Flux des sites DIP

Matthias Weller (University of Bonn) has published the special course that he gave at the Hague Academy in Volume 423 of Collected Courses of the Hague Academy of International Law.

The title of the course is “Mutual Trust”: A Suitable Foundation for Private International Law in Regional Integration Communities and Beyond?

Professor Weller reflects on how ‘mutual trust’ has become the central justification of the EU to drive its private international law forward. For this, he explores the theoretical potential of trust perspective on private international law. As a first step of the analysis, the concept of trust is deconstructed based on an interdisciplinary analysis. Then, the results are connected with fundamentals of private international law. The central finding is that private international law builds on the dichotomy of trust and control: how far should foreign judgments, foreign law and other foreign judicial acts be integrated – “trusted” – within the domestic administration of justice? This question must be answered by each and every legislator and each and every court, in particular by those that strive for economic and complementing judicial integration. Recurring tools of trust management can be identified. How do regional integration communities use and finetune these tools for their private international law and what are potential explanations from their history, their economics, and their legal cultures? Four communities, selected from different parts of the world, are presented under this perspective, ordered in a series towards growing intensities of mutual trust: the ASEAN, the CEMAC, the MERCOSUR, and the EU. In his contribution Professor Weller comes to the conclusion that trust is, must, and can be managed and dosed according to the respective conditions and contexts, but no matter where we are: to trust or not to trust – that is the question of private international law, for regional integration communities and beyond.

The volume also includes the course of Meg Kinnear (Vice president of the World Bank Group) on The Growth, Challenges and Future Prospects for Investment Dispute Settlement.

Further details about the volume are available here.

Update from the organizers:

“Thanks to the generosity of our sponsors we are able to offer a limited number of participants a partial waiver of the conference. If you work in the not-for-profit sector (academia, ngo’s, judiciary or other government institutions) you can contact the conference bureau (conference@uva.nl) to check for eligibility. The reduced fee will be the same as the one for students and PhD fellows.”

For all those interested in the various aspects of collective redress, including cross border issues (in securities and competition cases), the 4th International Class Action Conference held as an on-site conference in Amsterdam provides an excellent opportunity to discuss current issues and share your own experiences. The international conference is co-organized, inter alia, by the University of Amsterdam (The Netherlands), University of Haifa (Israel) and Tilburg University (The Netherlands) and described as follows:

”

Amsterdam, 30 June – 1 July 2022

On 30 June and 1 July 2022 the University of Amsterdam will host the 4th international class action conference. The conference is organized by a team from the University of Haifa, the University of Tilburg and the University of Amsterdam, in collaboration with several renowned institutions. The theme of this year’s conference is ‘From Class Actions to Collective Redress: Access to Justice in the 21st century’.

The Conference will bring together a diverse range of international expertise in collective redress. The conference is intended to act as a forum for the sharing of experiences and knowledge. In an increasingly interconnected world, such opportunities for international scholars and practitioners to come together and compare notes on the development of collective redress in their jurisdictions, are more relevant than ever.

For details on the programme and a full list of collaborators, please see 4th International Class Action Conference – Home (aanmelder.nl).”

There are different registration fees for commercial participants (500 EUR) and academics/judges/NGOs (300 EUR) as well as a reduced charge for (PhD) students (75 EUR).

(authored by Chen Zhi, Wangjing & GH Law Firm, PhD Candidate at the University of Macau)

It is axiomatic that an arbitration agreement is generally not binding on a non-signatory unless some exceptional conditions are satisfied or appear, while it could even be more controversial in cases relating to guarantee where a non-signatory third person provides guarantee to the master agreement in which an arbitration clause has been incorporated. Due to the close connection between guarantee contract and master agreement in their contents, parties or even some legal practitioners may take it for granted that the arbitration agreement in master agreement can be automatically extended to the guarantor albeit it is not a signatory, which can be a grave misunderstanding from judicial perspective and results in great loss thereby.

As a prime example, courts in China have long been denying the applicability of arbitration agreements to a non-signatory guarantor with rare exceptions based on specific circumstances as could be observed in individual cases, nonetheless, the recent legal documents have provided possibilities that may point to the opposite side. This short essay looks into this issue.

1. The Basic Stance in China: Severability of the Guarantee Contract

Statutes in China provide limited grounds for extension of arbitration agreement to a non-signatory. As set out in Articles 9 & 10 of the Interpretation of the Supreme People’s Court’s (hereinafter, SPC) on Certain Issues Related to the Application of the Arbitration Law?which was issued on 23 August 2006?, this may occur only under the following circumstances:

“(1) An arbitration clause is binding on the non-signatory who is the successor of a signed-party by means of merge, spilt-up of an entity and decease of a natural person or;

(2) where the rights and obligations are assigned or transferred wholly or partially to a non-signatory, unless parties have otherwise consented”.

Current laws are silent on the issue where there is a guarantee relationship. Due to the paucity of direct instructions, some creditors seeking for tribunal’s seizure of jurisdiction over a non-signatory guarantor would tend to invoke Article 129 of the SPC’s Interpretation on Certain Issues Related to Application of Warranty Law (superseded by SPC’s Interpretation on Warranty Chapter of Civil Code since 2021 with no material changes being made), which stipulates that the guarantee contract shall be subject to the choice of court clause as set out in the main agreement, albeit the creditor and guarantor have otherwise consent on dispute resolution. Nevertheless, courts in China are reluctant to apply Article 129 to an arbitration clause by way of mutatis mutandis. In the landmark case of Huizhou Weitong Real Estate Co., Ltd v. Prefectural People’s Government of Huizhou,[1] the SPC explicitly ruled that the Guarantee Letter entered into between creditor and guarantor had created an independent civil relationship which shall be distinguished from the main agreement and thereby the arbitration clause should not be binding on the guarantor and the court seized with the case could take the case accordingly. In a nutshell, due to the independence of the guarantee contract from the main contract, where there is no clear arbitration agreement in the guarantee contract, the arbitration agreement in the main contract cannot be extended to be applicable to the guarantor.

The jurisprudence of Weitong has been subsequently followed and acknowledged as the mainstream opinion for the issue. In SPC’s reply to Guangxi Provincial High Court regarding enforcement of a foreign-related arbitral award rendered by CIETAC on 13 September 2006?Dongxun?,[2] where a local government had both issued a guarantee letter and signed the main agreement, the SPC opined that as there was no term of guarantee provided in the text of main agreement, the issuance of guarantee letter and signature of main agreement was not sufficient to make the government a party to the arbitration clause. In light of this, SPC agreed with the Guangxi Court’s stance that the dispositive section regarding execution of guarantee obligation as set out in the disputed arbitral award had exceeded the tribunal’s power and thus shall be rejected to be enforced. In the same vein, in its reply on 20 March 2013 to Guangdong Provincial High Court regarding the annulment of an arbitral award[3], the SPC held that the disputed arbitral award shall be partially vacated for the arbitral tribunal’s lack of jurisdiction over the guarantee for which the guarantor was a natural person. Hence, it can be drawn that whether the guarantor is a governmental institution or other entity for public interest is not the determining factor to be considered for this type of cases.

2. Controversies and Exceptions

Theoretically, it is correct for the SPC to unfold the autonomous nature of arbitration jurisdiction, which shall be distinguished from that of litigation. Parties’ autonomy to designate arbitration as a method of dispute resolution and the existence of an arbitration agreement are key elements for a tribunal to be able to obtain the jurisdiction. By this logic, the mere issuance of guarantee letter or signature of a standing-alone guarantee is not sufficient to prove parties’ consent to arbitration as expressed in the main contract. The SPC is not alone in this respect. Actually, one of the much-debated cases by foreign courts is the decision made by the Swiss Supreme Court in 2008 which opined that a guarantor providing guarantee by virtue of a standing-alone letter was not bound by the arbitration clause as provided in the main agreement to which the guarantee letter has been referred, except there was an assumption of contractual rights or obligations, or a clear reference to the said arbitration clause. [4]

All that being said, the SPC’s proposition has given rise to some controversies for the sacrifice of efficiency through a dogmatic understanding of arbitration. Moreover, the segregation of the main contract and guarantee contract may produce risks of parallel proceedings and conflicting legally-effective results. As some commentators have indicated, albeit the severability of guarantee contract in its formality, its content is tight with the main agreement. In the light of the tight connection,[5] the High Court of England ruled in Stellar that it was predictably expectable for a rational businessman to agree on a common method of dispute resolution as set out in the main contract, where the term of guarantor’s endorsement was involved, based on the close connection between the two contracts.[6]

A like but nuanced approach, however, has been developed through individual cases in China, to the author’s best knowledge, one of the prime cases is Li v. Yu decided by Hangzhou Intermediate Court on 30 March 2018  concerning an annulment of an award handed down via arbitration proceedings.[7] The case concerns a main agreement entered into by the creditor, the debtor and the guarantor (who was also the legal representative of the debtor), which had set out a general guarantee term but did not provide detailed obligations. The guarantor subsequently issued a guarantee letter without any clear reference to arbitration clause as stated in main agreement. After the dispute arose, the creditor lodged arbitration requests against both the debtor and the guarantor, the tribunal ruled in creditor’s favor after tribunal proceedings started. The guarantor then applied for annulment of the arbitral award on the basis that there was no valid arbitration agreement between the guarantor and the creditor, contending tribunal’s lack of jurisdiction over the guarantor. The court, however, opined that the guarantor’s signature in the main agreement, in combination of the general guarantee clause incorporated therein, was sufficient to prove the existence of arbitration agreement between the creditor and the guarantor and the guarantor’s consent thereby. Therefore, the annulment application was dismissed by the court.

Admittedly, the opinion as set out in Li is sporadic and cannot provide certainty, largely relying on specific circumstances drawn from individual cases, hence it is difficult to produce a new principle hereby. However, the case does have some novelties by providing a new track for extension of arbitration agreement to a guarantor who is not clearly set out as one of the parties in main agreement. In other words, the presumption of severability of guarantee relationship is not absolute and thus rebuttable. To reach that end, creditors shall furnish proof that the guarantor shall be well aware of the details of the main contract (including arbitration clause) and has shown inclination to be bound thereby.

3. New Rules That Shed New Light

On 31 December 2021, the SPC released Meeting Note of the National Symposium on Foreign-related Commercial and Maritime Trials, which covers judicial review issues on arbitration agreements. Article 97 of the Meeting Note provides systematical approach in reviewing arbitration agreement where an affiliated agreement?generally refers to guarantee contract or other kinds of collateral contract?is concerned, which can be divided into two facets:

First, where the guarantee contract provides otherwise dispute resolution, such consent is binding on the guarantor and thus shall be enforceable. As a corollary, the arbitration agreement in main agreement is not extensible to the guarantor.

Secondly, while the guarantee contract is silent on the issue of dispute resolution, the arbitration agreement as set forth in the main agreement is not automatically binding on the guarantor unless the parties to the guarantee contract is the same as that of main agreement.

In summary, the Meeting Note has sustained the basic stance while providing an exception where the main agreement and the guarantee contract are entered into by the same parties. As indicated by one commentator, the Meeting Note is not a judicial interpretation which can be adopted by the courts to decide cases directly but it to a large extent reflects consensus of judges among China, [8] and hence will produce impact on judicial practice across the whole country.

Nevertheless, some uncertainties may still arise, for instance, whether a mere signature in the main contract by the guarantor is sufficient to furnish the proof about “the same parties”, or shall be in combination with the scenario where an endorsement term of guarantor is incorporated in the main contract. On the contrary, it is also unclear whether a mere existence of term of guarantee is sufficient to make a non-signatory guarantor a party to the main contract.

Another more arbitration-friendly method can be observed from the draft for Revision of Arbitration Law that has been released for public consultation since 30th July of 2021, Article 24 of which provides that the arbitration clause as set out in the main agreement shall prevail over that in the guarantee contract where there is a discrepancy; where the guarantee contract is silent on dispute resolution, any dispute connected thereto shall be subject to the arbitration agreement as set out in main agreement. This article is a bold one which will largely overturn the SPC’s current stance and makes guarantee relationship an exception. A piece of more exciting news comes from the newly-released law-making schedule of 2022 by the Standing Committee of the National People’s Congress,[9] according to which the revision of Arbitration Law is listed as one of the top priorities in 2022 whilst it is still to be seen whether Article 24 in the draft can be retained after scrutiny of the legislature.

4. Concluding Remarks

It is not uncommon that a guarantee for certain debts is provided by virtue of a standing-alone document which is separated from the main contract, whether it is a guarantee contract or a unilaterally-issued guarantee letter. It shall be borne in mind that the close connection between the guarantee document and main contract alone is not sufficient to extend the arbitration agreement as set out in main agreement to a non-signatory guarantor per the consistent legal practice in China over the past 20 years. While the new rules have provided more arbitration-friendly approaches, uncertainties and ambiguities will probably still exist.

From a lawyer’s perspective, as the mainstream opinion in judicial remains unchanged currently, it is necessary to attach higher importance while reviewing a standing-alone guarantee contract which is separated from a master agreement in its formality. In the light of avoiding prospective parallel proceedings incurred thereby, the author advances two options in this respect:

The first option is to insert an article endorsing guarantee’s obligation into the master agreement, and require the guarantor to sign the master agreement, which resembles the scenario in Stellar and Li. Whereas this approach may be less feasible in the post-negotiation phase of master agreement when all terms and conditions are fixed and endorsed, the option mentioned below can be served as an alternative.

The second option is to incorporate into guarantee document a clause which unequivocally refers to the arbitration agreement as set out in master agreement, in lieu of any revision to the master agreement. This approach is in line with Article 11 SPC on Certain Issues Related to the Application of the Arbitration Law which provides that parties can reach an arbitration agreement by reference to dispute resolution clauses as set out in other contracts or documents. While it is noteworthy that from judicial practice in China, such reference shall be specific and clear, otherwise the courts may be reluctant to acknowledge the existence of such arbitration agreement.

[1] Case No: 2001 Min Er Zhong No. 177.

[2] Case No: 2006 Min Si Ta No. 24.

[3] Case No: 2013 Min Si Ta No. 9.

[4] Case No. 4A_128/2008,decided on August 19, 2008, decided by Tribunal federal(Supreme Court) of Swiss, as cited in Extension of arbitration clause to non-signatories (case of a guarantor) – Arbitration clause by reference to the main contract (deemed too general and therefore not admitted), available at https://www.swissarbitrationdecisions.com/extension-of-arbitration-clause-to-non-signatories-case-of-a-gua.

[5] See Yifei Lin: Is Arbitration Agreement in Master Agreement Applicable to Guarantee Agreement? Available at http://www.360doc.com/content/16/0124/11/30208892_530188388.shtml.

[6] Stellar Shipping Co Llc v Hudson Shipping Lines [2010] EWHC 2985 (Comm) (18 November 2010).

[7] Case No: 2018 Zhe 01 Min Te No. 23.

[8] Lianjun Li et al?China issues judicial guidance on foreign related matters, Reed Smith In-depth?25 April 2022??available at https://www.reedsmith.com/de/perspectives/2022/04/china-issues-judicial-guidance-on-foreign-related-matters.

[9] For more details, please see the news post available at https://m.thepaper.cn/baijiahao_18072465. Moreover, per the news report released in late May of 2022, The National Committee of Chinese People‘s Political Consultative Conference had discussed the revision of Arbitration Law in its biweekly symposium held on 30 May 2022, where the attendees had stressed the significance of party autonomy in commercial arbitration, available at: http://www.icppcc.cn/newsDetail_1092041.

The second issue of the Journal du droit international for 2022 has just been released. It contains two articles and several case notes relating to private international law issues, including a chronique on international judicial cooperation (authored by Kamalia Mehtiyeva, University of Paris-Est Créteil).

In the first article, Sara Godechot-Patris (University of Paris-Est Créteil) discusses the new French provision on the right of withdrawal in international succession law ( Le prélèvement est mort… Vive le prélèvement ! De quelques réflexions sur l’article 913, alinéa 3 du Code civil)

The English abstract reads :

The status of the reserved portion of an estate in private international law is a sensitive issue because it relates to the State’s conception of the family. While the Cour de cassation had refused to see the reserve as an essential principle of French law, the legislator has chosen to revive the right of withdrawal with the adoption of the law of August 24, 2021 reinforcing the respect of the principles of the Republic. The existence of the European regulation of 4 July 2012 on international successions, which has unified the rules in this area, has not dissuaded him from doing so. While it is not certain that such a mechanism will withstand future review by the Court of Justice of the European Union, the fact remains that for the time being practitioners must apply it. The text’s grey areas are no less numerous. The aim of this study will be to propose keys to the interpretation of this text.

In a second article, Pierre Mayer (University of Paris 1, Avocat, Paris Bar & Arbitrator) analyses important questions of (French) international arbitration law based on recent case law (À propos de deux arrêts récents de la cour d’appel de Paris rendus dans les affaires Monster Energy et Accessoires Company).

The English abstract reads :

The present article deals with two subjects which have both been addressed in two recent judgments of the International Chamber of the Paris Court of Appeal. The first subject is whether it is possible, for a party which cannot afford to pay the costs of an arbitration, to bring its claim before a French court, although it is bound by an arbitration clause. Both decisions, in identical terms, pave the way to a positive answer, and the article examines approvingly the consequences of that position. The second subject is whether a foreign award, which is alleged to have ignored a French loi de police, can be recognized in France. The article sets out a few precisions on the relationship between lois de police and public policy

A full table of contents can be downloaded here.

The EAPIL blog is reporting about the Association’s founding conference in Aarhus by dedicated posts published at the end of each conference day. Day one and two were covered by the posts that can be found here and here, respectively. Please follow us on Twitter (@eapilorg) and LinkedIn for updates as the conference unfolds. Check out our new Instagram account, too!

The founding conference of the European Association of Private International Law came to an end on 4 June 2022.

The first session saw the presentations of Gian Paolo Romano (University of Geneva, on-line) and Ralf Michaels (MPI Hamburg).

Gian Paolo Romano dealt with child abduction and custody cases. In light of the shortcomings on the current state of affairs, he made the case for the institution of supranational bodies charged with deciding cross-border disputes in this area, as a means to address, inter alia, concerns for lack of neutrality of national courts.

Ralf Michaels spoke about the relevance of religious law to European private international law in family matters. He discussed the challenges posed by religious rules, including those relating to their status as non-State rules, the challenges that surround the characterisation of religious legal institutions for the purposes of private international law, and the legal implications of referring to religious law for the respect for equality, specifically gender equality.

The final session of the conference consisted of two presentations.

Marta Pertegás Sender (University of Maastricht) talked about international property law. She began by recalling the impact of the rise of digitalised and globalised transactions to the principle of territoriality. She then addressed, in light of the case law of the Court of Justice, a selection of issues of property law that arise in connection with existing EU legislation, notably in matters of succession and the property regimes of couple. She finally discussed possible next steps in the harmonisation of the (substantive and) private international law in the field of international property.

Haris Pamboukis (University of Athens, on-line) discussed a number of issues regarding the interpretation of the EU Succession Regulation, in particular as regards characterisation and coordination with other legislative measures and as regards the notion of habitual residence, having regard to the case law of the Court of Justice.

As in previous sessions, the presentations prompted several questions and remarks from the audience.

Ralf Michaels and Cristina González Beilfuss (chair)

Angelika Fuchs during the debate on family law matters

Mateusz Pilich during the debate on family law matters

Ilaria Pretelli during the debate on family law matters

Jan von Hein during the debate on family law matters

Marta Pertegas Sender and Eva Maria Kieninger (chair)

Iryna Dikovska during the debate on property and succession law 

The General Assembly of the European Association of Private International Law met in Aarhus on 3 June 2022 in the framework of the Association’s founding conference.

Some sixty members attended in persons, while twenty more joined on-line.

Chaired by Dário Moura Vicente, the Assembly heard reports about completed and ongoing activities of the Association, namely those channelled through the EAPIL Working Groups, the EAPIL Young Research Network and the EAPIL blog. The Assembly was also informed of planned new activities, including a journal that the Association intends to launch in due course.

The Assembly also witnessed the presentation of the upcoming EAPIL conference, due to take place in Wrocław, in 2024, organised by Agnieszka Frąckowiak-Adamska.

The results of the election of EAPIL officers, which occurred online in the days preceding the Assembly, were then announced to members.

The new EAPIL board consists of six members: Apostolos Anthimos, Gilles Cuniberti, Morten M. Fogt, Agnieszka Frąckowiak-Adamska, Pietro Franzina and Giesela Rühl.

The following have been elected to the EAPIL Scientific Council: Apostolos Anthimos, Gilles Cuniberti, Pedro De Miguel Asensio, Morten M. Fogt, Agniezska Frąckowiak-Adamska, Pietro Franzina, Susanne Gössl, Thomas Kadner Graziano, Bettina Heiderhoff, Marion Ho-Dac, Alexander Layton, Vesna Lazić, Tobias Lutzi, Johan Meeusen, Ralf Michaels, Dário Moura Vicente, Marta Requejo Isidro, Giesela Rühl, Veronica Ruiz Abou-Nigm and Jan Von Hein.

Finally, the results were announced of the choice made by the members of the Association’s logo, to replace the provisional logo that has been used so far. The new logo is featured above in this post.

The EAPIL blog is reporting about the Association’s founding conference in Aarhus by dedicated posts published at the end of each conference day. Day one was covered by the post that can be found here. Please follow us on Twitter (@eapilorg) and Linkedin for updates as the conference unfolds. Check out our new Instagram account, too!

Nearly one hundred persons attended the second day of the founding conference of the European Association of Private International Law.

The morning session was devoted to the issues of private international law raised by digitalisation.

Marie-Élodie Ancel (University Paris II Panthéon-Assas) focused on online platforms. She critically analysed the current state of EU law in this area, as regards both issues of applicable law and issues of jurisdiction, and stressed the importance of private enforcement and access to effective judicial remedies.

Two presentations followed, by Matthias Lehmann (University of Vienna) and Burcu Yüksel Ripley (University of Aberdeen), which dealt with the legal challenges posed by blockchains and crypto assets from the standpoint of private international law. Matthias Lehmann focused on the issues raised by the characterisation of situations that occur on the blockchain and their localisation for conflict-of-laws purposes, whereas Burcu Yüksel Ripley addressed the questions that revolve around the transfer of crypto assets.

With Burkhard Hess (Max Planck Institute Luxembourg) the discussion turned on the use of digital tools in judicial cooperation in civil matters. He illustrated the developments towards digitalisation which occurred in the justice systems of Member States, notably in Germany, and examined the initiatives taken by the Union with respect to the digitalisation of judicial cooperation in civil matters, including, recently, Regulation 2022/850 on the e-CODEX system.

The topic of the afternoon session was fragmentation in private international law. Francisco Garcimartín-Alférez (Universidad Autonoma de Madrid) addressed the topic with reference to commercial matters, while Thalia Kruger (University of Antwerp) discussed the matter as concerns family law and the law of persons. The two presentations dealt with the challenges posed by the co-existence of sectorial instruments, the interplay of national, regional and international instruments and the dialogue between courts (the Court of Justice, the European Court of Human Rights, national courts). The risks associated with fragmentation (gaps, frictions, inconsistencies, etc.) were examined alongside the advantages that the diversity of the sources and the progressive development of the law may bring about in some circumstances. Strategies aimed at mitigating the above risks (such as analogy, the recourse to general principles and inter-textual interpretation) were also discussed.

A rich debate followed both sessions.

Jeremy Heymann chairing the morning session

Marie-Élodie Ancel

Matthias Lehmann

Burkhard Hess

Geneviève Saumier chairing the afternoon session

The afternoon session panel with Geneviève Saumier, Francisco Garcimartín Alférez, Thalia Kruger, Andreas Stein and Kermit Roosevelt III

Thomas Kadner Graziano during the debate on fragmentation

On 15 and 16 June 2022, the University of Zaragoza will host an online conference under the title Challenges of Private Law and the 2030 Agenda. Presentations will be held in in Spanish and in Italian. Several, among them, will address issues of private international law.

Topics include international surrogacy, child abduction, cross-border divorce, children born under irregular migration circumstances, international trade sanctions, climate change litigation and the role of Private International Law with respect to immigration.

Those interested in presenting a communication (in Spanish, English or Italian) are invited to submit an abstract of no more than 500 words by 10 June 2022.

More information is available here.

Regulation (EU) 2022/850 of the European Parliament and of the Council of 30 May 2022 on a computerised system for the cross-border electronic exchange of data in the area of judicial cooperation in civil and criminal matters (e-CODEX system), and amending Regulation (EU) 2018/1726, has been published on the Official Journal of 1 June 2022.

Marion Ho-Dac has reported on this blog on the procedures at the institutional level towards the adoption of the instrument (see here and  here).

The Regulation is based on the TFEU, especially on Article 81(2) and Article 82(1) thereof. It is thus meant to contribute to the overall objective of the EU’s Area of Freedom, Security and Justice of guaranteeing effective access to justice for citizens and businesses and facilitating judicial cooperation between the Member States. More specifically, it concerns communication between parties and courts, as well as between authorities in different Member States,  through the cross-border electronic exchange of data.

The underlying idea of the Regulation is quite basic and definitely not new: technology tools are key for the above-mentioned communication to be effective, but they need to be secure. In this context, e-CODEX (e-Justice Communication via On-line Data Exchange) was launched under the multiannual e-Justice action plan 2009-2013 to promote the digitalisation of cross-border judicial proceedings and to facilitate the communication between Member States’ judicial authorities; it has been working experimentally since then. Simply put, the e-CODEX system consists of a package of software products which can be used to set up an access point for secure communication. Access points using e-CODEX can communicate with other access points over the internet via a set of common protocols, with no central system involved.

During the last years e-CODEX has developed in a way allowing the Commission to define it as ‘the main tool and the gold standard for establishing an interoperable, secure and decentralised communication network between national IT systems in cross-border civil and criminal proceedings’ (COM (2020) 712 final). It could thus receive legislative blessing (and support). Moreover, the system has so far been managed by a consortium of Member States and other organisations, with funds from the participant Member States and from EU grants. For sustainability reasons, the model needed to be replaced.

In keeping with the above, the Regulation has been adopted to establish the legal framework for the e-CODEX system. It lays down rules on the definition, composition, functions and management of the system ; on the responsibilities of the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA), regarding the e-CODEX system ; on the responsibilities of the Commission, Member States and the entities operating authorised e-CODEX access points; and on a legal framework for the security of the e-CODEX system. It should be noticed that it does not provide for the mandatory use of e-CODEX.

The text, with EEA relevance, shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. It will nevertheless take some time until the institutional structure it sets up is into motion (for instance, eu-LISA is not expected to take over the e-CODEX system before July 2023). In as far as civil justice in cross-border cases is concerned, it is important to know that the European e-Justice portal will use e-CODEX to enable citizens to electronically sign and send applications for European payment orders and small claims to competent courts in the Member States. e-CODEX shall also work as digital channel to serve documents and to take evidence abroad under the new service and evidence Regulations, adopted on 25 November 2020.

‘Soonish’ was pretty accurate – I have been busy teaching LAW5478 at Monash. In Bourlakova v Bourlakov [2022] EWHC 1269 (Ch),  Trower J held ia against a stay of English proceedings on Article 34 Brussels Ia grounds. My paper on Article 33-34 is in the editorial stages at the Journal of Private International Law and the case will be included in its overview of the case-law so far. That case-law is predominantly English, perhaps a reflection of how (wrongly) English courts are convinced into thinking the Article 33-34 defence is another form of a forum non convenience objection to jurisdiction.

As in many of the cases (including Municipio de Mariana in which a Court of Appeal judgment ought to be delivered around June /July), the judge has to consider a mixed forum non conveniens (for the non-EU based defendants) and Article 33-34 (for the EU domicileds) defence. On top of that, there are applications for a  case-management  stay, and objections to valid service in Latvia. In other words, the classic ‘everything including the kitchen sink’ jurisdictional defence, leading to a judgment of over 400 paras long!

Jurisdiction in the case as far as Brussels Ia i concerned, is a combination of Article 4 and 8(1) – the Lugano Convention also has a calling.

Claimants are Mrs Loudmila Bourlakova and two companies of which she is the ultimate beneficiary, one of which (Hermitage One Limited (“H1”)) is incorporated in the Isle of Man and the second of which (Greenbay Invest Holdings Limited (“Greenbay”)) is incorporated in the Seychelles.  First defendant is Oleg Bourlakov, who died on 21 June 2021, which was after the commencement of these proceedings but before the applications to challenge jurisdiction had been made. The major part of his and his family’s wealth derived from the acquisition and subsequent sale of Novoroscement OJSC, a major Russian cement producer, which was sold for US$1.45 billion in 2007. Both Bourlakovi are or were Ukrainian, Russian and Canadian nationals. At the material time they were both domiciled in Monaco, although during the course of their marriage they had lived in a number of other jurisdictions including Canada.

Claimants allege that, since late 2017, there had been an irretrievable breakdown in marital relations. Divorce proceedings were initiated by Mrs Bourlakova in Monaco in 2018. It was common ground in the Monaco divorce proceedings that the law governing the matrimonial property regime is Ukrainian law and the Ukrainian concept of community property applied to the marriage. The Monegasque courts remained seised of the divorce proceedings at the time of Mr Bourlakov’s death.

Second to fourth defendants were all involved in the provision of fiduciary corporate services and advice to Mr Bourlakov, together with companies and foundations owned or controlled by him. Domicile for these is England, Cyprus or Switzerland. Fifth defendant, domiciled in Israel, somehow got caught up in the proceedings through a family trust, and is pursuing alternative litigation in England. Sixth defendant is a German qualified lawyer domiciled in Latvia, other defendants (family members ) are domiciled at Estonia or (companies) Panama.

The essence of the allegations is that Mr Bourlakov and his advisers conspired to reduce the share of the ex-wife in the matrimonial estate.  Mr Bourlakov and Mrs Bourlakova have never lived in England and the alleged partnership at the heart of the dispute is unrelated to England, did not operate here and is not governed by English law. None of the underlying assets which the claimants believe form part of Mr Bourlakov’s estate are located in England (or even held through English companies). Neither though, does Monaco (the alternative forum suggested in the jurisdictional objection) feature in the factual matrix.  One of the defendants is domiciled in England and one or two relevant meetings were held in England.

Divorce proceedings were commenced in Monaco and Mr Bourlakov and his advisers filed criminal proceedings there against Mrs Bourlakova on the basis of alleged breach of trust, concealment and money-laundering.  As is often the case in continental European proceedings, a civil claim there was lodged with an investigating judge, which will eventually lead to a court required to rule on the civil claim as well as the criminal one. Mr Bourlakov’s compaint has led to nought however Mrs Bourlakova’s counterclaim is still pending there in some, disputed form, as are Mr Bourlakov’s estate proceedings.

There is an extraordinarily complex web of issues to be held under English and EU jurisdictional rules but I shall limit this post to the Article 34 stay application – which was held obiter.

The judge [292] firstly notes, as noted obiter (for the A34 defence was raised too late), with reference ia to CJEU Aertssen,  that the defendants had not properly established that the Monaco criminal proceedings, viewed from the pont of Monegasque criminal procedure, were an “action pending before the court of a third state” for the purposes of A34 at the time the current proceedings were commenced.

[294] ff also discuss, equally obiter, whether any related third state action must fall within the scope of BIa for A34 to apply at all. [298] ff in that respect refer to two cases in which it was accepted that the court must be satisfied that the proceedings pending in the foreign jurisdiction, as well as the English proceedings, fall within the scope of BIa. However, in neither [BB Energy (Gulf) DMCC v Al Amoudi, WWRT Ltd v Tyshchenko, both engaged with the insolvency exclusion of BIa] was there a judicial decision on the point.

[312] Trower J also notes that A34 ‘accepts more risk of an irreconcilable judgment than article 30’, despite the reference in the recitals to flexibility. ‘Related’ actions are also discussed with reference to Viegas, and the judge [330] ff suggests he would not have ordered a stay on five further grounds, some of them related it seems to the ‘sound administration of justice’ requirement (and cited, too, for the refusal of a case management stay).

A complex web of findings and claims, with the A34 discussion showing that much is still outstanding on its application. I do not yet know whether permission to appeal has been sought and if so, on what grounds.

Geert.

European Private International, 3rd ed. 2021, Heading 2.2.15.3.2, para 2.539 ff

Unsuccessful application for an Article 34 'forum non conveniens light' application in light of Monaco criminal proceedings.
Review on the blog soonish (it's busy here @MonashLawSchool)

Bourlakova v Bourlakov [2022] EWHC 1269 (Ch)https://t.co/zYJiztXQFm

— Geert Van Calster (@GAVClaw) May 26, 2022

by Rui Dias

On 23 February 2022, the European Commission published its proposal of a Directive on Corporate Sustainability Due Diligence (CSDD) in respect to human rights and the environment. For those interested, there are many contributions available online, namely in the Oxford Business Law Blog, which dedicates a whole series to it (here). As to the private international law aspects, apart from earlier contributions on the previous European Parliament resolution of March 2021 (info and other links here), some first thoughts have been shared e.g. by Geert von Calster and Marion Ho-Dac.

Building on that, here are some more brief remarks for further thought:

Article 2 defines the personal scope of application. European companies are covered by Article 2(1), as the ones «formed in accordance with the legislation of a Member-State», whereas those of a «third country» are covered by Article 2(2). While other options could have been taken, this criterium of incorporation is not unknown in the context of the freedom of establishment of companies, as we can see in Article 54 TFEU (basis for EU legal action is here Article 50(1) and (2)(g), along with Article 114 TFEU).

There are general, non PIL-specific inconsistencies in the adopted criteria, in light of the relative, not absolutethresholds of the Directive, which as currently drafted aims at also covering medium-sized enterprises only if more than half of the turnover is generated in one of the high-impact sectors. As recently pointed out by Hübner/Habrich/Weller, an EU company with e.g. 41M EUR turnover, 21M of which in a high impact sector such as e.g. textiles is covered; whilst a 140M one, having «only» 69M in high-impact sectors, is not covered, even though it is more than three times bigger, including in that specific sector.

Article 2(4) deserves some further attention, by stating:

«As regards the companies referred to in paragraph 1, the Member State competent to regulate matters covered in this Directive shall be the Member State in which the company has its registered office.»

So, the adopted connecting factor as to EU companies is the registered office. This is in line with many proposals of choice-of-law uniformization for companies in the EU. But apparently there is no answer to the question of which national law of a Member-State applies to third-country companies covered by Article 2(2): let us not forget that it is a proposed Directive, to be transposed through national laws. And as it stands, the Directive may open room for differing civil liability national regimes: for example, in an often-criticised option, Recital 58 expressly excludes the burden of proof (as to the company’s action) from the material scope of the Directive proposal.

Registered office is of course unfit for third country-incorporated companies, but Articles 16 and 17 make reference to other connecting factors. In particular, Article 17 deals with the public enforcement side of the Directive, mandating the designation of authorities to supervise compliance with the due diligence obligations, and it uses the location of a branch as the primarily relevant connection. It then opens other options also fit as subsidiary connections: «If the company does not have a branch in any Member State, or has branches located in different Member States, the competent supervisory authority shall be the supervisory authority of the Member State in which the company generated most of its net turnover in the Union» in the previous year. Proximity is further guaranteed as follows: «Companies referred to in Article 2(2) may, on the basis of a change in circumstances leading to it generating most of its turnover in the Union in a different Member State, make a duly reasoned request to change the supervisory authority that is competent to regulate matters covered in this Directive in respect of that company».

Making a parallel to Article 17 could be a legislative option, so that, in respect to third-country companies, applicable law and powers for public enforcement would coincide. It could also be extended to jurisdiction, if an intention arises to act in that front: currently, the general jurisdiction rule of Brussels Ia (Article 4) is a basis for the amenability to suit of companies domiciled (i.e., with statutory seat, central administration, or principal place of business – Article 63) in the EU. In order to sue third country-domiciled companies, national rules on jurisdiction have to be invoked, whereby many Member-States include some form of forum necessitatis in their national civil procedure laws (for an overview, see here).The Directive proposal includes no rules on jurisdiction: it follows the option also taken by the EP resolution, unlike suggested in the previous JURI Committee draft report, which had proposed new rules, through amendments to Brusselas Ia, on connected claims (in a new Art. 8, Nr. 5) and on forum necessitatis (through a new Art. 26a), along with a new rule on applicable law to be included in Rome II (Art. 6a) – a pathway which had also been recommended by GEDIP in October 2021 (here).

As to the applicable law in general, in the absence of a specific choice-of-law rule, Article 22(5) states:

«Member States shall ensure that the liability provided for in provisions of national law transposing this Article is of overriding mandatory application in cases where the law applicable to claims to that effect is not the law of a Member State.»

So, literally, it is «the liability provided for» in national transposing laws, and not the provisions of national law themselves, that are to be «of overriding mandatory application». This may be poor drafting, but there is apparently no material consequence arising out of it.

Also, the final part («in cases where the law applicable to claims to that effect is not the law of a Member State») does not appear to make much sense. It is at best redundant, as Geert van Calster points out, suggesting it to be struck out of the proposal. Instead of that text, it could be useful to add «irrespective of the law otherwise applicable under the relevant choice-of-law rules», miming what Rome I and II Regulations state in Articles 9 and 16.

A further question raised by this drafting option of avoiding intervention in Rome II or other choice-of-law regulations, instead transforming the new law into a big set of lois de police, is that it apparently does not leave room for the application of foreign, non-EU law more favourable to the victims. If a more classical conflicts approach would have been followed, for example mirrored in Article 7 of Rome II, the favor laesi approach could be extended to the whole scope of application of the Directive, so that the national law of the Member-State where the event giving rise to damage occurred could be invoked under general rules (Article 4(1) of Rome II), but a more favourable lex locus damni would still remain accessible. Instead, by labelling national transposing laws as overridingly mandatory, that option seems to disappear, in a way that appears paradoxical vis-à-vis other rules of the Directive proposal that safeguard more favourable, existing solutions, such as in Article 1(2) and Article 22(4). If there is a political option of not allowing the application of third-country, more favourable law, that should probably be made clear.

With this present issue, Lex & Forum enters its second year of publication. The first four issues of the previous year were dedicated to the fundamental and most current issues of European private/procedural international law: the judicial cooperation after BREXIT (1st issue), the impact of 40 years since Greece joined the European Union to the internal Procedural Law (2nd issue), the importance of private autonomy in European private/procedural international law (3rd issue) and the accession of the European Union to the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters 2019 (4th issue). During the second year, the focus of the issues will now be shifting to individual disputes, influenced by European  procedural or private international law. The focus of the present issue refers to maritime differences, which are particularly important for our country. As data shows, while the population of Greece represents only 0.15% of the world population, the Greek-owned ships represent almost 21% of the world tonnage and 53% of the EU merchant fleet. Greek shipowners lead the world rankings in ship ownership with 17% for 2021, compared to colossal countries in terms of population and economy, such as China (15%) and Japan (12%) (data: IUMI 2021). Under these circumstances, maritime differences at the European and global scale are a particularly crucial chapter for our country’s economy and fully justify the involvement of this focus on this issue.

The ‘Praefatio’ of this Lex&Forum issue has the great honor of hosting the valuable thoughts of the former President of the CJEU (2003-2015), Prof. Vassilios Skouris, on the topic of mutual trust and recognition as key pillars of the European Union. The main topic of the issue (Focus) is dedicated to maritime disputes and was initially presented at an online event, on the 21st of February 2022, in collaboration with the most competent bodies on the subject, the Piraeus Court of First Instance and the Piraeus Bar Association (<https://www.sakkoulas.gr/el/info/events/archive/lex-forum-oi-navtikes-diafores-ston-evropaiko-kai-ton-pagkosmio-charti/>). The Focus in this issue incorporates the contribution of the Professor at the HSB Hochschule Bremen Ms. Suzette Suarez on arrest of ships in cases of environmental damages, the presentation of the Professor at  the University of Athens and Chair of the meeting Ms. Lia Athanassiou, regarding the treatment of foreign shipping companies by the Greek jurisprudence, and the ones of the Judges who served in the Mari­time Department of the Court of Piraeus, Mr. Antonios Alapandas, PhD, Judge at the Court of Appeal, on the special jurisdictional bases of maritime disputes, and Mr. Kyriakos Oikonomou, former Judge of the Supreme Court, on the choice of court agreements in maritime disputes, as well as the contributions of the Judge Mr. Antonios Vathrakokilis, on the applicable law to maritime privileges, and, finally, of Mr. Georgios Theocharidis, Professor of Maritime Law and Politics at the World Maritime University in Malmö, Sweden, on the International Convention on the ‘Judicial Sale of Ships’. Lex&Forum expresses its warmest thanks to the President of the Courts of First-Instance of Piraeus Council Judge Mr. Vassilios Tzelepis and the President of the Piraeus Bar Association Mr. Elias Klappas, as well as to all the rapporteurs for their honorable contributions.

The jurisprudence section of this issue includes the CJEU judgments, 15.7.2021, European Commission v. Poland, on the topic of national regulations restricting the independence of judges, with commentary by the scientific associate in the International Hellenic University Ms R. Tsertsidou, 7.5.2020, LG/Rina, on the concept of civil and commercial matters in case of an action against a ship classification and certification body under the authority of a third state, with a commentary by Dr. N. Zaprianos, 1.7.2021, UE, HC, on a European Certifi­cate of Succession of ‘indefinite time’, with commentary by Dr. S. Karameros, and 4.6.2020, FX/GZ, on international jurisdiction for the adjudication of the opposition against the execution of a maintenance claim, with commentary by the President of the Court of First Instance Mr. A. Vathrakokilis.

The national case law section features the following judgments:  Court of First Instance Piraeus No 3296/2020, on the appointment of an Interim Administration of a Shipping Company with a registered office abroad, with commentary by the PhD Cand. Ms. A. Lagoudi; Court of First Instance Korinthos No 1/2022, on the topic of parental care and maintenance of an out-of-marriage minor by parents of foreign citizenship, with commentary by Dr. G.-A. Georgiadis; Supreme Court decision No 1127/2020, on the applicable law on limitation periods in case of a lawsuit of an insurance company against a carrier, with commentary by Dr. A. Anthimos.

The issue includes as well the legal opinion of Professor Emeritus at the University of Athens Mr. Nikolaos Klamaris on the international jurisdiction of the Court of Piraeus (Department of Maritime Disputes) on a tort, committed in Piraeus by defendants based in Asia, while in the column L&F Praxis, the Judge Mr. Georgios Safouris presents the main practical problems of the referral questions to the CJEU within 11 Q&As.

Lex&Forum renews its scientific appointment with its subscribers for the next issue, focusing on the Internet and other emerging technologies within the EU and International legal order.

The EAPIL blog will report about the Association’s founding conference in Aarhus by a dedicated post at the end of each conference day. Please follow us on Twitter (@eapilorg) and Linkedin for updates as the conference unfolds. Check out our new Instagram account too!

The founding conference of the European Association of Private International Law has started! More than ninety members have attended in person today’s session. Some others are on their way to Aarhus and will be taking part in the conference in the coming days. A warm welcome to all from the editors of the blog!

In his keynote speech, Peter-Arnt Nielsen (Copenhagen Business School) focused on the different institutional models whereby cooperation aimed at the harmonisation of private international law has taken place in Europe since the 1968 Brussels Convention, discussing the particular features and the implications of each model.

Andreas Stein (Head of Unit, European Commission) has offered a “Report from Brussels”. His overview covered measures that are currently being negotiated by the EU institutions (such as the accession by the EU to the Hague Judgments Convention), as well as proposals that are either in preparation or have just been presented (such as the proposal on the recent proposal for a directive on SLAPPs) and proposals which are scheduled for consideration at a later stage (such as the contemplated review of the Brussels I bis and Rome II Regulations).

Maciej Szpunar (Advocate General, Court of Justice of the European Union), has provided a “Report from Luxembourg”. Having regard to the case law of the Court of Justice, he discussed the relevance of fundamental rights, notably as enshrined in the Charter of Fundamental Rights of the European Union, to private international law in Europe.

A lively discussion followed the presentations.

Kermit Roosevelt III (chair), Peter Arnt Nielsen and Andreas Stein

Maciej Szpunar (online)

A view of the auditorium

EFFORTS (Towards more EFfective enFORcemenT of claimS in civil and commercial matters within the EU) is an EU-funded Project conducted by the University of Milan (coord.), the Max Planck Institute Luxembourg for Procedural Law, the University of Heidelberg, the Free University of Brussels, the University of Zagreb, and the University of Vilnius.

The eighth EFFORTS Newsletter has just been released, giving access to up-to-date information about the Project, save-the-dates on forthcoming events, conferences and webinars, and news from the area of international and comparative civil procedural law.

The EFFORTS Final Conference will take place on Friday, 30 September 2022. On that occasion, the Project Partners’ research groups will present the outcomes of the Project; increase awareness of the EFFORTS Regulations (Brussels Ia, European Enforcement Order, European Payment Order, European Small Claims Procedure and European Account Preservation Order); and evaluate and discuss the state of the art in EU and national legislation and practices relating to the implementation of the EFFORTS Regulations in the 7 targeted Member States. More details will follow in due course.

Regular updates are available on the Project website and via the Project’s LinkedIn and Facebook pages.

Project JUST-JCOO-AG-2019-881802
With financial support from the Civil Justice Programme of the European Union

June 2022 starts at the Court of Justice with the publication of two decisions of PIL interest this Thursday, 2 June.

The first one, in case C-617/20, T.N. and N.N., focuses on the interpretation of Articles 13 and 28 of the EU Succession Regulation. The Hanseatisches Oberlandesgericht in Bremen (Germany), sent the following questions to the Court of Justice:

1. Does a declaration concerning the waiver of succession by an heir before the court of a Member State that has jurisdiction for the place of his or her habitual residence, which complies with the formal requirements applicable there, replace the declaration concerning the waiver of succession to be made before the court of another Member State that has jurisdiction to rule on the succession, in such a way that when that declaration is made, it is deemed to have been validly made (substitution)?
2. If Question 1 is to be answered in the negative: In addition to making a declaration before the court that has jurisdiction for the place of habitual residence of the party waiving succession which complies with all formal requirements, is it necessary, in order for the declaration concerning the waiver of succession to be valid, that the latter inform the court that has jurisdiction to rule on the succession that the declaration concerning the waiver of succession has been made?

3. If Question 1 is to be answered in the negative and Question 2 in the affirmative:

a. Is it necessary that the court that has jurisdiction to rule on the succession be addressed in the official language of the location of that court in order for the declaration concerning the waiver of succession to be valid and, in particular, in order to comply with the time limits applicable for making such declarations before that court?

b. Is it necessary that the court that has jurisdiction to rule on the succession receive the original documents drawn up in relation to the waiver by the court that has jurisdiction for the place of habitual residence of the party waiving succession and a translation thereof in order for the declaration concerning the waiver of succession to be valid and, in particular, in order to comply with the time limits applicable for making such declarations before the court that has jurisdiction to rule on the succession?

On 20 January 2022, Advocate General Szpunar had proposed to answer (the Opinion is not yet available in English) :

Articles 13 and 28 of Regulation (EU) No. 650/2012 (…) must be interpreted in the sense that the requirement, provided for in the law applicable to the succession, to submit the declaration regarding the waiver of succession to the competent court, that is to say the court of the habitual residence of the deceased at the time of death, constitutes a condition for the formal validity of the declaration. Therefore, in the event that the formal validity of said declaration is assessed in light of the law indicated in article 28, letter b), of the Regulation, non-compliance with that requirement does not entail invalidity of a statement made before the competent court pursuant to article 13 of Regulation No. 650/2012.

The deciding Chamber is composed by M. Ilešič (reporting judge) E. Regan, I. Jarukaitis, D. Gratsias, and Z. Csehi.

Also on 2 June 2022, a chamber of three judges (J. Passer, N. Wahl, and L. Arastey Sahún, the latter as reporting judge) will handle the judgment on case C-196/21, SR (Frais de traduction dans une procédure civile). The request for a preliminary reference, from the Tribunalul Ilfov (Romania), originates in a dispute concerning family and maintenance matters. The question arouse who has to bear the cost of translating into French the summonses or orders issued by the court with a view to service upon the interveners in the national proceedings: hence the need for the interpretation of Article 5(2) of the Service Regulation.

The next PIL hit of this month will be the hearing in C-291/21, Starkinvest. The background of the referral is a Belgian judgement ordering the Dublin-based company Soft Paris Parties Ltd, subject to a penalty payment of EUR 2 500 per breach, to cease all sales of products and services in the Benelux countries under a certain word mark. Some months after the judgment was served on the debtor, the claimant (Starkinvest Srl) issued an order for payment in the sum of EUR 86 694.22, which included EUR 85 000 in penalty payments. Starkinvest Srl has asked the Belgian court to make a European Account Preservation Order in the principal amount of EUR 85 000, over such sums as may be held in a French bank account of Soft Paris Parties Ltd.

For the referring court, it is unclear whether Starkinvest Srl is relying on an instrument ‘requiring the debtor to pay the creditor’s claim’ within the meaning of Article 7[(2)] of the EAPO Regulation. In addition, it has reservations based on Article 4 of the Regulation. According to the provision, a ‘claim’ is defined as ‘a claim for payment of a specific amount of money that has fallen due or a claim for payment of a determinable amount of money arising from a transaction or an event that has already occurred, provided that such a claim can be brought before a court’; in light of it, the question arises whether, bearing in mind that while the principle and basic amount of a penalty payment are established by judgment, the amount payable depends on possible future breaches by the debtor, such a payment can be regarded as a ‘claim’ in that sense. The national court has referred these questions to the Court of Justice :

1. Does a judgment which has been served, ordering a party to make a penalty payment in the event of breach of a prohibitory order, constitute a decision requiring the debtor to pay the creditor’s claim within the meaning of Article 7(2) of Regulation No 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure?
2. Does a judgment ordering a party to make a penalty payment, although enforceable in the country of origin, fall within the meaning of ‘judgment’ in Article 4 of Regulation No 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order where there has been no final determination of the amount in accordance with Article 55 of Regulation 1215/12 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters?

Advocate General Szpunar will announce the date of delivery of his opinion at the end of the hearing. The Chamber in charge is composed by judges A. Prechal, J. Passer, N. Wahl, L. Arastey Sahún and F. Biltgen, with the latter acting as reporting judge.

The same Chamber has been appointed to adjudicate in case C-265/21, AB and AB-CD (Titre de propriété sur des oeuvres d’art), with the support of Advocate General Szpunar’s opinion.

The request addresses the interpretation of ‘contract’ under Article 5 of the Brussels I Regulation, and in the Rome I Regulation. The national proceedings concern an action seeking the recognition of a title of ownership of works of art based on a double contract of sale, the first between the defendant and a seller and the second between this seller and the plaintiff. The referring court is at a loss regarding which the contract to consider in order to determine the place of obligation serving as the basis for the request, and to ascertain the substantive rules applicable to the merits:

1. Must the concept of ‘matters relating to a contract’, within the meaning of Article 5(1) of Regulation No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (‘the Brussels I Regulation’):

a. be interpreted as requiring the establishment of a legal obligation freely assumed by one person towards another, which forms the basis of the applicant’s action, and is that the position even if the obligation was not freely assumed by the defendant and/or towards the applicant?

b. If the answer is in the affirmative, what must the degree of connection between the legal obligation freely assumed and the applicant and/or the defendant be?

2. Does the concept of ‘action’ on which the applicant ‘relies’, like the criterion used to distinguish whether an action comes under the concept of matters relating to a contract, within the meaning of Article 5(1) of the Brussels I Regulation, or under ‘matters relating to tort, delict or quasi-delict’, within the meaning of Article 5(3) of that regulation (C‑59/19, paragraph 32), entail verification of whether the interpretation of the legal obligation freely assumed seems to be indispensable for the purpose of assessing the basis of the action?

3. Does the legal action whereby an applicant seeks a declaration that he or she is the owner of an asset in his or her possession in reliance on a double contract of sale, the first entered into by the original joint owner of that asset (the spouse of the defendant, who is also an original joint owner) with the person who sold the asset to the applicant, and the second between the latter two parties, come within the concept of matters relating to a contract within the meaning of Article 5(1) of the Brussels I Regulation?

a. Is the answer different if the defendant relies on the fact that the first contract was not a contract of sale but a contract of deposit?

b. If one of those situations comes within the concept of matters relating to a contract, which contract must be taken into consideration for the purpose of determining the place of the obligation which serves as the basis of the claim?

4. Must Article 4 of Regulation (EC) No 593/2008 of 17 June 2008 on the law applicable to contractual obligations (Rome I) be interpreted as applying to the situation referred to by the third question referred for a preliminary ruling and, if so, which contract must be taken into consideration?

Regulation (EU) 2022/850 of the European Parliament and of the Council of 30 May 2022 on a computerised system for the cross-border electronic exchange of data in the area of judicial cooperation in civil and criminal matters (e-CODEX system), and amending Regulation (EU) 2018/1726, has been published at the OJEU, L 150, 1.6.2022, p. 1.

Source: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2022.150.01.0001.01.ENG&toc=OJ%3AL%3A2022%3A150%3ATOC

Mukarrum Ahmed (University of Lancaster) authored a book titled Brexit and the Future of Private International Law in English Courts with Oxford University Press.

The author considers the Brexit impact upon classical private international law issues (jurisdiction, applicable law and recognition of foreign judgments) in civil and commercial matters. By providing an assessment on the main post-Brexit changes in England, comments included, an attempt at the future of private international law before English courts is offered. In addition to analysing the basic fundamentals of the discipline, suggesting adjustments and law reform are provided for.

Further info on the book are available here.

In a widely reported trip, members of the 5th Civil Chamber of the Higher Regional Court of Hamm, Germany, together with two court-appointed experts, travelled to Peru to collect evidence in one of Germany’s first climate-change lawsuits. The highly symbolic case has been brought by Saúl Luciano Lliuyas, a Peruvian farmer, who claims that man-made climate change and the resulting increased flood risk threatens his house in the Andes, which is located right below a glacial lake. Supported by two German NGOs, he seeks compensation from RWE, Europe’s single biggest emitter of carbon dioxide, for the equivalent of its contribution to worldwide human carbon dioxide emissions, i.e. 0.47 percent, of the additional protective measures he had to take to flood-prove his house.

The trip had already been scheduled in 2019 but was delayed by the Covid-19 pandemic. Its main purpose appears to have been the proper instruction of the two experts, who are charged with assessing the climate-change-related risk for the claimant and the extent of RWE’s potential contribution to it.

In terms of private international law, the case is straightforward. The German courts have international jurisdiction on the basis of Articles 4(1), 63(1) Brussels Ia as RWE has its statutory seat and central administration in Germany. As far as the applicable law is concerned, the claimant can rely on the privilege awarded to the (alleged) victims of environmental torts by Art 7 Rome II, according to which they may opt for the law of the country in which the event giving rise to the damage occurred (as opposed to the law of the country in which the damage occurred, which generally applies pursuant to Art. 4(1) Rome II), i.e. for German law in the case of pollutions caused by RWE’s power plants in Germany. Thus, the usual PIL problems of climate-change lawsuits (international jurisdiction based on Art. 7(2) or 8(1) Brussels Ia, immunity of state-owned corporations, predictability of the law of the place of the damage, application of Art. 17 Rome II, …) do not arise in this case.

Regarding the application of substantive German law, the case is much more open. In the first instance, the Regional Court of Essen outright rejected the claim for lack of a sufficient causal connection between RWE’s contribution to climate change and the specific risk of the claimant. This is in line with what might still be the majority position in German scholarship, according to which individual contributions to global climate change cannot trigger civil liability in tort or property law. The fact that the second-instance court has now started to collect evidence implies, however, that it considers the claim to succeed on the basis of the claimant’s submissions. Seen together with the German Constitutional Court quashing national legislation for being incompatible with Article 20a of the Constitution and international commitments to limit global warming in 2021, the lawsuit in Hamm may be a sign of German courts slowly adopting a more active position in the global fight against climate change, including with regard to civil liability.

Meetings & Events

From 17 to 19 May 2022, the First Meeting of the Special Commission on the 2007 Child Support Convention and 2007 Maintenance Obligations Protocol was held in The Hague in hybrid format, attended by over 200 delegates representing HCCH Members, Contracting Parties and Observers. More information is available here. The meeting resulted in the adoption of over 80 Conclusions & Recommendations, providing guidance to (prospective) Contracting Parties on a wide range of issues relating to the implementation and practical operation of these instruments. More information is available here.

Publications & Documentation

On 25 May 2022, the Permanent Bureau announced the launch of the post-event publication of HCCH|Approach, “Advancing and Promoting the Protection of All Children”, an HCCH initiative organised in celebration of the 25th anniversary of the HCCH 1996 Child Protection Convention. More information is available here.

Upcoming Events

Registrations are now open for the upcoming Conference on Conflicts of Jurisdiction, organised by the Journal of Private International Law and the Singapore Management University, with the support of the HCCH. The conference will be held online on 23 and 24 June 2022. More information is available here.

The inaugural CODIFI Conference will be held online from 12 to 16 September 2022. CODIFI will examine issues of private international law in the Commercial, Digital, and Financial (CODIFI) sectors, highlighting developments in the digital economy and fintech industries as well as clarifying the roles of core HCCH instruments: the 1985 Trusts Convention, the 2006 Securities Convention, and the 2015 Choice of Law Principles.?More information is available here.

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

What’s new in EU family law?

High-level conference on the Brussels IIb Regulation

8 September 2022 13h-16h CET

Hybrid Conference – European Parliament Brussels and Online

Hosted by

Ewa Kopacz

Vice President and European Parliament Coordinator on Children’s Rights

and

Didier Reynders

Commissioner for Justice

Please click here to register and to view the draft conference programme.

This high-level conference aims to draw attention to the novelties and important changes introduced by the Brussels IIb Regulation, which enters into application on 1 August 2022, and to provide a forum for an exchange of views with legal practitioners on cross-border family disputes involving children in the European Union.

The conference will provide participants with an opportunity to hear from experts in EU family law on the key changes to the Regulation and to engage in a moderated discussion on the topic through a Q & A session.

The event will be hosted online with the limited possibility to participate in person in Brussels*. Interpretation of the conference will be provided in 10 languages (DE, EN, FR, IT, EL, ES, PT, PL, BG, RO).

*Participation in this event is free. Please note that persons planning to attend this event in the European Parliament in Brussels do so at their own expense.