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The International Union of Judicial Officers / Union internationale des huissiers de justice (UIHJ) is the highest representative body of judicial officers in the world. On the occasion of its annual Permanent Council, the Union  celebrated its 70th Anniversary in Paris on November 24, 2022, at the Espace Niemeyer.

A full report of the celebration agenda and activities is available here.

The third issue of 2022 of the Rivista di diritto internazionale privato e processuale (RDIPP) is out. In addition to recent case law and other materials, it features four contributions.

Giovanna Adinolfi, States’ Economic Measures to Counter Cyberattacks: Disentangling their (Il)Legitimacy under International Law

The present contribution draws the attention on measures adopted by States to tackle actual or potential cross-border cyberattacks and that may have an impact on international commercial transactions. With a look to the more recent practice, the distinction is proposed between response measures (addressed against those held responsible for cyberoperations that have caused an injury to the target State) and anticipatory or preventive measures (intended to prevent cyberattacks). Against this backdrop, the issue is addressed as to whether both types of measures represent international unlawful acts which find a justification within the international legal order. 

Bruno Barel, Le notificazioni nello spazio giuridico europeo dopo il regolamento (UE) 2020/1784 (Service of Documents in the European Judicial Area after Regulation (EU) 2020/1784)

The second recast of the uniform rules on the service of judicial and extrajudicial documents in civil or commercial matters introduced three innovative elements of particular relevance to the original framework, that dates back to the year 2000 (and which had already been subjected to recasting in 2007). Two of these novel provisions relate to the technological evolution of remote communications, and they consist of the institution of a common IT system for the telematic transmission of acts and documents between national authorities and of the – albeit timid and prudent – opening to direct forms of service by electronic means between individuals, thus surpassing the mediation of authorities. The third – and equally careful – novel provision attempts to reinforce the assistance between the authorities of different Member States aimed at identifying the address of the person to be served. Moreover, the most innovative part of the regulation will be fully operational only in 2025, in expectation of the full development of the decentralised IT system.

Pietro Franzina, Il ruolo degli Incoterms nella determinazione convenzionale del luogo della consegna: note critiche sulla giurisprudenza della Cassazione (The Role of Incoterms in the Determination by Agreement of the Place of Delivery: Critical Notes on the Case Law of the Italian Court of Cassation)

By a recent ruling (Order No 20633 of 28 June 2022), the Italian Supreme Court addressed the issue of the role played by Incoterms in the determination of the place of delivery of the goods for the purposes of Article 7 No 1(b), of Regulation No 1215/2012 of 20 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. As in previous rulings on the same subject, the Supreme Court was reluctant to regard the incorporation of Incoterms into a contract as signalling the parties’ agreement on the place of delivery. Specifically, the Supreme Court dismissed the claim by the Italian seller that the contract in question had been agreed “EXW” its own premises in Italy: the Court acknowledged that the goods had in fact been picked up by a carrier hired by the buyer at the seller’s premises, but found that the parties had failed to agree “clearly” on the place of delivery, as it could not be established that the parties had unequivocally intended to make the seller’s premises the place of delivery of the goods for the purposes of jurisdiction. The paper contends that the approach of the Italian Supreme Court contradicts the principles laid down by the Court of Justice in Car Trim and Electrosteel. The approach is unpersuasive in two respects. First, the Supreme Court regards the parties’ agreement on the place of delivery as a derogation from the “general rule” whereby delivery must be understood to be due, for jurisdictional purposes, at the place of final destination of the goods (whereas, according to the Court of Justice, the latter is just a residual rule, which applies where the parties have failed to agree on the place of delivery). Secondly, the Supreme Court disregards the rules of interpretation adopted by the International Chamber of Commerce to describe the parties’ obligations under the different Incoterms, and follows, instead, its own understanding of the Incoterms concerned: actually, the Supreme Court asserted in the decision reviewed that, “as a rule”, the Incoterm EXW only relates to the allocation of the costs of transport and the transfer of risk, and has no bearing as such on the determination of jurisdiction. 

Michele Grassi, Riconoscimento del rapporto di filiazione omogenitoriale e liberta` di circolazione all’interno dell’Unione europea (Recognition of Same-Sex Parentage and Freedom of Movement within the European Union)

This paper aims to provide a critical analysis of the judgment rendered by the Court of Justice of the European Union in the Pancharevo case, where the Court was confronted with the sensitive issue of same-sex parenthood and its recognition in the context of free movement rights within the Union. The investigation focuses on the functional approach adopted by the Court of Justice in the application of the mutual recognition principle, and its possible implications on the recognition of same-sex parenthood for wider purposes, not directly linked to the exercise of free movement rights.

The UNCITRAL Model Law on International Commercial Arbitration – A Commentary, authored by Gilles Cuniberti, has just been published by Edward Elgar, part of the Elgar Commentaries in Private International Law series.

This Commentary provides rich and detailed analysis both of the provisions of the UNCITRAL Model Law on International Commercial Arbitration (the Model Law), and of its implementation, including a comparative account of the operation of the Model Law in the numerous jurisdictions which have adopted it throughout the world.

Key features: comparative and thorough analysis of the provisions of the Model Law; consideration of the interpretations of the Model Law adopted by courts, with references to numerous cases from common law jurisdictions (Singapore, Hong Kong, India, Australia, New Zealand, Canada), Germany and Austria, central Europe (Poland, Hungary, Bulgaria), Spain, South Korea and Egypt; insight into variations in the statutory implementation of the Model Law in various jurisdictions across Europe, Asia, the Middle East and Latin and North America, with the most common amendments identified and highlighted; discussion on whether the amendments adopted in Model Law jurisdictions should be persuasive in other Model Law jurisdictions.

Exploring how the Model Law is applied and interpreted in multiple jurisdictions, this practical and exhaustive commentary will be an essential resource for arbitrators and commercial litigators and will also appeal to scholars in the fields of arbitration, international dispute resolution, and international commercial law.

Further information can be found here.

The author of this post is Cristina González Beilfuss (University of Barcelona).

The MPA case (Case C-501/20), decided by the CJEU on 1 August 2022, deals, at first sight, with a fairly unusual divorce scenario. The Spanish wife and the Portuguese husband are two members of the contract staff of the European Union working in the latter’s delegation in Togo. Leaving this aspect aside, the case, however, turns out to be quite ordinary. As highlighted by Advocate General Szpunar in his opinion, the situation of European citizens posted to a third State for work reasons is fairly commonplace.

EU expats might have an expectation to be able to divorce in the European Union, particularly, when their connection with the third State in question is tenuous. This seems to be the case here. The spouses were formerly based in Guinea – Bissau; whether they were already employed by the EU at that stage cannot be ascertained by reading the judgment or the Advocate General’s Opinion, but can be safely assumed. In any case, their degree of integration in either Guinea Bissau or Togo seems to be relative. The couple chose to get married in the Spanish Embassy in Guinea-Bissau and the Spanish wife came to Spain to give birth to their two children in 2007 and 2015. It therefore might have seemed only natural to her to file the divorce petition in Spain.

The divorce claim was, in fact, quite standard; she sought the dissolution of the marriage, a decision on the custody of the two children of the marriage and the award of maintenance for the children, including the use of the family home in Togo. But apparently the husband refused to accept that the marriage was over, which is why the divorce became contentious. This was most unfortunate because empirical research has shown that habitual residence is very often not examined unless it is a contested matter, as happened in this case. The court of first instance declined hearing the case. The decision was appealed, because the wife wanted to divorce. The Court of Appeal in Barcelona subsequently made a request for a preliminary ruling on a number of issues.

As regards the dissolution of the marriage, which is the aspect dealt with in this entry, the most significant question referred to the CJEU was the interpretation of the rule formerly contained in Article 6 of Regulation 2201/2003. Many commentators have found this rule confusing, particularly in connection with Article 7 (residual jurisdiction). A clarification by the CJEU is therefore most welcome.

The CJEU chose to interpret the rule literally. A spouse who is habitually resident in a Member State or who is a national Member State can only be sued in another Member State in accordance with the rules of jurisdiction contained in the Regulation. This entails that in an expat situation only the courts in the Member State of the defendant’s nationality (i.e. in the case at hand the courts in Portugal) can have recourse to domestic residual jurisdiction rules. The courts in the Member State of the plaintiff’s nationality have to decline hearing the case. This is what the requesting Court, the Court of Appeal in Barcelona, has done in a decision rendered on the 21 October 2022.

The purpose of this post is not to question the interpretation of the CJEU nor the decision of the Spanish Court. The main problem is, in my view, that the rule as such does not make sense. In the context of marriage dissolution in the strict sense, i.e. in connection with the continuation of the matrimonial bond, there is, in my view, no justification for protecting the defendant, i.e. the spouse that does not want the divorce and making life difficult for the spouse who wants to dissolve the marriage. The rule is moreover only workable if the divorce is contentious and one can distinguish between a defendant and a plaintiff. Would the Spanish court have been able to resort to its domestic rules of jurisdiction had the spouses decided to jointly request the divorce?

 And what are the consequences of the rule? If the Spanish wife wants to divorce in the EU, she has to go to Portugal. Whether Portuguese courts have jurisdiction is, however, uncertain. Article 62 of the Portuguese Código de proceso civil grants international jurisdiction to Portuguese courts when the action may be brought before a Portuguese court under the rules of territorial jurisdiction. Such rules allocate jurisdiction to the courts of the habitual residence or domicile of the plaintiff. The Portuguese courts also have jurisdiction if the fact that gave rise to the cause of action in the lawsuit or any facts leading to the cause of action have taken place in Portugal. Since the Spanish wife never had an habitual residence or domicile in Portugal and there is no factual connection to Portugal, the only possibility left would be to argue that Article 62(c) of the Código de proceso civil, containing a forum necessitatis, applies. The rule seems to be more open ended than the European forum necessitatis as available under the Maintenance, the Succession, the Matrimonial Property and the Registered Partnership Regulations. It grants jurisdiction to the Portuguese courts when effect cannot be given to the invoked right other than through an action filed in Portuguese territory or the claimant has appreciable difficulty in commencing an action abroad, as long as there is a relevant connecting element, either personal or physical, between the subject matter of the dispute and the Portuguese legal order.

A forum necessitatis is, in principle, only available exceptionally if the proceedings in question cannot reasonably be brought or conducted or would be impossible in the third State in question. This has been examined by the Court of Appeal of Barcelona in relation to the maintenance claim ancillary to the divorce petition. Following the guidance given by the CJEU in the MPA decision, the court undertook a detailed analysis of the procedural conditions in Togo and their consequences on the individual case and reached the conclusion that there is no evidence that access to court would not be possible or extraordinarily difficult in Togo.

If the Portuguese courts reached the same conclusion and the Portuguese forum necessitatis was also found to be inapplicable, the Spanish wife would have to seek divorce in Togo. And assuming that they accepted to hear the case, would the courts in Togo dissolve the marriage?  In accordance with Article 714 of the Code des personnes et familles of Togo, the courts in Togo would, in the absence of a common nationality of the spouses, apply the law of their common domicile i.e. the law of Togo. Under the law of Togo divorce is available either on the basis of mutual consent (which is not the case here) or in the absence thereof, on the ground of fault. The Spanish wife would have to plead and prove that marital life had become intolerable as a result of infidelity, excesses, abuse or insults attributable to her husband; that the family life and the safety of children are seriously compromised by notorious misconduct, moral or material abandonment of the home or the sentencing of one of the spouses to a firm sentence exceeding four years of imprisonment. Other grounds are impotence or definitive medical sterility or a refusal to consummate the marriage. Failing that the required separation period would be of at least five years. A stark contrast to the situation under Spanish law which takes the position that nobody should be forced to stay in a marriage he or she no longer wants and accepts divorce on unilateral demand! And to the situation under Portuguese law where divorce can be requested after a de facto separation of only one year!

A forum patriae thus appears to be necessary in order to guarantee access to divorce, not to court. Given the development of EU citizenship which the CJEU has repeatedly stated is destined to be the fundamental status of nationals of the Member States, it is outdated to provide a forum patriae only if spouses hold the nationality of the same Member State, and to treat the situation of an expat couple of EU citizens in the same manner as that of a couple where only one spouse is an EU citizen and even more so as the situation of a couple of an EU citizen and a third State national who happens to be a national of the third State in question.

The implications of EU citizenship in connection with access to European courts were not analysed in the MPA case, simply because the argument was not raised. In his Opinion on Case C‑603/20 PPU, which the CJEU did not follow, Advocate General Rantos derived from Article 20 of the TFUE a right to have parental responsibility examined by a court of a Member State, if the child is an EU citizen (paras 76 and 77). The idea should be further explored in connection with marriage dissolution.

The 2006 Commission Proposal for the amendment of Regulation 2201/2003, which was withdrawn included a provision stipulating that, where neither of the spouses is habitually resident in the territory of a Member State and the spouses do not have the common nationality of a Member State, the courts of a Member State should be competent by virtue of the fact that: (a) the spouses had their common previous habitual residence in the territory of that Member State for at least three years; or (b) one of the spouses had the nationality of that Member State (Article 7 of the Proposal). Life would have been easier for the Spanish wife had this proposal been adopted. In the end, she has been lucky though, because the husband has returned to the EU! Otherwise she would continue being trapped in a marriage that she no longer wants.

The CJEU last week held in C-358/21 Tilman v Unilever, the context of which I reviewed here. Krzysztof Pacula has initial analysis here and also refers to the application of the consent for choice of court issues in Ebury Partners.

One of the parties’ (Unilever’s) GTCs  are contained on a website, and their existence is ‘flagged’ in the written main contrac, without there bring a tickable box that click-wraps the agreement. Does that suffice to bind the parties as to the GTC’s choice of court (in favour of the English courts)? Note the courts were seized pre-Brexit; the UK’s Lugano troubles are not engaged.

The CJEU answers exactly along the lines I suggested in my earlier post: no impeding of commercial practice; need for the contracting party relying on the clause to have drawn the attention to the clause; need for that clause to be durably consultable and storable; finally it is the national court’s task to verify  the formation of consent in these factual circumstances. That there is no box that can be ‘ticked’ is not conclusive [52].

All in all a welcome support for commercial choice of court.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.10.

For my earlier review of the issues see https://t.co/OKcx31TlsB https://t.co/b9KWaSzaKB

— Geert Van Calster (@GAVClaw) November 24, 2022

As noted earlier on this blog, on 2 December 2022, from 4 pm to 5.30 pm (MET), EAPIL will hold a joint Seminar via Zoom with the British Institute of International and Comparative Law (BIICL). The Seminar will focus on the review of the Rome II Regulation.

Those wishing to attend have time until 30 November 2022 at noon (MET) to register. The registration form is available here.

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

For more information, please write an e-mail to secretary.general@eapil.org.

The Centre for Private International Law of the University of Aberdeen is organsing a webinar in its Crossroads in Private International Law Series, The Private Side of Transforming Our World: UN Sustainable Development Goals 2030 and the Role of Private International Law. The webinar will take place on 5 December 2022 at 2 pm (GMT).

Prof Dr Verónica Ruiz Abou-Nigm (Chair of Private International Law, School of Law, University of Edinburgh) will focus on the role of private international law in implementing the sustainable development goals (SDGs) of the United Nations 2030 Agenda and highlight, however, that it is essential to assess the impact of contemporary approaches in PIL on the realisation of the SDGs in a changeable legal landscape. She was one of the editors of the volume The Private Side of Transforming our World (Intersentia, 2021), which demonstrates that private international law is as an integral part of the global legal architecture needed to turn the SDGs into reality.

The event will be moderated by Prof Laura Carballo Piñeiro of the Universida de Vigo.

Interested persons should please register.

This editorial has been prepared by Prof. Paris Arvanitakis, Aristotle University of  Thessaloniki, Greece.

The European Regulations of Private and Procedural International Law are part of an enclosed legislative system. Since the early stages of European integration, third countries, and in particular the USA, had expressed their objections concerning the European integration process, questioning whether it reflects a “nationalistic” character, certainly not in the sense of ethnocentric provisions, since the European legislator had chosen the domicile  instead of citizenship as the fundamental ground of jurisdiction from the beginning, but mostly because European law applied extreme provisions, such as the exorbitant jurisdiction, only against persons residing outside the EU, as well as the inability of third countries to make use of procedural options provided to member states (see Kerameus, Erweiterung des EuGVÜ-Systems und Verhältnis zu Drittstaaten, Studia Juridica V, 2008, pp. 483 ff., 497). However, the EU never intended a global jurisdictional unification. It simply envisioned a regional legislative internal harmonization in favor of its member states. Like any regional unification, EU law involves discriminatory treatment against those who fall outside its scope. But even when the EU regulates disputes between member states and third countries (for example, the Rome Regulations on applicable law), it does so, not to bind third countries to EU law -nor it could do so-, but to avoid divergent solutions among its member states in their relations with third countries. ?owever, as the issue on the relationship between European Regulations and third countries continues to expand, a precise demarcation of the boundaries of application of European rules, which often differ even within the same legislative text, acquires practical importance.

The “Focus” of the present issue intends to highlight these discrepancies, as well as the corresponding convergences between European Regulations of Private / Procedural International Law and third countries. During an online conference on this topic, which took place on the 29th of September 2022, we had the great honor to host a discussion between well-known academics and leading domestic lawyers, who have dealt with this topic in depth. We had the horror to welcome the presentations of: Ms. Astrid Stadler, Professor of Civil Law, Civil Procedure, Private International and Comparative Law at the University of Konstanz/Germany, who presented a general introduction on the topic (‘Ein Überblick auf die Drittstaatenproblematik in der Brüssel Ia VO’); Mr. Symeon Symeonides, a distinguished Professor of Law, at the Willamette University USA, , who presented an extremely interesting analysis on  ‘An Outsider’s View of the Brussels Ia, Rome I, and Rome II Regulations’; Dr. Georgios Safouris, Judge and Counselor of Justice of Greece at the Permanent Greek Representation in the EU, , , who examined the application of the Brussels Ia and Brussels IIa Regulations in disputes with third countries, from the lens of the CJEU jurisprudence; Mr. Nikitas Hatzimichael ,Professor at the Law Department of the University of Cyprus, , who developed the important doctrinal issue of the exercise of judge’s discretion in the procedural framework of the European Regulations in relation to third countries;  Ms. Anastasia Kalantzi, PhD Candidate at the Aristotle University of Thessaloniki who dealt with the key issue of European lis pendens rules and third countries; and, finally Mr. Dimitrios Tsikrikas, Professor of Civil Procedure at the University of Athens, who developed the fundamental issue of the legal consequences of court judgments vis-à-vis third countries. On the topic of the relations between European Regulations and third countries, the expert opinion of the author of this editorial is also included in the present issue, focusing on multi-party disputes in cases where some of the defendants are EU residents and others residents of a third country.

In the “Praefatio”, Mr. Nikolaos Nikas, Emeritus Professor at the Faculty of Law of the Aristotle University of Thessaloniki presents his thoughts on what is the “next stage on the path to European procedural harmonization: the digitization of justice delivery systems“. In the part of the jurisprudence, two recent judgments of the CJEU are presented: the decision No C-572/21 (CC/VO) regarding international jurisdiction on parental responsibility, when the usual residence of the child was legally transferred during the trial to a third state, that is a signatory to the 1996 Convention, , with a comment by the Judge Mr. I. Valmantonis, and the important decision No C-700/20 (London Steam/Spain), which is analyzed by  Mr. Komninos Komnios,  Professor at the International Hellenic University, (“Arbitration and Brussels Ia Regulation: Descent of the ‘Spanish Armada’ in the English legal order?”). Regarding domestic jurisprudence, the present issue includes the Supreme Court judgment No. 1181/2022, which demonstrates the incompatibility of the relevant provision of the new Greek CPC on service abroad with EU and ECHR rules, with a case comment by the undersigned, as well as a judgment of the County Court of Piraeus (73/2020), regarding the binding nature of the parties’ request for an oral presentation in the European Small Claims procedure, with a comment by Judge Ms. K. Chronopoulou. Finally, interesting issues of private international law on torts are also highlighted in the decisions of the Athens First Instance Court No 102/2019 and No 4608/2020, commented by Dr. N. Zaprianos.

Lex & Forum renews its scientific appointment with its readers for the next (eighth) issue, focusing on family disputes of a cross-border nature.

The fourth issue of the Lloyd’s Maritime and Commercial Law Quarterly for 2022 was published today online. It features the following case notes and articles:

A Briggs, Arbitration in Europe: The Luxembourg Torpedo

M Davies, Discovery in the USA for Arbitration elsewhere: A Postscript

A Tettenborn, Marine Collision Claims: Jurisdiction Agreements and Security

A Giannakopoulos, Conflict of Jurisdiction Clauses in Multipartite Litigation

Sedgwick v Mapfre Espana Compania De Seguros Y Reaseguros Sa [2022] EWHC 2704 (KB) discusses the application of Article 19 Rome II on direct actions against insurers, and the procedural carve-out of the Regulation.

Claimant lives in Wales. At the time of the accident she was on her honeymoon, staying at the Hotel Blue Sea Callao Garden in Santa Cruz which was owned and operated by a company registered and incorporated in Spain. She was descending an inadequately lit concrete staircase when she fell and sustained severe fracture injuries to her left knee and to her right heel.

Spanish law is the governing law of the insurance contract/policy which provides the tortfeasor with the right of indemnity within the terms of the policy and that the claimant has, under Spanish law, a direct right of action against the insurer. Parties also agree that Spanish law applies per A4(1) Rome II.

The scope of the law applicable is set out in A15 Rome II, which reads in relevant part: “…the law applicable to non-contractual obligations under this Regulation shall govern in particular: (a) the basis and extent of liability including the determination of persons who may be held liable for acts performed by them; (b) the grounds for exemption from liability, any limitation of liability and any division of liability; (c) the existence, the nature and the assessment of damage or the remedy claimed;…”

A1(3) Rome II carves out all matters of procedure and evidence to the law of the forum court: “This Regulation shall not apply to evidence and procedure “. I have reported on the carve-out frequently (see eg here and linked postings there, or use search tag ‘evidence and procedure’).

On a technical side-note, Matthew Hoyle here (he also has a general excellent note on proving foreign law here) correctly notes a confusion with the judge [11] on the issue of proving foreign law, seeing as she conflates assumption of English law as the lex causae when the content of a suggested foreign law is not proven and pleaded (it was so in the case at issue), and assumption in certain circumstances, of the foreign law as being identical to English law.

Issues for determination, are:

i) the resolution of a series of questions relevant to the award of general damages (for non-pecuniary loss) under Spanish law; these are purely issues of Spanish law and of no interest to the blog.

ii) whether the claimant is able to pursue a claim for subrogated losses on behalf of her travel insurer. The contentious issue is whether the claimant herself is able to bring a claim for subrogated losses or whether the claim must be brought in a separate action by the insurer.

[60] if the claim is to be brought separately, it can no longer so be brought because it is now time-barred.

Defendant submits that the claim for those losses incurred by the travel insurer must be brought in accordance with Spanish law and that the proper person entitled to bring a claim against the defendant insurer under A43 Spanish Insurance Contract Act 50/1980 is the third party insurer, not the claimant, as those subrogated losses are losses of the third party payer.

Claimant submits that Spanish law is relevant only to the extent that, as the applicable law of the tort, it provides for recovery of expenses. Spanish law does not govern the relationship between the claimant and the travel insurer, nor the travel insurer’s rights of subrogation by means of the claimant’s claim under those policies. Those matters are regulated, it is argued, by the law governing the insurance policy, in this case, English law, consequential to A19 Rome II (“where a person (the creditor) has a non-contractual claim upon another (the debtor) and a third person has a duty to satisfy the creditor, or has in fact satisfied the creditor in discharge of that duty, the law which governs the third person’s duty to satisfy the creditor shall determine whether and the extent to which the third person is entitled to exercise against the debtor the rights which the creditor had against the debtor under the law governing their relationship.”)

The issue therefore is whether the question of whether the insurer may bring a claim in the name of the insured (rather than by other means) a question of “whether, and the extent to which” the insurer is entitled to exercise the rights of the insured against the third party? Lambert J [73] says it is, as a matter of language and construction, and she also expresses it (less immediately convincing to my mind) as an issue of common sense:

‘Putting the matter another way, it would be distinctly odd if English law determined the right of subrogation and limits upon that right (e.g. the legal principle that there must be full indemnity before subrogated rights attach) but an important aspect of the English law of subrogation (namely that the claim may and must be brought in the name of the insured) may not apply depending on where loss is caused which is to be indemnified.’

Finally, iii) the appropriate rate of interest to apply to the damages award, whether the Spanish (penalty) rate of interest applies or a rate applied under s 35A [E&W] Senior Courts Act 1981. Clearly the issue is whether penalty interest rules are substantive rather than procedural: in the latter case, they are carved out from Rome II, and English law as the lex causae applies.

Troke v Amgen is referred to, and the judge in Swedgwick decides [101]

Whether the decision in Troke is binding upon me or not, I agree with its conclusion and the underlying reasoning which I endorse and follow.

and [102]

the penalty interest provisions are discretionary; they may be excluded if there is a good reason to do so and they are procedural in character.

In my review of Troke I noted its reasoning was unconvincing. Lambert J [101] adds more arguments here, and I find these more convincing, if not conclusive.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 4.8.

! #travellaw, accident abroad
Various issues on the application of A19 Rome II re actions against insurers, and the nature of interest rates as 'procedural' hence carved out from Rome II

More soon on the blog

Sedgwick v Mapfre [2022] EWHC 2704 (KB) https://t.co/EkEjf6IjNk

— Geert Van Calster (@GAVClaw) October 27, 2022

The interdisciplinary Zentralinstitut Centre for British Studies at Humboldt-Universität zu Berlin is seeking to fill a tenured W3 Professorship for UK Politics, Law, and Economy. 

The Institute is looking for an interdisciplinary scholar from Politics, Law or Economics, with a significant and proven UK-related profile and interest in political, legal, and economic research questions. 

The postholder is expected to represent the subjects of UK politics, law and economy in teaching, research, and in terms of knowledge exchange, also for the general public. Teaching duties have to be fulfilled mainly at the Centre for British Studies as part of the MA British Studies and mainly in English. 

Broad research areas, methodological openness and versatility are expected as well as the willingness to connect with UK-related research networks and academics in Berlin, Potsdam, and with Anglophone partners elsewhere. Furthermore, the institutes expects the postholder to enhance and renew existing networks within the Berlin University Alliance, that they will help modernise the Graduate School for British Studies, apply for large-scale UK-related funding and lead on them and that the postholder will represent the Centre in all respects. Near-native spoken and written English and C1 level German are a requirement and active participation in all GBZ and HU committees is also expected. 

Furthermore, the institute expects UK teaching, research, publishing and knowledge exchange as well as research leadership experience; proven experience / activities in public relations and outreach. 

The applicants must meet the legal requirements for professorial appointments in accordance with § 100 of the `Berliner Hochschulgesetz´. 

HU is seeking to increase the proportion of women in research and teaching, and specifically encourages qualified female scholars to apply. Researchers from abroad are welcome to apply. Severely disabled applicants with equivalent qualifications will be given preferential consideration. People with an immigration background are specifically encouraged to apply. 

Applications including a CV, copies of certificates and diplomas, detailed information on teaching experience, a teaching policy (max. 2 pages), past, present and future interdisciplinary research projects (max. 2 pages), and an outline for the next 10 years of the GBZ (max. 2 pages), a list of publications within three weeks (16 December 2022) together with the code number PR/012/22 should be sent to the following address: 

Humboldt-Universität zu Berlin

An die stellvertretende Direktorin des GBZ

Prof. Dr. Gesa Stedman

Mohrenstr. 60

10117 Berlin 

In addition, the application should be sent as a single PDF to the following email address: gbz@gbz.hu-berlin.de. Applications will not be returned. Therefore only copies (and no original documents) should be handed in. 

Any queries can be addressed to gesa.stedman@hu-berlin.de. 

For more details please visit www.hu-berlin.de/stellenangebote, which gives you access to the legally binding German version of the call for applications. 

The Research Group on Private International Law of the University of Silesia (Poland) organizes a conference titled Ukraine-Poland. The Choice of Law Aspects of War and Forced Displacement.

The event will be held on 8 December 2022 from 9:00 – 17:30, in a hybrid formula: at the Faculty of Law and Administration of the University of Silesia in Katowice and online. It will focus on personal, family, inheritance matters. The detailed conference program is available here.

Those interested in attending are must register via an online form. Online participation in the conference is free of charge. The conference will be held in Polish, Ukrainian and English.

The Court of Justice delivered today its judgement in case C‑358/21 (Tilman SA v Unilever Supply Chain Company AG), which is about consent to a jurisdiction clause contained in the general terms and conditions to which the contract concluded in writing refers by the inclusion of a hypertext link to a website:

“Article 23(1) and (2) of [Lugano II] must be interpreted as meaning that a jurisdiction clause is validly concluded where it is contained in the general terms and conditions to which the contract concluded in writing refers by the inclusion of a hypertext link to a website, access to which allows those general terms and conditions to be viewed, downloaded and printed prior to that contract being signed, without the party against whom that clause operates having been formally asked to accept those general terms and conditions by ticking a box on that website”.

Source: https://curia.europa.eu/juris/document/document.jsf?docid=268966&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=87129

After a great deal of controversial discussion, the EU Representative Actions Directive was passed in late 2020 and has to be transposed by Member States till December 25 of this year. For the first time, the Directive will require MS to introduce the possibility for qualified entities to sue for compensation on behalf of harmed consumers. 

Key questions regarding the implementation of the Directive will be discussed at a hybrid workshop hosted by Prof. Susanne Augenhofer, LL.M. (Yale) and the Austrian Newspaper “Die Presse” this coming Monday, November 28th, 2022 (6:30 p.m). Various stakeholders from the plaintiff / defendant spectrum as well as Prof. Beate Gsell from the LMU Munich will be present as speakers.

Further information about the panelists and the link for registration can be found here.

The event will be conducted in German and is free of charge. 

In its judgment handed down today, the Court of Justice clarifies in essence that, under the Lugano II Convention, an agreement of choice of court meets the requirements set in Article 23(1) and (2) of the Convention in the scenario where that choice of court agreement is contained in the general terms and conditions set out on a web page, to which the contract signed by the parties contains a reference to, with no box-ticking being mechanism being implemented on the said web page.

Doing so, the Court ruled that the relevant requirements provided for in the Lugano II Convention are drafted in essentially identical terms to those of the Brussels I bis Regulation (para. 34). Thus, the relevance of the judgment may not confine itself to the framework of the aforementioned Convention, but could possibly also extend to the Regulation.

Interestingly enough, earlier this week, thanks to the post made by Geert van Calster on his blog, I learned about the EWHC judgment concerning, inter alia, the choice of court and law included in general terms and conditions, by inclusion in email and /or e-mailed click-wrapeable hyperlink. While the facts and issues discussed in those cases are not identical, both of them illustrate that there is still something to say about choice of court agreements in online environment, despite their widespread use.

 

Context of the request for a preliminary ruling and the legal issue at hand

A company established in Belgium enters into a contract with a Swiss company.

The contract states that it is subject to the general terms and conditions for the purchase of goods set out on a specific web page (with the address to the website being precisely indicated in the agreement).

The aforementioned general terms and conditions provide that the English courts have jurisdiction to hear and determine any dispute in connection with the contract, and that contract is governed by, and to be interpreted in accordance with, English law.

A dispute arises and the Belgian company initiates proceedings against its Swiss contractor before the courts in Belgium.

The dispute concerns whether that agreement on choice of court was properly concluded between the parties and, therefore, whether it is enforceable in the main proceedings.

Through the proceedings, up to the Court of Cassation, the Belgian company argues that it signed a contract which contained merely a reference to it contractor’s general terms and conditions, which are available on the latter’s website. It claims that it was in no way prompted to accept the general terms and conditions formally by clicking on the corresponding box on the website. It therefore follows that the guidance provided by case-law cannot be transposed to the present proceedings. The situation in which a party signs a document which contains a reference to general terms and conditions that are accessible online (as in the present case) differs from that in which that party formally and directly agrees to those general terms and conditions by ticking a relevant box (see judgments in Estasis Saloti di Colzani, 24/76, and El Majdoub, C-322/14).

Faced with this argument, the Court of Cassation brought its request for a preliminary ruling before the Court of Justice, asking:

“Are the requirements under Article 23(1)(a) and (2) of the [Lugano II Convention] satisfied where a clause conferring jurisdiction is contained in general terms and conditions to which a contract concluded in writing refers by providing the hypertext link to a website, access to which allows those general terms and conditions to be viewed, downloaded and printed, without the party against whom that clause is enforced having been asked to accept those general terms and conditions by ticking a box on that website?

 

Findings of the Court and its answer

Before addressing the preliminary question itself, the Court notes that is being called to interpret the Lugano II Convention in order to allow the Belgian courts to decide whether the parties to the main proceedings have conferred jurisdiction to set their disputes to the English courts. The Court recognizes that Brexit may have affected the admissibility of the request for a preliminary ruling and addresses that issue (paras. 28-31).

Indeed, under Article 23 of the Lugano II Convention, the parties may choose a court or the courts of a State bound by this Convention to set their disputes.

Seen from today’s perspective, the choice of court made by the parties to the main proceedings relate to the courts of a State not-bound by the Convention (and, I digress, still looking from that perspective: even where the Belgian court declines jurisdiction in favour of the English prorogated court, the latter would not be bound by the Convention).

However, the Court notes that the main proceedings were initiated before the end of the transition period provided for in the Withdrawal Agreement (i.e. before 31 December 2020), during which the Lugano II Convention applied to the UK. As the choice of court agreement produces its effect at the time where the proceedings are brought before a national court (para. 30), and – in the present case – at that time the UK applied the Convention, it cannot be concluded that the interstation thereof is not necessary for the referring court to decide on the dispute before it (para. 31).

 

Concerning the substance, it stems from the request for a preliminary ruling that the argumentation of the Belgian company that led to the preliminary reference boiled down to the contention that the interpretation of the Lugano II Convention under which the choice of law agreement in question is enforceable against that company ignores the requirement of genuine consent. For the said company, observance of genuine consent should be an overriding interpretative policy with regard to Article 23.

The Court addresses this line of argumentation in a detailed manner in paras. 32-59. Thus, I just confine myself to mention only some of its findings.

In particular, the Court seems to stress the commercial/professional nature of the relationship that gave rise to the dispute in the main proceedings and distinguishes those proceedings from the situations that call for consumer-oriented protection (para. 55).

Following this approach the Court addresses, by extension, Article 23(1)(b) and (c) of the Lugano II Convention, which concern, respectively, the agreements concluded “in a form which accords with practices which the parties have established between themselves” and the agreements “in [a form regular for] international trade or commerce” (para. 56).

Ultimately, without necessarily distinguishing between the three scenarios described in (a), (b) and (c), the Court indicates that the requirements stemming from Article 23(1) and (2) can be met by a choice of court agreement, contained in general terms and conditions to which a contract concluded in writing refers by providing the hypertext link to a website, access to which allows those general terms and conditions to be viewed, downloaded and printed, even without the party against whom that clause is enforced having been asked to accept those general terms and conditions by ticking a box on that website (para. 59).

The judgment is available here (for now only in French).

 

 

On December 8, 2022, under the patronage of, among others, the Consulate General of Ukraine in Cracow, the University of Silesia in Katowice (Poland) is hosting an international conference on the private international law aspects of forced displacement resulting from the current situation in Ukraine.

The conference focuses on Polish-Ukrainian relations and the bilateral agreement between those two States, but also addresses some more general issues related to the interplay between EU private international law and such agreements. In addition, some speeches will address the specifics of Ukrainian private international law.

Detailed conference programme can be found here.

Most of the interventions will be delivered in English, with translation into Ukrainian provided throughout the event. Please note that the speeches in Ukrainian or Polish will not be translated into English.

Participation in the conference is possible both in person and through online access. Online participation is free, but registration is mandatory.

Registration for online participation is open until December 7, 2022.

To access the registration form, please follow this link.

 

 

This post was contributed by Caroline Sophie Rupp, who is a professor at the University of Kiel.

Credit: dpa

To vary an adage, “sad cases make sad law“. The case at hand, regarding the return of a child to its father in Spain after being brought to Germany by its mother, illustrates this.

After a lengthy legal battle, a Spanish judgment ordered the return of the child. Having unsuccessfully attempted to have the enforcement in Germany (based on a certificate according to Article 42 of the Brussels II bis Regulation) temporarily stayed with the enforcement court, the mother applied to the German Constitutional Court (Bundesverfassungsgericht, hereinafter: BVerfG) for interim relief. This was granted – temporarily – on August 1, 2022 by the 3rd chamber of the BVerfG’s First Senate (1 BvQ 50/22, ECLI:DE:BVerfG:2022:qk20220801.1bvq005022). However, the story is far from over. There have been several extensions of this interim relief, and a constitutional complaint has been lodged in the name of the child.

The history of the case is as long as it is complicated (part I), eventually leading to the BVerfG’s decision (part II). A selection of the many issues touched upon by the case will then be highlighted (part III).

I. A Legal Odyssey

In August 2013, a son was born in Madrid to unmarried parents. After their separation in March 2014, the mother took the child with her to Germany without the father’s knowledge or permission. Living in Germany ever since, the son – now nine years old – speaks only German, goes to school and is fully integrated socially in Germany (including a good relationship with the German citizen the mother married in July 2014 and his family, even after a subsequent divorce).

The custody proceedings initiated by the father in Madrid resulted in a (default) decision in June 2015 which granted him custody of the son as well as the right to decide on his residence. In February 2016, the father applied to a German family court (Amtsgericht als Familiengericht) in Bamberg for an order for the immediate return of the child to Spain according to the 1980 Hague Convention on Child Abduction.

The family court rejected this application on the grounds that the child had indeed been wrongfully removed from Spain to Germany by its mother, but that more than a year had passed (Article 12 para. 1 Hague Convention on Child Abduction) and the child was settled in its new environment (Article 12 para. 2 Hague Convention on Child Abduction).

The father’s appeal to the Higher Regional Court (Oberlandesgericht Bamberg, hereinafter: OLG) was dismissed in June 2016, on the ground that taking the child out of its social environment would not be in its best interest.

In December 2016, the mother applied to the German family court for sole custody. The family court declined to decide as German courts lacked jurisdiction. The father had lodged a request for return within a year of his learning of the child’s whereabouts, so international jurisdiction remained with the Spanish courts (Article 10 lit. b) no. i) Brussels II bis). This was upheld on appeal in April 2018. However, when the mother requested the Madrid court to amend its decision of June 2015 and grant her custody in January 2019, this was equally declined due to a lack of jurisdiction. The Madrid court considered the Spanish courts to have lost jurisdiction as the child had established habitual residence in Germany, ending the applicability of the Hague Convention on Child Abduction and leading to the German courts’ international competence according to Article 61 Brussels II bis. Subsequently, a Spanish criminal court condemned the mother to a 3-year prison sentence as well as the loss of custody rights for seven years because of child abduction.

In July 2019, the mother applied to the German family court for sole custody again. This time, her request was granted: The court took the view that the previous decline of jurisdiction by both German and Spanish courts and the fact that the father had never exercised the sole custody granted to him in 2015 necessitated action. While none of the exceptions listed in Article 10 lit. b) Brussels II bis was directly fulfilled, the non-application of Article 10 Brussels II bis was considered possible through the analogous application of lit. b) no. iv). This reasoning was however rejected on the father’s appeal. The OLG considered Article 10 Brussels II bis to be applicable still, with no possibility for interpretation beyond its wording regarding a “cut-off date”. Rather, it pointed to the possibility to transfer a case to a better-placed court under Article 15 Brussels II bis as a well-balanced remedy for problems arising from the perpetuated international competence of the Member State of origin. The result in October 2021 was – again – German courts declining jurisdiction.

Meanwhile, in June 2020 the father had applied to the German family court in Nuremberg, demanding the (immediate) return of the child by way of provisional measures. The evaluation of the child’s situation showed that transferring him to Spain into the custody of a father he hardly knew (and did not even share a common language with) was likely to result in a severe traumatisation. With regard to the child’s best interest, the family court dismissed the father’s application for (interim) return in September 2020. This decision was upheld on appeal in November 2020 by the Higher Regional Court (OLG) Nuremberg, which additionally pointed out that provisional measures under Article 20 Brussels II bis could not be used to make up for the failure of the previous return application under Article 12 para. 2 Hague Convention on Child Abduction (in 2016).

Not to be deterred, the father then applied to a Madrid court for return of the child. While the mother made use of her opportunity to participate in the proceedings (only) by way of a written statement, the child was apparently neither heard nor represented. In September 2021, the Madrid court ordered the child’s return to Spain and to his father, not taking into consideration that the child had no relationship with the father and spoke no Spanish. It also pointed out that due to the criminal sentence against the mother, a warrant for her arrest had been issued. In February 2022, the Madrid court issued a certificate for the cross-border recognition and enforcement of this judgment under Article 42 para. 2 Brussels II bis.

Presenting this certificate to the German family court, the father demanded enforcement of the return decision. In March 2022, the family court, considering it immediately enforceable in Germany, ordered the mother to promptly return the child. However, on the same day the German court contacted the Madrid court through the European Judicial Network and requested it to revoke the certificate, pointing out that the conditions for issuing a certificate under Article 42 para. 2 Brussels II bis had not been met. The German decision denying the return of the child in 2016 had been rendered according to Article 12 para. 2 and not Article 13 Hague Convention on Child Abduction.

On the mother’s appeal against the enforcement order, in June 2022 the OLG (regional court of appeal) confirmed that the return decision remained enforceable as the father had presented a certificate by the Madrid court of origin according to Article 42 para. 2 Brussels II bis and Article 42 para. 1 Brussels II bis does not foresee any possibility for opposition to the judgment or the certificate before the court of enforcement (in another Member State) – all objections against the return of the child or the procedure leading to the return judgment have to be brought solely before the court of origin. According to the OLG, this includes a review of whether the conditions for issuing a certificate under Article 42 para. 2 Brussels II bis had been met. While the German family court had suggested referring this point to the ECJ for clarification, the OLG considered it already clarified by Zarraga (ECJ C-491/10 PPU) and refrained from a referral. Thus, even though in this case the certificate had been issued wrongly, the OLG saw no grounds for the German family court to refuse enforcement.

In view of this, the mother applied to the Madrid court in June 2022 requesting an amendment of this certificate, arguing especially that the child’s interest had not been regarded in the proceedings. She also requested a temporary stay of enforcement in Germany until the Spanish courts had reached a decision regarding the amendment of the certificate. The family court rejected this, as according to the ECJ (as quoted by the OLG) the existence of the certificate prevented any examination on the merits. The mother lodged an immediate appeal, claiming that the child’s transfer to Spain would result in a massive threat to his welfare. The OLG rejected this as it considered an examination on the merits to be the exclusive domain of the (Spanish) original court. Very unusually, the OLG then addressed both parents, admonishing the father to consider the child’s best interests and not insist on his immediate transfer to Spain, and the mother to accept the legal situation and not aggravate it further for her son.

In this situation, the mother applied to the German Constitutional Court (BVerfG), requesting interim measures to stay the enforcement of the child’s return to Spain until the Spanish courts had reached a decision regarding the amendment of the certificate.

II. The Decision by the Bundesverfassungsgericht

The BVerfG granted the mother’s application and ordered a temporary stay of enforcement regarding the return decision – initially, until August 11, 2022. Due to the particular urgency of the matter, the father was not heard in the interim proceedings.

Granting such a temporary injunction requires that a (future) constitutional complaint (Verfassungsbeschwerde) in the main proceedings would be neither inadmissible nor obviously unjustified. On the basis of a summary assessment, the BVerfG was satisfied that this was the case. The time limit for a constitutional complaint against the German courts’ decisions of March 2022 and June 2022 had not yet expired. Such a complaint by the mother herself could be based on her constitutional parental rights (Article 6 para. 2 s. 1 Grundgesetz). A constitutional complaint by the child was considered envisageable as well – however, due to the mother’s lack of custody it would need to be raised by a guardian ad litem.

According to the BVerfG, it was not to be ruled out that the interpretation and application of Article 42 Brussels II bis by the family court and the OLG had led to unjustifiable impairments of the mother’s and the child’s fundamental rights. The German courts had been aware of the danger an immediate return to Spain would pose to the child’s welfare; however, they had considered themselves unable to take into account the child’s and the mother’s constitutional rights. In their opinion, Article 42 Brussels II bis (as interpreted in accordance with the ECJ) prevented them from considering these “substantial” aspects of the child’s welfare in the enforcement proceedings based on a certificate from another Member State, EU law barring an examination on the merits under all circumstances.

The BVerfG, however, pointed out that in this case, Article 42 Brussels II bis did not necessarily impede such an examination as it was not applicable: The certificate had been wrongly issued as the situation did not fall within its scope (as shown by the family court in its March 2022 decision). As Article 42 Brussels II bis can prevent an examination on the merits by the enforcement court only when it is applicable, under these circumstances a review, especially with regard to fundamental rights, under general rules would have remained possible.

The family court and the OLG had assumed that the presentation of a certificate prevented the enforcement court from even examining whether Article 42 Brussels II bis was applicable in the first place. Such a far-reaching interpretation needs to be considered also in light of European fundamental rights. It could lead to disregarding grounds for non-enforcement intended to protect the child, although the prerequisites for such an exclusion under Article 42 Brussels II bis are not fulfilled. On the other hand, an examination by the enforcement court limited to the question of the applicability of Article 42 Brussels II bis would not be contrary to the ECJ’s position established in Zarraga, as it would not extend to an examination of Article 42 Brussels II bis “in substance”. Such an approach would then, in case the enforcement court determines Article 42 Brussels II bis to be inapplicable, open the door for considering in how far a forced return of the child would infringe fundamental rights. Not taking these considerations into account, the decisions by the family court and the OLG constitute possible violations of fundamental rights, making a future constitutional complaint potentially successful. (The BVerfG thus can leave open the question whether the child’s EU fundamental rights might demand an examination on the merits by the enforcement court and an interpretation of EU law allowing for it when there are no other possibilities to avoid massive fundamental rights infringements, and whether in case of a lack of such a fundamental rights protection on the European level the German Grundgesetz might impose such an examination on German courts in exceptional circumstances.)

Weighing the consequences of not granting interim measures and later success of the constitutional complaint against the consequences of granting interim measures and later non-success of the constitutional complaint, the BVerfG granted the temporary injunction in order to avert serious disadvantages. Not granting interim measures would result in the child’s return to his father who could immediately take him to Spain, posing a grave and irreversible danger to the child’s welfare and blatantly contradicting the child’s best interest, as also stressed in the various family court and OLG decisions – with a potential second enforced return back to Germany after the constitutional complaint proceedings. Granting interim measures and conserving the status quo would result in a (further) delay of the child’s return to his father, perpetuating the wrong against the father but hardly disadvantaging the child.

The BVerfG thus granted the temporary injunction, limiting it initially until the end of the deadline for lodging a constitutional complaint (by the mother) and pointing out that if such a complaint was admissible, a further stay of enforcement could be extended until the Madrid court reached a decision regarding the mother’s request for amendment of the certificate. After a guardian ad litem had been appointed for the child (enabling a constitutional complaint by the child also), the BVerfG reissued the temporary injunction and extended it until the end of the deadline for the initiation of such proceedings (BVerfG August 10, 2022). A constitutional complaint having been lodged in the child’s name, the BVerfG granted another stay of enforcement until a decision regarding this constitutional complaint had been reached, but limited to six months (BVerfG 1 BvR 1691/22, September 1, 2022, ECLI:DE:BVerfG:2022:rk20220901.1bvr169122). It pointed out that a decision reached in July 2022 by the Madrid court did not address the concerns raised regarding the fulfilment of the requirements for the certificate, and could hence not alter the balance of the weighing of interests.

III. More Questions Raised than Answered

The BVerfG judgment is – both in form and in content – no more than a stay in proceedings. It is not for interim measures to reach a final verdict regarding the infringement of (German) fundamental rights. In how far fundamental rights have indeed been violated by the German courts’ enforcement decisions will remain to be decided in the main constitutional proceedings which have been brought by the child (the mother has, apparently, limited herself to the ”isolated” interim measures procedure without proceeding to a constitutional complaint).

It is also not for the German Constitutional Court to decide on the interpretation of EU regulations on international civil procedure. With regard to the interpretation of Article 42 Brussels II bis, the BVerfG offers no more than an option – albeit one that provides an elegant solution for the case at hand (and beyond). The potential violation of fundamental rights by the German enforcement courts does however not stem from a “wrong” interpretation of Article 42 Brussels II bis, but from their disregard of the potential line of interpretation proposed by the BVerfG,  (an examination limited to the applicability of Article 42 Brussels II bis, non-applicability allowing for a review under general rules). Their duty to explore it (aiming at an interpretation safeguarding fundamental rights) would probably have led to a referral to the ECJ, as initially suggested by the family court. Such a referral would have been desirable on several counts. Firstly, only the ECJ can provide the much-needed clarity regarding the interpretation and scope of Article 42 Brussels II bis, especially whether it truly comprehensively precludes any examination by the enforcement court, even restricted to the preliminary matter of its scope of application. Secondly, a referral would have allowed the ECJ to temper the strict principles established in Zarraga with a more differentiated approach, specifically taking into account the child’s right to be heard in court and its fundamental rights (as granted by the EU Charter of Fundamental Rights). Thirdly, the ECJ’s position regarding the potential infringement of European fundamental rights would have provided more than welcome guidance for future child return cases under the Brussels regime, for both courts of origin and enforcement courts.

A need for clarification will persist under the Brussels II ter regime. Its rules on certificates for privileged decisions (Article 47 et seq. Brussels II ter) aim to clarify the relationship with the Hague Convention on Child Abduction and to clearly outline the conditions for issuing a certificate – including the opportunity for the child to express his or her views (Article 47 para. 3 lit. b)). Their fulfilment has to be certified by the court of origin using the form provided in Annex VI. These new safeguards are intended to avoid situations like the present case, in which a certificate is issued although the requirements for it are not met, and they will hopefully improve the situation somewhat. However, they cannot guarantee that the problem of wrongly issued certificates will be a thing of the past – and for such cases, Brussels II ter does not provide a remedy at the enforcement level either. As the problem of the possibility of “wrongful immediate enforcement” persists under the new rules, the solution of an “applicability control” seems attractive also for the future. If it is rejected, it seems well possible that – at least in exceptional cases – a need for review by the enforcement court may flow directly from (European and/or Member States) fundamental rights, as the BVerfG points out.

Apart from this, the case has highlighted a number of open issues – some old acquaintances, some fairly new on the scene. The interplay between the Brussels regime and the Hague Convention on Child Abduction is less complicated than the infamously difficult relationship between the Brussels regime and the 1996 Hague Convention on Child Protection. Nevertheless, it is not always easy in theory, and not always free of error in practice – as the choice of the wrong enforcement mechanism by the Spanish court shows (the certificate only being available for decisions under Article 13 Hague Convention on Child Abduction). Difficulties in coordinating the Brussels and Hague regimes also became apparent in the context of jurisdiction: The Madrid court declined jurisdiction on the ground that the Hague Convention on Child Abduction was no longer applicable, and on Article 61 Brussels II bis (which, however, addresses the relationship between Brussels II bis and the Hague Convention on Child Protection, not the Hague Convention on Child Abduction).

A more fundamental problem with regard to jurisdiction lies in the lack of an efficient solution for the (wrongful) decline of jurisdiction. Brussels II bis allowed no possibility for German courts to take on jurisdiction after the Spanish courts had declined it. The transfer procedure envisaged in Article 15 Brussels II bis and considered solely pertinent by the OLG was of no help, as the (Spanish) court which could have initiated such a transfer had instead declared itself not internationally competent, and the (German) court considering itself better placed could not initiate the transfer itself. Thankfully, such as possibility has now been introduced by Article 13 Brussels II ter. It is highly regrettable that it was not available in the case at hand, as a cooperative and clear allocation of jurisdiction to the courts of one country would certainly have avoided a half-decade-long “game of jurisdiction ping-pong”, and possibly (in case of German courts’ jurisdiction) cross-border hearing and enforcement issues – ultimately furthering the child’s best interest. Hopefully, both versions of the transfer mechanism will be  used in the future to avoid similar pitfalls of (lack of)jurisdiction.

The limits of what is possible with regard to coordination and cooperation are also at the core of the questions raised with regard to the enforcement mechanism under Article 42 Brussels II bis. The model of immediately enforcing “privileged decisions” without a declaration of enforceability and without a possibility to oppose their recognition is based on the mutual trust between the Member States – the waiver of control by the enforcing state is not only grounded in a desire for simplification and acceleration, but mainly in the confidence that another Member State’s court has correctly applied all procedural and substantive rules. Mutually renouncing exequatur and révision au fond in favour of cooperative mechanisms is considered one of the greatest achievements of European civil procedure.

However, the current case illustrates that when something has gone wrong in the original proceedings, cooperative rectification may take its time, and immediate enforcement may bring more harm than good. The competence to rectify the wrongfully issued certificate lies with the Spanish court – which was directly contacted by the German court, in addition to being applied to by the mother, so that an examination (and possibly revocation) procedure was pending. While the certificate’s fate is thus suspended, its enforcement entails the danger of creating a situation which will soon have to be reversed. Especially as some of the enforcement consequences with regard to the child’s welfare are likely to be irreversible, proceeding to enforcement under these circumstances seems reckless and hardly in the best interest of the child. Prohibiting the enforcement court from temporarily staying enforcement proceedings in order to allow the court of origin to make the necessary corrections to the judgment means forcing it to perpetuate and deepen legal mistakes through enforcement with its eyes open. It seems very doubtful that this should be intended by the Brussels regime, or in keeping with European values and fundamental rights. On the other hand, a temporary stay of enforcement combined with a request for rectification allows the court of origin to re-examine and correct its own judgment without being prejudiced by enforcement considerations.

The final, and most far-reaching, point to be briefly addressed here is the matter of the child’s right to be heard. The child’s involvement in the proceedings has been problematic in this case in several regards. In the Spanish proceedings leading to the return judgment, the child was neither heard directly nor through a (court-appointed) representative. Already problematic in itself, this disregard of procedural requirements is aggravated by the fact that the Madrid court’s judgment does not address the central aspects of child welfare which would have argued against the child’s return to Spain. In view of the importance accorded to the child’s right to be heard (exemplified by the explicit inclusion of the courts’ duty to allow the child to express his or her views in Article 21 Brussels II ter), such an omission has to be viewed as a blatant disregard of (European) procedural rules, and a potential violation of fundamental rights. Enforcing a judgment rendered in such a way as a “privileged decision” without any possibility for control seems highly problematic (even if the requirements for this enforcement mechanism have been met). It might ultimately compel Member States to enforce judgments which, due to their procedural defaults, are clearly contrary to their own ordre public and to European fundamental rights and values – and in doing so, violate fundamental rights themselves. An exception from the “no examination” rule for cases of obvious breaches of European procedural rules might be considered to be, on the whole, more conducive to creating a “European area of justice”.

As a side note, it also proved difficult for the child to initiate a constitutional complaint before the BVerfG, as there are no clear rules in German law providing for the appointment of a guardian ad litem in situations such as this. Thankfully, this issue has been quickly and pragmatically addressed in the case at hand. Nevertheless, the non-appointment of a representative by the Spanish court and the technical difficulties in appointing a guardian ad litem for the German constitutional complaint proceedings illustrate the importance of establishing clear and efficient rules for the legal representation of children when their parents are unable to or fail to act on their behalf.

All in all, in the wake of the BVerfG decision more questions are left open than answered – in casu and in general. This particular legal battle will continue to be fought for some time and in several theatres of war. Apart from German and Spanish family and constitutional courts, the ECJ and ultimately the European Court of Human Rights might be involved. Even if a solution is reached before the child concerned reaches the age of majority, it is likely to leave all family members exhausted, alienated and traumatized. But especially as a good outcome for the individuals concerned seems impossible and a further legal dispute unavoidable, the case’s potential for the development of the interpretation of EU law should be exploited fully. Hopefully, further decisions on this matter will help to establish guidelines for similar situations, use the opportunities to clarify further aspects of the functioning and remedies of the Brussels regime, and aid in applying it in keeping with national and European fundamental rights and values. In this way, a sad case might at least contribute to making good law.

Today, the United Nations Convention on International Settlement Agreements Resulting from Mediation enters into force in Kazakhstan, the 10th State party to the Convention. Whilst not yet ratified by any European country, it is being considered by several

Source: https://uncitral.un.org/en/texts/mediation/conventions/international_settlement_agreements/status

Symeon Symeonides (Alex L. Parks Distinguished Professor of Law at Willamette University – College of Law) has made available on SSRN a draft of his paper on An Outsider’s View of the Brussels Ia, Rome I, and Rome II Regulations that is being published on Lex & Forum in 2023.

The abstract of the article reads as follows:

This is an invited essay for a conference on “European Private International and Procedural Law and Third Countries” that was held in Greece on September 29, 2022. It focuses on certain aspects of three European Union “Regulations,” which have “federalized” the Private International Law or Conflict of Laws of the Member-States: (1) the “Brussels Ia” Regulation on Jurisdiction and Recognition and Enforcement of Judgments in Civil and Commercial Matters of 2012; (2) the “Rome I” Regulation on the Law Applicable to Contractual Obligations of 2008; and (3) The “Rome II” Regulation on the Law Applicable to Non Contractual Obligations of 2007.
The first part of the essay criticizes the discriminatory treatment of defendants domiciled outside the EU by Brussels Ia, and its lack of deference toward the exclusive jurisdiction rules of third countries or toward choice-of-court agreements choosing the courts of third countries. It praises the Brussels Ia provisions on lis pendens and its protection of consumers and employees against unfavorable pre-dispute choice-of-court agreements.
The second part praises the protection Rome I provides for consumers and employees against unfavorable choice-of-law agreements, but also explains why the protection provided for passengers and insureds is often ineffective. It criticizes the lack of protection for other weak parties in commercial contracts, such as franchises, and explains how an article of Rome II that allows pre-dispute choice-of-law agreements for non-contractual claims in those contracts exacerbates this problem.
The third part of the essay criticizes the way in which Rome II resolves cross-border torts other than environmental torts, especially cross-border violations of human rights. It proposes a specific amendment to the relevant article of Rome II and argues that this amendment will provide better solutions not only in human rights cases but also in other conflicts arising from cross-border torts.

In the space of two weeks, two doctoral theses on arbitral jurisdiction will be publicly defended at the Stockholm University. First, on 21 November 2022, Fabricio Fortese defended a thesis titled Early Determination of Arbitral Jurisdiction – Balancing efficacy, efficiency, and legitimacy of arbitration. On 2 December 2022, Monica Seifert will defend a thesis on Arbitral Jurisdiction in Multi-Contract Relations ­­– A Comparative Study of Swedish, Swiss and English Law.

Fortese’s thesis examines the timing of judicial determination of jurisdictional disputes under Article 8 (1) of the UNCITRAL Model Law on International Commercial Arbitration and Article II (3) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The thesis argues that Article 8 of the Model Law does not require that national courts undertake either a limited (prima facie) or a full review of an arbitration agreement and objections to an arbitral tribunal’s jurisdiction. Fortese holds, as the main finding of his dissertation, that both approaches are permitted under the Model Law. The application of one or the other is “a matter of judgment (rather than opinion), based on the particularities of the case, and aiming to achieve the fair and efficient resolution of the jurisdictional and substantive dispute” (p. 282). Professor George A. Bermann of Columbia Law School acted as opponent at the public defense. A full abstract of the thesis can be read here.

The research question for Seifert’s thesis is whether an arbitration agreement contained in one contract can be considered to apply to disputes concerning other contracts between the same parties. For the analysis, the thesis focuses on the international arbitration prerequisites of (1) a defined legal relationship, (2) the scope of the arbitration agreement and (3) the identity of the matter in dispute. According to the abstract, “[t]he thesis concludes that the legal systems under analysis, despite their largely different procedural and contractual settings, have proven to be sensitive to the pressures of globalization and to the demand for more generous access to arbitration”. In the conclusions, Seifert stresses the importance of the seat of arbitration as it is the procedural law of this country that ultimately will determine arbitral jurisdiction (p. 285). Professor Giuditta Cordero-Moss of Oslo University will act as opponent at the public defense. A full abstract of the thesis can be read here.