Flux européens

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The CJEU this morning kicked open a door already so wide open in in Case C‑540/24 Cabris Investments v Revetas Capital Advisors, I hope no one was walking behind it for they would have been brutally knocked out.

On 6 May 2020, Cabris Investments and Revetas Capital Advisors, companies both established in the UK, entered into a consultancy contract, which was accompanied by a letter, both of which contained a jurisdiction clause worded

‘This contract and the relationship between the parties shall be governed by and construed in accordance with Austrian law. The Handelsgericht Wien [(Commercial Court, Vienna, Austria)] shall have exclusive jurisdiction over any disputes arising out of or in connection with this agreement or its enforcement or validity.’

On 30 June 2023, Cabris brought an action before the Commercial Court, Vienna) to seek fulfillment of a contractual payment obligation under that contract relating to the role of CFO. Revetas challenge the international jurisdiction of the referring court, arguing that, since BIA has not been applicable in respect of legal relationships involving the UK since the end of the transition period provided for in the Withdrawal Agreement, A25 BIa, as interpreted in Inkreal  is not applicable.

The referring court has doubts

first as to whether A25 BIa and the Inkreal principles remain applicable viz choice of court concluded during the transition period between two parties having their head offices in the UK, which designates a court of a Member State to hear their dispute, where that court has been seised after both UK withdrawal and the end of the transition period, and the contractual relationship underlying the dispute has no connection with that Member State.

Second, if the CJEU were to conclude that A25 does not apply in such a situation, whether the Brussels Convention, and in particular A17 and 18, or, failing that, the British-Austrian Convention, is applicable. According to the referring court, the answer to that question depends on whether A68 and 69 BIa definitively repealed those two conventions. That court is of the view that the principles of public international law governing the termination of treaties and the fact that those various legal instruments govern related matters support the interpretation that the applicability of those conventions, as regards legal relationships involving the UK, is precluded

Third, whether A50(3) TEU and A82(1)(b)(i) of Part 4 of the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019 of 4 March 2019  preclude the Brussels Convention from applying in general.

These are scholarly exciting questions and the referring Austrian court referred to following long list of verbosely formulated questions, after having given the UK-EU Withdrawal Agreement context: 

‘(1)      Is [A25 BIa to be interpreted as meaning that an agreement conferring jurisdiction in which the contracting parties, who are domiciled in the [UK] and therefore (now) in a third State, agree that the courts of a Member State of the [EU] are to have jurisdiction over disputes arising under that contract, falls within the scope of that provision, even if the underlying contract has no further connection with that Member State chosen as the place of jurisdiction? Do the underlying principles of [Inkreal] therefore also apply in the same way if the date of conclusion of a jurisdiction agreement between two parties domiciled in the UK still falls within the period before the end of the [Brexit transition period] on 31 December 2020, but the action was only brought after Brexit took effect? This is taking into account the fact that the contractual situation between these (now) third-country nationals has no further connection to the chosen [EU] Member State (see, however, Recitals 13 and 14 of [that regulation]) and, in addition, A50(3) TEU … generally excludes the applicability of the European treaties for the [UK] after Brexit.

If [the Court] rejects the application of [A25] in the third-country scenario in question, the following further questions arise:

(2)      Is [A68 BIa] to be interpreted as meaning that it has definitively repealed [the Brussels Convention] – including in proceedings relating to the [UK] (taking into account Brexit) – so that recourse to this Convention is currently no longer possible for a Member State of the [EU]?

(3)      Are [A69 BIa] in the version of [List 3] and [A55 Brussels Convention], 13th indent, to be interpreted as meaning that they have also definitively repealed the [British-Austrian Convention], so that in proceedings relating to the [UK] (taking into account Brexit), recourse to that international treaty … is no longer possible? This is also taking into account the fact that, pursuant to [A70(1) BIa], the conventions referred to in [A69] of [that regulation] retain their validity for those areas of law to which the regulation does not apply. Can [a] treaty concluded with [Austria] that has already been declared “superseded” by primary law in the past be declared retroactively applicable again between those states after Brexit (so-called “revival of an international treaty”) pursuant to Article 70(1) of [that regulation] with regard to the [UK]?

If so: Would such a “revival” also apply within the scope of application of [A56 Brussels Convention], which is similar in this respect?

(4)      Is [A50(3)] TEU to be interpreted as meaning that it also precludes the application or “revival” of [A 17 and 18 Brussels Convention] in relation to the [UK] (taking into account Brexit) if, in proceedings initiated in Austria, two litigants domiciled in the [UK] are facing each other who have agreed in their contract – concluded on 6 May 2020 – that the Handelsgericht Wien (Commercial Court, Vienna) has exclusive jurisdiction? Does the provision in [A50(3)] TEU take precedence over [A66 Brussels Convention], according to which the Brussels Convention “[is concluded] for an unlimited period”?

(5)      [(a)]      Should [the Court] come to the conclusion that the Brussels Convention also takes precedence in the sense of [Q]uestions 2 to 4 above in relation to the [UK], the question arises: Does the fundamental primacy of the Brussels Convention preclude an arrangement in the [UK] according to which recourse to the Brussels Convention is also expressly excluded with regard to jurisdiction agreements that were concluded prior to Brexit taking effect (see the UK provision under Section 82(1)(b)(i) of the “Regulations 4-25 Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019 (SI 2019/479)”, which [was] valid until 29 February 2024 and is obviously still applicable here, as the action was brought on 30 June 2023)?

[(b)]      If not: When examining the validity of a jurisdiction agreement concluded on 6 May 2020 (i.e. before Brexit) between two British companies with the choice of an Austrian forum, is an Austrian court nevertheless bound by this exclusion of application of the Brussels Convention – standardised in the [UK] – pursuant to Section 82(1)(b)(i) of Regulations 4-25 Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019 (SI 2019/479), in particular due to the primacy of primary law, which would in principle prevent effective enforcement in the United Kingdom ([t]he last question assumes, for the purposes of [Q]uestion 3), the expiry of the [British-Austrian Convention]?’

 

The CJEU, without AG Opinion, cut the conversation short:

[31] a choice of court clause must be assessed as at the date on which the legal proceedings are brought (reference ia to CJEU Tilman);

[35] A25 BIa clearly applies regardless of the domicile of the parties;

[37] despite BIa serving internal market objectives, BIa emphasises in recital 14 that ‘to respect the autonomy of the parties, certain rules of jurisdiction in this Regulation should apply regardless of the defendant’s domicile’ – ditto [43] another clear support by the CJEU of party autonomy as a strong driving principle of EU PrivIntLaw.

[40] the ‘international element required to trigger BIa is very widely interpreted (reference ex multi to Inkreal);

[47-48] that choice of court was concluded during the transition period and that that court is seised of a dispute after the end of that period, is not capable of altering the answer to be given to the present question: the Withdrawal Agreement does not govern such a situation, and notwithstanding ex-EU domicile of the parties to a dispute, A25 explicitly covers such situation.

The remainder of the questions therefore, are not entertained……

Geert.

EU Private International Law, 4th ed. 2024, 2.311 ff.

 

[If you do use the blog for research, practice submission or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]

What is the forum contractus in an action for recovery of a consumer’s claim arising from a contract of carriage by air, acquired by a trader by way of assignment? Contracts solely for transport famously are excluded from the consumer title of the Regulation, and cases like C‑913/19 CNP and C‑393/20 T.B. and D. have not brought much clarification on forum contractus in cases of assignment. Choice of court on the basis of A25 (such as was at issue in in Ryanair v DelayFix) would not seem to have been on the horizon oddly (the referral decision does not specify why not) and of course the European Commission Proposal for a Regulation on the law applicable to the third-party effects of assignments of claims might have been able to have helped however as Marco Pasque reports on this very day, it has been withdrawn!

In De Bloos [13[ the CJEU held that

‘for the purpose of determining the place of performance within the meaning of Article 5 (now A7(1) Brussels Ia, GAVC] … the obligation to be taken into account is that which corresponds to the contractual right on which the plaintiff’s action is based’.

The question which arises in Case C‑551/24 Deutsche Lufthansa AG v AirHelp Germany GmbH in which the Court held this morning, is whether the dispute at issue concerns the recovery of a claim arising from the assignment agreement  which assigned the claim to claimant, or the contract for the provision of services: in the present case, a contract of carriage by air. (An additional question on A7(5) branch jurisdiction was [30] declared inadmissible for lack of detail given by the referring court).

The confusion among the Polish courts (and they are far from alone!) is a result of the confusion following De Bloos. As I already noted in my review of CJEU Bosworth, it would be good for the Court to clarify whether De Bloos is still good authority, given the many textual changes and case-law considerations of (now) Article 7(1).

[36] the core question is

whether the fact that a claim, arising from the performance of a contract of carriage by air concluded between a consumer and a trader, has been transferred by that consumer to a company specialising in the recovery of air passengers’ claims is such as to preclude the application of the second indent of [A7(1)(b) BIa] in order to determine which court has jurisdiction to hear a claim for compensation brought by the assignee against the air carrier.

[37] (unlike in the case of protected categories), the rule of special jurisdiction laid down A7(1)(b) is not intended to protect the weaker party in a contractual relationship. That that rule was not established in the light of the status of the contracting parties, but is based on the existence of a close connection between the court seised and the contract concerned. In those circumstances, the Court holds that the fact that the consumer’s claim for compensation has been transferred to a trader has no bearing on the application of that rule.

[38]: see similarly in CJEU Ofab and CDC: in the context of a dispute concerning claims relating to tort, delict or quasi-delict, the transfer of claims by the initial creditor cannot, by itself, have an impact on the determination of the court having jurisdiction. [40] A dispute concerning the recovery of a claim arising from the performance of a contract for the provision of services continues to have a close connection (which the court points out is the raison d’être of A7(1)) with the place of performance of the obligation in question, namely the place in a Member State where, under that contract, the services were provided or should have been provided, within the meaning of the second indent of A7(1)(b), even though that claim has been transferred to a third party.

Therefore C-20/21 LOT Airlines comes into play: the place of departure of a flight corresponds to one of the main places of provision of the services which are the subject of that contract and therefore ensures the close connection required by the rules of special jurisdiction set out in A7(1) between that contract and the court which has territorial jurisdiction over that place. The Polish courts appear to have jurisdiction to hear the action in the main proceedings [42] and [44-45}neither the particular features of the assignment agreement at issue nor the absence of a contractual link between the parties to the dispute are such as to call that jurisdiction into question:

First, the fact that, as is apparent from the order for reference, under the terms of the assignment agreement at issue, the assigning consumer does not transfer, under Polish law, his or her procedural rights to the assignee trader is not relevant for the application of the rule of jurisdiction laid down in the second indent of [A7(1)(b)]. That rule is based on the obligation in question, that is to say, the subject matter of the dispute, determined by that of the contract concerned, since the assignment agreement confers standing to bring proceedings solely on the assignee.

Second, as regards the fact that the parties in the main proceedings are not directly bound by a contract, … it should be observed that, in so far as the assignment agreement confers on the assignee the rights enjoyed by the assignor in relation to the carrier and therefore the right to bring proceedings for the recovery of the claim arising from the contract of carriage by air, that fact is also not such as to preclude the application of the rule of jurisdiction laid down in that provision.

The judgment makes much sense. Assignment does not change the nature of the claim nor its forum contractus. This assists the defendant with predictability and it would serve no Brussels Ia-relevant purpose to change the equation for claimant and defendant alike simply because the claim has been assigned.

Geert.

 

Commission / Grèce (Exécution de l’arrêt sur la décharge de Zakynthos)
Manquement d’État : n’ayant pas exécuté un arrêt de la Cour de 2014, la Grèce est condamnée à des sanctions pécuniaires

I have reported before on the jurisdictional issues of collective action under Dutch law, viz both the GPDR (Article 79; 80) and Brussels Ia. See in particular my post on the claim against TIKTOK and various references there. In an update to that post over the summer I also refer to the Rotterdam courts’ reference to the CJEU on the application of Article 80 GPDR: Stichting Data Bescherming Nederland v Amazon ECLI:NL:RBROT:2025:9088.

Yesterday the Amsterdam courts [Stichting Massaschade en Consument t Tiktok Technology LTd et al ECLI:NL:GHAMS:2025:2666] published their partial appeal finding in the case that led to my orginal post [the first instance jurisdictional finding ECLI:NL:RBAMS:2022:6488].

The appeals court first of all holds [4.16] to continue its discussion of the non-GDPR claims seeing as, it argues, WAMCA (the Dutch collective action  procedure) encourages swift outcome of claims, and give that success in these might render the GDPR-based claims without purpose. The non-GDPR claims include unjust enrichment, economic law (acts of unfair competition: eg hidden prices of in-app purchases of “digitale items”) and consumer law claims.

Viz the Irish TikTok entitity, Brussels Ia determines jurisdiction (as TikTok note, leading also to territorial not just national jurisdiciton). Viz the non-EU defendants, Dutch residual private international law does (with CPR rules allocating territorial jurisdiction), however [4.18] those are applied as the EU rules would.

Like the first instance judgment, the appeals judgment IMO too readily assumes application of A7(2) BIa (non-contractual obligations) rather than A7(1) (contractual. The collective organisations are said [4.19] to act using their own representative interest, which it is said is non-contractual. CJEU C-167/00 VKI v Henkel in my view is not entirely relevant authority: in Henkel the relevant organisation was Verein für Konsumenteninformation, a consumer protection organisation created purely to uphold statutory consumer law, and in the case at issue seeking an injunction to prevent a trader from using unfair terms in consumer contracts; see similarly also CJEU VKI v Amazon, where VKI sought a similar injunction. In a WAMCA action, the often ad hoc collective organisations seek financial damages for and on behalf of enlisted consumers, but often also for their own financial benefit and usually indeed, as here, financed by third party litigation funding. Claimants arguably are purely procedural vehicles. Their claim in my opinion is so intimately bound up with the contracts of the consumers that it can hardly qualify as a non-contractual claim.

Having identified A7(2) BIa als the jurisdictional gateway (again: I am not convinced), in 4.21.2 the court identifies The Netherlands as forum damni /Erfolgort. 4.1.1 and elsewhere the court supports the use of centre of interests as a relevant jurisdictional trigger which again I find awkward: that criterion per CJEU eDate etc only applies to the infringement of personality rights and quite a few of the claims are related to issues such as financial interest for which centre of interest has no calling. Hence I also find the court’s finding unconvincing [4.21.2]

Voor zover SMC bedoelt op te komen voor personen die de TikTok Dienst gebruiken of hebben gebruikt ”op een moment” dat zij in Nederland waren terwijl zij hun gewone verblijf elders hebben (zie hiervoor rov. 4.1.1.), heeft de Nederlandse rechter geen rechtsmacht.

: Dutch court’s have no jurisdiction for those who used TikTok ‘at a time they were in The Netherlands whilst having their habitual residence elsewhere”. That is not just an unorthodox use of locus damni; it also conflates the relevance of habitual residence, which earlier in the judgment the court used to refer to GDPR-based jurisdiction.

[4.22.2] the court summarily dismisses TikTok’s argument that A7(2) determines territorial jurisdiction, hence that the claims cannot be centralised in Amsterdam. That Dutch civil procedure rules may trump A7(2)’s clear instruction to this effect, cannot in my view be right.

The remainder of the judgment then discusses the merits of the issues and largely upholds the first instance court’s findings.

I think it is clear from the above that I am far from convinced the jurisdictional analysis here is right.

Geert.

(Handbook of) EU Private International Law, 4th ed. 2024, Chapter 2, Heading 2.2.12.2

When I teach trade law, I often emphasise the standardisation part of international trade including the relevance of CE marking, self-certification, accreditation, conformity assessment etc and their impact on manufacturers and importers’ liability. These laws are not often the subject of scholarship and in handbooks on EU internal market they are usually dealt with succinctly. Yet they are a crucial cog in the machinery of international trade and the EU system for same has its equivalents in the US, UK, Australia etc.

In the case discussed in this post, EU law applies.

Secretary of State for Health and Social Care v PPE Medpro Ltd [2025] EWHC 2486 (Comm) is an excellent illustration of this reliance in international trade on quality assurance and self-certification (as opposed to government agents having to check whether imported products meet with the EU’s essential health and safety requirements, here of PPE: Personal Protection Equipment).

The judgment’s context is the UK’s rather awkward ‘VIP lane’ at the time of Covid procurement. The idea behind this ‘priority lane’ for suppliers, as summarised by the BBC, was to “treat offers to supply PPE with greater urgency if they came with a recommendation from ministers, MPs, members of the House of Lords, or other senior officials.” The inevitable result were accusations of cronyism and stories of corporations, set up overnight, gaining multi million pound contracts without the necessary experience in procuring often tightly regulated medical equipment.

In the case at issue, the Government are seeking to recover the considerable monies paid (and some associated costs) after 25m supposedly sterile  surgical gowns were found not to be sterile.

Under the relevant technical specifications for the order, [52] the usual ways of showing compliance with EU essential health and safety requirements was prescribed; and, importantly, per the Medical Devices Regulations – MDR 2002, now assimilated EU law, no person is to place on the market, put into service, or supply a medical device unless it meets the essential requirements set out in Annex I to the Medical Devices – MDs Directive, which provided (section 8.4) that the device must be manufactured and sterilised by an appropriate, validated method.

The formulation of the MDR implies that manufacturers cannot essentially just self certify when it comes to the gowns of relevance to the case (I did not study the classification of the gowns for this post; it is what I surmise from the judgment). The gowns at issue are in a category where the risk profile required higher quality assurance, including “the intervention of a notify body at the production stage” – and where compliance could not be achieved without it: for sterilised products the notified (certification) body needs to certify the procedure leading to the obtaining of sterility until the sterile package is opened.

The CE mark for the shipments at issue was not so accompanied by a notified certification body and were not so certified; upon testing the gowns were shown not to be sterile.

The issues of contractual construction in the case essentially arise out of the practical and regulatory confusion surrounding the purchase of PPE equipment at the time of the pandemic, including European Commission communications suggesting possibilities for derogation from CE marking duties (no such derogation was requested in the case at issue) and the complicated factual to and fro, largely by email, between PPE Medpro (which had ended up in the VIP lane [57] via Lady Mone) and the Government.

[218] Cockerill J after lengthy discussion of all this context holds

on the true construction of the Contract there was a requirement for a validated process; and in breach of the Contract there was no validated process. The evidence which there was did not establish two key parts of the process had been undertaken: bioburden testing and dose setting.

The remainder of the judgment then deals with quantum etc.

A most relevant and instructive judgment.

Geert.

Looking forward to getting my teeth stuck into this one. EU standardisation lawCE marking, conformity assessment, declaration of conformity, manufacturer v importer duty [HMG] v PPE Medpro [2025] EWHC 2486 (Comm)www.judiciary.uk/wp-content/u…

— Geert Van Calster (@gavclaw.bsky.social) 2025-10-02T07:40:42.286Z

BNetzA / ACER
Énergie
Le Tribunal annule une décision de l’ACER en matière de gestion des marchés de l’électricité

KS et KD / Conseil e.a.
Mission Eulex Kosovo : le Tribunal rejette le recours en indemnité dirigé contre des institutions et un organe de l’Union européenne

[If you do use the blog for research, practice submission or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]

In Gable Insurance AG v Dewsall & Ors [2025] EWHC 2280 (Ch) there was succinct pondering whether a claim based on knowing receipt falls within A4 or A10 of Rome II.

Parties do not seem to have pushed the issue and the debate it seems is quickly settled as being covered by English law. In coming to this conclusion Vos DJ does cut a few corners. Firstly despite it not having been intense, there does seem to have been debate and no agreement per A14  Rome II.

Further, the judge and parties discuss the issue of qualification of the claim and whether this should be done using lex fori or (putative) lex causae ([405] in the case at issue, Liechtenstein law would seem to qualify the underlying breach of duty by a director in a similar way to a contractual claim). Under Rome II of course the answer to that question is: neither. Qualification in areas covered by harmonising instruments takes place under an autonomous, EU law concept. Post Brexit of course a relevant question is whether this general principle of EU (PrivInt) law continue to apply when UK Courts apply the ‘assimilated’ Rome I and II instruments. In the case at issue seemingly the answer is ‘not at all’, for with reference to Kuwait Oil Tanker Co SAK v Al Bader (No3) [2000] 2 All ER (Comm) 271) the conclusion is taken that a relationship which exists under foreign law should be examined to determine whether the duties which are owed would be characterised as fiduciary duties under English law, and that only if they are, a claim in knowing receipt can be brought in England.

[403] the judge holds that the application of A4 and 10 is likely to lead to the same result of English law being lex causae, and [404] that in any event, the circumstances are manifestly more closely connected with England than any other country, hence triggering the escape clause of A4(3) or (10)4. That as I have said before, is a topsy turvy way to go about a Rome II analysis. The ‘proper law of the tort’ exercise is only a narrow escape valve in Rome II (and I): not a general principle.

Geert.

Claim in knowing receipt. Most succinct ponder as to whether covered by A4 or 10 Rome II.Gable Insurance AG v Dewsall & Ors [2025] EWHC 2280 (Ch)www.bailii.org/ew/cases/EWH…

— Geert Van Calster (@gavclaw.bsky.social) 2025-09-09T06:34:10.507Z

Now I know I have a blog queue at times but this one is unforgivably late. See here the report by Kathleen Garnett and myself on essential use in key international, US (federal) and EU law.

The concept of essential and non-essential use has been gaining traction in the broader context for chemicals policy. The authors of this report have analysed the concepts of “essential” and “non-essential” use under selected parts of International law, EU law, and US federal law with particular focus given to derogations/exemptions to a general prohibition/restriction which are (i) granted based on essentiality (or equivalent concepts) or (ii) are not granted because of non-essentiality (or equivalent concepts).

In July 2021 we completed a thorough review of essential uses approaches in 9 legal sources: The Montreal Protocol; the US Clean Air Act 1977; the EU Regulation 517/2014 on fluorinated greenhouse gases; the Stockholm Convention on persistent organic pollutants; the EU POPs Regulation 2019/1021; the EU Regulation 528/2012 on biocidal products; the EU Regulation 1107/2009 on plant protection products; the EU Directive 2011/65 on hazardous substances in electrical and electronic equipment; and the EU Regulation 1333/2008 on food additives.

The study concludes that deployment of an essential use justification in this complex area of the law is rare. The most common reasons for justifying a derogation and /or exemption, are:

• the hazard can be controlled through risk management; and/or
• there are no suitable alternatives; and/or
• the cost of not allowing a derogations to proceed would be too high; or
• an emergency situation necessitates a derogation/exemption.

The Montreal Protocol appears to be an outlier in the regulation of hazardous substances with an essential use approach, and our analysis of the 1978 US forerunner to that approach is a most relevant element, we submit, in the current discussions on essential uses.

Kathleen, Geert.

 

[If you do use the blog for research, practice submission or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]

Campeau v Gottex Real Asset Fund 1 (OE) Waste SARL [2025] EWHC 2322 (Comm) is worth a flag for the discussion of CPR r. 6.33(2B) which allows a claimant not to have to seek permission to serve out of the jurisdiction in the context of choice of court under the 2005 Hague Convention. It reads 

‘(2B) The claimant may serve the claim form on a defendant outside the United Kingdom where, for each claim made against the defendant to be served and included in the claim form—

(a) the court has power to determine that claim under the 2005 Hague Convention and the defendant is a party to an exclusive choice of court agreement conferring jurisdiction on that court within the meaning of Article 3 of the 2005 Hague Convention;

(b) a contract contains a term to the effect that the court shall have jurisdiction to determine that claim; or

(c) the claim is in respect of a contract falling within sub-paragraph (b).’

OE Waste’s argument is that Mr Campeau was not a party to the SPA which contains the clause, and there is no other basis, whether pursuant to the Contracts (Rights of Third Parties) Act 1999 (‘the 1999 Act’) or as a matter of construction of the SPA on which Mr Campeau is to be treated as a party to, or permitted to rely on, the exclusive jurisdiction clause in the SPA. Moreover, there is no alternative basis in CPR 6.33(2B)(b) or (c) that would entitle Mr Campeau to serve the Claim Form out of the jurisdiction without permission.

Butcher J signals [28] that Mr Campeau ought to have submitted a request for permission to serve out as a subsidiary means, for under CPR PD 6B paragraph 3.1(6)(c), contract governed by English law, permission could have been granted on that basis. As it is, he decides on the basis of contractual construction that there is a good arguable case that the contractual scope of the choice of court clause did extend to a dispute over the extent of a third party’s rights under the relevant clause; and that the parties were agreed between themselves that such a dispute should be subject to the jurisdiction of the English courts.

The judgment is not particularly exciting however I decided to post anyway, seeing as it is a good example of contractual construction in the context of choice of court..

Geert.

 

 

Interesting judgment discussing choice of court (Hague 2005) and impact on claims by third parties; privity, contractual constructionCampeau v Gottex Real Asset Fund 1 (OE) Waste SARL [2025] EWHC 2322 (Comm)www.bailii.org/ew/cases/EWH…

— Geert Van Calster (@gavclaw.bsky.social) 2025-09-18T07:12:34.343Z

NADA Austria e.a.
Principes du droit communautaire
Avocat général Spielmann : la publication sur Internet du nom de tout sportif professionnel ayant violé les règles antidopage est contraire au droit de l’Union

Nouvelle composition des chambres du Tribunal de l’Union européenne

[If you do use the blog for research, practice submission or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]

In Blasket Renewable Investments LLC v Kingdom of Spain [2025] FCA 1028 the Federal Court of Australia has confirmed the enforceability of 4 ETC awards against Spain viz its long-suffering renewable energy support schemes. The judgment has already been leaned upon in support in proceedings before the US Supreme Court and approaches the issues with similar lucidity as Fraser J in Infrastructure Services. 

Current post is by Claudia Wortmann, for which many thanks!! Geert.

 

*****

Blasket Renewable Investments LLC v Kingdom of Spain [2025] FCA 1028

In a single-judge decision in the Federal Court of Australia delivered on 29 August, Justice Stewart held four ICSID awards issued against Spain under the Energy Charter Treaty to be recognisable and enforceable. Each of the awards in 9REN, NextEra, RREEF and Watkins, brought by 9REN and NextEra, and by the assignee to the RREEF and Watkins matters were found to be enforceable pursuant to section 35(4) of the International Arbitration Act 1974 (Cth), federal legislation in Australia which provides for the enforcement of foreign arbitral awards.

Spain objected to the proceedings on a number of grounds, being:

1. Non-waiver of immunity: Spain argued that the Federal Court lacked jurisdiction as Spain did not waive its foreign State immunity under section 9 of the Foreign States Immunities Act 1985 (Cth). Readers may recall the Spain HCA case in which the High Court of Australia discussed the ICSID award in Spain v Infrastructure Services This time round, Spain argued that that the High Court’s findings in that matter – that Articles 53-55 of the ICSID Convention amounted to a waiver of foreign state immunity – were incorrect, to allow for the High Court to consider the matter of the ICSID Convention again.
2. The awards were said to be not ‘binding’ under Art 53 ICSID Convention, either: a. due to the intra-EU nature of the disputes and the primacy of EU law which means Spain owes no public international law obligation to comply with the awards, and if it did that would be an act of prohibited State aid under EU law; or b. because the ICSID dispute settlement provisions have been replaced by the EU court system by virtue of its accession to the Treaty of Lisbon, as either a modification under customary international law (VCLT Art 41) or Art 30 of the VCLT. As the awards are not ‘binding’ under Art 53 of the ICSID Convention, the court lacks jurisdiction to enforce them.
3. Assignment: Spain argued that it had no binding obligation to pay the assignee, Blasket, under Art 53 ICSID Convention, that Blasket has no standing under Art 54 ICSID Convention to seek recognition or enforcement because it is not a ‘party’, and that in the absence of a binding obligation of Spain to pay Blasket, s 35(4) of the IAA cannot apply, as there is no obligation to enforce an award brought by an assignee.
4. The Constitutional argument: Spain claimed that even if certification of the awards by the Secretary-General of ICSID were sufficient to prove their ‘binding’ nature, or to prevent the Court from investigating whether it is binding, then section 35(4) of the International Arbitration Act is invalid because it infringes CH III of the Australian Constitution.

 

The Court found that Spain did in fact waive its rights to immunity, the Court had jurisdiction to recognise and enforce the awards pursuant to s 35(4) of the IAA, and dismissed the EC’s application to intervene.

Non-waiver of immunity

As may be recalled, the High Court of Australia in Spain HCA had already found ([150] citing Spain HCA at [29]) that Spain had implicitly waived its foreign State immunity rights. The closed nature of the ICSID system was confirmed in Spain HCA and in Micula v Romania [2020] 1 WLR 1033 at [68]-[69] by the UK domestic courts. There was no reason to find that the award was not binding, as the ICSID system was a closed system, and that apparent conflicts with EU law were not relevant for the enforcement proceedings, as the awards were [174] ‘genuine, certified and authenticated awards’.

Spain’s argument, that ‘waiver of immunity in enforcement proceedings is limited to proceedings to enforce awards that are valid and binding’, had not been raised specifically in Spain HCA, however, the Court found [180] that

On the premise that the awards are binding on Spain, the proceedings are not outside the territory of what the parties accept was decided by the High Court. It follows that Spain’s contention of non-waiver of immunity to jurisdiction must be rejected.

Primacy of EU law

Spain argued that where there is a conflict between Spain’s obligations owed to other EU Member States under the EU foundational treaties, the primacy of EU law must prevail, and therefore, under public international law Spain owed no obligation to comply with the ICSID awards, and Australia owed no obligation to recognise or enforce them. Spain relied on the CJEU’s findings in Achmea and Komstroy in arguing that EU law prevents the application of the ECT between Member States, and it also argued that the public international law obligations would constitute illegal State aid between EU Member States. The Court found [118] that:

European law has undeniable domestic effect including through lower-level instruments of European law sourced in the authority of the foundational treaties… It suffices to say that while international treaties and subordinate EU instruments could be regarded as a form of international law, for the purposes of proof it would not be a form of international law incorporated into or picked up by Australian law in the sense contemplated in the authorities.

On this point, the Court [210] accepted expert evidence supplied by Professor Eeckhout on behalf of the Applicants, in the event of a conflict between international law and EU law,

the Member States must take the appropriate steps under international law to remove the conflicting international law obligation. In the meantime the conflicting clause remains valid and operative’.

Therefore, international law is applicable until withdrawal of the relevant treaty takes effect, which includes the ECT and the ICSID Convention, and [213]

it is no answer for Spain to say that it has some or other defence available to it under EU law, for it is not Australia which is under any supervening requirement of essentially foreign domestic public law to not comply

Spain was allowed to reopen the case for the purpose of submitting the Agreement on the Interpretation and Application of the Energy Charter Treaty between the European Union, the European Atomic Energy Community and their Member States (COM(2024) 257 final) (26 June 2024) (‘EU Inter Se Agreement’); and Declaration on the Legal Consequences of the Judgment of the Court of Justice in Komstroy and Common Understanding on the Non-Applicability of Article 26 of the Energy Charter Treaty as a Basis for Intra-EU Arbitration Proceedings [2024] OJ L 2024/2121 (26 June 2024) (‘EU Inter Se Declaration’).

The Court found that neither document materially added to Spain’s case, as

a) both came into existence long after the matters in dispute arose;

b) that removal of intra-EU disputes would be subject to future amendment of the ECT in accordance with the VCLT (in line with a separate declaration from Hungary, both an EU and ECT member);

c) neither the Agreement nor Declaration sought to amend the ICSID Convention; and

d) the substance of the Agreement and Declaration were not relevant to the enforcement proceedings as they both went to the interpretation and application of the ECT which is a question for ICSID tribunals, and not the enforcing Court.

The Court acknowledged that although there was a conflict between international law and EU law, it had no bearing on Spain’s public international law obligations or that it meant the ICSID awards were not binding.

Modification argument

Spain argued that the Treaty of Lisbon modified Art 43 ICSID Convention between EU Member States, meaning that tribunals have no jurisdiction over intra-EU disputes, and the Court lacked the power to enforce them, relying on customary international law to support its claim, because the ICSID Convention preceded the VCLT so the VCLT rules on successive treaties would not apply.

Spain argued that there are three requirements for custom to modify a treaty:

a) modification is not expressly prohibited by the treaty;

b) that modification does not affect the enjoyment of, and rights and obligations under the treaty by other parties;

c) the modification does not relate to a derogation provision which is incompatible with the object and purpose of the treaty.

The Court held:

• • the argument could only stand if Art 53 could be modified, and if Art 54 cannot give rise to enforceable obligations without a valid and binding award under Art 53, which was dismissed, given that the ICSID regime is a closed one. Further, there was no sufficient express or implied to modify the ICSID Convention between EU Member States or to render Art 53 inapplicable.
  • The modification also failed for lack of notice required under Art 41(2) to inform other parties to the treaty of the intention to modify it.
  • The type of rights that Spain sought to modify are erga omnes partes, owed to all parties to the treaty and not capable of modification under Art 41(1)(b)(i) VCLT. It would be an ‘inexplicable result’ if the enforcing State had an obligation to enforce an award, but the State subject to the award did not owe an obligation to all other State parties to comply with it.
  • The ICSID system and the structure of the Convention support construction of rights as erga omnes partes, supported by authorities including the UK Supreme Court in Micula. The Court also dismissed Spain’s reliance on the US enforcement proceedings for NextEra Energy Global Holdings BV v Kingdom of Spain 112 F4th 1088 (DC Cir 2024) that under Art 53 the obligation to comply was bilateral, and capable of being modified in a way which is not incompatible with the object and purpose of the ICSID Convention.
  • Modification by way of Art 30 VCLT on subsequent treaties, that the Treaty of Lisbon displaced the ICSID Convention also failed. Even if such displacement occurred, it was limited to the EU Member States and could not apply to Australia. Further, the principles relied on by Spain per the decision in Achmea and Komstroy were actually based on the EU foundational Treaty of Rome 1957, nearly a decade before the ICSID Convention came into force in 1965, making the ICSID Convention the subsequent treaty for Spain.
  • The EU treaties imposed no obligations which the CJEU had found to be in conflict with those of States under the ICSID Convention, which itself does not require parties to refer disputes to arbitration, hence the incompatibility was not [284] ‘at the level of obligations per se between the EU treaties and the ICSID Convention’.

Assignment

The Court made quick work dismissing Spain’s objection that the assignment of rights from RREEF and Watkins to Blasket was invalid. The Applicant argued successfully that the duty arose under s 35(4) IAA as Australia’s dualist system requires domestic enshrinement of international law obligations to make them enforceable. Under domestic law, in Australia the rights of enforcement for an arbitral award are also capable of being assigned. So in either case, Spain’s argued failed. Justice Stewart was not convinced by Spain’s argument that allowing enforcement by an assignee would allow for double recovery.

EU status of Jersey and Constitutional argument

This argument relating to only the RREEF enforcement proceedings, as an alternative argument by the Applicant in respect of the EU nationality of the investors. Blasket argued that, in the event that Spain’s intra-EU objections were upheld, that the investor in RREEF, being domiciled in the Bailiwick of Jersey, a British Crown Dependency and one of the Channel Islands, should not be prevented from enforcing that award. Justice Stewart agreed, finding the investor in RREEF was not a national of an EU Member State.

Constitutional argument

The Court held that although Art 54 ICSID Convention as implemented by s 35(4) IAA, requires the Court to recognise and enforce any ICSID award as binding within Australia as judgment of that court, this does not ‘impermissibly vest constitutional powers in either the ICSID tribunal or the Secretary-General, nor does it substantially impair the institutional integrity of the Court as a constitutional court by requiring it to find a waiver of foreign state immunity or by recognising or enforcing an award.  

EC application to intervene

The European Commission sought leave to intervene in the proceedings, supported by Spain, which was denied by the Court. The EC application sought to make two submissions: a) Spain’s submissions are an accurate description of EU law, and EU law prevents any payment under the awards as illegal State aid; and b) any payment made by Spain under the ECT awards would being subject to significant ongoing fines until such payment were recovered. The Court accepted that Spain’s submission on EU law may indeed be accurate, but as the ‘crux’ of the proceedings were on (at [361]) ’ the effect of EU law on public international law binding Australia’, such accuracy had no impact on the Court’s findings. On the second point Stewart J stated at [362]:

while the questions raised are no doubt interesting, as explained above, they are irrelevant on an application for recognition and enforcement of an arbitral award in circumstances where I have concluded, notwithstanding the identified consequences extant in and arising from EU public law, the Court is bound to give effect to the award in accordance with public international law and Australian domestic law.

 

In sum, Stewart J dismissed Spain’s arguments from the outset, finding that most of them were similar enough to those put forward in Spain HCA to warrant the application of precedence. Even so, His Honour considered and dismissed each of Spain’s alternative arguments in succession, reaffirming that ICSID awards can and will be enforced in Australia, and that the influence of EU law principles remains minimal in this context.

Claudia.

 

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