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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.

Dec 7, 14:00-17:00

Asser Instituut and Online.

More Information and registration here.

On Tuesday, December 6, 2022, the Hamburg Max Planck Institute will host its 28th monthly virtual workshop Current Research in Private International Law at 11:00 a.m. – 12:30 p.m. (CEST). Prof. Christiane Wendehorst (University of Vienna) will speak, in German, about the topic

Crypto-Assets in Private International Law

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

Dominique Bureau (University of Paris II Panthéon Assas) and Horatia Muir Watt (Sciences Po Law school) have published earlier this week in La Semaine Juridique (édition générale) a critique of the desirability of codifying private international law at national level in a field dominated by EU and international norms (Codifier à contretemps… À propos d’un projet français de codification du droit international privé).

The English summary of the article reads:

After the failure of various initiatives towards national codification of private international law in France in the course the first part of the 20th century, a new project was commissioned recently by the ministry of justice and is now (very briefly) open to public comment. Curiously, then, the spectre of a national code has resurfaced once again in an entirely new context – that is, at a time when the majority of rules of the conflict of laws, jurisdiction and judgments currently in force in Member States have been unified by the European Union (largely successfully). Quite apart from any quality assessment of the various substantive provisions thus proposed in the draft text, some of which would no doubt be useful interstitially in the spaces still left to the competence of national authorities, and indeed beyond the symbolic signification of an inward-local turn in an area designed emblematically to respond to the transnational, the main flaw in this proposal is the erroneous nature of its own premises. There is a real discrepancy between the draft text and the very objectives it is designed to pursue : it is far from making the state of the law more manageable for the courts, as it claims to do. Indeed, in the epistemological terms of the French legal tradition, the very phenomenon of a national code suggests that it contains a complete set of legal tools for solving issues that arise in transnational litigation. However the proposal itself reminds its users that it is applicable by default, while leaving the frontiers of local law very unclear. Surprisingly, it has generated very little academic opposition, but even as the short parliamentary deadline approaches, it is still not too late to do nothing..

The journal and article can be accessed here.

Ebury Partners Belgium SA/NV v Technical Touch BV & Anor [2022] EWHC 2927 (Comm) discusses ia whether choice of court and law included in general terms and conditions – GTCs, agreed (or not) by inclusion in email and /or e-mailed click-wrapeable hyperlink (this is a factual discussion), justifies an anti-suit injunction against Belgian proceedings.

Pre-Brexit such injunction would not have been possible. It has since of course been granted frequently; my most recent report of one was QBE Europe v Generali. Issuing an anti-suit post Brexit therefore is no longer surprising (commentators continue to suggest the EU should somehow shield EU proceedings from them). The application of the Rome I Regulation under retained EU law however does remain less discussed – and it is poorly executed in current judgment.

Anticipatory proceedings seeking a declaration of non-liability were launched unexpectedly (Belgian CPR requires no prior warning in any circumstance) in Belgium on 4 May 2022. The Belgian court later that month held that Ebury’s jurisdiction challenge  will not be dealt with separately, instead, as is standard, will be reserved for consideration at the same time as the merits.

The English proceedings were launched in July 2022. A critical question is whether Ebury can show, with a high degree of probability, that there is a jurisdiction agreement governing the dispute in question. Was the E&W jurisdiction clause contained in Ebury’s RA standard terms incorporated into the agreement between Ebury and TT? The factual circumstances are not conclusive, for there are suggestions of GTCS with choice of court sent by incorporation in an e-mail and /or by click-wrapeable  hyperlink similarly e-mailed.

The judge is correct to classify Rome I as retained law [83]. However the exclusion of choice of court agreements from that Regulation has somehow entirely escaped him and counsel, it seems.

Rather therefore than considering the issue under English conflict of laws (in EU Member States the issue is now subject to Article 25  Brussels Ia however that is irrelevant here), the judgment ventures into Article 10 Rome I’s putative law /von Munchausen /bootstrap principle, to identify English substantive law as the lex cause for the validity (including the issue of incorporation) of the choice of court. This leads after extensive discussion to a finding of incorporation under English law [102].

[103] ff Belgian law is signalled as a fall-back under Article 3(5) and 10(2) Rome I, however the judge essentially ignores that possibility (although he formally entertains it) by referring to a lack of indication on the facts that the counterparty agreed to the relevant clauses. He uses the ‘man on the Clapham omnibus’ formula to reach that conclusion: counterparty did consult or should have consulted the GTCs and there are no factual indications it disagreed with them. Conflicting Belgian law  expert evidence is not discussed.

Anti-suit was eventually granted.

If their apparent lack of raising the proper analysis (ie: no inclusion of choice of court) of the Rome I issue does not prevent defendants from appealing, they clearly should, to the extent the English conflict of laws approach to validity of choice of court, may lead to a finding of non-incorporation.

Geert.

Anti-suit injunction granted viz Belgian proceedings
E&W jurisdiction clause included in GTCs per click-wrap agreement
Discussion ia of A10 Rome I bootstrap principle

Ebury Partners Belgium SA/NV v Technical Touch BV & Anor [2022] EWHC 2927 (Comm) https://t.co/ss8coWfP2Q

— Geert Van Calster (@GAVClaw) November 18, 2022

 The third issue of 2022 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features:

Giovanna Adinolfi, Professor at the University Milan, 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 cyber operations 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, Associate Professor at the University of Padua, 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) [in Italian]

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.

The following comments are also featured:

Pietro Franzina, Professor at the Catholic University of the Sacred Heart – Milan,  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) [in Italian]

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, Research Fellow at the University of Milan, Riconoscimento del rapporto di filiazione omogenitoriale e libertà di circolazione all’interno dell’Unione europea (Recognition of Same-Sex Parentage and Freedom of Movement within the European Union) [in Italian]

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

Finally, this issue features the following book review by Francesca C. Villata, Professor at the University of Milan: Jason Grant ALLEN, Peter HUNN (eds.), Smart Legal Contracts. Computable Law in Theory and Practice, Oxford University Press, Oxford, 2022, pp. XIV-513.

CA Indosuez (Switzerland) SA & Anor v Afriquia Gaz SA & Anor [2022] EWHC 2871 (Comm) is largely a case of statutory construction (here: of the amended Civil Procedure Rules – CPR).

It transpires from current judgment that similar issues were discussed (yet eventually did not need determination) in Naftiran Intertrade Company (Nico) Limited and Anor v G.L. Greenland Limited and Anor [2022] EWHC 896 (Comm) (unpublished).

I do not often copy /paste big chunks of judgment let alone the facts parts of them, however here I feel it is quite necessary: [1] ff, in summary:

Gulf Petroleum FZC, the First Part 20 Defendant (“GP”) had trade finance facilities with CA Indosuez (Switzerland) SA (the Claimant: “CAIS”) and with UBS Switzerland AG (the Second Part 20 Defendant: “UBS”).

Afriquia Gaz SA and Maghreb Gaz SA, the Defendants and Part 20 Claimants (“AG” and “MG”), purchased a cargo of butane from GP.  GP assigned to CAIS the debt represented by the purchase price.  GP issued its invoices to AG and MG on 23 July 2020 and CAIS sent notices of assignment on 27 and 28 July 2020.

However on 19 August 2020 AG and MG paid, by SWIFT, the sums due to GP’s account with UBS. The funds were received into one of GP’s accounts with UBS and then transferred to what appears to have been its loan or overdraft account.

GP instructed UBS to transfer the sums received to CAIS. UBS refused. It claimed to have been entitled to set off those sums against GP’s liabilities to it.

By Rule 20.1 of the Civil Procedure Rules, the purpose of Part 20 of the CPR is “to enable counterclaims and other additional claims to be managed in the most convenient and effective manner”. CAIS commenced this claim against AG and MG for the purchase price, a claim in debt. AG and MG denied liability but added (Part 20) claims against GP and UBS for the sums received, and in unjust enrichment and for liability as constructive trustee. Following the exchange of expert reports on Swiss law, AG and MG have accepted that their claim against UBS based on an alleged constructive trust must fail, and that the claim in unjust enrichment will only arise in certain circumstances.

GP is incorporated in the UAE.  The sale contract with AG and MG contained an exclusive jurisdiction agreement in favour of the High Court in London. The Part 20 Claim Form was issued with the following indorsement:

“[AG and MG] are permitted to serve the [Part 20] Claim on [GP] pursuant to CPR r.6.33(2)(b)(v) and Article 25 of the Judgments Regulation because [GP] is a party to an agreement … conferring exclusive jurisdiction within Article 25 of the Judgments Regulation.  [AG and MG] are permitted to serve the [Part 20] Claim on [UBS] out of the jurisdiction pursuant to CPR r.6.33(1)(b)(i) and Article 6(3) of the Lugano Convention.

The reference to Article 6(3) was a mistake for Article 6(2).

The Part 20 Claim Form against GP and UBS was issued on 30 December 2020, before the end of the Brexit transition period. UBS declined to instruct solicitors to accept service in England. AG and MG meanwhile on 20 January 2021 obtained an order from Cockerill J extending the validity of the Part 20 Claim Form. The Part 20 Claim Form was served or purportedly served on UBS, out of the jurisdiction, on 9 March 2021.

Crucially, the Court’s permission for service out of the jurisdiction on UBS was not sought. Counsel for claimant informed the Court that those representing AG and MG considered at the time that no permission would be needed, on the basis that jurisdiction under the Lugano Convention, which existed at the date of issue of the Claim Form, was preserved. Counsel also contented that even if permission to serve out was required and had been sought, it would inevitably have been granted, as questions of appropriate forum (considered in an application for permission to serve out) were not relevant in the context of the Lugano Convention. 

UBS acknowledged service on 26 March 2021, indicating an intention to contest jurisdiction.  Current judgment focuses on that contestation.

Under the European Union Withdrawal Act 2018, implementing the EU Withdrawal Treaty, an implementation period came to an end at 23:00 GMT on 31 December 2020 (a day after the claim form that initiated current litigation was issued; also known as “IP completion day”). During the implementation period, obligations stemming from international agreements to which the EU was party continued to apply. Until IP completion day therefore the Lugano Convention applied to it by reason of the EU’s membership of the Convention. That clearly is no longer the case.

Essentially, E&W CPR was amended to include transitional provisions in relation to service out of the jurisdiction, which specifically maintain the pre-existing position that permission is not required for a claim form issued prior to withdrawal where jurisdiction is based on Brussels Ia. However, there is no equivalent saving for claim forms where jurisdiction exists under the Lugano Convention.

Knowles J [25] on the issue of permission, reaches the same conclusion as Ms Dias QC in Naftiran (above): namely that the widened A6.33(3) CPR rule applies to include Lugano Convention claims. That rule now reads

“6.33(3) The claimant may serve the claim form on a defendant out of the United Kingdom where each claim made against the defendant to be served and included in the claim form is a claim which the court has power to determine other than under [the Convention on Choice of Court Agreements concluded on 30th June 2005 at the Hague], notwithstanding that (a) the person against whom the claim is made is not within the jurisdiction; or (b) the facts giving rise to the claim did not occur within the jurisdiction.”

Having decided the issue of permission, the judge still had to decide whether Lugano conveys jurisdiction in this case. A 6(2) Lugano provides that a person domiciled in the state bound by the Convention may be sued “as a third party in an action on a warranty or guarantee, or in any other third party proceedings, in the court seised of the original proceedings, unless these were instituted solely with the object of removing him from the jurisdiction of the court which would be competent in his case;”

A core issue in current case is that the main claim is settled [12]; can the third party proceedings still continue in the main claim’s forum? The judge refers to CJEU C-365/88 Kongress Agentur (a Lugano case) and [44] holds that there is sufficiency of connection between the claims for jurisdiction to be established; that there is no authority for defendants’ proposition that only ‘exceptional circumstances’ may justify third-party proceedings to continue when the main claim is settled, and that in essence [41] sufficiency of connection between the third party claims and the main claim suffice for the former to continue in the latter’s jurisdictional home.

There are echoes here of potential for abuse per CJEU CDC, however that route was seemingly not pursued and on the facts would seem challenging to substantiate.

Geert.

Whether amended CPR implementing EU-UK withdrawal agreement requires (held: no) permission for service out in #Lugano Convention scenarios when it still applied
Also considers fate of anchored claim when main claim is settled
CA Indosuez ea v Afriquia Gaz https://t.co/GvNEAklFBv

— Geert Van Calster (@GAVClaw) November 14, 2022

A recent Briefing paper titled Updating the European digital identity framework, authored by Mar Negreiro and Maria Niestadt (from the European Parliamentary Research Services), may be of interest to the readers of this blog.

It deals with the proposal of the European Commission, released in June 2021, to create a “European Digital Identity” (EDI) and a dedicated “Wallet” for citizens and businesses in the European Union (hereafter ‘EDI Regulation proposal’).

General Background of a ‘European Digital Identity’ and its Dedicated ‘Wallet’

The ‘European Digital Identity Wallet’ (EDIW) aims to allow people and companies based in the EU, to store person identification data (e.g. name, address, gender, civil status) and electronic attestations of attributes (e.g. bank account, birth certificate, diploma, company statute) for cross-border use. It should also allow users to authenticate and access online public or private services (Article 6a of the EDI Regulation proposal). According to the European Commission, by means of this digital wallet, proving your identity and sharing electronic official documents across the EU Member States will be possible with ‘one click’ on your smartphone!

This legislative proposal surely is a coherent and necessary continuum of the digitalisation momentum in the Union, both in its economic (i.e. internal market policy) and judicial (i.e. judicial cooperation in civil and criminal) dimension. One of its main political objective is for the Member States and the Union to regain control over the identity of European citizens in the digital ecosystem. Indeed, the dominant tech platforms have been developing private forms of ‘digital ID’, competing with national legal identification schemes. Under the EDI Regulation proposal, the digital wallet should only be issued under the supervision of Member States (i.e. directly by the State or based on a mandate/recognition requirements from the State). The project also aims to support the empowerments of ‘EU digital citizens’ in the same vein as the Declaration on European Digital Rights and Principles recently put forward by the European Commission to ensure a human-centred digital transformation in the Union. Users should be “in full control” of the wallet (Article 6a (7) of the EDI Regulation proposal) based on the key-principles of the GDPR, such as the requirement of data minimisation.

However, the proposal also raises several concerns about, inter alia, the effectivity of data protection, the risk of exclusion of parts of European society, the system’s vulnerability to fraud and data loss. I propose to add to that list uncertainties with regard to private international law rules and their implementation in ‘EDIW context’. The first question that occurs to me is as follows: what will be the legal scope of the cross-border portability of the information contained in this digital wallet?

Legal Outlines of the European Digital Identity Wallet The Acquis based on the eDIAS Regulation

The EDIW proposal builds on the acquis of the eIDAS Regulation on electronic identification and trust services for electronic transactions in the internal market. This latter lays down the conditions for the mutual recognition, between EU Member States, of electronic identification means of natural and legal persons, based on national notified electronic identification schemes (Article 6). By consequence, the identity – unique by essence – of citizens and businesses based in a Member State can be established throughout the Union (or, at least, in the other Member States that have notified such schemes). Concretely, it should for instance allow a person, domiciled in one Member State, to open a bank account in another Member State remotely, via an electronic identification (eID). The bank should be able to verify the age and the legal identity of the client, his/her financial records and the paperwork could be signed online using e-signatures (see here for other ‘promotional’ examples).

For the proper functioning of the mutual recognition principle, the eIDAS Regulation provides for three “assurance levels” applicable to the electronic identification schemes; they characterise “the degree of confidence in electronic identification means in establishing the identity of a person” (see Recital 16 and Article 8). Against this background, mutual recognition of electronic identification means – used for authentication for an online service – is mandatory for the ‘host State’ only when the public body of the ‘home State’ uses the “substantial” or “high” assurance levels for accessing that service online (Article 6).

‘European Digital Identity Wallet’: What Does It Mean?

The EDI Regulation proposal goes further than the current eIDAS Regulation in making mandatory for all Member States to provide electronic identification means and to recognise the notified electronic identification schemes (eDIs) of other Member States. In that respect, it lays down common requirements for the issuing of European Digital Identity Wallets (EDIW) by Member States (Article 6a of the EDI Regulation proposal). These wallets are understood as “electronic identification means […] containing person identification data and which is used for authentication for an online or offline service” (see Article 1, (3) (a) (2) of the proposal, with the understanding that ‘authentication’ enables the electronic identification as well as the origin and integrity of data in electronic form to be confirmed).

By comparison with a more familiar concept, ID cards issued by EU Member States (following the implementation of Regulation 2019/1157 on strengthening the security of identity cards of Union citizens) are also characterised as ‘electronic identification means’ under the eIDAS Regulation and the EDI Regulation proposal. But the future EDIW is much more than a mere digital ID card. It is both “a product and service” that allows the user “to store identity data, credentials and attributes linked to her/his identity, to provide them to relying parties on request and to use them for authentication, online and offline, for a service […] and to create qualified electronic signatures and seals” (Article 1, (3) (i) point 42 of the proposal).

Legal Scope of the European Digital Identity Wallet

The digital wallet should, inter alia, allow the “validation” of person identification data and electronic attestations of attributes by relying parties. More widely, Member States should provide “validation mechanisms” to ensure that the “authenticity and validity” of the digital wallet can be verified. In that respect, the EDIW should meet the “high level of assurance”, by reference to the eIDAS Regulation (see above), in particular with regard to “identity proofing and verification” requirements. The high level of assurance is based on technical specifications, standards and procedures “the purpose of which is to prevent misuse or alteration of the identity” (Article 8, (2), c).

It is also worth mentioning that the EDI Regulation proposal lays down a minimum list of attributes (e.g. address, age, civil status, family composition, financial and company data), the authenticity of which should be verifiable electronically, at the request of the user, by qualified providers of electronic attestations of attributes, against the relevant authentic source at national level (Article 45d and Annex VI).

Eventually, the proposed EDIW framework does not appear very clear about the normative scope of trans-European data flows via the digital wallet, between (presumption of) authenticity and validity.

Some Private International Law Issues Raised by the EDIW The Legal Implication of the Mutual Recognition Technique

Beyond the strengthening of a common ‘technological infrastructure’, the ultimate goal of the ‘European Digital Identity Wallet’ (EDIW) is to ensure the cross-border recognition of Europeans’ legal identity and additional information about them (i.e. attestation of attributes such as certificates of birth or diplomas). This brings us to more familiar territory, starting with the core question of the legal significance of the mutual recognition technique in this specific context.

Mutual recognition should provide for a cross-border portability of the data stored within the digital wallet, such as age, gender, nationality or company data. In that respect, the relevant methodology may be based on the international circulation of foreign public documents that have consolidated a legal situation in a first Member State and whose legal consequences are expected in the host Member State (cf. the inspiring work of Professor Ch. Pamboukis). In the case of ‘non-decisional’ public documents (e.g. a professional qualification or a driving licence, ‘crystallised’ in the digital wallet issued by the State of origin), these documents should produce non-normative procedural effects of an evidentiary nature. The data stored in the digital wallet may also be presumed to be formally valid, which allows them to flow across legal borders: the person concerned may use them in the ‘host State digital jurisdiction’ in the same way as in his/her State of origin.

When the data contained in the digital wallet are no longer related to administrative/public aspects (e.g. diploma or driving licence mentioned above) but to personal status and individuality (e.g. name, domicile, civil status, family composition), the mutual recognition technique could take on a different meaning. Indeed, the public documents in question are no longer limited to ‘establishing’ a situation certified by a public authority but are of a ‘receptive’ type. The public authority issuing the public document has ‘received’ the private will expressed by the parties in order to authenticate it. In this context, it could be argued that the digital circulation of such a public document (e.g. a marriage or a name certificate) carries a presumption of validity of the legal situation (i.e. negotium) contained in it (i.e. instrumentum). This distinction is well-known among private international law experts and the suggested reasoning should be the same whether the information is ‘digitised’ or formalised in a paper document. Indeed, electronic attestation of attributes should have “the equivalent legal effect of lawfully issued attestations in paper form”, pursuant to the EDI Regulation proposal (Recital 27).

Critical Assessment

The future ‘European Digital Identity Wallet’ could have a real impact on the international recognition of personal and family status in the Union. The same could be said for the status of legal persons. For citizens and businesses, intra-European free movement would be strengthened and, in practice, greatly simplified.

The main methodological consequence from the private international law perspective should be the ‘eviction’ of the conflict-of-laws rules and reasoning. This is understandable insofar as, in practice, the presumption of probative value of a foreign public document, on the basis of mutual recognition, implies, in our view, a presumption of validity of the legal situation it contains (cf. here).

In the European context, this statement should be even more accurate, because of the remarkable influence of EU citizenship and fundamental rights (such as the right to privacy which applies to the identity of individuals) on conflict-of-laws. Several examples may be found in the caselaw of the CJEU, such as the recent Pancharevo judgment (commented on the blog) raising exactly this issue. For part of scholars and many Member States, this is however the pitfall to be avoided. But actually, the intra-European digital flow of personal data, via this European digital wallet, should instead reinforce this trend.

The Interplay Between the EDIW and Other Legal Instruments

It is important to note that the EDI Regulation proposal, like the current eIDAS Regulation, gives priority to other rules of EU and national law on specific sectors. In that respect, the proposal lays down that the (future) regulation “does not affect national or Union law related to the conclusion and validity of contracts or other legal or procedural obligations relating to sector specific requirements as regards form with underlying legal effects” (Article 2, §3). The issue of normative interplay between the EDIW framework and other important instruments will be crucial. This will be the case, inter alia, in the field of personal status, regarding Regulation 2019/1191 on Public Documents but probably also some ICCS conventions (such as Convention n°34 recently entered into force), as well as national rules on the international legal effects of public documents. This is also true for EU instruments which support the cross-border cooperation between public national authorities and the free movement of citizens and businesses, i.e. the IMI System and the Single Digital Gateway.

The ‘One-click EU Recognition’ is not yet ready to be the revolutionary new tool for private international law partitioners, but the European Digital Identity Wallet is definitively a topic for us!

Dr Benjamin Hayward*

The United Nations Convention on Contracts for the International Sale of Goods (‘CISG’), currently adopted by 95 States, is a treaty intended to harmonise the laws governing cross-border goods trade: and thereby promote trade itself.  So much is made clear in its Preamble:

The States Parties to this Convention, …

Being of the opinion that the adoption of uniform rules which govern contracts for the international sale of goods and take into account the different social, economic and legal systems would contribute to the removal of legal barriers in international trade and promote the development of international trade,

Have agreed as follows: …

Art. 7(1) CISG’s instruction for interpreters to have regard ‘to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade’ establishes a requirement of autonomous interpretation.  This, in turn, facilitates the CISG’s global jurisconsultorium: whereby courts, arbitrators, lawyers, academics, and other interested stakeholders can influence and receive influence in relation to the CISG’s uniform interpretation.  A recent publication edited by Peng Guo, Haicong Zuo and Shu Zhang, titled Selected Chinese Cases on the UN Sales Convention (CISG) Vol 1, makes an important contribution to this interpretative framework: presenting abstracts and commentaries addressing 48 Chinese CISG cases spanning 1993 to 2005, that may previously have been less accessible to wider international audiences.

A review of this case law collection discloses an interesting phenomenon affecting the CISG’s Chinese application: at least, until very recently.  Pursuant to Art. 142(2) General Principles of the Civil Law (which was effective in the People’s Republic of China until repealed as of 1 January 2021):

[I]f any international treaty concluded or acceded to by the People’s Republic of China contains provisions differing from those in the civil laws of the People’s Republic of China, the provisions of the international treaty shall apply, unless the provisions are ones on which the People’s Republic of China has announced reservations.

(Translation via Jie Luo.)

Numerous contributions to Guo, Zuo and Zhang’s volume – including by Wang, Guo and Zhang; Luo; Luo again; Wang; and Xu and Li – observe that some Chinese courts have interpreted this provision to require the CISG’s application only where it is inconsistent with non-harmonised Chinese law.  Whilst this approach to the CISG’s application is noteworthy for its inconsistency with international understandings of the treaty, it is arguably more noteworthy for highlighting that national law itself is often ‘where the relationship between the convention and national law is regulated’.[1]  Scholarship has given much attention to the success (or otherwise) of Art. 7(1) CISG in securing the treaty’s autonomous interpretation.  However, machinery provisions giving the CISG local effect in any given legal system (themselves being matters of ‘local legislative judgment’) have an apparently-underappreciated role to play, too.

Wang’s contribution quotes Han as writing that the Chinese inconsistency concept’s effective implementation of a reverse burden of proof in establishing the CISG’s application is a situation that ‘I am afraid … is unique in the world’.  On the contrary, and not unlike China’s former Art. 142(2) General Principles of the Civil Law, Australia’s CISG implementing Acts still ostensibly frame the treaty’s local application in terms of inconsistency.  The Sale of Goods (Vienna Convention) Act 1986 (NSW) s 6 is representative of provisions found across the Australian state and territory jurisdictions: ‘[t]he provisions of the Convention prevail over any other law in force in New South Wales to the extent of any inconsistency’.  Case law from Victoria and from Western Australia has read those jurisdictions’ equivalent inconsistency provisions as implying the CISG’s piecemeal application, only where particular provisions are inconsistent with local law.  Looking even further afield, Australia’s own use of the inconsistency device is far from unique.  Singaporean and Canadian legislation make use of the inconsistency concept, as does Hong Kong’s recently-promulgated CISG Ordinance.  In the latter case, the statutory interpretation risks associated with the adoption of an inconsistency provision were drawn to the Hong Kong Department of Justice’s attention.  However, Australia’s statutory model prevailed, perhaps in part because it has previously been put forward as a model for Commonwealth jurisdictions looking to implement the CISG.

At the risk of being slightly controversial, at least some scholarship addressing the failings of national CISG interpretations may have been asking the wrong question: or at least, missing an important additional question.  Instead of asking why any given court has failed to apply and respect Art. 7(1) CISG’s interpretative directive, we might instead (or also) usefully ask whether that given State’s CISG implementation legislation has been drafted so as to invite the local law comparisons that have then been made.  Some responsibility for problematic CISG interpretations might lie with the legislature, in addition to the judiciary.

In Australia, the Playcorp decision – Victoria’s inconsistency case referred to above – has been taken by subsequent cases in both the Federal Court and in the Full Federal Court of Australia as authority for the proposition that Art. 35 CISG’s conformity requirements equate to the implied terms contained in the non-harmonised Goods Act 1958 (Vic) s 19.  The Federal Court’s first-instance decision was itself then cited in New South Wales for that same proposition: leading to a problematic CISG interpretation that is now entrenched under multiple layers of precedent.  Whilst the equation being made here is rightly criticised in itself, it has Australia’s inconsistency provisions – in addition to our courts’ failures to apply Art. 7(1) CISG – resting at its core.

Guo, Zuo and Zhang’s Selected Chinese Cases on the UN Sales Convention (CISG) Vol 1 thereby makes a valuable contribution to the Convention’s jurisconsultorium: first, by virtue of its very existence, but secondly, by its additional disclosure of China’s former inconsistency struggles to the wider scholarly community.

[1] Bruno Zeller, ‘The CISG in Australasia: An Overview’ in Franco Ferrari (ed), Quo Vadis CISG?  Celebrating the 25th Anniversary of the United Nations Convention on Contracts for the International Sale of Goods (Bruylant, 2005) 293, 299.

 

* Senior Lecturer, Department of Business Law and Taxation, Monash Business School

Twitter: @LawGuyPI

International Trade and International Commercial Law research group: @MonashITICL

Disclosure: The author is a confirmed contributor to the forthcoming Selected Chinese Cases on the UN Sales Convention (CISG) Vol 3.

Their relevance is of course insignificant in light of the dreadful events that  triggered the judgments, however I thought I would flag the private international law elements in this week’s four Dutch judgments following the criminal prosecution of the suspects (now culprits) in the downing of MH17.

The judgment against Mr Pulatov was the  only one to respond to defence arguments actually made: he was the only one to have been represented (the other judgments were held in absentia). The judges extrapolate his arguments to the  other defendants to ensure some kind of proper representation, however they also explore further elements not raised by Mr Pulatov in the other judgments. This includes precisely the private international law elements for, it seems, no private claim was attached to the prosecution of Mr Pulatov while it was against the other defendants.

In this post I take the judgment against Mr Dubinskiy as the relevant text (structure and content of the other 2 judgments are essentially the same).

[12.4.1] discusses the possibility of judging the civil leg of a criminal suit. That the crimes could be prosecuted in The Netherlands is established on the basis of international criminal law of course, which is not the area of this blog. Jurisdiction for the civil leg is justified by reference to this being accepted international practice. Support (not: legal basis per se) is found by the court in Article 7(3) Brussels Ia:

A person domiciled in a Member State may be sued in another Member State:

as regards a civil claim for damages or restitution which is based on an act giving rise to criminal proceedings, in the court seised of those proceedings, to the extent that that court has jurisdiction under its own law to entertain civil proceedings;

and in the similar regime under the Lugano Convention. The court rejects a potential (this judgment as noted was issued in absentia) lis pendens argument vis-a-vis proceedings  in the United States. The court remarks that these judgments had already been issued before the Dutch criminal prosecution was initiated; that therefore there are no concurrent proceedings unto which a lis pendens argument could be raised; and that the US judgments reached the same conclusion.

Res judicata of the US judgments is dismissed as an element which would impact the Dutch judgments at this stage. The court does point out that res judicata may return at the enforcement stage of the damages part of the judgments, in that the victims will not be entitled to double compensation. Note that the US judgments included punitive damages which as readers will know is also a complicating factor for enforcement in the EU.

At 12.14.2 the court then turns to applicable law, for which it of course applies Rome II. With reference to CJEU C-350/14 Lazar, it dismisses the ‘extraordinary suffering’ of the relatives of the victims as ‘indirect damage’ under Rome II, instead exclusively taking the direct damage (the passing away) of the victims on Ukrainian territory as determinant for locus damni.

Dutch law is held not to be ‘manifestly more closely connected’ per A4(3) Rome II, despite the majority of the victims being Dutch. The court in this respect refers firstly to the link with Ukraine not being accidental (such as might be the case in ‘ordinary’ mass claims) but rather directly linked to the hostilities in Ukraine), moreover to the need to guard what it calls the ‘internal harmony’ of the judgment seeing as there are also non-Dutch relatives involved. This I find a touch unconvincing, particularly seeing as the court itself in the same para, with reference to Jan von Hein in Callies’ 2nd ed. of the Rome Regulations commentary, refers to the need to consider A4(3)’s escape clause individually, not collectively.

Geert.

Links to all 4 judgments:

https://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBDHA:2022:12219

https://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBDHA:2022:12218

https://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBDHA:2022:12217

https://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBDHA:2022:12216

Note the conflict of laws element in the civil suit's part of yesterday's #MH17 judgment:
jurisdiction per A7(3) Brussels Ia; no lis pendens or res judicata viz earlier US judgments; application of Ukranian law per Rome II

NL v Kharchenko et alhttps://t.co/d1QZXZwG96

— Geert Van Calster (@GAVClaw) November 18, 2022

The Greek Supreme Court of Cassation (Areios Pagos) rendered a very important decision at the end of June, which is giving the final blow to a period of procedural insanity. A provision in force since the 1st of January 2016 is forcing claimants to serve the document instituting proceedings abroad within 60 days following filing. Failure to abide by the rule results to the deletion of the claim as non-existent. As a consequence, the claimant is obliged to file a new claim, most probably being confronted with the same problem.

[Supreme Court of Cassation (Areios Pagos) nr. 1182/2022, available here.

 

Facts and judgment in first instance

The dispute concerns two actions filed on 31.01.2017 and 31.03.2017 against defendants living in Monaco and Cyprus respectively. The claimant served copies of the action by using the main channels provided for by the 1965 Hague Service Convention (for Monaco; entry into force: 1-XI-2007) and the Service of Process Regulation nr. 1393/2007. Service to the defendant in Monaco was effected on 08.05.2017, whereas service to the defendant in Cyprus on 19.06.2017. Both actions were dismissed as non-existent (a verbatim translation would be: non-filed) due to the belated service to the countries of destination [Thessaloniki Court of 1st Instance 2013/2019, unreported]. The claimant filed a second (final) appeal, challenging the judgment’s findings.

 

The overall picture before the decision of the Supreme Court

So far, the vast majority of Greek courts was following the rule in exactly the same fashion as the first instance court. Article 215 Para 2 of the Greek Code of Civil Procedure reads as follows: … the claim is served to the defendant within a term of 30 days after filing; if the defendant resides abroad or is of unknown residence, the claim is served within 60 days after filing. The rule applies exclusively to ordinary proceedings, i.e., mostly civil and commercial matters, with the exception of some pertinent disputes, which are regulated under a special Book of the Code of Civil Procedure [Book 4, Articles 591-465: Special Proceedings]

A countless number of motions were dismissed as a result of this rule since 2016. Courts were refusing claims even when the defendants were appearing before the court, submitting pleadings and raising their defense. Only claims addressed to defendants living in countries which are neither EU member states nor Hague Convention signatories, are ‘saved’. Article 134, in connection with Article 136 Greek of Code of Civil Procedure has established half a century ago the notorious system of fictitious service, akin to the French system of remis au parquet (Article 683 Code de Procédure Civile). This system still applies for countries such as the United Arab Emirates or Madagascar, however not for Cyprus or Monaco, due to the prevalence of the EU Regulation and the Hague Convention, anchored in the Constitution (Article 28). Hence, the non- production of a service certificate is no obstacle for the former, whereas any service certificate dated after the 60 days term is not considered good service for the latter, leading to the dismissal of the claim.

 

The decision of the Supreme Court

Against this background, the Supreme Court was called to address the matter for the first time after nearly six years since the introduction of the new provision.

The Supreme Court began with an extensive analysis of the law in force (Article 134 Code of Civil Procedure; EU Service Regulation; Hague Service Convention, and Article 215 Para 2 Code of Civil Procedure). It then pointed out the repercussions of the latter rule in the system of cross-border service, and interpreted the provision in a fashion persistently suggested by legal scholarship: The 60 days term should be related with the notification of the claim to the Transmitting Authority, i.e., the competent Prosecutor’s office pursuant to Article 134 Code of Civil Procedure and the declarations of the Hellenic Republic in regards to the EU Service Regulation and the Hague Service Convention.

The date of actual service should be disconnected from the system initiated by Article 215 Para 2 Code of Civil Procedure. The Supreme Court provided an abundance of arguments towards this direction, which may be summarized as follows: Violation of Article 9 Para 2 Service Regulation 1393/2007 (meanwhile Article 13 Para 2 Service Regulation 2020/1784); contradiction with the spirit of Article 15 of the Hague Service Convention, despite the lack of a provision similar to the one featured in the EU Regulation; violation of the right to judicial protection of the claimant, enshrined in the Greek Constitution under Article 20; violation of Article 6 (1) of the European Convention of Human Rights, because it burdens the claimant with the completion of a task which goes beyond her/his sphere of influence.

For all reasons above, the Supreme Court overturned the findings of the Thessaloniki 1st Instance court, and considered that service to the defendants in Monaco and Cyprus was good and in line with the pertinent provisions aforementioned.

 

The takeaways and the return to normality

The judgment of the Supreme Court has been expected with much anticipation. It comes to the rescue of the claimants, who were unjustly burdened with an obligation which was and still is not under their controlling powers. The judgment returns us back to the days before the infamous provision of Article 215 Para 2, where the domestic procedural system was impeccably finetuned with the EU Regulation and the Hague Service Convention.

Aygun Mammadzada (Swansea University) will be the main speaker at the upcoming MECSI Seminar, scheduled to take place on 22 November 2022, at the Catholic University of the Sacred Heart in Milan.

The title of the seminar is The Relationship between the Hague Choice of Court and the Hague Judgments Convention – A Major International Breakthrough?

Zeno Crespi Reghizzi (University of Milan) will serve as discussant.

Attendance is free, on site and on line (via MS Teams). Further information, including the link to join the seminar on line, are found here.

For queries, write an e-mail to pietro.franzina@unicatt.it.

[This post is cross-posted at the EAPIL blog.]

This is the last post in the series dedicated to the empirical analysis of the ECJ’s case law in the field of EUPIL. The previous posts can be found here and here.

This post is slightly different from its predecessors, as the angle of analysis is reversed. Rather than (just) analysing the characteristics of the ECJ’s case law in the field of EUPIL, this post purports to use such case law as an indicator of the transformations in the working methods of the ECJ itself. I refer back to my previous posts as concerns the methodology and definitions upon which this research is based.

The starting point of my analysis is the objective set out by Recital 6 of the Court’s Rules of Procedure (RoP): these aim at “maintain[ing] the Court’s capacity, in the face of an ever-increasing caseload, to dispose within a reasonable period of time of the cases brought before it”.

Chart 1  below shows, in this respect, that this objective is being pursued by the Court in a rather effective manner.

Chart 1

The red line in Chart 1 indicates the evolution over time of the Court of Justice’s overall workload (and not only of preliminary reference procedures). The numbers on the vertical axis shall therefore be interpreted as indicating the total amount of cases filed each year. As I could not find any official statistics pertaining to the 70s, 80s and early 90s, this data was obtained very pragmatically. I used the “advanced search” form on Curia.eu: for each year since 1976, I selected the time frame 01/01 to 31/12, filtering the results based on the type of court (Court of Justice), and the type of date (date of the lodging of the application initiating the proceedings). The red line portrays the results thus obtained. For the sake of consistency, I used this methodology for all the years between 1976 and 2022, even if official statistics are available since 1997. The divergence between the two sets of data (official and unofficial) is negligible (< 5 per year).

What happened in 1979? I am actually not sure. It looks like a huge number of cases on the status, remuneration and benefits of officials were filed that year. For most of these cases, there is no judgment, which probably means they were withdrawn at some point. Their effective impact on the workload of the ECJ remains therefore undetermined.

The line in dark green shows the average length (expressed in calendar days) of preliminary reference procedures in the field of EUPIL (this data is global, as it refers to cases decided with and without an Opinion of the AG, as well as cases that have been withdrawn and removed from the register).

The line in lighter green (which overlaps with the former until 2001) portrays the average length of preliminary references decided with an Opinion of the AG, the line in blue those which dispensed with it. The interruptions in the latter mean that there were no cases decided without an AG’s Opinion in the corresponding years.

Finally, the line in violet represents the average length of urgent preliminary reference procedures (PPUs) in the field of EUPIL. These cases, all dealing with family law, are decided with the support of the AG Opinion (formerly, a View) and a hearing. The average length of the proceedings remains remarkably low: to the present days, 80 calendar days (on this topic, see also this document).

Against this backdrop, the objective set out by Recital 6 seems met: the average length of (ordinary) preliminary reference procedures has been following, over the last years, a decreasing trend. How could the Court manage such result, despite its increasing workload?

Of course, there have been important institutional changes over these four decades: the progressive enlargements of the EU, the devolution of certain competences to the General Court and to the Civil Servant Tribunal (and back again) have all had an indisputable impact on the Court of Justice’s caseload. The purpose of this post, however, is to demonstrate that much was done also from the standpoint of internal (re)organization and working methods. In this respect, the analysis of the procedural treatment reserved over time to EUPIL preliminary references shows the noteworthy adaptability of the Court of Justice’s internal functioning and its ability to optimize the use of its resources. As we will see, there have been significant transformations as concerns the use of judicial formations (A), of the AGs’ Opinions (B) and of hearings (C). This will also be the opportunity to come back on the issue of informal specialization of the Members of the Court, which I remarked in my first post (D).

 A. The Transformations of Judicial Formations

Two important observations can be drawn from the stock chart below: first, EUPIL preliminary references have always represented a negligible part of the ECJ’s total caseload, having amounted to less than ten cases per year until the early 2000s. Second, there has been a considerable shift, over the years, as concerns the judicial formation adopted by the ECJ to decide on the questions raised by these cases.

Chart 2

In the early days of the ECJ’s activity under the 1971 Protocol on the interpretation of the 1968 Brussels Convention, most of the EUPIL preliminary references were decided by the full court. It must be assumed this was a clear and conscious stance taken by that Court with respect to EUPIL cases, and not just the indirect result of a different era, when the ECJ, counted only nine Members and had a very limited caseload, thus having the opportunity to resort to the plenum as the default judicial formation. To the contrary, it is apparent from the judgment rendered in Tessili that the Court could already operate in smaller deciding panels (two “Presidents of Chambers” are mentioned in the part of the decision listing the composition of the court).

The preference for the Full Court, manifested by this early case law, should come as no surprise: the cases decided by this formation between 1976 and 1980 (De Bloos, Mines des Potasse, LTU, to name a few) laid the foundations of modern EUPIL, defining extremely important methodological and terminological issues that still shape today’s way of approaching the new generation of EUPIL Regulations.

What was that “Full Court”, however? It was certainly nothing similar to today’s Full Court, regulated by Article 60 RoP and Article 16 of the Statute. It was admittedly surprising to note that the Full Court of the early days consisted of sometimes 9, sometimes 7 judges, following patterns whose underpinning logic is not immediately perceivable by the external observer. It looks like this “Full Court” was indeed a rather flexible judicial formation, counting a “bigger” and a “smaller” plenum, corresponding in essence to what we call today Full Court and Grand Chamber (I am drawing this information by this scholarly article of 2001).

With the exception of the initial period going from mid-70s until the 80s and another intermission in the early 90s, Chambers of five judges have remained the most common judicial formation for EUPIL cases. The first EUPIL preliminary reference deferred a Chamber of three judges was case 120/79, on maintenance obligations. Since then, this judicial formation has been seldom employed throughout three decades, having become more recurrent over the last years. This can be seen as an integral part of the ECJ’s overall attempt to optimize the use of its resources, including its personnel. Only 6 (7,6 %) of the cases deferred to a Chamber of three since 2003 was decided with the support of the Opinion (2003 being the point in time when the AG’s Opinion was no longer systematically required for all cases: see infra Section B). In practice, this means that these cases did not raise legal questions that, owing to their novelty, importance or technical complexity, called for the advisory intervention of the AG. A Chamber of three is overall more efficient when deciding this type of cases, insofar as the average length of the proceedings before it is 337 calendar days, compared to 437 calendar days that are needed, on average, by a Chamber of five to adjudicate without an Opinion.

A final word on the Grand Chamber which, as we know it, was created in 2003. Owusu was the first EUPIL preliminary reference assigned to this judicial formation, which has been used rather sparingly over time (only 3.8 % of EUPIL preliminary references were assigned to it). The period between 2006 and 2009 was marked, however, by a veritable boom of Grand Chamber cases. This was, after all, an “era of first times”: the first ever preliminary references on the Brussels IIbis Regulation (C-405/06) and on the 1980 Rome Convention (cases ICF and Koelzsch), as well as the first occasion for the ECJ to test the Brussels regime against the challenges brought along by the Internet (cases Pammer and Alpenhof, eDate).

B. The Opinion of the AG

Speaking of eDate, have you ever noticed that its “ancestor”, Shevill, has not one, but two Opinions, delivered by two different AGs? Same things for Marinari, also filed in 1993. As correctly indicated by AG Léger, it could “infrequently happe[n]…, by reason of the reopening of the oral procedure and as a result of happenstance in the order of business of the Court”, that two Opinions are delivered in the same case. The Shevill judgment explains, in this respect, that the case was initially assigned to the Sixth Chamber of the Court (chamber of five) and referred, after hearing the Opinion of AG Darmon in July 1994, « back to the Court », meaning the Full Court. The oral phase of the procedure was consequently reopened before this bigger judicial formation, and a new Opinion was delivered by a different AG, Mr. Léger. In Marinari, the issue was, again, the reopening of the oral phase of the procedure, without any referral to a different judicial formation. Again, two different AGs delivered an Opinion in the case. The fact triggering the second intervention of the AG is, therefore, the reopening of the oral phase of the procedure as such, and not the referral to a different judicial formation.

While the merits of having two different AGs delivering an Opinion in the same case could lie in the potentially different point of view introduced into the debate, thanks to a “fresh start” to the study of the case file, this working method could be deemed inefficient insofar as at least four different persons (the two AGs and their respective référendaires) are called to work on the same case from scratch (in practice, the two AGs adopted the same stance in both Marinari and Shevill).

The reopening of the oral procedure is only ordered in exceptional circumstances and is not a common occurrence. This has not happened again in EUPIL cases since 1993, but it could potentially happen. The new RoP provide, in Article 83, that the Court may at any time order the opening or reopening of the oral part of the procedure, in particular if it considers that it lacks sufficient information or where a party has submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated between the parties or the interested persons referred to in Article 23 of the Statute. It is worth noting, however, that today the reopening of the oral phase of the procedure no longer entails the intervention of two different Advocates General. I can mention two cases, both outside the field of EUPIL, where an order under Article 83 RoP was adopted: C-168/16 and, more recently, C-530/20. In both, a single AG delivered two subsequent Opinions. It seems therefore that the Court is nowadays favouring efficiency over the plurality of views, consistently with the general objective of reducing the length of the proceedings set out in Recital 6 RoP. Also noteworthy is that the involvement of a single AG in each case is now provided also for the delivery of Opinions (in French, Avis) requested in accordance with Article 218 (11) TFEU (Recital 5 RoP).

The biggest innovation concerning the role of the AG –  also made in the attempt to increasing the ECJ’s overall efficiency – happened in 2003. Before this date, the AG had to deliver an Opinion for all preliminary references brought before the Court. This explains why, up to that moment, 100% of the EUPIL preliminary references decided by a chamber of three judges came with an Opinion, whereas only the 7,6 % of the cases assigned to such judicial formation after 2003 called for the AG’s advisory intervention.

Nonetheless, Chart 3 below demonstrates that the great majority of EUPIL preliminary references is decided, even after 2003, with the support of the AG’s Opinion.

Chart 3

Of all EUPIL cases having dispensed with an Opinion, 60 % have been assigned to a chamber of three, and 40 % to a chamber of five. 16% have been decided through a reasoned order under Article 99 RoP (all of them adopted by a Chamber of three, except for C-518/99). The possibility to define a case by means of a reasoned order explains the existence of a certain number of cases decided without an Opinion even before 2003.

C. Hearings

Another area where the Court has striven to increase its efficiency concerns the holding of hearings. According to Recital 6 to the RoP, “in order to maintain the Court’s capacity, in the face of an ever-increasing caseload, to dispose within a reasonable period of time of the cases brought before it, it is also necessary to continue the efforts made to reduce the duration of proceedings before the Court, in particular by … providing for the Court to be able to rule without a hearing if it considers that it has sufficient information on the basis of all the written observations lodged in a case”. As I mentioned in my previous post, a hearing shall be held, according to Article 76 RoP, when it has been requested by an interested person that has not participated in the written phase of the procedure.

Chart 4 below shows the evolution in the use of hearings in EUPIL preliminary reference procedures.

Chart 4

The analysis of more than forty years of case law in a given field of law is also a journey through different drafting styles, used by the Court in its judgments. This is why, in a certain number of cases, it was not possible to determine whether or not a hearing was held. This concerns, in particular, the cases filed between 1984 and 1985. More recently, a certain number of judgments only mention the observations of the parties, without referring either to a “written procedure” or, more explicitly, to “a hearing”. Where there was no AG Opinion, or when this did not clarify this point, these cases were also classified in the “unsettled” category.

This said, it must be noted that the recent trend goes, quite indisputably, towards reducing the number of hearings held in EUPIL cases. Intuitively, holding a hearing will delay the procedure, and it makes sense to limit this effect to the cases where an oral procedure is necessary for the correct understanding of either the legal questions referred to the Court or of the context in which they were raised, as well as in the cases where it serves to preserve the right to be heard of the parties and the interested persons listed in Art. 23 of the Statute. Overall, hearings have been held in 14% of the cases assigned to a Chamber of three and in 62% of the cases decided by a Chamber of five. This percentage drops to 54.6 % in cases decided by a Chamber of five after the current RoP have come into force. There is, however, a certain number of EUPIL cases decided before 2012, whose judgment only contains references to the written phase of the procedure. It must be assumed that, therein, a hearing was not held, and that the possibility to dispense with the oral procedure existed also under the previous RoP.

D. The Specialization of Judges and AGs

To conclude this survey of the transformations made, in the quest for more efficiency, to the working methods of the ECJ, I wish to come back to the issue of informal specialization of judges and AGs, which I remarked in my first post, focusing solely on the 2015-2022 time frame.

I came back to this issue with ambivalent feelings, and I do not have any conclusive opinion on this topic, although I am keen on confirming my initial impression. Chart 5, below, shows the rate of intervention of different AGs in EUPIL cases since 1976.

Chart 5

The picture is indeed quite fragmented, but two observations are in order. First, just eight AGs have been in charge of 50% of the total EUPIL cases (right side of the pie chart), whereas the other 50% of cases is shared between 51 different AGs. Second, the eight AGs on the right side of the chart have all exercised their functions in recent times (late AG Bot, who was the first among them to arrive at the Court, was appointed in 2006). It could therefore be concluded that specialization of AGs – if any – is a relatively recent trend, with the last 15 years testifying of a certain tendency to see a smaller number of AGs systematically involved in EUPIL cases.

Chart 6 below is a variation of Chart 5, taking into account the evolution over time of appointments of AGs to EUPIL preliminary references (click here for a slightly larger picture).

Chart 6

In the attempt to increase the readability of the chart, only AGs having been appointed in more than five EUPIL cases have been named. The category “others”, in yellow, accounts for the remaining cases and groups 27 different AGs (for 74 cases). As remarked above, the specialization appears stronger in recent times, with the yellow category disappearing completely between 2011 and 2017. The recent spike in the yellow category has a clear explanation. AGs Jääskinen, Saugmandsgaard Øe and Bobek, who have been highly active in the field of EUPIL, have ceased their functions in 2019 and 2021 respectively. We are now, it seems, in a phase of transition, where new AGs have taken over and might develop, in the coming months/years, a similar informal specialization in EUPIL cases. Quite remarkable is, in this respect, AG Pikamäe, who already appears in the Chart despite his recent appointment.

The exact same situation exists with respect to Reporting Judges, with the notable difference that only two of the judges appearing on the right side of the pie chart are presently still working at the Court. In this domain domain, the turnover effect will be even higher in the coming months.

Chart 7

Chart 8. Click here for a slightly larger picture.

 

As I already mentioned, the specialization of AGs and Reporting Judges, if any, is purely informal, and should be taken as an objective data emerging from the analysis of existing case law: some among them have simply dealt with EUPIL cases more often than others. This approach could favour internal efficiency, since prior dealings with a certain subject matter could reduce the time needed for assessing the case and take a stance on the legal question it raises. It remains, at the same time, flexible enough to ensure the correct functioning of the Court (for example in terms of equitable distribution of cases among judges/AGs and the prompt dealing of PPUs and PPAs). A more rigid approach to specialization (such as the formal institution of specialized chambers) might jeopardize the achievement of this second “organizational” objective.

“From 9 to 11 November 2022, the First Meeting of the Special Commission (SC) on the Practical Operation of the 2000 Protection of Adults Convention was held in The Hague. […] The meeting resulted in the adoption of over 70 Conclusions & Recommendations […] Among other things, the SC confirmed that, in general, the Convention is operating smoothly and is fit for purpose. It also stressed the importance of seeing more States join the Convention. The SC also approved, in principle, the draft Practical Handbook, Implementation Checklist, and Country Profile under the 2000 Protection of Adults Convention, subject to their amendment in light of the latest comments by HCCH Members, the discussions that took place at the SC and their outcome, to be submitted for endorsement by the Council on General Affairs and Policy (CGAP). Delegates also discussed habitual residence, ex lege representation, instructions given and wishes made by an adult in anticipation of a future impairment, issues of recognition and enforcement, Central Authority co-operation, the use of existing recommended Model Forms, direct judicial communications, and possible amendments to the 2000 Protection of Adults Convention. The Conclusions & Recommendations adopted by the SC are available” at https://assets.hcch.net/docs/06db03d0-812c-42fb-b76d-4e6e05a91b3b.pdf.

Extract: “The SC recalled that the change of habitual residence is a question of fact which will be assessed by the competent authorities called upon to make a decision on this matter. The competent authority seised is the only one that has to determine the habitual residence of the adult and whether it has jurisdiction under the 2000 Convention. In this regard, the competent authority seised could consult, if necessary, the competent authorities of the former State of habitual residence, to obtain relevant information. For example, the competent authority seised can request information relevant to assess whether the habitual residence has changed, in order to determine if it can take jurisdiction under Article 5(2), or whether the former competent authority would continue to exercise jurisdiction under other grounds (e.g., Art. 7) or if it would be appropriate to request a transfer of jurisdiction under Article 8. Recalling Articles 32 and 34, the SC noted that cooperation can take place with a view to sharing information regarding the adult’s change of habitual residence. The SC further noted that this process should be conducted diligently and without delay. The SC reminded Contracting Parties that Article 29 generally provides Central Authorities with an opportunity to exchange information, including such information as may be relevant for the purposes of Article 5(2).

11 The SC noted that, where the habitual residence of the adult changes to another Contracting Party, the competent authorities of the new habitual residence will have primary jurisdiction. Through the

exchange of information under Articles 29 and 34, a competent authority may be alerted to the  change of residence of an adult, in order for this authority to determine whether it has jurisdiction to take measures of protection”

Source: https://www.hcch.net/en/news-archive/details/?varevent=884

This post was written by Pietro Franzina and Thalia Kruger, and is being published simultaneously on Conflictoflaws.net and on the EAPIL blog.

The delegations of more than thirty Member States of the Hague Conference on Private International Law attended the first meeting of the Special Commission charged with reviewing the operation of the Hague Hague Convention of 13 January 2000 on the international protection of adults of 13 January 2000 on the international protection of adults. The meeting took place in The Hague and online from 9 to 11 November 2022 (for a presentation of the meeting, see this post on Conflictsoflaw.net and this one on the EAPIL blog). A dozen organisations, governmental and non-governmental (including the Council of the Notariats of the European Union, the Groupe Européen de Droit International Privé and the European Association of Private International Law), were also in attendance.

The discussion covered a broad range of topics, leading to the conclusions and recommendations that can be found on the website of the Hague Conference. The main takeaways from the meeting, as the authors of this post see them, are as follows.

The Hague Adults Convention Works Well in Practice

To begin with, the Special Commission affirmed that the Convention works well in practice. No major difficulties have been reported either by central authorities instituted under the Convention itself or by practitioners.

Doubts occasionally appear with respect to some provisions. Article 22 for example provides that measures of protection taken by the authorities of a Contracting State “shall be recognised by operation of law in all other Contracting States”, unless a ground for refusal among those listed in the same provisions arises. A declaration of enforceability, as stipulated in Article 25, is only necessary where measures “require enforcement” in a Contracting State other than the State of origin.

Apparently, some authorities and private entities (e.g., banks) are reluctant to give effect to measures of protection that clearly do not require enforcement, such as a judicial measure under which a person is appointed to assist and represent the adult, unless that measure has been declared enforceable in the State where the powers of the appointed person are relied upon. The Special Commission’s conclusions and recommendations address some of these hesitations, so that they should now prove easier to overcome. Regarding exequatur, see para. 33, noting that “measures for the protection of an adult only exceptionally require enforcement under Article 25”, adding that this may occur, for instance, “where a decision is taken by a competent authority to place the adult in an establishment or to authorise a specific intervention by health care practitioners or medical staff”, such as tests or treatments. Other doubts are dealt with in the practical handbook prepared by the Working Group created within the Hague Conference in view of the meeting of the Special Commission. The draft handbook (first version publicly available), which the Special Commission has approved “in principle”, will be reviewed in the coming weeks in light of the exchanges that occurred at the meeting, and submitted to the Council on the General Affairs and Policy of the Conference for endorsement in March 2023).

Situations Exist in the Field of Adults’ Protection that Are Not (Fully) Regulated by the Convention 

The Convention deals with measures of protection taken by judicial and administrative authorities, and with powers of representation conferred by an adult, either by contract or by a unilateral act, in contemplation of incapacity. By contrast, nothing is said in the Convention concerning ex lege powers of representation. These are powers of representation that the law of some States (Germany, Austria and Switzerland, for example) confers on the spouse of the adult or a close relative or family member, for the purpose of protecting the adult. Their operation is generally confined to situations for which no measures have been taken and no powers of representation have been conferred by the adult.

The Special Commission acknowledged that ex lege powers of representation fall under the general scope of the Convention, but noted that no provision is found in the Convention that deals specifically with such powers. In practice, ex lege powers of representation may be the subject of cooperation between the authorities of Contracting Parties (notably as provided for under Chapter V), but, where the issue arises of the existence, the extent and the exercise of such powers, the courts and other authorities of Contracting States will rely on their own law, including, where appropriate, their conflict-of-laws rules.

There is yet another gap that the Special Commission discussed. The Commission observed that instructions given and wishes made by an adult in anticipation of a future impairment of their personal faculties (e.g., in the form of advance directives), similarly fall within the general scope of the Convention and are subject, as such, to the cooperation provisions in Chapter V. Whether or not a particular anticipatory act constitutes a power of representation for the purposes of Articles 15 and 16, on powers of representation conferred by the adult, is to be determined on a case-by-case basis. Some unilateral acts plainly come within the purview of Articles 15 and 16, as they actually include a conferral of powers on other persons. Others do not, and may accordingly be dealt with by each Contracting State in conformity with their own law.

States Do Not Currently See an Interest in Modifying the Convention

The question has been raised in preparation of the Special Commission whether the Convention ought to be amended, namely by a protocol to be negotiated and adopted in the framework of the Hague Conference on Private International Law. In principle, a protocol would have provided the States with the opportunity to fill the gaps described above, and address other concerns. However, under international law only those Contracting States that ratify the protocol would be bound by the modifications.

The Special Commission witnessed that, at this stage, no State appears to see an amendment as necessary.

Only one issue remains to be decided in this respect, namely whether the Convention should be modified in such a way as to include a REIO clause, that is, a clause aimed at enabling organisations of regional economic integration, such as the European Union, to join the Convention in their own right. The matter will be discussed at the Council on the General Affairs and Policy of the Conference of March 2023.

The decision lies, in fact, in the hands of the Union and its Member States, as this is currently the only Regional Economic Integration Organisation concerned by such a clause. Their decision will likely be affected by the approach that should be taken in the coming weeks concerning the proposal for a regulation on the protection of adults that the Commission is expected to present in the first half of 2023.

Efforts Should Now Be Deployed Towards Increasing the Number of Contracting Parties

The main problem with the Convention lies in the fact that only relatively few States (fourteen, to be precise) have joined it, so far. Several States stressed the importance of further promoting ratification of, or accession to, the Convention.

It is worth emphasising in this respect that the Hague Adults Convention builds, to a very large extent, on cooperation between Contracting States. This means that a State cannot fully benefit from the advantages of the Convention by simply copying the rules of the Convention into its own legislation, or by relying on such rules on grounds of judicial discretion (as it occurs in the Netherlands and to a large extent in England and Wales), but should rather become a party to it.

Various States expressed an interest in the Convention. The responses to the questionnaires circulated in preparation of the meeting of the Special Commission suggest that at least five States are actively contemplating ratification (Hungary, Italy, Luxembourg, Mexico and Sweden), and that others have considered ratification (Slovakia) or are considering it (Argentina). For its part, Malta signed the Convention on the occasion of the meeting of the Special Commission, and will likely ratify it in the not too distant future.

Tools to Enhance the Successful Operation of the Convention

Some of the practitioners present drew the participants’ attention to practical difficulties in the cross-border protection of adults. To minimise practical difficulties, the Permanent Bureau, in some instances together with the Working Group on the Adults Convention, developed a number of tools.

The first is an extensive country profile, to be completed by Contracting States and made available on the website of the Hague Conference. This profile includes various matters of national law, such as names and content of measures of protection, jurisdiction of courts or other authorities to issue these measures, transfer of jurisdiction, and names, forms and extent of powers of representation.

The second is a toolkit on powers of representation, which contains detailed information about the national laws of States that provided responses, on for instance who can be granted powers of representation, how this granting must take place, and the permitted extent of the representation.

Concluding remarks

All in all, the issue of the cross-border protection of Adults has rightly gained attention over the past ten years. While States amend their domestic legislation to be in conformity with the UN Convention on the Rights of Persons with Disabilities, they seem to be increasingly aware of the importance of ensuring cross-border continuity. This includes continuity of measures of protection issued by authorities such as courts, as well as the powers of representation granted by adults themselves. These matters of private international law require dialogue on the international and European Union level, more States to join the Convention, and tools to assist practice.

This post was written by Pietro Franzina and Thalia Kruger, and is being published simultaneously on Conflictoflaws.net and on the EAPIL blog.

The delegations of more than thirty Member States of the Hague Conference on Private International Law attended the first meeting of the Special Commission charged with reviewing the operation of the Hague Convention of 13 January 2000 on the international protection of adults. The meeting took place in The Hague and online from 9 to 11 November 2022 (for a presentation of the meeting, see this post on Conflictoflaws.net and this one on the EAPIL blog). A dozen organisations, governmental and non-governmental (including the Council of the Notariats of the European Union, the Groupe Européen de Droit International Privé and the European Association of Private International Law), were also in attendance.

The discussion covered a broad range of topics, leading to the conclusions and recommendation that can be found on the website of the Hague Conference (see here). The main takeaways from the meeting, as the authors of this post see them, are as follows.

The Hague Adults Convention Works Well in Practice

To begin with, the Special Commission affirmed that the Convention works well in practice. No major difficulties have been reported either by central authorities instituted under the Convention itself or by practitioners.

Doubts occasionally appear with respect to some provisions. Article 22 for example provides that measures of protection taken by the authorities of a Contracting State “shall be recognised by operation of law in all other Contracting States”, unless a ground for refusal among those listed in the same provisions arises. A declaration of enforceability, as stipulated in Article 25, is only necessary where measures “require enforcement” in a Contracting State other than the State of origin.

Apparently, some authorities and private entities (e.g., banks) are reluctant to give effect to measures of protection that clearly do not require enforcement, such as a judicial measure under which a person is appointed to assist and represent the adult, unless that measure has been declared enforceable in the State where the powers of the appointed person are relied upon. The Special Commission’s conclusions and recommendations address some of these hesitations, so that they should now prove easier to overcome. Regarding exequatur, see para. 33, noting that “measures for the protection of an adult only exceptionally require enforcement under Article 25”, adding that this may occur, for instance, “where a decision is taken by a competent authority to place the adult in an establishment or to authorise a specific intervention by health care practitioners or medical staff”, such as tests or treatments. Other doubts are dealt with in the practical handbook prepared by the Working Group created within the Hague Conference in view of the meeting of the Special Commission. The draft handbook (see here the first version publicly available), which the Special Commission has approved “in principle”, will be reviewed in the coming weeks in light of the exchanges that occurred at the meeting, and submitted to the Council on the General Affairs and Policy of the Conference for endorsement in March 2023).

Situations Exist in the Field of Adults’ Protection that Are Not (Fully) Regulated by the Convention

The Convention deals with measures of protection taken by judicial and administrative authorities, and with powers of representation conferred by an adult, either by contract or by a unilateral act, in contemplation of incapacity. By contrast, nothing is said in the Convention concerning ex lege powers of representation. These are powers of representation that the law of some States (Germany, Austria and Switzerland, for example) confers on the spouse of the adult or a close relative or family member, for the purpose of protecting the adult. Their operation is generally confined to situations for which no measures have been taken and no powers of representation have been conferred by the adult.

The Special Commission acknowledged that ex lege powers of representation fall under the general scope of the Convention, but noted that no provision is found in the Convention that deals specifically with such powers. In practice, ex lege powers of representation may be the subject of cooperation between the authorities of Contracting Parties (notably as provided for under Chapter V), but, where the issue arises of the existence, the extent and the exercise of such powers, the courts and other authorities of Contracting States will rely on their own law, including, where appropriate, their conflict-of-laws rules.

There is yet another gap that the Special Commission discussed. The Commission observed that instructions given and wishes made by an adult in anticipation of a future impairment of their personal faculties (e.g., in the form of advance directives), similarly fall within the general scope of the Convention and are subject, as such, to the cooperation provisions in Chapter V. Whether or not a particular anticipatory act constitutes a power of representation for the purposes of Articles 15 and 16, on powers of representation conferred by the adult, is to be determined on a case-by-case basis. Some unilateral acts plainly come within the purview of Articles 15 and 16, as they actually include a conferral of powers on other persons. Others do not, and may accordingly be dealt with by each Contracting State in conformity with their own law.

States Do Not Currently See an Interest in Modifying the Convention

The question has been raised in preparation of the Special Commission whether the Convention ought to be amended, namely by a protocol to be negotiated and adopted in the framework of the Hague Conference on Private International Law. In principle, a protocol would have provided the States with the opportunity to fill the gaps described above, and address other concerns. However, under international law only those Contracting States that ratify the protocol would be bound by the modifications.

The Special Commission witnessed that, at this stage, no State appears to see an amendment as necessary.

Only one issue remains to be decided in this respect, namely whether the Convention should be modified in such a way as to include a REIO clause, that is, a clause aimed at enabling organisations of regional economic integration, such as the European Union, to join the Convention in their own right. The matter will be discussed at the Council on the General Affairs and Policy of the Conference of March 2023.

The decision lies, in fact, in the hands of the Union and its Member States, as this is currently the only Regional Economic Integration Organisation concerned by such a clause. Their decision will likely be affected by the approach that should be taken in the coming weeks concerning the proposal for a regulation on the protection of adults that the Commission is expected to present in the first half of 2023.

Efforts Should Now Be Deployed Towards Increasing the Number of Contracting Parties

The main problem with the Convention lies in the fact that only relatively few States (fourteen, to be precise) have joined it, so far. Several States stressed the importance of further promoting ratification of, or accession to, the Convention.

It is worth emphasising in this respect that the Hague Adults Convention builds, to a very large extent, on cooperation between Contracting States. This means that a State cannot fully benefit from the advantages of the Convention by simply copying the rules of the Convention into its own legislation, or by relying on such rules on grounds of judicial discretion (as it occurs in the Netherlands and to a large extent in England and Wales), but should rather become a party to it.

Various States expressed an interest in the Convention. The responses to the questionnaires circulated in preparation of the meeting of the Special Commission suggest that at least five States are actively contemplating ratification (Hungary, Italy, Luxembourg, Mexico and Sweden), and that others have considered ratification (Slovakia) or are considering it (Argentina). For its part, Malta signed the Convention on the occasion of the meeting of the Special Commission, and will likely ratify it in the not too distant future.

Tools to Enhance the Successful Operation of the Convention

Some of the practitioners present drew the participants’ attention to practical difficulties in the cross-border protection of adults. To minimise practical difficulties, the Permanent Bureau, in some instances together with the Working Group on the Adults Convention, developed a number of tools.

The first is an extensive country profile, to be completed by Contracting States and made available on the website of the Hague Conference. This profile includes various matters of national law, such as names and content of measures of protection, jurisdiction of courts or other authorities to issue these measures, transfer of jurisdiction, and names, forms and extent of powers of representation.

The second is a toolkit on powers of representation, which contains detailed information about the national laws of States that provided responses, on for instance who can be granted powers of representation, how this granting must take place, and the permitted extent of the representation.

Concluding Remarks

All in all, the issue of the cross-border protection of Adults has rightly gained attention over the past ten years. While States amend their domestic legislation to be in conformity with the UN Convention on the Rights of Persons with Disabilities, they seem to be increasingly aware of the importance of ensuring cross-border continuity. This includes continuity of measures of protection issued by authorities such as courts, as well as the powers of representation granted by adults themselves. These matters of private international law require dialogue on the international and European Union level, more States to join the Convention, and tools to assist practice.