court.

[4] Current case is to determine the date on which actionable damage, if any, was suffered by the claimants as a result of the Bonga Spill, for the purpose of deciding whether any of the claims against the anchor defendant, STASCO, are statute-barred for limitation and, therefore, whether E&W courts have jurisdiction to determine the substantive claims. 

[39] Stuart-Smith J (as the then was), alongside the jurisdictional challenges, had further held that the High Court had no discretion to allow, or would refuse, amendment of the claim form to join STASCO and the amendment to add allegations against STASCO, if and to the extent that the applications were made after the expiry of the relevant limitation period. The allegations against STASCO in respect of its responsibility for the  were deemed by the court not to have been made until 2 March 2020.

[40] ff

The issue of jurisdiction as against SNEPCo, a Nigerian corporation, is dependent on there being a valid claim against STASCO, a UK corporation. The court rejected other jurisdictional challenges made by the defendants but was unable to finally dispose of the challenge to jurisdiction because it was subject to the outstanding issue as to whether the claims against STASCO were statute-barred. If the claims against STASCO, the anchor defendant, were statute-barred, there would be no basis on which service out of the jurisdiction against SNEPCo could be permitted and the court would have no jurisdiction to determine any of the claims.

Given the significance of the limitation issue, the court ordered that there should be a trial of preliminary issues to determine in respect of all claimants the date on which they suffered damage, the appropriate limitation period and limitation as a defence to the claims.

Parties agree that Nigerian Law applies to the claims relating to the spill, including the limitation period applicable to the claims (the case therefore does not engage with the outstanding issue of the treatment of limitation under Rome II, discussed most recently in Bravo v Amerisur Resources (Putumayo Group Litigation). The issue between the parties is whether the applicable limitation period is six years, as submitted by the claimants, or five years, as submitted by the defendants.

O’Farrell J holds that given the date of damage, none of the claims in these proceedings was made against STASCO within any applicable limitation period. Obiter, she holds on the limitation issue anyway.

The relevant law that applies in Nigeria is the (English) Limitation of Actions Act 1623 which provides for a limitation period of six years for claims that would amount to tortious claims. The National Assembly for the Nigerian Federation has not enacted any general limitation statute and no such provision is made in the Constitution. The State legislature for Delta State however has enacted a general limitation statute. Section 18 of the Limitation Law of Delta State 2006 (“the Delta State Limitation Law”) provides for a limitation period of five years for claims in tort. 

[306] Claimants’ position is that the limitation period applicable to their claims is the six-year period provided for by the 1623 Act. In the absence of specific federal legislation on this issue, they argue this residual provision is the limitation law generally applicable in Nigeria, including at a federal level, by virtue of section 32(1) of the Interpretation Act 1964; further, that the Delta State Limitation Law is inapplicable in the Federal High Court; only federal legislation can apply, irrespective of where the Federal High Court sits.

Further, [307], claimants argue they are entitled by Article 7 Rome II  to choose the law applicable in the Nigerian Exclusive Economic Zone (“EEZ”) as the lex causae governing their claims for environmental damage, as the country where the event giving rise to the damage occurred, the locus delicti commissi, Handlungsort. The EEZ falls within the control of the Federal Government of Nigeria; as such, it would be subject to the Nigerian Federal law of torts and the residual 1623 Act limitation period.

[308] Defendants’ position is that the limitation period applicable to the claims is the five-year period provided for by the Delta State Limitation Law. The relevant Federal High Court for the claims would be the Federal High Court in Delta State, as the place where the alleged damage occurred. They suggest Nigerian authorities on limitation confirm that if a local limitation law exists in the relevant state, that law applies to the claim; and the limitation statute of each state is territorial in scope. On that basis, the Delta State Limitation Law applies to any action brought in the territorial area of Delta State, including the Federal High Court in Delta State.

[309] viz A7 Rome II they argue the Nigerian EEZ is not a “country” for the purpose of Article 25(1) Rome II [‘“Where a State comprises several territorial units, each of which has its own rules of law in respect of non-contractual obligations, each territorial unit shall be considered as a country for the purposes of identifying the law applicable under this Regulation”], that it has no applicable limitation law and that it would not override the jurisdiction of the Federal High Court to determine the claims in these proceedings.

The judge [336] ff holds the country in which the alleged damage occurred is Delta State, making the law of Delta State the default choice of law under Article 4(1) Rome II; that although the claims are for environmental damage, and the event giving rise to the alleged damage occurred at the FPSO within the Nigerian EEZ, the EEZ is not a country within the meaning or A25(1): Nigeria is a Federation with 36 states plus the FCT of Abuja. The EEZ is not a territorial unit and does not comprise one of those states; and the EEZ does not have its own rules of law in respect of non-contractual obligations.

The remainder of the judgment deals with issues of proof of foreign customary law.

Interesting!

Geert.

 

Follow-up to https://t.co/XHZRWI7jOt
Considers limitation periods in Rome II (and impact on E&W jurisdiction), choice of lex causae in A7 Rome II (environmental damage), Nigerian regions as 'countries' under A25 Rome II

Jalla v Shell [2023] EWHC 424 (TCC)https://t.co/T8z2ERNUjd

— Geert Van Calster (@GAVClaw) March 7, 2023

The EAPIL Working Group on the Reform of the Brussels I bis Regulation has set up a survey to collect feedback and comments on the proposals formulated in the preliminary position paper.  

By now, over 60 participants from many different Member States have answered the survey. To allow an even broader participation, the deadline for taking the survey has been extended until 15 April 2023.

Participation in the survey is open to anybody interested in the reform of the Brussels I bis Regulation, non matter whether they are members of the European Association of Private International Law, or not.

Written by Alessa Karlinski and Maren Vogel (both Free University Berlin).

On February 23rd and 24th, 2023, young scholars came together at the Siegmund Freud University, Vienna, to discuss different views on private international law under the theme of “Deference to the foreign – empty phrase or guiding principle of private international law?”. Continuing the success of the previous three German-Speaking Conferences of Young Scholars in PIL from previous years in Bonn, Würzburg and Hamburg, this year’s conference was hosted in Austria by Martina Melcher and Florian Heindler who organized the event together with Andreas Engel, Katharina Kaesling, Ben Köhler, Bettina Rentsch, Susanna Roßbach and Johannes Ungerer.

As keynote speaker, Professor Horatia Muir Watt (Sciences Po Paris) borrowed from the often-used metaphor of the “dismal swamp” to present an “ecosophical” approach to private international law. For this purpose, she engaged anthropological and philosophical insights of Western and indigenous origin on the meaning of law and the regulatory functions of private international law in particular.

Vanessa Grifo (University of Heidelberg) presented possible insights from the theory of the post-migrant society for international family law. Based on sociological accounts of “post-migrant” identities, Grifo discussed that a person’s cultural identity can form “hybrid” solidarity to different legal systems and oppose the collective national identity of the country of immigration. While previously, according to Kegel, connecting factors were understood to build upon certain generally neutral conflict-of-laws interests, cultural identity is becoming a relevant aspect of party interests, which she demonstrated with the help of different recent judgement of the German Federal Court of Justice. This paradigm, Grifo argued, shows a shift from the system of the traditional German understanding of connecting factors following Kegel.

Victoria Garin (European University Institute, Florence) examined the connection between private international law and the concept of Relativism. The basis of her analysis is the contemporary private international law attempting to coordinate conflicting regulatory claims of several legal systems. Garin identified extraterritoriality, difference and equivalence as assumptions used in private international law to solve this conflict. These assumptions, Garin argued, are premised on Relativism in its forms as descriptive and normative theory. Through the lens of Relativism a critical examination of private international law, especially regarding current developments in literature, was made. Garin explained to what extent the criticism of Relativism can be applied to private international law theory.

Dr Shahar Avraham-Giller (Hebrew University Jerusalem) presented two seemingly contradictory developments in private international law. First Avraham-Giller pointed out, that legal questions are increasingly restrictively categorised as procedural questions in the EU and in common law states which leads to a broader application of foreign law as the lex causae. The application of the lex fori to procedural questions can itself be understood as an overriding mandatory provision of the forum. On the other hand, as Avraham-Giller projected, an increased recourse of courts to the means of other overriding mandatory provisions to safeguard national public interests can be observed. In her opinion, these seemingly contradictory developments can be explained as an answer to the development of a more “private” understanding of civil proceedings, seeking primarily peaceful settlement of private disputes, while enforcing other values and public goals through mandatory overriding provisions at the same time.

Raphael Dummermuth (University of Fribourg) then shed light on deference to the foreign in the context of the interpretation of the Lugano Convention. First, he addressed the question of the implementation of the objective of taking into account the case law of the ECJ by non-EU courts, as stated in Art. 1(1) Protocol 2 Lugano Convention. The application of the Lugano Convention, he pointed out, requires a double consideration of the foreign: the court must consider standards or judgments that are outside the Lugano Convention and in doing so apply a foreign methodology. Nonetheless, the one-sided duty of consideration is limited where the results of interpretation are decisively based on principles of EU law. He came to the conclusion, that precedent effect should therefore only be given to results that are justifiable within the scope of the classical methodology.

The first day of the conference closed with a panel discussion between Professor Dietmar Czernich, Professor Georg Kodek and Dr Judith Schacherreiter on deference to the foreign in private international legal practice and international civil procedure. The discussants shared numerous insights: from the appointment of expert opinions on foreign law, to deference to the foreign in international commercial arbitration and the practice of legal advice.

Selina Mack (LMU Munich) opened the second day of the conference examining the ordre public in the field of succession law using the example of the right to a compulsory portion in Austria and Germany. Mack began by comparing similar regulations in Germany and Austria with the so-called family provision in England. She then contrasted a decision of the Supreme Court of Austria (OGH) with a decision of the German Federal Court of Justice (BGH), both of which deal with the ordre public according to Art. 35 of the European Inheritance Regulation when applying English law. The ordre public clause under Art. 35 is to be applied restrictively. While the OGH did not consider the ordre public to be infringed, the BGH, on the other hand, assumed an infringement. Mack concluded that this is a fundamental disrespect of the foreign by the BGH.

Tess Bens (MPI Luxembourg) examined methods of enforcing foreign judgments under the Brussels Ia Regulation. Said Regulation does not, in principle, harmonise enforcement law. She presented the enforcement mechanism as applying the enforcement law of the enforcing state by means of substitution or, insofar as the order or measure was unknown to the enforcement law, by means of transposition. Due to structural differences in the enforcement law of the Member States, as Bens outlines, practical problems can nevertheless arise. Especially since the abolition of the exequatur procedure in the case of insufficient concretisation of the enforcement order, the Brussels Ia Regulation does not provide a procedure. Finally, she discussed that these frictions might be mitigated by anticipating differences and requirements of the enforcing by the courts, nonetheless limited due to the difficulty of predictability.

Afterwards, the participants were able to discuss various topics in a small group for one hour in three parallel groups, each introduced by two impulse speeches.

The first group looked at the factor of nationality in private international law. Stefano Dominelli (Università di Genova) introduced into the current debate on the connecting factor of nationality in matters concerning the personal status. In his opinion, it is debateable whether a shift towards the application of local law really strengthens deference to the foreign. Micheal Cremer (MPI Hamburg) looked at the handling of so-called golden passports in the EU. He pointed out, that European conflict of laws regularly does not take the purchased nationality into account, being in line with most of the theoretical approaches to the nationality principle.

The second group focused on the influence of political decisions on the application of foreign law. Dr Adrian Hemler (University of Konstanz) presented the concept of distributive justice as a reason for applying foreign law. He emphasised, that the difference between purely national and foreign constellations makes the application of foreign law necessary. In his presentation, Felix Aiwanger (LMU Munich) looked at different standards of control with regard to foreign law. He argued that legal systems that can be considered as reliable are subject to a simplified content review.

The third group discussed the treatment of foreign institutions in international family law. Dr Lukas Klever (JKU Linz) presented the recognition of decisions on personal status in cases of surrogacy carried out abroad. He discussed differences and possible weaknesses in the recognition under the Austrian conflict of laws and procedural law. Aron Johanson (LMU Munich) then provided a further perspective with a look at the institute of polygamy. He explained, that while in Germany a partial recognition can be possible, Sweden had switched to a regular refusal of recognition. Subsequently the question of a duty of recognition arising from the free movement of persons as soon as one member state recognises polygamy was asked.

Dr Tabea Bauermeister (University of Hamburg) devoted her presentation to the conflict of laws dimension of the claim for damages in Art. 22 of the European Commission’s proposal for a directive on corporate sustainability due diligence (CSDDD), paragraph 5 of which compels the member states to design it as an overriding mandatory provision. She outlined, that regulatory goals can also be achieved through mutual conflict-of-laws provisions. An example of this is the codification of international cartel offence law. Bauermeister concluded, that the use of mandatory overriding provisions instead of special conflict-of-laws provisions expresses a distrust of the foreign legislature’s competence or willingness to regulate and therefore represents a disregard of the foreign.

Dr Sophia Schwemmer (Heidelberg University) then examined private enforcement under the CSDDD vis-à-vis third-state companies. She stated, that while third-state companies were included in the scope of application insofar as they are active in the EU internal market, the applicability of the CSDDD could normally not be achieved using the classic conflict-of-laws rules. The CSDDD resorts to an overriding mandatory provision for this purpose. However, Schwemmer concluded that a different approach, e.g. an extended right of choice of law for the injured party, was also imaginable and preferable.

As last speaker, Dr Lena Hornkohl (University of Vienna/Heidelberg University) addressed the effects of EU blocking regulations on private law. She stated that the application of EU blocking statutes as a reaction to extraterritorial third-country regulations can lead to almost irresolvable conflicts in private law relationships. Hornkohl then critically examined the ECJ case law that postulates the direct applicability of the Blocking Regulation in private law relationships. Binding private parties to the Blocking Regulation, she concluded, leads to the instrumentalisation of private law at the expense of private parties with the aim of enforcing foreign policy objectives.

A conference volume will be published by Mohr Siebeck Verlag later this year. The next PIL Young Researchers Conference will take place in Heidelberg in 2025.

A conference on the codification of European private international law will take place on 21 April 2023 at the Université Catholique de Louvain. The conference, titled Vers un code Européen de droit international privé, is meant to be a tribute to Marc Fallon.

The working language will be French and English.

Speakers and moderators include: Jean-Yves Carlier, Stéphanie Francq, Pietro Franzina, Cristina González Beilfuss, Fabienne Jault-Seseke, Thomas Kadner Graziano, Catherine Kessedjian, Patrick Kinsch, Thalia Kruger, Paul Lagarde, Johan Meeusen, Marie-Laure Niboyet, Etienne Pataut, Fausto Pocar, Sylvie Sarolea, Andreas Stein, Jinske Verhellen, Pieter-Augustijn Van Malleghem, Melchior Wathelet, Patrick Wautelet, Alain Wijffels, Dai Yokomizo. The concluding remarks will be offered by Marc Fallon.

The concept is as follows.

Why and for what purpose should European private international law be codified? This twofold question will be at the heart of the discussions on April 21, 2023, during a colloquium paying tribute to the remarkable work of Professor Marc Fallon in the fields of private international law and European law, and in particular to his involvement in the Belgian and European codification of private international law.

How did we come to envisage a European codification of private international law? What do we expect from it? Does an EU codification have the same ambitions as national codifications? Do these ambitions not vary according to the place, the time and the context of international constraints imposed on the legislator? Does a codification at the European level, and at the present time, imply specific needs, challenges and consequences, even dangers, for both the national and the European legal orders?

And above all, does it offer new prospects or hopes for the European project and for the discipline of private international law?

The full programme is available here, together with the registration form.

Ever since the infamous West Tankers saga, if not before, the interplay between the international jurisdiction of national courts and arbitral tribunals has been subject to a constant stream of publications. Writing a monograph on this topic that is both fundamental and innovative in this field is therefore no small feat – making this book by Faidon Varesis, which has come out at the beginning of the year and is based on his Cambridge dissertation, all the more impressive.

The book is organized in three parts (which are not evident from the Table of Contents). Varesis first discusses the importance of commercial disputes in a globalized world, focusing on the private and regulatory interests involved. He then looks more closely at the issue of jurisdiction and the interplay between litigation and arbitration at what he identifies as “jurisdictional intersections” (referring to a range of different situations in which state courts or arbitral tribunals need to resolve questions of adjudicative jurisdiction), before discussing the concept of party autonomy and its expression in an arbitration agreement. In the second part, Varesis then develops a theoretical model for the distribution of jurisdiction between arbitration and litigation that puts the arbitration agreement at its centre. In the third and final part, the author then tests this model against the current legal framework in England and Wales and demonstrates how it would enable courts and arbitral tribunals alike to solve questions arising at the aforementioned jurisdictional intersections in a global-law spirit.

Arguably the most significant contribution of this book to existing scholarship and debates is its attempt to construct a system around a “horizontal” (rather than hierarchical) relationship between arbitration and litigation as two equivalent yet interdependent modes of dispute resolution. How much appetite there is for such an approach in the wake of Katharina Pistor’s Code of Capital and other critical accounts of corporations seemingly using the law to create and (re-)distribute capital and wealth behind closed doors is obviously open to debate; but this does not make Varesis’ attempt to reconstruct a horizontal system of jurisdiction, arbitral or adjudicatory, that reconciles the distribution of regulatory competence with the need for substantial fairness any less of an intellectually stimulating exercise.

The EAPIL Working Group on the Law Applicable to Digital Assets has issued a Position Paper to comment on the private international law aspects of the Draft Principles and Commentary on Digital Assets and Private Law issued by UNIDROIT in January 2023.

The Position Paper can be found here.

The issue of the applicable law to digital assets, which is the subject matter of the Position Paper, will be taken up jointly by UNIDROIT and the Hague Conference on Private International Law, which have announced earlier this month their plan to launch the HCCH-UNIDROIT Project on Law Applicable to Cross-Border Holdings and Transfers of Digital Assets and Tokens.

The EAPIL Working Group will follow the joint work of HCCH and UNIDROIT.

On 13 March 2023, the Journal of International Dispute Settlement  published a private international law article:

G Antonopoulou, “The ‘Arbitralization’ of Courts: The Role of International Commercial Arbitration in the Establishment and the Procedural Design of International Commercial Courts” 

International commercial arbitration is the most preferred dispute resolution method in cross-border commercial disputes. It has been, however, claimed that arbitration has lost its flexibility by becoming increasingly formal and by incorporating litigation practices. In academic literature, this trend has been termed the ‘judicialization’ of international commercial arbitration. This article argues that while arbitration is becoming progressively judicialized, international commercial courts evidence an opposite, less studied trend; namely, the ‘arbitralization’ of courts. Through a comparative analysis of different international commercial courts, the article explores how the competition with arbitration has prompted the establishment of these courts, and how arbitration has served as the inspiration for some of their most innovative features. The article concludes that while the incorporation of arbitration features could improve court proceedings, some of international commercial courts’ arbitration features undermine procedural justice and the role of courts as public institutions and therefore hit the limits of arbitralization.

A new private international law article was just published in the Arab Law Quarterly.:

A Dawwas, “Tacit Choice of Law Applicable to International Commercial Contracts: The Hague Principles and Arab Laws Compared”

This article deals with the law tacitly chosen by the parties to govern their international commercial contracts. It shows the method by which The 2015 Hague Principles on Choice of Law in International Commercial Contracts and Arab laws refer to tacit choice, whether directly or indirectly. In addition, it tackles the level of strictness in tests for tacit choice and its criteria under both The Hague Principles and Arab laws. It concludes that, in order to achieve more predictability and legal certainty, the Legislatures in Arab states should reform the legal provisions on choice of law applicable to the contract with foreign element(s) according to the best practice followed by The Hague Principles in this regard.

The author of this post is Stefano Ferrero, partner at Gattai Minoli, Milan.

As a follow-up to the post by Pietro Franzina on this blog regarding the approach of Italian courts to worldwide freezing injunctions issued in common law countries, I would like to share some additional information and remarks on the matter.

By a ruling of 28 December 2021, the Court of Appeal of Naples provided guidance also to the second issue mentioned in the post, i.e., whether a worldwide freezing order should undergo some adaptation in the State requested (in particular, Italy) at the stage of enforcement.

It is worth noting that the relationship between the sequestro conservativo, a precautionary measure typical of the Italian legal system, and the freezing (formerly Mareva) injunction (or order), a precautionary measure typical of English law, has long been the subject of doubts and uncertainties. The difficulties encountered reflect, in my view, a misunderstanding.

Based on the assumption that a sequestro operates in rem whereas a common law freezing injunction operates in personam, and that the two measures would accordingly be fundamentally different in substance, Italian Land Registrars have generally refused to record English freezing orders affecting immoveable property located in Italy.

Registrars have mostly relied, for this purpose, on a decision rendered in January 2014 by the Court of First Instance of Bologna, which rejected a complaint pursuant to Articles 2674 bis of the Italian Civil Code and 113 ter of the Italian Civil Code made against the temporary and precarious registration of a freezing order that was effected pursuant to Article 2674 bis of the Italian Civil Code.

However, Land Registrars have apparently long been unaware that in June 2014 the Bologna Court of Appeal (with the agreeing opinion of the Attorney General’s Office) had then upheld the complaint against the Bologna Court decree, ordering the Registrar to proceed with registration without reservation.

A similar case has been brought a few years later in Naples. The Registrar had ordered the registration with reservation of an English freezing order, the Court had rejected the complaint with a decree of December 2020 that the Court of Appeal of Naples eventually overturned (under an unreported decision, available here, in Italian), despite the opposition of the Italian revenue authorities (Agenzia delle Entrate).

The decisions of the two Courts of Appeal share the basic idea that the distinction between the sequestro as a measure in rem and the freezing order as a measure in personam has no relevance in the context of the present discussion: a careful examination of the rules of the two judicial remedies (as regards the United Kingdom, the Civil Procedure Rules, the Land Registration Act 2002 and the Land Registration Rules 2003) reveals that they have, also from the point of view of their operation and effects, profound similarities.

Such conclusions had already been reached in 2015 by the English High Court (Arcadia Petroleum Ltd and others v Bosworth and others [2015] EWHC 3700 (Comm) – 15 December 2015), that had declared the full equivalence between English freezing orders and continental attachments, confirming that the (however limited) difference between in rem and in personam nature is, in fact, a false problem.

Moreover, the two Italian measures are based on the assumption that within the European judicial area there is the fundamental principle, confirmed by Article 54 of the Brussels I bis Regulation, whereby the requested State must implement unknown foreign measures by adapting them in the manner and with the effects proper to an equivalent domestic measure.

Admittedly, adaptation may not be available where the foreign measure in question is at odds with the fundamental principles of the requested Member State.

With reference to this last profile, the Court of Appeal of Naples confirmed in the unreported decision mentioned above the full compatibility of the freezing orders with Italian public policy. The Court emphasized that the good arguable claim and the fumus boni iuris tests are largely equivalent, as do the risk of dissipation and periculum in mora tests. Registration in the Italian land registers and the restriction in the English Land Registries are also similar, in that they have an effect limiting the circulation of the goods affected, although the restriction imposes an ex ante (and stricter, for it concerns the validity itself of the act of disposal) limit, whereas the registration operates ex post through the sanction of the relative ineffectiveness of the act of disposal.

The Court of Appeal eventually endorsed the principle affirmed by the Court of Cassation in the ruling of 2021 reported by Pietro Franzina in his post, which had already clarified that the fact that the violation of a freezing order may give rise to a personal criminal sanction (the contempt of court) is a recurring consequence also in Italian law, which punishes the failure to comply with court orders (Article 388 of the Criminal Code).

The lectures of Mario J. A. Oyarzábal entitled “The influence of public international law upon private international law in history and theory and in the formation and application of the law”, which were delivered at The Hague Academy of International Law in 2020, will be published on 22 March 2023 in the Collected Courses of the Academy (Recueil des cours de l’Académie de droit international de La Haye, Vol. 428, 2023, pp. 129 et seq.).

Mario Oyarzábal is an Argentine diplomat and scholar, currently the Ambassador of the Argentine Republic to the Kingdom of the Netherlands.

The summary below has been provided by the author.

As its title suggests, this course explores the influence of public international law upon private international law, in the history and the theory as well as in the formation and the application of the law.

The course focuses on the biggest transformations that have taken place on the international plane over the course of the last century and assesses how that has affected the legal landscape, raising questions as to the scope and the potential of private international law and the suitability of the traditional sources of international law to address the role of private actors and the incursion of public law in the private arena.

In Chapter I, the author analyses how the concepts of public and private international law have evolved over time, from the Jus Gentium and the origins of the conflict of laws to the rise of sovereignty and positivism which led to the exclusion of private disputes connected with more than one State from the domain of international law. Much attention is given to the developments in international relations and international law that took place since the second half of the 20th century – institutionalization, decolonization, human rights, globalization – which have produced a profound transformation in the sources, the method and ultimately the scope of private international law. The significance for private international law of the human rights movement and the regime for the protection of foreign investors are assessed from both backward and forward-looking perspectives.

Chapter II addresses the public international law sources of private international law in an ever-changing world. Starting with the sources stated in the Statute of the International Court of Justice, the author digs into the relevance of other international sources of private international law such as community law, human rights standards and non-legally binding norms (or soft law), party autonomy and reciprocity. The law of treaties – their interpretation and the conflict of treaties – as applied to private international law is dealt with in certain detail, as well as the role – and potential – of the jurisprudence of the International Court of Justice in the determination of the rules of private international law in certain areas.

The last Chapter addresses the interaction of public and private international law in selected areas: jurisdictional immunities – of foreign States, diplomats and international organizations – and the right of access to justice; mutual legal assistance – in relation with the 2019 Hague Judgments Convention, and the so-called “MLA initiative” on a convention for the investigation and prosecution of international crimes; sovereign debt restructuring processes in light of Argentina’s experience; the international law principle of the best interests of the child as applied to abducted, migrant and refugee children; international sports law with special focus on FIFA and football; international arts law under the 1970 UNESCO Convention and the 1995 UNIDROIT Convention and general international law; cybercrime as well as cryptocurrencies. The private international law issues relating to nationality, deep seabed mining, and sea level rise – which are the subjects of public international law – are also introduced.

Having analyzed the prevailing trends, the lectures survey three areas in which the interconnectivity of actors, activities and norms are present requiring public/private law solutions: international economic law – in relation to climate litigation and the human rights preoccupations present in the investment protection regime, as well as the issue of economic and financial sanctions which have exacerbated with the war in Ukraine; international data flows and the threat they pose to personal data protection in particular; and the protection of vulnerable persons and groups including older adults, tourists and migrants.

This course takes a pragmatic problem-solving approach, which nonetheless is systemic and based on principles, and argues that while public and private international law are and should be kept as separate legal fields, both are needed to address an increasing number of issues.    

 

Below is the table of contents:

The Influence of Public International Law upon Private International Law: In History and Theory and in the Formation and Application of the Law by Mario J. A. Oyarzábal:

Table of Contents
Foreword 141
Preliminary remarks 143

Chapter I. The influence of public international law upon the history and the theory of private international law 146
1. The evolving concepts of public and private international law 146
2. A historical and theoretical overview 151
(a) Jus gentium and the origins of the conflict of laws 151
(b) International comity 152
(c) Sovereignty and the dearth of the internationalist approach . 154
(d) The legal conscience of the civilised world 155
(e) The early normative and institutionalisation efforts 158
(f) The Russian and the American revolutions 163
(g) The growing international legal community 170
(h) International law and development 176
(i) Public law in the international arena 186
(j) The privatisation of the State 196
(k) Expansion and diversification of international law 198
(l) Significance for private international law of the human rights movement 209
(m) From international law to transnational law 223
3. Should private international law be international law? 230

Chapter II. The influence of public international law upon the formation of private international law 240
A. Sources of the law 240
1. Customary international law 240
2. Treaties 244
(a) Private international lawmaking treaties  244
(b) Validity and application of treaties 248
(c) Reservations  255
(d) Interpretation of treaties

(e) Application of successive treaties regarding the same subject matter

(f) Treaties as part of the domestic systems of private international law

(g) Incidences of non-recognition of States, breach of diplomatic relations and State succession 259
3. General principles of law 286
4. Judicial decisions  290
(a) Decisions of the ICJ and its predecessor 290
(b) Arbitral awards  298
(c) Decisions of national courts  302
5. The writings of publicists  307
B. Other sources 309
1. “Community” law 309
2. Human rights standards  317
3. Non-legally binding norms 324
4. Party autonomy 332
5. Reciprocity 333
Note on comity 339
Note on international conferences and organisations concerned with private international law 340

Chapter III. The influence of public international law upon the application of private international law: selected problems 342
1. Jurisdictional immunities and the right of access to justice 342
2. From mutual recognition to international legal cooperation  365
3. Sovereign debt restructuring: Public and private law litigation 379
4. International law on the rights of the child 411
(a) International human rights of children in private international law 411
(b) Best interests of abducted children 416
(c) The protection of the best interests of migrant children 421
(d) Best interests of the child in intercountry adoption 428
5. International sports law 431
(a) International sports organisations: Personality and lawmaking and law enforcement 431
(b) The case of FIFA 439
6. International art law 449
(a) Cultural internationalism and cultural nationalism 449
(b) The public and the private international law approaches 452
(c) Free market and exports control 455
(d) Human rights considerations 456
(e) Anti-seizure statutes 458
(f) Conflicts law in illegally exported works of art 461
(g) Cultural heritage, peace and security 462
7. International norms and standards in cyberspace 464
(a) Cybercrime, rights and global politics 466
(b) The rise of cryptocurrency 468
Note on nationality 473
Note on deep seabed mining and the protection of the marine environment 476
Note on sea level rise 477
Critical recap and outlook 480
Epilogue 503
Selected bibliography 505

The HCCH this month published some recent developments on private international law in Issue 1 of Uniform Law Review for 2023 as “News from the Hague Conference on Private International Law (HCCH)”

Over the past year, the HCCH, supported by its Permanent Bureau, has continued its work for the progressive unification of the rules of private international law (PIL). This annual contribution to the Uniform Law Review provides an overview of the activities of the HCCH from 1 November 2021 to 30 November 2022 and anticipates some upcoming events, encompassing the HCCH’s three main areas of work: international family and child protection law, transnational litigation and apostille, and international commercial, digital, and financial law.

Originally posted in News and events – Nigeria Group on Private International Law (ngpil.org)

On 4 March 2023, the Nigerian Group on Private International Law (“NGPIL”) colleagues were pleased to meet the winners of the 2023 NGPIL Conflict of Law’s Essay Prize. This year, we awarded two candidates, winner and first runner up, for excellent and engaging pieces on PIL and Nigeria.

Our winner, Oluwabusola Fagbemi, an LLM student from the University of Ibadan, Oyo State emerged as the winner of this year’s competition. She wrote on “A Comparative Analysis of Product Liability in the Conflict of Laws”, a piece that the deciding panel found to engage robust research, comprising of Nigeria common law, EU approach, English approach and US approach. Our winner was awarded 185,000NGN. In her words “It is an honour to be selected for The NGPIL Prize for the year 2022/2023. Thank you very much…It was also great to get to know them [NGPIL] and hear of their exciting work, and the impact that they are making in the PIL space globally… believe that The NGPIL is the right place for me to grow, learn, advance my career, and develop my interests in PIL. I will definitely keep in touch and remain connected, and I am looking forward to future collaboration.”

Adeyinka Adeoye from the Nigerian School of Law, Kano Campus received the 1st runner prize on her paper entitled “Product Liability in Private International Law” from a Nigerian perspective. She was awarded 65,000NGN. In her words “I am super excited that my essay emerged first runner-up. This news came at the best possible time“.

Huge congratulations to Busola and Adeyinka!