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The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) will be published on 1 September 2022. It contains a number of interesting articles and case comments regarding issues of jurisdiction and applicable law. The table of contents is available here. The following abstracts have been kindly provided to us.

J. Richter, Cross-border service of writs of summons according to the revised EU Service Regulation

The service of judicial documents, particularly the service of writs of summons, is of central importance in civil proceedings. In cross-border proceedings, service of legal documents poses particular problems, which are addressed by the European Regulation on the Service of Documents. The revision of this regulation, which will enter into force on 1 July 2022, provides an opportunity to examine the current and future rules by taking the example of the international service of writs of summons.

G. van Calster, Lex ecologia. On applicable law for environmental pollution (Article 7 Rome II), a pinnacle of business and human rights as well as climate change litigation

The European Union rules on the law that applies to liability for environmental damage, are an outlier in the private international law agenda. EU private international law rules are almost always value neutral. Predictability is the core ambition, not a particular outcome in litigation. The rules on applicable law for environmental damage, contained in the Rome II Regulation on the law that applies to non-contractual obligations, are a clear and considered exception. Courts are struggling with the right approach to the relevant rules. This contribution maps the meaning and nature of those articles, their application in case-law, and their impact among others on business and human rights as well as climate change litigation.

M. Castendiek, “Contractual” rights of third parties in private international law

Although contractual rights are usually limited to the parties, almost all jurisdictions in Europe recognize exceptions of this rule. Whereas those “contractual” rights of third parties are strictly limited in common law countries, German and Austrian Law even extend contractual duties of care on third persons related to the parties. Prior to the Rome Regulations, the conflict-of-law judgments on those “contracts with protective effect in favour of third parties” differed between German and Austrian courts.
The article points out that a consistent jurisdiction on this issue needs a clear distinction between contractual and non-contractual rights even between the parties of the contract. It points out that the Regulation Rome I covers only obligations that would not exist without the contract. Those obligations remain contractual even if they entitle a third party.
“Contractual” duties of care corresponding with negligence in tort, on the other hand, fall within the scope of the Regulation Rome II. For the contracting parties as well as for third parties, the conflict-of-laws in claims following the disregard of such duties is determined by the application of Article 4 Regulation Rome II. The article provides criteria to determine whether the close connection rule in Article 4(3) Regulation Rome II can lead to the application of the law governing the contract.

C. von Bary, News on Procedural Consumer Protection from Luxemburg: Consumer Status and Change of Domicile

In two recent decisions, the CJEU continues to refine the contours of procedural consumer protection in cross-border disputes. In the case of a person who spent on average nine hours a day playing – and winning at – online poker, the court clarified that factors like the amount involved, special knowledge or the regularity of the activity do not as such lead to this person not being classified as a consumer. It remains unclear, however, which criteria are relevant to determine whether a contract is concluded for a purpose outside a trade or profession. Further, the CJEU stated that the relevant time to determine the consumer’s domicile is when the action is brought before a court. This seems to be true even if the consumer changes domicile to a different member state after the conclusion of the contract and before the action is brought and the seller or supplier has not pursued commercial or professional activities or directed such activities at this member state. This devalues the relevance of this criterion to the detriment of the professional party.

W. Voß, The Forum Delicti Commissi in Cases of Purely Pecuniary Loss – a Cum-Ex Aftermath

Localising the place of damage in the context of capital investment cases is a perennial problem both under national and European civil procedural law. With prospectus liability having dominated the case law in the past decades, a new scenario is now increasingly coming into the courts’ focus: liability claims resulting from cum-ex-transactions. In its recent decision, the Higher Regional Court of Munich confirms the significance of the place of the claimant’s bank account for the localisation of purely financial loss in the context of sec. 32 German Civil Procedure Code but fails to provide any additional, viable reasoning on this notoriously debated issue. The decision does manage, however, to define the notion of principal place of business as delimitation of the scope of application of the Brussels regime convincingly. Incidentally, the text of the judgment also proves an informative lesson for the recently flared-up debate about anonymization of judicial decisions.

L. Hornkohl, International jurisdiction for permission proceedings under the German Telemedia Act (TMG) in cases of suspected abusive customer complaints on online marketplaces

In its decision of 11 March 2021, the Cologne Higher Regional Court denied the international jurisdiction of the Cologne courts for permission proceedings under the German Telemedia Act (TMG) in cases of suspected abusive customer complaints in online marketplaces. The Cologne court decision combined several precedents of the German Federal Court and the European Court of Justice. Although the Cologne Higher Regional Court decided that permission proceedings constitute a civil and commercial matter within the meaning of the Brussels I Regulation, international jurisdiction could not be established in Germany. The place of performance according to Art. 7 No. 1 lit. b second indent Brussels Ibis Regulation must, in case of doubt, uniformly be determined at the place of establishment of the online marketplace operator in Luxembourg. Article 7 No. 2 of the Regulation also does not give jurisdiction to German courts. The refusal to provide information per se is not a tort in the sense of Article 7 No. 2. Furthermore, there is no own or attributable possibly defamatory conduct of the platform operator. Contradictory considerations of the German legislator alone cannot establish jurisdiction in Germany.

A. Spickhoff, Contract and Tort in European Jurisdiction – New Developments

The question of qualification as a matter of contract or/and of tort is among others especially relevant in respect to the jurisdiction at place of performance and of forum delicti. The decision of the court of Justice of the European Union in res Brogsitter has initiated a discussion of its relevance and range to this problem. Recent decisions have clarified some issues. The article tries to show which. The starting point is the fraudulent car purchase.

R.A. Schütze, Security for costs for UK plaintiffs in German civil proceedings after the Brexit?

The judgment of the Oberlandesgericht Frankfurt/Main deals with one of the open procedural questions of the Brexit: the obligation of plaintiffs having permanent residence in the United Kingdom to provide security of costs in German civil proceedings. The Court has rightly decided that from January 1st, 2021 plaintiff cannot rely on sect. 110 par. 1 German Code of Civil Procedure (CCP) anymore as the United Kingdom is no longer member of the EU. If the plaintiff has lodged the complaint before January 1st, 2021, the obligation to provide security of costs arises at that date and security can be claimed by respondent according to sect. 110 CCP. However, the Court has not seen two exceptions from the obligation to provide security for costs according to sect. 110 par. 2 no. 1 and 2 CCP which relieve plaintiff from the obligation to provide security of costs if an international convention so provides (no. 1) or if an international convention grants the recognition and execution of decisions for costs (no. 2). In the instant case the court had to apply art. 9 par. 1 of the European Convention on Establishment of 1955 and the Convention between Germany and the United Kingdom on Recognition and Execution of Foreign Judgments of 1960, both Conventions not having been touched by the Brexit. Facit therefore: claimants having permanent residence in the United Kingdom are not obliged to provide security for costs in German Civil proceedings.

H. Roth, Qualification Issues relating to § 167 Civil Procedure Code (Zivilprozessordnung, ZPO)

§ 167 of the Civil Procedure Code (ZPO) aims to relieve the parties of the risk accruing to them through late official notification of legal action over which they have no control. This norm is part of procedural law. It is valid irrespective of whether a German court applies foreign or German substantive law. The higher regional Court (Oberlandesgericht) of Frankfurt a.M. found differently. It holds that § 167 should only be considered when German substantive law and thus German statute of limitations law is applied.

A. Hemler, Undisclosed agency and construction contract with foreign building site: Which law is applicable?

Does the term “contract for the provision of services” in Art 4(1)(b) Rome I Regulation include a building contract with a foreign building site? Or should we apply the exception clause in Art 4(3) Rome I Regulation if the building site is abroad? Which law governs the legal consequences of undisclosed agency, i.e. how should we treat cases where a contracting party acts as an agent for an undisclosed principal? Furthermore, what are the legal grounds in German law for a refund of an advance payment surplus in such a building contract? In the case discussed, the Oberlandesgericht (Higher Regional Court) Köln only addressed the latter question in detail. Unfortunately, the court considered the interesting PIL issues only in disappointing brevity. Therefore, based on a doctrinal examination of the exception clause in Art 4(3) Rome I Regulation, the paper discusses whether the scope of the general conflict of laws rule for contracts for the provision of services should exclude building contracts with a foreign building site by virtue of a teleological limitation. It also sheds light on the dispute around the law governing cases of undisclosed agency. The paper argues that Art 1(2)(g) Rome I Regulation is not applicable in this regard, i.e. the issue is not excluded from the Rome I Regulation’s scope. Instead, it is covered by Art 10(1) Rome I Regulation; hence, the law governing the contract remains applicable.

S.L. Gössl, Uniqueness and subjective components – Some notes on habitual residence in European conflict of laws and procedural law

The article deals with the case law of the ECJ on the habitual residence of adults, as addressed in a recent decision. The ECJ clarified that there can only ever be one habitual residence. Furthermore, it confirms that each habitual residence has to be determined differently for each legal acts. Finally, in the case of the habitual residence of adults, subjective elements become more paramount than in the case of minors. In autonomous German Private International Law, discrepancies with EU law may arise precisely with regard to the relevance of the subjective and objective elements. German courts should attempt to avoid such a discrepancy.

D. Wiedemann, Holidays in Europe or relocation to Bordeaux: the habitual residence of a child under the Hague Convention on International Child Abduction

A man of French nationality and a woman of Chilean nationality got married and had a daughter in Buenos Aires. A few months after the birth of their daughter, the family travelled to Europe, where they first visited relatives and friends and finally stayed with the man’s family in Bordeaux. One month and a few days after they arrived in Bordeaux, mother and daughter travelled to Buenos Aires and, despite an agreement between the spouses, never returned to Bordeaux. The father in France asked Argentinean authorities for a return order under the HCA. According to the prevailing view, the HCA only applies, if, before the removal or retention, the child was habitually resident in any contracting state except for the requested state. The court of first instance (Juzgado Civil) assumed a change of the child’s habitual residence from Argentina to France, but, considering that the lack of the mother’s consent to move to France results in a violation of the Convention on the Elimination of All Forms of Discrimination against Women, it granted an exception under Art. 20 HCA. The higher court (Cámara Nacional de Apelaciones en lo Civil) and the Argentinian Supreme Court (Corte Suprema de Justicia de la Nación) required the manifestation of both parents’ intent for a change of the child’s habitual residence. The higher court saw a sufficient manifestation of the mother’s intent to move to France in the termination of her employment in Buenos Aires and ordered the return. In contrast, the CSJN refused to give weight to the termination of employment as it happened in connection with the birth of the daughter.

H.J. Snijders, Enforcement of foreign award (in online arbitration) ex officio refused because of violation of the defendant’s right to be heard

With reference to (inter alia) a judgement of the Amsterdam Court of Appeal, some questions regarding the consideration of requests for recognition and enforcement of foreign arbitral awards in the Netherlands are discussed. Should the State Court ex officio deal with a violation of public order by the arbitral tribunal, in particular the defendant’s right to be heard, also in default proceedings like the Amsterdam one? In addition, which public order is relevant in this respect, the international public order or the domestic one? Furthermore, does it matter for the State Court’s decision that the arbitral awards dealt with were issued in an online arbitration procedure (regarding a loan in bitcoin)? Which lessons can be derived from the decision of the Amsterdam Court for drafters of Online Arbitration Rules and for arbitral tribunals dealing with online arbitration like the arbitral e-court in the Amsterdam case? The author also points out the relevance of transitional law in the field of arbitration by reference to a recent decision of the Dutch Supreme Court rejecting the view of the Amsterdam Court of Appeal in this matter; transitional law still is dangerous law.

Jean Monnet Chair Action DIGITEUL invites contributions to the international conference on Competition in Digital Markets which will be held on September 30, 2022. The conference will be online only.DIGITEUL is a Jean Monnet Chair Action coordinated by Dr Zeynep Ayata at Koç University Law School.

Theme of the Conference

Digitalisation has been affecting all aspects of the economy and society at an unprecedented pace and scale. The powerful methods of data processing and new business models that became prevalent with digitalisation led to complex problems for competition authorities. The intersection of these new issues with fundamental rights places them on a different stage than traditional problems that competition authorities have dealt with. Lawmakers around the world have initiated ex-ante interventions tools for competition law enforcement only, the Digital Markets Act that has been recently enacted by the European Union being the first example of such measures. The conference aims to explore perspectives on how to balance the different interests that needs to be protected when dealing with the challenges that digitalisation brings to surface in the area of competition law.

Keynote Speech by Prof Dr Ariel Ezrachi, University of Oxford

Scientific Selection Committee

Prof Dr Pinar Akman, University of Leeds, UK

Associate Prof Dr Kerem Cem Sanli, Istanbul Bilgi University, Turkey

Associate Prof Dr Konstantinos Stylianou, University of Leeds, UK

Assistant Prof Dr Zeynep Ayata, Koç University, Turkey

Assistant Prof Dr Marios Iacovides, Uppsala University, Sweden

Eligibility Criteria & Submission Instructions

Abstracts in English, no more than 300 words should be submitted to digiteul@ku.edu.tr by 01.09.2022. Only academics, researchers and postgraduate students may apply. Each applicant may propose only one individual abstract (co-authored abstracts are allowed). All submissions will be reviewed using a double-blind review process. Successful applicants will be notified by email by 09.09.2022. Participation in the conference is entirely free. Presented papers’ short or extended abstracts will be published on DIGITEUL’s website.

KOÇ UNIVERSITY LAW SCHOOL 

CALL FOR PAPERS

CASE LAW SYMPOSIUM: RECENT DEVELOPMENTS IN DOMESTIC, INTERNATIONAL, AND FOREIGN JUDICIARIES

Koç University Law School is pleased to invite applications for the case law symposium on recent developments in domestic, international, and foreign judiciaries which will be held on 7 October 2022.

The aim of the symposium is the legal analysis of domestic, international, and foreign court decisions in all fields of law that are new and impactful for legal interpretation and application. Researchers who will make presentations are encouraged to make not only the normative analysis of single or multiple judicial or quasi-judicial decisions based on qualitative or quantitative methods, but also their evaluation from comparative, historical, socio-economic, critical theories of law or other relevant perspectives. In terms of ensuring thematic diversity in participation, it is aimed to include varieties of jurisprudence, methodological approaches, and perspectives in the symposium.

Those who will present papers at the symposium are required to have a doctorate degree in the field of law or social or human sciences related to the case law they will present, or to be at the doctoral thesis stage.

Speakers may present their submissions either in Turkish or in English.

The symposium will be held online. Abstracts of approximately 500-700 words should be submitted to ook@ku.edu.tr by Friday, 15 September 2022. The application should include personal (name, surname and affiliation) and contact (e-mail, phone) information of the applicant. Applications are free of charge.

Applications will be evaluated by the scientific committee and accepted abstracts will be published with the program of the symposium within a few weeks after the application deadline. The accepted abstracts will also be published in a booklet.

Scientific Committee (Listed Alphabetically)

Prof. Dr. S. Anlam ALTAY (Galatasaray University)

Prof. Dr. Taner AYANO?LU (Bilgi University)

Prof. Dr. Nur CENTEL (Koç University)

Prof. Dr. Tankut CENTEL (Koç University)

Prof. Dr. Baki ?lkay ENG?N (Istanbul University)

Prof. Dr. Ozan ERÖZDEN (Mef University)

Prof. Johanna HJALMARSSON (Southampton University)

Prof. Marios IACOVIDES (Uppsala University)

Prof. Dr. Christoph KUMPAN (Bucerius Law School)

Prof. Randall LESSAFER (Tilburg University / Leuven University)

Prof. Dr. Halûk Nami NOMER (Istanbul Ayd?n University)

Prof. Dr. Hannes RÖSLER (Siegen University)

Prof. Dr. Zeynep Derya TARMAN (Koç University)

Prof. Jakup URBANIK (University of Warshaw)

Prof. Dr. Billur YALTI (Koç University)

Prof. Dr. Veliye YANLI (Bilgi University)

Prof. Dr. Nevhis Deren YILDIRIM (Koç University)

Organizing Committee

Prof. Dr. Bertil Emrah ODER (Koç University)

Doç. Dr. R. Murat ÖNOK (Koç University)

Dr. Ö?r. Üyesi Cem VEZ?RO?LU (Koç University)

Ar. Gör. Abdurrahman KAYIKLIK (Koç University)

Ar. Gör. Orcan OK (Koç University)

Contact Person

Ar. Gör. Orcan OK (ook@ku.edu.tr)

This post was authored by François Mailhé, who is Professor of Private Law at the University of Picardie Jules Verne. It is the fourth in a series of posts regarding the ruling of the European Court of Justice, of 20 June 2022, in the case of London Steam-Ship Owners’ Mutual Assistance Association Ltd v Spain. The first post was contributed by Adrian Briggs, the second one by Gilles Cuniberti, and the third one by Antonio Leandro.

Much has already been said on this case and this post does not contend to address all the issues both dealt with and raised by the decision.

Rather, I would like to submit, as a summer food for thought, a topical methodological problem exampled by this decision after several others: that of the bias tending to analyse all problems through the articles of the Regulation at stake. More precisely, I would suggest Brussels I as a whole shouldn’t have been applied in that case and that the reason for those opposite findings by the ECJ can also be explained because it preferred interpreting article 34 rather than the scope of the Regulation as a whole.

It all starts with what I contend to be a poorly presented prejudicial question. It did ask whether, first, the English decision at stake was a “judgment” preventing recognition of the Spanish decision under Article 34 of Brussels I, second if it may be such even if it was taken in accordance with the Arbitration Act 1996. The question therefore focused on Article 34 and, by doing so, begged for the answer.

Indeed, if one looks at the issue through Article 34 and the notion of irreconcilability, then the Hoffmann case, on Article 34’s ancestor, Article 27 Brussels Convention, is the relevant case-law. In that decision, the ECJ held that a decision on the status of a natural person, a matter outside the scope of the Convention, could still be considered from Article 27 perspective as long as it “entailed legal consequences which were mutually exclusive” with the other judgment. It was a very pragmatic decision, allowing to solve the conflict between Article 27 (that solved the problem) and Article 1 (on the scope of the Convention). It allowed to disregard the subject-matter of the judgment if it may have consequences in the field of what was the Brussels convention at the time. Disregarding the arbitration exclusion was, therefore, an obvious choice considering the phrasing of the question.

What is more, asking whether Article 34 could be applied even if the judgment had a specificity under national law (the Arbitration Act 1996) was also a good way to get a specific answer. National specificities are obviously irrelevant.

What was relevant, though, was the topic of this national act: arbitration. There lied the problem.

Article 1(2) had been forgotten in the question and bypassed too quickly by the Court in its answer, who considered the problem was identical to that in Hoffmann. But what worked for 1(2)(a) was not adapted to all other exclusions of Article 1(2). Relevant for a conflict of substance (status of natural persons, succession and wills, etc.) since its solution eventually only considers substance (that of the consequences of those conflicting decisions), it is hardly adapted to procedural exceptions. Arbitral awards, and therefore decisions about them, intervene almost by essence on contractual and liability matters, all matters dealt with by the Regulation. Most often, the final decision will be about such remedies as liability and damages, or avoidance of a contract. How may such a decision not be conflicting with other judicial decisions between the same parties and matters?

The problem of arbitration is that it is not a different matter, hence no different decisions, but a different procedure. Using an analysis of the substance of any final award and an associated judgment therefore amounts to strip the arbitral aspect of the litigation and to deprive the exclusion clause of article 1(2)(d) of the Regulation of any effet utile. One may just have to compare with what could have been the reasoning with a judgment pronounced within the scope of the Insolvency Regulation recast. There again, comparing the substance of the decisions would have revealed a potential conflict between mutually exclusive legal consequences, and therefore, according to that line of reasoning, the exclusion of the Insolvency Regulation…

Falling back on Article 34 and the Hoffmann decision was therefore too simple a way to bypass the arbitration issue. In the conflict between the problem to solve and the scope of the Regulation, the latter is obviously to be addressed first. Indeed, there is no real conflict: there was no question, once Brussels I would have been declared applicable, that the issue would have to be solved by Article 34… The question of the scope of a Regulation arises first since its rules only play within its limits. And the London Steam-Ship case shows how such a line of reasoning is not only an issue of logic, but also of policy. The policy issue, indeed, was not the narrow interplay between two such decisions, but rather the scope of the arbitration exclusion in Brussels I, an issue that has not always been clearly addressed. This issue of the limits of the Regulation itself should have been at the core of the prejudicial question, not the conditions of Article 34 facing a specific judgment.

It is not the first time such a narrow analysis is at play, though. One may remember, for example, the Owusu decision. Where, in that decision, the question was whether or not forum non conveniens was compatible with the Convention, the Court went in depth as to the “imperative” nature of the sole Article 2 of the Convention to reject it. This method prevented the Court to pose a principle of exclusion of forum non conveniens within the scope of the Brussels Convention itself, a solution far simpler (and more efficient) than interpreting its Article 2, which was not answering that problem at all. Indeed, resorting to specific articles of the Regulation, silent on new issues, often leads to just ignoring them.

I do not know whether, at least in this London Steam-Ship case, the Court was perfectly aware of this methodological choice. But it is that of a young Court, applying a young law. A French author cannot but think of the exegetic school of French law that endured in case-law for decades after the Code civil was enacted, restricting itself to the strict meaning of its articles even when new issues arose. This is what the ECJ did, here again, by preferring to interpret the technical rule rather than trying a systemic analysis.

The Court has found maturity in other branches of European law, displaying much subtility and a much wider vision to address complex issues. Private international law, as this other branch of law harmonising relations between member State laws, could benefit from such a change in perspective.

Written by Dr. Meng Yu and Dr. Guodong Du, co-founders of China Justice Observer*

On 21 August 2022, China Justice Observer released the 2022 version of the List of China’s Cases on Recognition of Foreign Judgments. To date, we have collected 89 cases involving China and 24 foreign States and regions. (Note: Foreign divorce judgments are excluded in the Case List.)

The Case List was issued on July 16, 2019, and is updated annually. The 2020 update was also posted on Conflictoflaws.net.

The full version of the 2022 List of China’s Cases on Recognition of Foreign Judgments is available here.

The key features of the updated list are:

• The List comprises 24 concise reports for each jurisdiction, together with a chart of bilateral judicial assistance treaties which China has concluded with 39 States, of which 35 bilateral treaties include judgment enforcement clauses.
• A total of 17 newly added cases involve eight jurisdictions, namely, the US (six cases), South Korea (three cases), Singapore (two cases), Australia (two cases), New Zealand (one case), Italy (one case), Germany (one case), and the UK (one case). Please note that in the German case, the Saarbrücken Regional Court of Germany refused to recognize and enforce a Chinese judgment on the ground of lack of reciprocity, despite the fact that, as early as 2013, China confirmed that there was reciprocity between the two countries. Please also note that in the UK case, the Shanghai Maritime Court of China ruled to recognize and enforce an English judgment, marking the first time that an English monetary judgment has been enforced in China based on reciprocity.
• As a landmark judicial policy issued by China’s Supreme People’s Court, the 2021 Conference Summary provides a detailed guideline for Chinese courts to review foreign judgment-related applications. It significantly lowers the threshold by liberalizing the reciprocity test, while providing a much clearer standard for Chinese judges to examine applications for recognition and enforcement of foreign judgments. The aforementioned UK case is a good example, because one key to ensuring the enforcement of English judgments is the reciprocal relationship between China and England (or the UK, if in a wider context), which, under the de jure reciprocity test (one of the new three tests), was confirmed in this case. Another interesting example would be a series of cases where a Chinese court in Guangzhou recognized and enforced compensatory damages awarded in three U.S. EB-5 Visa fraud judgments, but rejected the punitive damages awarded therein, echoing the same rule laid down in the 2021 Conference Summary.
• Each case has been reviewed and more details, such as the case numbers and causes of action, have been added. Please note that we updated the information for existing cases involving the UAE and Italy.
• Case analyses have been aggregated under the country tags, so it is now easier to track down relevant cases, together with their information and analyses, in each country/region report. For example, under the tag ‘US-China Judgments Recognition and Enforcement’, one can find relevant case analyses involving mutual recognition and enforcement of judgments between the US and China.

As always, we endeavor to collect all Chinese court decisions involving the recognition and enforcement of foreign judgments (“REFJ”), and foreign counterparts concerning the recognition and enforcement of Chinese judgments. The Case List is made available for our readers to build reasonable expectations on REFJ in China.

The Case List is continually updated with new reports. Case information, comments, and suggestions are most welcome. Please feel free to contact Ms. Meng YU via e-mail at meng.yu@chinajusticeobserver.com .

*We would like to thank the following persons/institutions that shared thoughts and valuable information with us:

Dr. Béligh Elbalti, Associate Professor, Graduate School of Law and Politics, Osaka University, Japan; Dr. ZHANG Wenliang, Associate Professor, School of Law, Renmin University of China; Dr. SU Xiaoling, Lawyer at Beijing DHH Law Firm; Mr. WANG Chengjie, Lawyer at Allbright Law Offices (Shanghai);Wonbanglaw; Ms. Renee M Wong, Attorney at Goldberger and Dubin PC (New York); Dr. WANG Yahan, Associate Professor, Henan University School of Law; Mr. Angus Ni, Litigation attorney at AFN Law PLLC (Seattle); Asian Business Law Institute.

The Court of Justice delivered on 1 August 2022 its judgment in case C‑501/20 (MPA v LCDNMT), which is about Brussels II bis and the Maintenance Regulation:

“1. Article 3(1)(a) of Council Regulation (EC) No 2201/2003 […] must be interpreted as meaning that the status of the spouses concerned as members of the contract staff of the European Union, working in the latter’s delegation to a third country and in respect of whom it is claimed that they enjoy diplomatic status in that third State, is not capable of constituting a decisive factor for the purposes of determining habitual residence, within the meaning of those provisions.

2. Article 8(1) of Regulation No 2201/2003 must be interpreted as meaning that, for the purposes of determining a child’s habitual residence, the connecting factor of the mother’s nationality and her residence, prior to the marriage, in the Member State of the court seised of an application relating to parental responsibility is irrelevant, whereas the fact that the minor children were born in that Member State and hold the nationality of that Member State is insufficient.

3. Where no court of a Member State has jurisdiction to rule on an application for the dissolution of matrimonial ties pursuant to Articles 3 to 5 of Regulation No 2201/2003, Article 7 of that regulation, read in conjunction with Article 6 thereof, must be interpreted as meaning that the fact that the respondent in the main proceedings is a national of a Member State other than that of the court seised prevents the application of the clause relating to residual jurisdiction laid down in Article 7 to establish the jurisdiction of that court without, however, preventing the courts of the Member State of which the respondent is a national from having jurisdiction to hear such an application pursuant to the latter Member State’s national rules on jurisdiction.
Where no court of a Member State has jurisdiction to rule on an application relating to parental responsibility pursuant to Articles 8 to 13 of Regulation No 2201/2003, Article 14 of that regulation must be interpreted as meaning that the fact that the respondent in the main proceedings is a national of a Member State other than that of the court seised does not preclude the application of the clause relating to residual jurisdiction laid down in Article 14 of that regulation.

4. Article 7 of Regulation No 4/2009 must be interpreted as meaning that:
– where the habitual residence of all the parties to the dispute in matters relating to maintenance obligations is not in a Member State, jurisdiction founded, on an exceptional basis, on the forum necessitatis referred to in Article 7 may be established if no court of a Member State has jurisdiction under Articles 3 to 6 of that regulation, if the proceedings cannot reasonably be brought or conducted in the third State with which the dispute is closely connected, or proves to be impossible, and there is a sufficient connection between the dispute and the court seised;
– in order to find, on an exceptional basis, that proceedings cannot reasonably be brought or conducted in a third State, it is important that, following an analysis of the evidence put forward in each individual case, access to justice in that third State is, in law or in fact, hindered, in particular by the application of procedural conditions that are discriminatory or contrary to the fundamental guarantees of a fair trial, without there being any requirement that the party relying on Article 7 demonstrate that he or she has been unsuccessful in bringing or has attempted to bring the proceedings in question before the courts of the third State concerned; and
– in order to consider that a dispute must have a sufficient connection with the Member State of the court seised, it is possible to rely on the nationality of one of the parties”.

Source: https://curia.europa.eu/juris/document/document.jsf?docid=263727&mode=req&pageIndex=2&dir=&occ=first&part=1&text=&doclang=EN&cid=4969924

Written by Adrian Cordina, PhD researcher at Erasmus School of Law, project member of the Vici project ‘Affordable Access to Justice’ which deals with costs and funding of civil litigation, financed by the Dutch Research Council (NWO)

This blog post reports on a conference on Third Party Litigation funding (TPLF) as well as some other activities in the area of costs and funding, including a new project by the European Law Institute on TPLF.

(1) Conference ‘The Future Regulation of Third-Party Funding in Europe’

22 June 2022, Erasmus University Rotterdam

The right of access to civil justice continues to be constrained by the cost, complexity and delays of litigation and the decline in legal aid. Private litigation funding methods litigation   like third-party litigation funding (TPLF) and alternative dispute resolution (ADR) methods have been developing, which address these challenges to a certain extent. The debate on whether and to what extent TPLF should be regulated in Europe has also been gathering pace. On the one hand, proponents argue that it facilitates access to civil justice whilst, on the other hand, critics say that there may be risks of abuse. These issues were critically discussed during the conference ‘The Future Regulation of Third-Party Funding in Europe’ held on the 22nd of June 2022. It concluded the online seminar series on ‘Trends and Challenges in Costs and Funding of Civil Justice’ organised by Erasmus School of Law in the context of the Vici project Affordable Access to Justice, financed by the Dutch Research Council (NWO). Team members of the project are project leader Xandra Kramer, and Eva Storskrubb, Masood Ahmed, Carlota Ucin, Adriani Dori, Eduardo Silva de Freitas, Adrian Cordina, assisted by Edine Appeldoorn.

The series commenced in December 2021 with a general session that addressed several topics related to access to justice and costs and funding, including collective redress and litigation costs reforms, and a law-and-economics perspective. The second seminar in January 2022 was dedicated to legal mobilisation in the EU. The third one in February addressed the impact of public interest litigation on access to justice, and the fourth one in March, litigation funding in Europe from a market perspective. The April seminar focused in on austerity policies and litigation costs reforms, and the May session was dedicated to funding and costs of alternative dispute resolution (ADR).

The aim of this seventh and final conference of the seminar series was to reflect on the need and type of regulation of TPLF from different points of view. By seeking to engage representatives from both academia and stakeholders, the conference aimed to foster a lively exchange and contribute to the debate. The event was introduced by a keynote speech by Professor Geert Van Calster (KU Leuven, Belgium) who examined the key issues in TPLF.

The first panel was chaired by Xandra Kramer and addressed the current status quo of the regulation of TPLF and the possibilities of further regulation. Paulien van der Grinten outlined the situation of TPLF in the Netherlands from the point of view Senior Legislative Lawyer at the Ministry of Justice and Security. The presentation of Johan Skog (Kapatens, Sweden) highlighted the lack of factual basis in the European Parliament Research Service Study for the concern of TPLF giving rise to excessive and frivolous litigation. David Greene (Edwin Coe, England) centred his presentation around a critical outlook on litigation costs and funding and the merits and demerits of TPLF in England and Wales. Following the presentations of the first panel, a discussion among the participants and attendees, including discussant Quirijn. Bongaerts (Birkway, The Netherlands), ensued. Amongst others, the question of disclosure of funding was debated.

The second panel was chaired by Eva Storskrubb (Uppsala University and Erasmus University Rotterdam) and focused on the modes and levels of regulation of TPLF. With respect to the Draft Report with recommendations to the Commission on Responsible Private Funding of Litigation, also examined in an earlier entry in this blog, Kai Zenner (European Parliament, Head of Office (MEP Axel Voss)) focused on the process which led up to the Draft Report and the risks of TPLF. Victoria Sahani (Professor, Arizona State University) approached the issue of TPLF from the perspective of arbitration, both commercial and investor-State arbitration. Finally, wrapping up the second panel and providing reflections connected to the preceding panelists, Albert Henke (Professor, Università degli Studi di Milano) addressed the issue of regulation and the multiple variables it faces.

The conference was held in hybrid format. In spite of some coordination challenges that this posed, both the live audience and online attendants found the opportunity to comment on the presentations and interact with the speakers, also with the use of the chat function. The discussions and interventions showed how opportune the timing of the conference was, as it was held at a period when the Draft Report is being deliberated and scrutinised, and when the debate on regulating TPLF is taking centre stage at a European and international level.

(2) Further activities and publications on costs and funding

Recently, a special issue of Erasmus Law Review, edited by Vici members Masood Ahmed and Xandra Kramer on  Global Developments and Challenges in Costs and Funding of Civil Justice (available open access). This Special Issue contains ten articles and is introduced by an editorial article Ahmed and Kramer. Three other Vici members have contributed to this issue. Ariani Dori inquires in her paper whether the fact-finding process that supports the preparation of the EU Justice Scoreboard, as well as the data this document displays, conveys reliable and comparable information. In his contribution, Adrian Cordina critically examines, including from a law-and-economics perspective, the main sources of concern leading to the scepticism shown towards TPF in Europe and how the regulatory frameworks of England and Wales, the Netherlands, and Germany in Europe, and at the European Union level, the Representative Actions Directive address such concerns. Finally, in view of the UKSC’s finding of non-infringement of Article 6 ECHR in Coventry v. Lawrence [2015] 50, Eduardo Silva de Freitas argues that a more holistic view of the procedural guarantees provided for by Article 6 ECHR is called for to properly assess its infringement, considering mainly the principle of equality of arms.

Some of the papers will be presented during an online seminar that will take place at the end of 2022.

(3) ELI project on Third Party Litigation Funding

The importance of Third Party Litigation Funding is also highlighted by the adoption of a new project by the European Law Institute (ELI) on TPLF.  The commencement of the two-year-long project was approved by the ELI Council in July 2022. It will be conducted under the supervision of three reporters (Professor Susanne Augenhofer, Ms Justice Dame Sara Cockerill, and Professor Henrik Rothe) assisted by researchers Adriani Dori and Joseph Rich, and with the support of an International Advisory Committee. The project’s main output will be the development of a set of principles (potentially supplemented by checklists) to identify issues to be considered when entering into a TPLF agreement. Adriani will participate as a project member (together with Mr Joseph Rich). The final outcome is expected in September 2024.

The latest issue of GRUR International (Journal of European and International IP Law) features an article by Pedro De Miguel Asensio, titled Protection of Reputation, Good Name and Personality Rights in Cross-Border Digital Media”.

The abstract reads:

Following the recent judgments of the Court of Justice in Mittelbayerischer Verlag and Gtflix tv, this paper analyses the European Union framework in relation to the enforcement of rights relating to personality, including those of legal persons, against harmful content posted online. As regards jurisdiction, special attention is given to the scope of the centre of interest of the victim as ground for jurisdiction. Furthermore, the fragmentation that results from attributing jurisdiction to the courts of the place(s) where the damage occurs under the so-called mosaic approach is discussed. Particular attention is devoted to the difficulties that arise in relation to the broad understanding by the Court of Justice of the place where the damage occurs as the connecting factor and its position regarding the mere accessibility of online content as the decisive element for determining jurisdiction. Additionally, the interplay between jurisdiction and choice of law and its implications on the territorial scope of orders and the cross-border recognition of judgments are considered.”

Further information can be found here.

This post was written by Stefan Leible and Felix M. Wilke (both University of Bayreuth). It is the fourth in a series of posts on the French draft code of private international law of March 2022 (the previous posts in the series discussed the issues of renvoi, foreign law and the recognition of marriages celebrated abroad). It is based on an article by the authors (in French) forthcoming in the Revue critique de droit international privé. The English manuscript of that article can be found SSRN here (SSRN).

The outlook that France might soon have a full private international law (PIL) code can cause some envy in a German PIL scholar. After all, Germany does not have – nor will it have it in the foreseeable future – such a code. To be sure, a big part of German conflict-of-laws provisions can be found in one place, i.e. the Introductory Act to the Civil Code (EGBGB). But this Act overall is not limited to PIL issues. Moreover, there is no piece of legislation exclusively and comprehensively devoted to questions of cross-border proceedings in civil matters. International jurisdiction outside the scope of EU law typically must be determined by applying the rules for local jurisdiction/venue “double-functionally” (on the prevalence of this concept in the EU, see the project (see here). And while the German Code of Civil Procedure (ZPO) expressly addresses other cross-border issues (such as service abroad or recognition and enforcement of foreign decisions), it only does so in the context of the respective subject matter (e.g. service in general and effects of decisions in general). Hence, these provisions are scattered across the Code.

Nevertheless, we hope some remarks from a German perspective may be of interest. At the risk of coming across as stereotypical German (PIL) scholars, we focus on the General Part of the Draft Code in this contribution. The readers may rest assured that our forthcoming article in the Revue critique de droit international privé has a broader approach.

The general part (Book I: “General Rules” = Articles 1-33) of the Draft Code contains provisions on conflict of laws as well as on procedure, including four “general general” provisions applying to both areas. The idea of “factoring out” provisions in this way obviously speaks to us, with the German Civil Code (BGB) arguably being the pinnacle of this legislative technique. True, to organize provisions in this way can run contrary to the accessibility of a legal instrument and therefore could be detrimental to one of the main goals of the Draft Code (see the Report of the Working Group (“Report”), p. 7). As the level of abstraction is still rather low, however, the advantage of not having to repeat the same provisions over and over (or at least to insert a plethora of references across the code) outweighs this risk. Furthermore, some of the general issues of PIL tend to appear to outsiders as arcane. Hence, it is beneficial for legal clarity to make some of them explicit.

The general part in the field of conflict of laws contains many of the usual suspects. It comes as no surprise in particular that there are provisions on renvoi (Article 8 of the Draft Code) and public policy (Article 11 of the Draft Code); we are not aware of any code of private international law anywhere in the world that fails to address these issues. It is commendable that a provision on characterisation (Article 6 of the Draft Code) has been drafted, following trends in other countries. The basic German approach (characterisation lege fori) is the same as in the Draft Code, but there is no provision to this effect. Of course, one of the main problems with characterisation concerns institutions unknown to the lex fori. Special conflict-of-laws provisions for such institutions make life much easier. It is thus a very good idea to have included provisions on trusts in the special part (Articles 107-114 of the Draft Code).

Article 8 of the Draft Code on renvoi has already been the subject of an insightful post by Gilles Cuniberti on this blog. We are in agreement with him that the respective reference in the Report to insights from comparative (private international) law are vague and misleading. We can add that Germany would be another example of national PIL allowing renvoi in general (Article 4(1) EGBGB).

We do not think that legal clarity is improved by making renvoi mandatory only if one of the parties so requests (Article 8 cl. 2 of the Draft Code). This would mean that applicable law at least for a considerable time has the sword of Damocles hanging over its head: Assuming that application of renvoi would lead to a different applicable law than if renvoi was excluded, the applicable law ultimately would be subject to one party choosing to “trigger” the application of renvoi or not. And why should one party have the unilateral power to change the applicable law in this way, possibly to the detriment of other parties?

Article 7(1) of the Draft Code contains a definition of lois de police (overriding mandatory provisions). Paragraph 2 sets forth that French overriding mandatory provisions must be applied; pursuant to paragraph 3, foreign overriding mandatory provisions can be applied under certain conditions. The legislative technique thus is rather similar to Article 9 Rome I. There is no comparable provision in the EGBGB (Article 34 EGBGB – implementing the respective provision of the Rome Convention – was abolished at the end of 2009). Again, we consider it beneficial for legal clarity to have a written rule on this issue.

But the function of Article 5(2) of the Draft Code is not clear to us in this regard. It states that a conflict-of-laws rule is “excluded” (écartée) by a material rule for certain international situations or by an overriding mandatory provision. Why is this statement even needed if Article 7(2) and (3) of the Draft Code contain precise instructions of how to deal with overriding mandatory provisions? Additionally, we object to the idea arguably expressed in Article 5(2) of the Draft Code that a rule of substantive law can take precedence over a conflict-of-laws rule. This would mean to conflate two areas of law that – analytically speaking – must be strictly kept apart.

While the German EGBGB with only four articles in the section on “General Provisions” does not serve as an inspiring example in this context, one might consider addressing even more issues in the general part of the Draft Code. (The Report does not indicate whether this was on the Working Group’s agenda.) In particular, we are thinking of the incidental question and the triad of adaptation, substitution and transposition. All of them concern a stage in the analysis of a case in which the applicable law has seemingly already been determined. There is a certain risk that especially those not well-versed in PIL could overlook that not necessarily all aspects of the case will be governed by the law just determined and/or that some adjustments still must be made under substantive law. To include provisions on these issues, even if phrased rather broadly, could at least draw attention to them. And the French PIL Code could be something of a trailblazer here.

A conference titled The Brussels I bis Reform will take place on 9 September 2022, between 8:30 am and 4:30 pm (CEST), organised by the Max Planck Institute Luxembourg.

Regulation (EU) 1215/2012 is the fundamental reference-instrument of cross-border judicial cooperation in civil matters within the European Union. It provides rules on jurisdiction, pendency, recognition, and enforcement of judgments and other enforceable titles. Since its establishment in 1968, it has been a constantly evolving instrument. At present, the European Commission is required to present a report on the application of the Regulation and to propose improvements. Against this background, a Working Group was set up within the network of the European Association of Private International Law (EAPIL) to draft a position paper. The group is led by Burkhard Hess (Luxembourg) and Geert van Calster (Leuven). Members of the working group answered a questionnaire, reporting the application and possible shortcomings of the Brussels Ibis Regulation in their respective jurisdictions.

Speakers include Dario Moura Vicente, Björn Laukemann, Vesna Lazić, François Mailhé, Stefaan Voet, Camelia Toader, Chrysoula Michailidou, Alexander Layton, Matthias Weller, Krzysztof Pacula, Marta Requejo Isidro, Viktória Harsági, Gilles Cuniberti and Marco Buzzoni.

The topics of the conference are based on the reports received from working group members and observers. Many of the reporters will have the opportunity to take up issues they indicated as important. Additional experts will present topics ranging from insolvency proceedings to third state relationships. Most importantly, the conference will provide a forum for all attendees to discuss the application of the Brussels I bis Regulation up until now and the need for future improvements. The aim of the conference is to prepare a position paper.

The paper will be presented to the European Commission to advise it in the evaluation process.

The conference, which is organised in collaboration with the European Association of Private International Law and the University of Leuven, will take place at the premises of the MPI Luxembourg. Digital participation is possible. Registration is on a first come, first served basis.

Those interested in participating are required to register before 26 August 2022.

Introductory remarks

Applications to recognize and enforce CAS awards are not part of Greek court’s daily order business. About ten years ago, the first decision of a Greek court was published, which accepted an application to declare a decision of the Court of Arbitration for Sports (CAS) enforceable. For this ruling, see here  (in English), and here (in Spanish). Two recent decisions are added to this short list of judgments, where the corresponding decisions of the above sports arbitration body were again declared enforceable

(Piraeus Court of first instance, decision published on 28. July 2021, and Thessaloniki Court of first instance, decision published on 26. April 2022, both unreported).

A summary of the new decisions

The first decision concerned a company of sport? management located in France, who initiated CAS proceedings against a football team in Greece due to non-payment of agreed fees for the transfer of a football player. The CAS granted the application and ordered the payment of 45.000 Euros and 16.391 CHF for the costs of the arbitral proceedings (case number 2018/O/5850).

The second decision concerned two accredited sports managers from Argentina against an Argentinian football player who terminated unilaterally the agreement, hence, he failed to abide by the conditions of the contract signed with the managers. They initiated arbitration proceedings before the CAS, which ordered the payment of 1 million Euros and 49.585,80 CHF for the costs of the arbitral proceedings (case number 2014/O/3726). The player appealed unsuccessfully before the Swiss Supreme Court (no reference available in the text of the decision).

Main findings

From the assessment of the aforementioned decisions, it is possible to draw the following conclusions:

• NYC: The ruler of the game. The application of the New York Convention regarding requests to recognize CAS awards is undisputable and common to all Greek decisions.

• National rules of Civil procedure. From the combination of Articles 3 and 4 NYC, and those of the Greek Code of Civil Procedure (Book on voluntary jurisdiction), it is clearly concluded that the true meaning of Articles 3 and 4 of the above convention is that, the one who requests the declaration of enforceability of a foreign arbitral award, is required to present the relevant decision and the arbitration agreement, either in original or in an official copy, as well as an official translation into the Greek language, during the hearing of his application, and without being obliged to file these documents at the court, when submitting the relevant application.

This because, to the eyes of Greek judges, Article 4 NYC, referring to a presentation “at the time of the application”, does not determine the procedural ‘moment’ (stage) when the documents of the arbitration agreement and the arbitral decision must be submitted to the court. It simply determines the burden of proof and the party borne with it. The procedural method and the time of presentation of the documents referred to in Article 4 § 1 NYC are still regulated by the procedural law of the trial judge, in the case at hand the Greek Code of Civil Procedure.

• Field of application of CAS. On the grounds of the decisions rendered by Greek courts, it has been confirmed that the CAS has jurisdiction over the following disputes:
• Application for arbitration by an athlete against the team in which he plays;
• Application for arbitration by the sports manager of athletes and/or coaches against the sports club.
• Application for arbitration by the sports manager against the athlete.

• Enforceability in the country of origin not a pre-requisite. Contrary to finality, it is not necessary to meet the condition of enforceability of the arbitral award in the state of origin, i.e., Switzerland.

• Enforceability of CAS Costs. The ‘order’ awarding arbitration costs, following the CAS award, must also be declared enforceable, according to Rule R.64.4 CAS Procedural Rules. The matter is noteworthy, as the above ‘order’ is issued after the award by the CAS Secretariat, not by the arbitration Panel that ruled on the dispute, and without the participation of the parties. However, it should be underlined that the letter from the CAS Secretariat merely specifies the amount of the arbitration costs awarded by the Panel; hence, it is considered as belonging to the award’s operative part. In addition, the act of awarding costs is notified to the parties in accordance with CAS rules.

• Irreconcilable judgments. It is not necessary to furnish a certificate of non-irreconcilability with a decision, by following the domestic model of article 903 § 5 and 323 nr. 4 Greek Code of Civil Procedure. According to the judgment of the Greek court, it is not permissible to transfuse a condition regulated by domestic arbitration law into the context of the New York Convention.

• No revision on the merits. Finally, although not directly stated in the text of the NYC, a revision of the foreign arbitral award by the Greek court is prohibited, the latter being unanimously accepted and labelled as the principle of non-examination on the merits.

The Mexican Academy of Private International and Comparative Law (AMEDIP) will be holding its annual XLV Seminar entitled “Private International Law in the conformation of a new international order” (el derecho internacional privado en la conformación de un nuevo orden internacional) from 16 to 18 November 2022. The venue is still to be determined but it is likely to be a hybrid event (online and on-site).

The main focus of the seminar will be to analyse the Proyecto de Código Nacional de Procedimientos Civiles y Familiares (draft National Code of Civil and Family Procedure, which includes Private International Law provisions and whose objective is to replace all the existing states’ legislation on the matter -32-) and the hotly debated litigation regarding non-contractual obligations arising out of a tort/delict resulting from the illicit traffic of firearms (the case of Mexico vs. Smith and Wesson), among other matters.

Potential speakers are invited to submit a paper in Spanish, English or Portuguese by 31 August 2022. Papers must comply with the criteria established by AMEDIP and will be evaluated accordingly. Selected speakers will be required to give their presentations preferably in Spanish as there will be no interpretation services but some exceptions may be made by the organisers upon request. For more information, please click here.

Participation is free of charge. A certificate of participation may be issued upon (a modest) payment.

The 9th Annual International Arbitration Lecture organised by Roma Tre University and Unidroit, will be held at Unidroit, in Rome, and online on 30 September 2022.

The lecture, titled Beyond Nationalists Mirages in Arbitration: The Inescapable Transnational Approach, will be delivered by Diego P. Fernández Arroyo.

Maria Chiara Malaguti (President of Unidroit and Professor at the Catholic University of the Sacred Heart) and Andrea Zoppini (Roma Tre University) will intervene.

For further information and registration see here.

The latest issue (2022/2) of the Dutch/English journal  Nederlands Internationaal Privaatrecht is dedicated to cross-border involvency.

Editorial: P.M. Veder, De Wet internationaal insolventierecht / p. 203-207

Articles

Welling-Steffens, Hoofdlijnen voor een wettelijke regeling van het commune internationaal insolventierecht. Bevoegdheid inzake, toepasselijk recht op, en erkenning van ‘derde-lands’ insolventieprocedures en aanverwante vorderingen / p. 208-226

Abstract

This article outlines a proposal on principles for future Dutch legislation on international insolvency law in relation to foreign insolvency proceedings held in so-called third countries (i.e. non-EU states). Itcommences with an overview of the current status of the Dutch national private international law rulesin respect of jurisdiction in, the applicable law to and the recognition of foreign insolvency proceedings and related actions held in third countries. Other than three scant provisions in the Dutch Bankruptcy Act, there is no legislation in relation to international insolvency law regarding foreign non-EU insolvency proceedings and the current rules are all based on case law, culminating in the Yukos case decided by the Dutch Supreme Court. Subsequently, the author, inspired by such Dutch case law, previous proposals on international insolvency law in the Netherlands like the 2007 legislative pre-proposal of the Kortmann Committee on insolvency, the UNCITRAL Model Laws and the various proposals put forward in Dutch legal literature, outlines a proposal on principles for legislative rules on (indirect) jurisdiction in, the applicable law to and the recognition of foreign (non-EU) insolvency proceedings.

Madaus, The German law on the recognition of foreign insolvency and restructuring proceedings / p. 227-240

Abstract

The recognition of third country insolvency proceedings in Germany does not follow the mechanisms of the EIR but falls within the scope of the respective national frameworks of international insolvency law. While Germany did not adopt the UNCITRAL Model Law on Cross-Border Insolvency, §§ 335-359 InsO provide rules that in many respects even resemble those of the EIR 2000. The framework is more recognition-friendly than the Model Law and is accompanied by rules for the recognition of foreign judgments in civil and commercial matters as well as Private International Law rules on the recognition of any modification of substantive rights by foreign law. Non-EU main restructuring and insolvency proceedings including their plans – in particular US Chapter 11 plans – are thereby routinely recognized in Germany without any need for court involvement. The recognition of scheme-type procedures would be available under these frameworks, but probably not under the cross-border insolvency framework.

Garcimartín & N. Bermejo, Spanish national rules on cross-border insolvency proceedings: a symmetrical approach / p. 241-251

Abstract

This paper examines the Spanish national rules on cross-border insolvency proceedings applicable vis-à-vis non-EU countries (including Denmark) laid down in Book III of the Spanish Insolvency Act. These rules aim to extend unilaterally the model of mitigated universalism enshrined in the EU Regulation outside its scope of application. According to those rules, the main insolvency proceedings will be opened in Spain if the debtor has its centre of main interests (COMI) here in Spain and, as a result, their opening, as well as their effects, conduct and closure, will be regulated by the Spanish Insolvency Act (lex fori concursus), with certain exceptions. Likewise, territorial proceedings may be opened in Spain if the debtor’s COMI is located in a third country, but it has an establishment here. Likewise, the paper studies the specific rules for the recognition in Spain of insolvency proceedings opened in foreign (non-EU) countries (including Denmark) and the rules on coordination and cooperation between proceedings. In addition, it describes the rules on the publicity of insolvency proceedings, information for foreign creditors and the submission of their claims. Finally, it analyses the rule of negative reciprocity, which constitutes a general safeguard in the event of a lack of reciprocal cooperation by the corresponding third country.

T.H.D. Struycken, Grensoverschrijdende insolventieprocedures en rechten op goederen in andere landen / p. 251-276

Abstract

Article 8 of the EU Insolvency Regulation (2015 recast) dominates the current thinking on insolvency proceedings in relation to rights in rem in assets situated in other jurisdictions. Implicit in the rule is the assumption that recognition of foreign security interests is too complicated. Hence, rights in assets in other EU Member States are de facto excluded from the insolvency proceedings. This article analyses the justification for the rule in Article 8, and rejects it. Recognition of foreign rights in rem is, and should be, the basic principle in the Netherlands, both outside and inside cross-border insolvency proceedings. The author proposes not to mirror Article 8 when codifying the PIL rules for cross-border insolvency proceedings outside the scope of the EU Insolvency Regulation, and formulates a first draft for a possible statutory rule.

P.M. Veder, Verrekening in de Wet internationaal insolventierecht / p. 277-287

Abstract

The Dutch government has announced that it will prepare draft legislation to address the cross-border aspects of insolvency proceedings that fall outside the scope of the EU Insolvency Regulation. This article examines which rules should be included in such draft legislation concerning set-off. It critically analyzes the approach to set-off in the European Insolvency Regulation and looks at the current state of play at UNCITRAL. The conclusion is that, even though the approach to set-off in Article 9(1) EIR is not convincing – there is no sound justification for offering protection to a creditor on the basis of the law applicable to the insolvent debtor’s claim – the Dutch legislator would nevertheless be well advised to follow the rules in the EIR concerning the applicable law, including Article 9(1) EIR, as much as possible. By following the rules in the EIR on the applicable law, insolvency proceedings and their effects are governed by the same law, regardless of whether the EU Insolvency Regulation applies or not. This promotes legal certainty and the practical applicability of a statutory regulation of cross-border insolvency proceedings in Dutch customary private international law.

C.G. van der Plas, Informatievergaring door buitenlandse curatoren in Nederland – heden en toekomst / p. 288-302

Abstract

It is not uncommon for foreign bankruptcy trustees to encounter Dutch entities or Dutch bank accounts when settling the bankruptcy. Think, for example, of a foreign bankruptcy in which the bankrupt entity has siphoned off assets through a web of entities in various jurisdictions. In order to be able to follow the bankrupt’s trail across the border, the bankruptcy trustee needs information about those entities. This article examines the means of discovery available to a bankruptcy trustee in a foreign (non-EU) bankruptcy in the Netherlands. After identifying the problems that a foreign bankruptcy trustee may be confronted with under the current Dutch system, the possibilities offered by the UNCITRAL Model Law on Cross-Border Insolvency will be examined. The article concludes with a recommendation for a future amendment to the Dutch Bankruptcy Act.

Pepels, Het Nederlandse internationaal groepsinsolventierecht – cause for concern? / p. 303-318

Abstract

Following the drafting of the Dutch Bankruptcy Act in the 1890s, the manner in which large enterprises are legally organized has undergone significant changes. Multinational groups of companies have become an important driving force behind the Dutch and the European economies. Dutch domestic international insolvency law, however, does not address the issues that are specific to cross-border group insolvencies. In this article, the author sets out to analyze whether there is any need for a Dutch domestic law on cross-border group insolvencies and, if so, what the contours thereof should be. In doing so, the article discusses the provisions on cross-border group insolvency as introduced by the 2017 EU Insolvency Regulation (recast) and UNCITRAL’s 2019 Model Law on Enterprise Group Insolvency. As the Dutch legislator is currently evaluating the options to revise the Dutch Bankruptcy Act on the topic of domestic cross-border insolvency law, the article concludes with various recommendations on group insolvencies that could align the legal treatment of insolvent multinational groups of companies more with the economic reality.

A book titled Domestic Violence and Parental Child Abduction. The Protection of Abducting Mothers in Return Proceedings edited by Katarina Trimmings, Anatol Dutta, Constanza Honorati and Mirela Župan has been published recently by Intesentia.

The book has been prepared under the auspices of the EU-sponsored POAM project and, therefore, is available not only for purchase in paper format, but also in open access in e-book formats and online.

The POAM was a collaborative research project which has explored the intersection between domestic violence and international parental child abduction within the European Union. The project was concerned with the protection of abducting mothers who have been involved in return proceedings under the 1980 Hague Abduction Convention and the Brussels IIa Regulation, in circumstances where the child abduction had been motivated by acts of domestic violence from the left-behind father. The POAM examines the usefulness of the Protection Measures Regulation and the European Protection Order Directive in the context of such return proceedings. The POAM project was led by the University of Aberdeen and involved three partner institutions – the Ludwig Maximilians University of Munich, the Milano-Bicocca University and the University of Osijek.

The abstract of the book reads as follows:

This book focuses on the protection of abducting mothers who have been subject to return proceedings under the 1980 Hague Abduction Convention and the Brussels IIa Regulation, in circumstances where the child abduction has been motivated by acts of domestic violence from the left-behind father. The utility of Regulation 606/2013 on mutual recognition of protection measures in civil matters and Directive 2011/99/EU on the European Protection Order, and how protection measures can be used to protect abducting mothers, are examined within this context. Both instruments allow cross-border circulation of protection measures but, so far, have not attracted much attention in practice. This book aims to fill that gap (…) The book offers a unique perspective on the problem of international parental child abductions committed against the background of domestic violence. Given its practical focus, it will appeal not only to an academic audience but also to judges, legal practitioners and other professionals working in the area of parental child abduction.

written by Abhishek Trivedi, Institute of Legal Studies and Research, GLA University, Mathura, India

(Publication of this book was announced earlier over here. 

Written by Dr Abhishek Trivedi, the book review of Indian Private International Law has been published in the Asian Journal of International Law, Volume 12, Issue 2 in its July 2022 issue.

Preview: 
This timely required up-to-date book provides a systematic detailed study about all-encompassing Private International Law (PIL) issues concerning jurisdiction, choice of law, and recognition and enforcement of foreign judgments/decrees/arbitral awards in India. Considering the new developments in the field of technology and the internet, the book seems to be useful, and thus, can be relied upon by judiciary and policy and lawmakers in India and South Asian countries in order to develop a coherent and robust jurisprudence on PIL. It will consequently help enhance transparency, foster predictability, and harmonise the rules/principles of PIL in India.

A detailed review of the book may be found here.

On 28 July 2022, the Hellenic Republic ratified the Hague Convention of 13 January 2000 on the International Protection of Adults, which will enter into force for Greece on 1 November 2022.

Source: https://www.hcch.net/en/news-archive/details/?varevent=869

The French Ministry of Justice has launched a series of podcasts titled Droit vers l’Europe, presenting key-aspects of EU Judicial Cooperation in civil and commercial matters (in French) for judges and legal practioners.

The objective is to improve their understanding of EU instruments of private international law and thus facilitate their application in cross-border cases.

The introduction of the series reads as follows:

You are a legal professional and you are confronted with a European problem in a family, civil or commercial case? “Droit vers l’Europe” gives you the keys to apply the instruments of EU judicial cooperation. In each episode, an expert sheds light on a specific issue. This podcast will enable you to develop the right practices in the implementation of EU regulations.

The main topics of the series include the following regulations: Brussels I bis Regulation; European order for payment; European account preservation order; Taking of evidence and Service of documents; Circulation of authentic instruments; Handling of international successions; Brussels II bis Regulation and its recast; Applicable law to matrimonial property regimes of international couples; Applicable law to divorce and legal separation; Recovery of maintenance claims; Access to legal aid in cross-border cases.

The initiative is co-funded by the EU.

More information is available here.

A comprehensive and detailed volume by Dr. Lenka Válková was just released providing a dedicated analysis of the private international law framework as it applies to jurisdiction agreements in the framework of the EU Regulations in family and succession matters.

The blurb reads:

Party autonomy has been traditionally considered as one of the leading principles used in cross-border trade law. In fact, choice-of-court agreements have been embedded into the majority of EU Regulations governing civil and commercial matters. On the other hand, mandatory approach to family and succession law slowed down the progress of recognition of party autonomy in these fields. Only in recent years, the trend towards acknowledging choice-of-court agreements has spread into almost all areas of international family and succession law. This publication follows this development: firstly, it analyses the reasons and concerns of the recognition of choice-of-court agreements in civil and commercial matters, whereby it is questioned whether the considerations established in relation to commercial contracts may apply also for personal relationships. Consequently, different treatment of choice-of-court agreements family and succession law, where the freedom to choose the competent court is far from being unlimited, is examined. Accordingly, the attention must be paid to functions of choice-of-court agreements in family law. The second chapter subsequently investigates the position of parties in personal law relations and their protection. In particular, partial and full exclusion of party autonomy, formal and substantive validity, time limits, substantive review and public policy and overriding mandatory rules are considered as tools for protection of vulnerable parties in family and succession law relations when entering into choice-of-court agreements. Finally, last chapter provides for in-depth analysis of rules on choice-of-court agreements under different EU Regulations (the Brussels IIa and Brussels IIter Regulations, Maintenance Regulation, Regulations on Property Regimes and Succession Regulation), where the strengths and gaps of the rules are highlighted. This analysis includes also an attempt to clarify the problem of derogation from jurisdiction in favour of Third States in presence of choice-of-court agreements. Lastly, effectiveness of the rule on lis pendens in stress-tested.

Overall, in her manuscript Dr. Válková successfully combines complex theoretical analysis with concrete propositions in a multifaceted and developing area of the law. Notably, Dr. Válková exemplifies the contribution of party autonomy in private international law in addressing the challenges arising in the context of family relations in the cross-border context: in doing so, she illustrates the complex status quo of party autonomy in this area of the law, its limitations, and how policies may be promoted via private international law. As such, her book is a highly recommended source for academics, notaries, and legal practitioners.

Lenka VÁLKOVÁ, Choice-of-Court Agreements under the EU Regulations in Family and Succession Matters (Wolters Kluwer / CEDAM, 2022), 548 pp., available for purchase here.

This volume is a welcome addition to Wolter Kluwer / CEDAM’s already thriving ‘Studi e pubblicazioni della Rivista di diritto internazionale privato e processuale’ series.

Even after Brussels IIb‘s coming into force (that we reported on last week), the Court of Justice of the EU issued its judgment in case C-501/20. The case remains relevant, also under the new Regulation. The Court had the opportunity to not only add to its case law on habitual residence, but also to clarify three other matters: first, the Regulation’s and the Maintenance Regulation‘s relation to the Vienna Convention on the Law of Treaties, specifically with regard to diplomatic immunity; second, the Brussels IIa‘s relation to domestic bases of jurisdiction; and third (and related to the second point), the forum necessitatis.

The case concerned the divorce and related disputes between a Spanish national and a Portuguese national. The couple had two children, who had dual Spanish-Portuguese nationality. The family lived first in Guinea-Bissau and later in Togo. The parents were posted at these places as EU delegates of the European Commission. They separated factually while still living in Togo. The mother then brought divorce proceedings, including the issues of parental responsibility and maintenance, in Spain. This court had to decide on its jurisdiction, which raised various issues.

Concerning the habitual residence, which is the first stop to determine jurisdiction (Art. 3 and 8 of Brussels IIa and Art. 3 of the Maintenance Regulation), the Court reiterated the two main factors to determine the habitual residence of adults: “first, the intention of the person concerned to establish the habitual centre of his or her interests in a particular place and, second, a presence which is sufficiently stable in the Member State concerned” (para 44, referring to its case C-289/20 interpreting the Rome III Regulation on the law applicable to divorce proceedings). The Court added that the definition of habitual residence in the Brussels IIa and Maintenance Regulations should be “guided by the same principles and characterised by the same elements” (para 53). (The Court here did not refer to Rome III, but the same is true as we know from previous case law.) Both factors of habitual residence were absent in this case. First, there was no intention to move back to Spain. Second, the parents were physically absent from Spain for this period (except for the birth of the children and periods of leave). Therefore, they could not have been habitually resident in this Member State.

Concerning the habitual residence of the children, the Court referred to the factors in its previous case law, including the duration, regularity, conditions and reasons for the child’s stay, the child’s nationality, school and family and social relationships (para 73). To establish a habitual residence, it is essential that the child is physically present in this Member State (para 75). The mother’s nationality and the pace where she lived prior to her marriage (and prior to the child’s birth) are not relevant (para 76). The child’s nationality and the place where they are born, are relevant but not decisive (para 77).

Any diplomatic immunity cannot change this conclusion, as the Spanish court does not have jurisdiction (paras 61 and following). Even though Recital 14 states that “[t]his Regulation should have effect without prejudice to the application of public international law concerning diplomatic immunities,” this refers to a situation where a court in a EU Member State would have jurisdiction but cannot exercise it due to diplomatic immunity. In short, the existence of diplomatic immunity cannot grant jurisdiction.

The residual jurisdiction under Arts 6 and 7 of Brussels IIa, and specifically the situation that factual scenario that arose in this case, have long caused confusion. The legislator attempted to rectify this in Brussels IIb (Art. 6). The problem was that Art. 6 stated that if a spouse who is habitually resident in or a national of a Member State, may only be sued on the bases of jurisdiction in the Regulation, while Art. 7 referred to domestic bases of jurisdiction where no court in an EU Member State has jurisdiction. So, what is to be done where a spouse is a national of an EU Member State (Portugal in this instance) but there are no available bases of jurisdiction in the Regulation (as neither of the spouses are habitually resident in the EU and they do not have a common EU nationality)? Which provision should prevail? The Court found that Art. 7, and thus domestic bases of jurisdiction, cannot be used in this case; only the residual bases of jurisdiction of the Member State of the defendant’s nationality can come into play (Portugal in this instance). See also the Opinion of Advocate-General Szpunar.

The same contradiction does not exist in the case of jurisdiction over children: Art. 14 simply states that where no court in a Member State has jurisdiction on the basis of the Regulation, domestic jurisdiction rules apply. Thus, Spanish residual bases of jurisdiction could be used concerning the parental responsibility.

The Maintenance Regulation does not have such reference to domestic bases of jurisdiction, but contains a complete harmonisation of jurisdiction, for all situations. It is in this context that there is also a forum necessitatis: if no court in a Member State has jurisdiction and it would be impossible or cannot reasonably expected of the parties to bring the proceedings in the third State to which the dispute is connected, a court in a Member State may, on an exceptional basis, hear the case (Art. 7). The Court explained that this can only come into play if no court in a Member State has jurisdiction, also not on the basis of the link of the case to the status or parental responsibility, and also not on the basis of the choice of the parties (para 101 and following). If this is the case, it is not required that the parties first attempt to institute proceedings in the third State, but the court “cannot rely solely on general circumstances relating to deficiencies in the judicial system of the third State, without analysing the consequences that those circumstances might have for the individual case” (para 112).