Flux Belges et Lux

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I have of course reported on the lengthy jurisdictional battles (in which for the sake of clarity, I was instructed) surrounding the litigation, in England, following the collapse of the Fundão Dam in Southeast Brazil on 5 November 2015, chiefly here.

In Municipio de Mariana et al v BHP Group UK Limited and BHP Group Limited [2025] EWHC 3001 (TCC), Justice O’Farrell held last Friday in what by any measure is a groundbreaking business and human rights case, testifying in the process to the ability of the courts in England to deal with claims of this absolute magnitude (one will remember that the alleged impossibility for the English courts to try cases of this enormity was one of the arguments for Turner J, later overturned, to reject jurisdiction for the English courts).

[76] During case management hearings, it was agreed that the Court should determine key liability issues and significant defence issues at a first stage trial before considering the entitlement and quantum of any individual or group claims. Current judgment is the judgment on those key issues.

There has been a lot of primary analysis of the judgment over the weekend, and Jonathan McDonagh has complete yet concise overview of findings here.

This post, true to its host’s form, focuses on one important conflict of laws issue in the judgment.

The Rome II Regulation includes an “evidence and procedure carve-out”. On the other hand Article 15 Rome II includes within the scope of the applicable law identified by the Regulation (the ‘lex causae’), a number of subject-matter which national laws frequently consider to be part of that very procedural law.

Article 15’s specification of what is covered by the lex causae identified by Rome II includes “rules of prescription and limitation”.

The tension between the procedural carve-out and Article 15’s reference to ‘rules of prescription and limitation” makes an appearance in current claim by way of the precise way in which proceedings have been commenced.

The Claimants’ case [816] is that the Brazilian rules of prescription, which include Article 202 (I) of the Civil Code, provide that service of the claim form is the key procedural step required to stop time running. However, what amounts to proper service will be a question of procedural law.

[817] BHP’s case is that A15 Rome II sets out a non-exhaustive number of matters which must be determined in accordance with the law applicable to non-contractual obligations, which cannot constitute matters of procedure for the purpose of Article 1(3). [820] They argue Brazilian, not English, law applies to the question of whether the claim form contained sufficient information for the purposes of limitation.

In particular, defendants argue that the claim forms as issued by claimants, were not effective for proceedings to have ‘commenced’ as a matter of Brazilian law. In their view, the relevant section of the Brazilian Code of Civil Procedure (‘BCCP’), Article 319 BCCP, applies with respect to specification of the “factual and legal grounds of the claim” (Article 319(iii)), “the specified demand for relief” (Article 319(iv)), and “the value of the claim” (Article 319(v)). Defendants argue that this is required to enable the Defendants to provide a full answer and defence.

It is my view that Civil Procedure Rules – CPR on the required content of claim forms to effect service, must follow lex fori (or more precisely: must follow residual conflict of laws rules for procedural issues, which tends to lead to lex fori), even if the enquiry into the consequences of the claim form subsequently is relevant for limitation purposes.

The judge [821] holds

In my judgment, a distinction must be drawn between the substantive rules of prescription, which it is agreed are subject to Brazilian law by reason of Article 15(h), and the procedural rules for effecting valid issue and service of a claim in this jurisdiction, which should be characterised as procedural and therefore fall to be governed by English law, the Civil Procedure Rules 1998 (“the CPR”). There may be cases in which it is unclear whether a specified requirement falls into the category of substantive law or procedural/evidential law. This is not such a case.

and [825]

Even if the Brazilian rules on commencement of proceedings applied, there is no real dispute between the Brazilian law experts that, it is likely that the claim forms would be effective to stop time running.

In conclusion [830]

For the above reasons, regardless of whether English law or Brazilian law applies to the requirements for issue and service of the claim forms, they would be considered to be valid to stop time running for prescription on the date of issue.

It is a neat conflicts nugget in a judgment otherwise largely discussing liability under Brazilian law as the lex causae. BHP On Friday immediately announced in a statement to investors (by whom they are nota bene also being sued) that they intend to appeal.

Geert.

EU Private International Law, 4th ed, 2024, ia 4.82 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.]

I am grateful to Dr Elias Van Gool, postdoc in our department, for his analysis of ASLB we.are.nature.Brussels et al v Région de Bruxelles-Capitale.

Of note is that both Elias and I struggle to find the right terminology for the Dutch ‘verharding’: ie any method by which soil is made impenetrable, typically by concreting it over in the course of construction works. Elias has used the term ‘soil sealing’, any suggestions for improvement will be happily received.

WeAreNature.Brussels: Climate litigation leading to a construction and soil sealing moratorium protecting Brussels’ remaining greenfields

This guest post was authored by Dr Elias Van Gool, FWO Post-Doctoral Researcher in environmental law at KU Leuven.

In the global surge of strategic litigation relating to climate change, few decisions at the national level can today still be considered truly novel. The 29 October judgement by the French-speaking Brussels Court of First Instance, however, is remarkable and worth signaling to readers of this blog.

Claimants – NGOs WeAreNature.Brussels, Bruxelles Nature and 1,330 local residents – sued the Brussels Capital Region (hereafter ‘the Region’), alleging that it was liable for breaching its general duty of care, interpreted in light of established climate science and the Region’s climate change mitigation and adaptation responsibilities. In essence, the claimants argued that continued net increases in soil sealing, which threaten Brussels’ remaining greenfields and other  open spaces, prevent the Region from achieving its own, European and international legal obligations relating to climate change. Given the Region’s knowledge of this issue, its continued failure to adjust its spatial planning to reverse this trend, and the resulting harm Brussels residents will suffer, the claimants argue that the government’s conduct is tortious.

After establishing that all claimants have the necessary standing, the court agrees with them on the merits and rules that the Region’s conduct – in particular its spatial planning policy – indeed violates its duty of care in relation to climate mitigation and adaptation. In its reasoning, the court first refers to the 2023 Klimaatzaak appeal judgement, which had already held that the Brussels Region’s inadequate mitigation efforts breach the general duty of care as well as Articles 2 and 8 ECHR. The court then finds that the Region’s lack of a sufficient accounting of greenhouse gas emissions and removals from land-based carbon sinks on its territory, violates European law, in particular the carbon accounting and inventory requirements under LULUCF Regulation 2018/841/EU and Governance Regulation 2018/1999/EU. Finally, the court observes that the Region’s remaining open land and unsealed surfaces continue to disappear and that this is made possible by the Region’s current spatial planning, which the court indeed considers as obsolete for successful climate mitigation and adaptation.

The decision is notable for how it recognizes that both climate mitigation and adaptation depend on adequate spatial planning to preserve and strengthen nature-based solutions. The Region’s diminishing green areas do serve as carbon sinks, which to a limited extent help to abate global climate change. For residents, land use is of course even more directly important for adaptation purposes, where the causal link between the government’s conduct and resulting harm is undeniably much stronger. While the decision focuses on flood risks, local residents are also vulnerable to heat stress and to a lesser extent droughts. These are all risks green infrastructure and unsealed surface areas help to mitigate, especially in an urban environment.

The most remarkable aspect of this decision is of course the injunction: a judicial moratorium on further construction and soil-sealing activities. Comparative overviews suggest that this is truly a novelty in global climate litigation.

Nevertheless, it is worth emphasizing that this injunction is limited in several respects. First, it only applies to non-built-up areas of more than 0.5 hectares. Second, the moratorium is temporary, expiring either on 31 December 2026 or earlier if the region adopts a new Regional Spatial Plan (PRAS). Third, the court does not itself impose the moratorium but rather ‘orders the Region to take the necessary measures’ to implement it. As my colleagues De Clercq and Dethier point out, this indirect formulation can be explained by reference to both the separation of powers and the legal protection of property rights. Finally, the claimants have neither sought nor obtained a penalty payment, which could otherwise have been used to compel the Region to implement the moratorium.

To provide additional context, the Brussels Region currently lacks a government with no solution in sight, which is a situation that can impact the injunction’s implementation. Furthermore, the Region is facing a serious housing crisis and a dismal budget deficit. The latter is crucial, since a definitive change in spatial planning prohibiting construction or soil sealing in areas where this was previously allowed, will entitle affected landowners to compensation for planning damage. Conversely, the court’s injunction will not be suspended if the Region were to appeal (which in Belgium it can do as of right). It is therefore my expectation that the actual implementation of the injunction will, at best, remain limited to the rejection of individual permit requests for soil sealing and construction activities on the affected land areas. The claimants may, of course, return to court to seek penalty payments, should the Region fail to comply with the injunction. They may furthermore seek an extension of the moratorium beyond the end of 2026.

Notwithstanding these local contextual caveats, the court’s injunction stands and, from a comparative climate litigation perspective, can be regarded as breaking new ground [pun intended]. In this respect, the decision may ultimately prove to be at least as influential internationally as it is on the ground in Brussels itself.

Elias.

[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.]

Operafund Eco-Invest Sicav Plc & Anor v Spain [2025] EWHC 2874 (Comm)  is a truly exciting judgment for many reasons, most of all Pelling J’s entirely opposite view on the assignability of ICSID, ECT awards as compared to Stewart J in the Federal Court of Australia.

The latter, in Blasket Renewable Investments LLC v Kingdom of Spain [2025] FCA 1028, reviewed here by Claudia Wortmann, held [287] ff that neither under public international law (the ICSID Convention and the Energy Charter Treaty): [304] ff nor under domestic Australian law, there is a bar to the principle of assignment of ICSID and indeed ECT awards.

In current English case the claim is one for substitution as claimants, of Opera Fund Eco Invest Sicav Plc and Schwab Holding AG, by Blasket Renewable Investments LLC. The claim failed.

The judge first of all held that Spain is not estopped from making assignment objection in the English proceedings. Before a foreign judgment can give rise to an estoppel, the judgment must be capable of being registered in E&W and that is not currently the position in relation to the FCA proceedings: the order is not yet final under Australian law and Spain has not submitted to the Australian proceedings. The judgment in the FCA proceedings is not final or binding therefore which in and of itself rules out issue estoppel. An additional argument by Spain that there can be no issue estoppel on a point of law was correctly dismissed with reference [29] ia to SKAT v MCML 2025] EWCA Civ 371.

Next however the judge here diverges entirely from the approach in Australia on assignment. Stewart J at the FCA held that there is no basis in public international law to read into the ICSID Convention a prohibition on assignment, and neither is there in in Australian law. [His findings on public international law essentially mean that the notoriously dualist approach of the Australian courts is in fact of little relevance to the judgment].

I am inclined to agree, including with the arguments in his judgment concerning the object and purpose of the Convention. Stewart J [309] ff and Pelling J [42] ff come ia to a different conclusion on the meaning of ‘party’ in A 54(2) ICSID.

I understand Hanno Wehland’s argument, cited in the English judgment, that investment law is a particularly sensitive area closely linked to issues of sovereignty. I also appreciate that this makes assignment of the right to bring a claim as an investor (transfer of standing as it were) particularly problematic.

Yet that is in my view radically different at the enforcement stage where the award effectively has become a money judgment.

Permission to appeal in the English case would seem guaranteed, and in the Australian case it is one as of right (which Spain is yet to effect but has said it will). Upon appeal both judgments might be reversed, either still leading to an opposite approach in both courts or to alignment in either direction.

A judgment of most high relevance.

Geert.

High Court: ICSID, ECT awards are unassignable Exciting issues viz issue estoppel following foreign judgment (Spain not having submitted in the AUS proceedings) & treaty interpetation, customary international lawOperafund v Spain [2025] EWHC 2874 (Comm)www.bailii.org/ew/cases/EWH…

— Geert Van Calster (@gavclaw.bsky.social) 2025-11-11T22:19:41.389Z

When I reported Airgas USA v Universal Africa Lines ECLI:NL:HR:2025:1665 on BlueSky last Saturday,  it led to a rather wonderful reply which I am now definitely including in my conflict of laws slides.

A quick note on the judgment (Ekaterina Pannebakker meanwhile also looks at the background here) which for its Rome I discussion is fairly uncontroversial imo.

The relevant clause in the bill of lading (transport of dangerous goods by sea) reads [2.1 of the judgment]

The law of The Netherlands, in which the Hague-Visby Rules are incorporated, shall apply. Nevertheless if the law of any other country would be compulsorily applicable, the Hague-Visby Rules as laid down in the Treaty of Brussels of 25th August 1924 and amended in the Protocol of Brussels of 23rd February 1968 shall apply, save where the Hamburg Rules of the UN Convention of the Carriage of Goods by Sea of 1978 would apply compulsorily, in which case the Hamburg Rules shall apply. If any stipulation, exception and condition of these conditions would be found inconsistent with The Hague-Visby Rules or Hamburg Rules, or any compulsory law, only such stipulation, exception and condition or part thereof, as the case may be, shall be invalid. In case of carriage by sea from or to a port of the USA, this Bill of Lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States, approved 16th April 1936, which shall be deemed to be incorporated herein, and nothing herein contained shall be deemed a surrender by the carrier of any of its rights or immunities or an increase of any of its responsibilities or liabilities under said Act. The provisions stated in said Act shall, except as may be otherwise specifically provided herein, govern before the goods are loaded on and after they are discharged from the ship and throughout the entire time the goods are in custody of the carrier. The carrier shall not be liable in any capacity whatsoever for any delay, non-delivery or mis-delivery, or loss of or damage to the goods occurring while the goods are not in the actual custody of the carrier.

Choice of court in the bill of lading is for the Netherlands. For choice of law, the Bill employs dépeçage: Dutch law was picked as the lex voluntatis (the law freely chosen by the parties), with one carve-out: for goods carried by sea from or to a port in the United States, the 1936 Carriage of Goods by Sea Act of the United States (COGSA) was chosen to apply. With COGSA the US implemented the 1924 Hague Rules. I understand that COGSA is considered lois de police in the US, for any goods carried by sea from or to a US port.

The appealing party argued [3.1.1] that because COGSA is only part of the law of a State and not all of it, the dépeçage or carve-out is invalid.

The Supreme Court suffices with holding [3.1.3] very sec that under Rome I parties may select parts only of a given State law to apply dépeçage-style. In my view that is clearly correct (and with Rob Rooman I expand on choice of law per Article 3 Rome I in a forthcoming chapter for Pietro Franzina’s Edward Elgar’s commentary on Rome I).

The dépeçage at issue is not redundant, despite parties’ clearly being aware that COGSA is lois de police (overriding mandatory law) in the US. With the clause the application of COGSA is extended even when, such as here, not a US but a Dutch court hears the case. 

The remainder of the (succinct) judgment deals with  issues of ius (alienum) novit curia under Dutch CPR.

Dépeçage does not often reach the courts and for that reason it is worthwhile reporting on it. 

Geert.

EU Private International Law, 4th ed. 2024, 3.37

In Case C‑398/24 [Pome], the CJEU yesterday held without AG Opinion.

Under Estonian law, choice of court is only valid in respect of disputes connected with the economic or professional activity of both parties to the agreement in question (in the case at issue, an agreement between two natural persons concerning the transfer of half the share of the equity in a flat, and the coinciding monies owed by the acquiring party to the other; neither of them seemingly professionally engaged in real estate.

The question referred is essentially whether Brussels Ia tolerates

a condition, imposed by the national law of the Member State whose court has been designated by the parties to an agreement as having jurisdiction, according to which an agreement conferring jurisdiction entered into by natural persons is valid only if the dispute at issue is connected with the economic or professional activity of those parties, amounts to a ground for the agreement being ‘null and void as to its substantive validity’, within the meaning of [Article 25 Brussels Ia]

[27] the CJEU with reference to Lastre points out the limited reach of Article 25’s lex fori prorogati rule:

the first sentence of Article 25(1) of Regulation No 1215/2012 merely lays down a conflict-of-law rule by specifying which national law is applicable as regards the question whether, notwithstanding the fact that all the conditions of validity laid down in that article are satisfied, such an agreement may be null and void on other substantive grounds under that national law

[32] The lex fori prorogati rule only “covers the general grounds for an agreement being null and void that may have an impact on a contractual relationship, namely – in particular – those which vitiate consent, such as error, deceit, violence or fraud, and incapacity to contract”. By contrast [35] the Estonian rule at stake “does not constitute one of the general grounds for [contractual] invalidity”, rather [37] undermines the respect for “the autonomy of the parties..the effectiveness of exclusive choice-of-court agreements” which are clearly essential to Brussels Ia. Ad nauseam, [39]

to impose a condition under national law, which renders an agreement conferring jurisdiction invalid if the dispute is not connected with the economic or professional activity of the parties to the agreement, would be contrary to those parties’ freedom of choice’ (reference here to Refcomp).

[42] over and above the principle of party autonomy, the Estonian rule also infringes the core objective of legal certainty:

the legal certainty ensured by Regulation No 1215/2012 would be compromised if it were possible, for a national legislature, to lay down additional conditions of validity pertaining to agreements conferring jurisdiction themselves and insisting in particular on the existence of a connection with the type of activity of the parties to the dispute.

The CJEU’s emphatic support for party autonomy also means it did not entertain the referring court’s suggestions on recital 20’s renvoi rule (with Estonian residual private international law, like many Member States, declaring Rome I to be applicable despite its exclusion of choice of court agreements, hence making the lex (voluntatis) contractus applicable to the question of substantive validity of choice of court).

The judgment is yet again solid evidence of the status of party autonomy as a foundational principle under Brussels Ia.

Geert.

EU private international law, 4th ed. 2024, 2.343 ff.

The CJEU held last Thursday in C-682/23 E.B. sp. z o.o. v K.P. sp. z o.o. (my usual grumble on anonymisation: there is exactly zero reason to anonymise names in a bog standard B2B litigation fought in open court).

E.B. (the principal) and E. PL. (the service provider) are two companies incorporated under Polish law. They contracted on 24 March and 24 July 2017 two contracts for construction work in Poland. With effect from 4 March 2017, E. PL. subcontracted with E. S.A., a company incorporated under Romanian law. On 10 July 2017, E. S.A., in turn, concluded a subcontract with K.P., yet another company incorporated under Polish law. This contract contains a jurisdiction clause under which ‘any dispute shall be resolved by the court within whose jurisdiction the contracting party has its registered office’. The clause does not specify the exact scope of the term ‘contracting party’. This is the clause at the centre of the case.

The four contracts referred to above all have Polish law as lex contractus by way of lex voluntatis.

K.P. then allegedly misperformed under the subcontract leading to E.S.A having a €3 million plus claim against K.P. This claim was assigned by agreement of 16 December 2021, concluded between E. S.A. and E.B. and with the participation of E. PL. E.B. took that claim in what it said is both contractual liability and liability in tort, to the Romanian court which it said had jurisdiction in its capacity as the court within whose jurisdiction E. S.A. had its registered office.

K.P. argued lack of jurisdiction for the Romanian court, suggesting a tortious claim did not engage the choice of court and per A7(2) Ia should be heard in Poland as locus delicti commissi. As for contractual liability, K.P. argued that E.B. could not, as a third party to the subcontract in question, rely on the jurisdiction clause at issue.

To question before the CJEU is whether the assignee of a claim arising from a contract, has the right to enforce the jurisdiction clause in that contract against the original party to the contract, if the assignment contract has, in accordance with the national law applicable to the substance of the dispute, transferred the claim and its ancillary rights, but NOT the obligations arising from the contract.

The CJEU up to [40], referring to previous case law (including Maersk, of course), firstly postulates a ius commune rule (supported by the principles of predictability, certainty and good administration of justice of Brussels Ia) that in any case there is enforceability under Article 25 if rights AND obligations have been assigned.

It then [41] ff concludes that it is however also compatible with A25 BIa if a national regulation such as, in this case, Polish private law, as applied by Polish case law, includes enforceability by the assignee of the jurisdiction agreement against the original contracting party, even if the assignment transfers rights only and not obligations, and even if the other, originally contracting party did not consent to the assignment in general or to the assignment of the choice of forum in particular. Except if the original contracting parties expressly agreed that such assignment could not result in the enforceability of the choice of court clause.

The judgment reemphasises the incomplete assignment picture under EU private international law which I also flagged for a planned talk at the Asser institute last week.

Geert.

EU private international law, 4th ed. 2024, 2.373 ff.

A succinct note on Transworld Payment Solutions UK Ltd & Anor v First Curacao International Bank NV & Anor [2025] EWHC 2480 (Ch) in which Leech J held on both limitation issues under Rome II v the former English rules and the statutory intervention by the  FLPA (Foreign Limitation Periods Act) 1985.

As for the latter, the FLPA [103, with reference to Dicey] adopted the general principle that the limitation period of the lex causae are to be applied to actions in England, as opposed to the previous more complex distinction [101] between  procedural and substantive limitation rules and the distinction between rights and remedies. However the judgment is not very clear on what the discussion implies in casu and I have not managed to extract the relevance here despite multiple readings of the judgment.

On applicable law to the claim, here the issue [749 ff] is whether A12 applies at all (readily accepted [751] following defendant’s correct submission [750]) and if so, whether A12(1) did not lead to a putative lex contractus, hence effectively resurrecting A4’s lex locus damni as a result of A12(2). The judge summarily holds for the putative lex contractus, Curacao law, also dismissing the attempt at fog (did party so and so actually become a party to contract such and such) seeing as A12(1) clearly holds that the actual conclusion of a contract is not relevant.

Geert.

Ia issues of limitation periods viz Rome II and application of A12 Rome II: culpa in contrahendoTransworld Payment Solutions UK Ltd & Anor v First Curacao International Bank NV & Anor [2025] EWHC 2480 (Ch)www.bailii.org/ew/cases/EWH…

— Geert Van Calster (@gavclaw.bsky.social) 2025-10-02T07:20:26.163Z

[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.]

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.

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

[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

[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.

Advocate General Norkus opined early July in Case C-485/24 Locatrans Sarl v ES. At issue is the application of the protective regime for lex contractus viz employees under the Rome Convention (applicable ratione temporis in the case at issue).

The facts of the case echo, but with distinctions, CJEU Weber, Koelzsch, and  Voogsgeerd, as well as Nogueira (Ryanair). The novelty of the question in current case is the period of work to be taken into account in determining which law is applicable if the employee has worked for his or her employer in two separate stages: first, in several States and next, during the period preceding the end of the employment relationship, on a permanent basis in a single State, which parties clearly intend to be the new place of habitual performance.

The opposing views are summarised (23):

Referring to the judgment in Weber, Locatrans and the Czech Government submit, inter alia, that where the employee carries out the same activities for his or her employer in more than one State, account must be taken of the whole duration of the employment relationship in order to identify the place where the person concerned habitually worked and, consequently, the law applicable in the absence of a choice made by the parties. For its part, the French Government considers that, that being the case, the most recent period of work could be taken into account in order to determine, in the light of all of the relevant circumstances, the existence of closer connections with another country. By contrast, ES maintains, as a preliminary point, that, despite the wording of the question referred for a preliminary ruling, he did not change his place of work during his employment relationship. He submits, therefore, that his situation is clearly distinguishable from that which gave rise to the judgment in Weber, where the worker had performed his duties successively in two different places of work. In any event, even if the judgment in Weber were to be held to be relevant to the present case, ES argues that reference must be made to the most recent period of work. For its part, the Commission maintains that, in a case such as that at issue in the main proceedings, in which the dispute concerns the termination of the contract and where the relevant facts for the purposes of coming to a judgment arise at the end of the contract, account must be taken of the most recent period of work.

(36) the core rule per Koelzsch is

‘the country in which the employee habitually carries out his [or her] work in performance of the contract’ is that in which or from which, in the light of all of the factors which characterise that activity, the employee performs the greater part of his or her obligations towards his or her employer’

In footnote the AG adds that what must be at the heart of the national court’s assessment is the activity of the worker and not that of the employer (for which he refers to the Handbook, much obliged and humbly noted).

Having summarised the relevant case-law, (51) the Opinion takes a decisive turn when the AG refers to the need to interpret the regime with stability in mind:

[I] would point out that, in so far as the employment relationship is a permanent one, the elements characterising that relationship, such as the performance of work, the place of performance of the work or the remuneration, may change. In particular, in a cross-border employment situation, the country where the employee ‘habitually carries out his [or her] work’ may also change depending on changes in objective circumstances. In other words, the law applicable in the absence of a choice made by the parties may change due to the very nature of the employment relationship, which continues over time. However, since one of the objectives of the Rome Convention is to fortify confidence in the stability of the relationship between the parties to the contract, a change in the applicable law resulting from changes in factual circumstances must also be the result of a clear intention on the part of the parties. That change must not affect legal relationships which arose prior to that change, so that, rationae temporis, the dispute remains governed by the law applicable at the time those circumstances arose (tempus regit actum). (footnotes omitted)

Tempus regit actum is a principle with direct appeal and application for procedural law, for issues of intertemporary law (scope of application ratione temporis, particularly of statute) and for formal validity in private international law. Its application for substantive provisions in private international law is less obvious (there are traces of it of course in Rome I’s Article 3(2) on voluntary change of applicable law, Article 11’s formal validity, and Article 13 incapacity).

For employment contracts, in my opinion the very first agreed “place from where the employee habitually carries out his work” must be seen as an implicit mutual choice of law, and any mutually agreed (or at least  transparent and uncontested) change in said place, as an implicit change in that choice of law. Article 3(2) must then be applied mutatis mutandis

The parties may at any time agree to subject the contract to a law other than that which previously governed it, whether as a result of an earlier choice made under this Article or of other provisions of this Regulation. Any change in the law to be applied that is made after the conclusion of the contract shall not prejudice its formal validity under Article 11 or adversely affect the rights of third parties.

(52) the AG follows a similar approach focused on deciding what it is the parties are actually litigating about, to then fix the lex causae applicable to the claim, to the relevant, mutually agreed, place of habitual employment in force at the time:

In the light of the foregoing, the essential question is what is, in the present case, the relevant criterion for determining, in concreto, the point in time at which the subject matter of the dispute arose in order to identify the place where the employee habitually carried out his work and, consequently, the law applicable in the absence of a choice made by the parties.

(54) the AG like the Commission identifies the nature of the claim as one in which the employee’s dispute concerns the termination of the contract. The facts relevant to the determination of that dispute in casu it seems arise at the end of that contract, hence the most recent period of employment (with fixed place of employment in France) should be taken into account to determine the lex causae. (57) Gleichlauf is mentioned as one of the reasons for suggesting so.

If followed by the CJEU, a sophisticated litigant could of course abuse this approach to formulate their claim in such a way as to lead to an attractive applicable law. However as a general rule the approach seems a solid one to me.

Geert.

EU Private International Law, 4th ed 2024, 3.39 ff.

Opinion Norkus AG this morningFavor laboris in Rome Convention, applicable lawPlace of habitual place of employment must focus on most recent period if place has become fixed, by mutual agreementC‑485/24 Locatrans curia.europa.eu/juris/docume… (citjng ia your truly – sincerely humbled)

— Geert Van Calster (@gavclaw.bsky.social) 2025-07-03T11:57:31.029Z

[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.]

DHV v Motor Insurers’ Bureau (Rev1) [2025] EWHC 2002 (KB) is an interesting case to discuss statutory construction of EU law, specifically (and this is mostly how it ended up on the blog) with respect to Rome II’s ‘evidence and procedure’ carve-out and the impact of its recital 33 on same.

Those interested in the use of experts in proceedings generally, may want to read the first 80 or so paras of the judgment as well, for the account by Dias J of the various experts and their credibility is most informative, as is [45]

Two accident reconstruction experts gave live evidence: …..The factual conclusions the court reaches must be based on the totality of evidence, combining expert and all other relevant evidence. The court is not bound by the conclusions of any expert if it offends logic and common sense. We do not have trial by experts. This principle applies with equal force to the other pairs of experts, on Spanish law, actuarial evidence and medico-legal matters. I will not repeat that important warning and qualification. (emphasis added)

Now, to the conflict of laws issues at hand:

The judgment on this issue kicks off with general observations on determining applicable law, and the precise implications of ‘foreign law as fact’ with [82] reference ia to Lambert v MIB as well [83 ff] as how exactly that foreign law needs to be applied: entirely as it has been done by the relevant foreign courts (possibly all the way up to their supreme court), or, if their is evidence (provided by the experts) that these foreign courts have not actually properly applied their own laws, by the English court’s ‘proper’ reading of those laws.

[85] ff then discuss Rome II’s ‘evidence and procedure’ carve-out, which I review in the handbook with reference to all authorities reviewed in current case. Pro memoria, relevant statutory provisions are

Article 1(3)

This Regulation shall not apply to evidence and procedure,
without prejudice to Articles 21 and 22.

Note ! this is a proper and entire carve-out altogether from the scope of the Regulation, different from Article 1(2) which excludes certain issues which as a result of Article 1(1) are within its scope, but are then excepted.

(Articles 21 and 22 are of no relevance to the case at issue; see on those Articles eg Quilombola, X v Y (parental responsibility) or X v Y ( monies viz real estate transaction).

Article 15 ‘Scope of the law applicable’

Article 15
Scope of the law applicable
The law applicable to non-contractual obligations under this Regulation shall govern in particular:
(a) the basis and extent of liability, including the determination of persons who may be held liable for acts performed by them;
(b) the grounds for exemption from liability, any limitation of liability and any division of liability c) the existence, the nature and the assessment of damage or the remedy claimed;
(d) within the limits of powers conferred on the court by its procedural law, the measures which a court may take to prevent or terminate injury or damage or to ensure the provision of compensation;
(e) the question whether a right to claim damages or a remedy may be transferred, including by inheritance;
(f) persons entitled to compensation for damage sustained personally;
(g) liability for the acts of another person;
(h) the manner in which an obligation may be extinguished and rules of prescription and limitation, including rules relating to the commencement, interruption and suspension of a period of prescription or limitation.

According to the current national rules on compensation awarded to victims of road traffic accidents, when quantifying damages for personal injury in cases in which the accident takes place in a State other than that of the habitual residence of the victim, the court seised should take into account all the relevant actual circumstances of the specific victim, including in particular the actual losses and costs of after-care and medical attention.

Wall v Mutuelle of course is the core reference employed although as I have said before, it is wrong to suggest such as the judge does here [87] that “While [the evidence and procedure carve-out] is a derogation from article 15, it must be narrowly construed”.

A first bone of contention is whether Rome II applies at all to the case. It’s probably me who does not quite see how that argument is made. The question in the end is not all that relevant given the answer to the second issue: whether recital 33 has a substantive impact on the case. The judge held it does not.

I have not recently looked at Recital 33, nor done a detailed study of its travaux. That word in fact gives the recital too much credit: a recital can be part of the travaux of a statutory provision. It does not have its own travaux, given that recitals plainly are not EU statutory law. In the case of current recital, it was a plaster to sooth the European Parliament’s failure to introduce what would have been in effect a harmonisation of substantive law on full compensation (the restitutio in integrum principle; the judge here refers ia to prof Dickinson’s discussion of the recital).

Dias J also discusses Halsbury on EU statutory law as a general background to the application of EU law. He is wrong in my opinion to [114] suggest that “the current national rules on compensation” as used in recital 33, are a reference to the applicable lex causae (which he incompletely refers to as the ‘lex loci’: ‘damni’ should be added to that). ‘The current national rules’ refers to ius commune as eg the French version shows: ‘En vertu des règles nationales existantes en matière d’indemnisation des victimes d’accidents de la circulation routière.’

Conclusion [127]: recital 33 is not a legal rule. At the most it may be of relevance in an A4(3) ‘more closely connected’ scenario – which is not the case here.

A case of interest for Rome II. Another example, too, of where continental courts in all likelihood would not have allowed the arguments to run quite to the intensity they were argued here (contributing of course to the costs of proceedings in English courts).

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.]

In  SC Commercial Bank Privatbank v Kolomoisky & Ors [2025] EWHC 1987 (Ch), Trower J covers a lot of ground (2025 paras of ground).

At the time of the events with which these proceedings are concerned, claimant Privatbank (‘the Bank’) was Ukraine’s largest bank.  It was declared insolvent by the National Bank of Ukraine on 18 December 2016 and was nationalised over the course of the following days.  These proceedings have been brought by the Bank against two of its founding shareholders, first defendant Igor Kolomoisky and second defendant Gennadiy Bogolyubov (the ‘individual defendants’) and six companies (‘the corporate defendants) said to be owned or controlled by them seeking compensation for harm caused by what the Bank alleges to have been their participation in a fraudulent scheme carried out prior to nationalisation. The Bank also claims in unjust enrichment against a number of defendants.

Of relevance to the blog is the discussion of Article 10 (assimilated) Rome II on unjust enrichment, viz a number of restitution claims, and application of Article 26 Rome II on limitation periods and public policy.

Firstly, on Article 10 Rome II: the law applicable to the claim in unjust enrichment.

The Bank contends that its claims against the Corporate Defendants in unjust enrichment are governed by Ukrainian law per A10(2) and (4) Rome II. The Corporate Defendants contend that any claims against them in unjust enrichment are governed by Cypriot law and they rely on A10(2) Rome II.

For ease of digesting this post: Article 10 Rome II reads

1. If a non-contractual obligation arising out of unjust enrichment, including payment of amounts wrongly received, concerns a relationship existing between the parties, such as one arising out of a contract or a tort/delict, that is closely connected with that unjust enrichment, it shall be governed by the law that governs that relationship.

2. Where the law applicable cannot be determined on the basis of paragraph 1 and the parties have their habitual residence in the same country when the event giving rise to unjust enrichment occurs, the law of that country shall apply.

3. Where the law applicable cannot be determined on the basis of paragraphs 1 or 2, it shall be the law of the country in which the unjust enrichment took place.

4. Where it is clear from all the circumstances of the case that the non-contractual obligation arising out of unjust enrichment is manifestly more closely connected with a country other than that indicated in paragraphs 1, 2 and 3, the law of that other country shall apply.

[1581] The language of A10 requires the court first to consider whether the non-contractual obligation concerns a relationship existing between the Bank and the Corporate Defendants, which is closely connected with the unjust  enrichment.  If it does, the law that governs that relationship must be applied unless A10(4) is engaged.  The Bank submitted that its restitutionary claim against the Corporate Defendants engaged A10(1) because it concerned the relationship arising out of its tortious claim under Ukrainian law against the Corporate Defendants.

[1583] Trower J follows Tear J in Banque Cantonale de Geneve v. Polevent:  it is insufficient that, after the tort had been committed, there was a relationship between victim and tortfeasor “with legal consequences”, to engage A10(1).

Pro memoria: Article 10(1) reads

“If a non-contractual obligation arising out of unjust enrichment, including payment of amounts wrongly received, concerns a relationship existing between the parties, such as one arising out of a contract or a tort/delict, that is closely connected with that unjust enrichment, it shall be governed by the law that governs that relationship”

A relationship “existing” between the parties, it is held, must be one that existed prior to the events giving rise to the claim.

A10(2) was not argued by the parties, nor in fact was A4. This leaves the question, first, of the identification of the country in which enrichment took place, and second, whether by application of A10(4), the laws of that country might be displaced by the laws of another country that is manifestly more closely connected to the non-contractual obligation.

On the first issue [1585]: the locus of the enrichment:

… the country in which the unjust enrichment took place for the purpose of determining the effect of Article 10(3).  There is no real dispute about this. The relevant country is Cyprus, because the Bank’s allegation is that the Corporate Defendants were enriched by acquiring property in the form of prepayments under the RSAs in circumstances in which they have never complied with their purported obligations under the RSAs or returned the Unreturned Prepayments.  It is therefore the Bank’s case that the enrichment comes from the acquisition of property in the form of money which occurred with the crediting of the Corporate Defendants’ accounts at the Cyprus branch of the Bank.

Here Trower J [1593] sides with the bank, not readily it seems but firmly nevertheless.

[1586-1587] the Bank’s arguments are outlined (these have a strong Universal Music echo – of course that case was jurisdictional, not applicable law):

[the Bank argues] the only relevant factor which connects the claim in unjust enrichment to Cyprus is the location of the Corporate Defendants’ bank accounts, which adds nothing because that is no more than the justification for applying Article 10(3) in the first place.  The Bank also submitted that Cyprus as a location was of no particular significance, because the Corporate Defendants could equally have had their accounts with another non-Ukrainian subsidiary of the Bank (e.g., in Latvia).  The only point which mattered was that the destination of the funds should be outside Ukraine.

More positively, Ukraine was said to be manifestly more closely connected to the restitutionary obligation than Cyprus, because the Corporate Defendants received the Unreturned Prepayments as part of a fraudulent scheme controlled by two Ukrainian oligarchs with the purpose and effect of misappropriating funds from a Ukrainian Bank.  The Bank also relied on the fact that the scheme was actually implemented by and with the involvement of a number of individuals, including people said to be the UBOs of the Corporate Defendants, who were based in Ukraine (…).  It also relied on the fact that the Corporate Defendants knew that the Unreturned Prepayments were funded by fraudulent loans from the Bank in Ukraine and the whole structure was designed to conceal breaches of Ukrainian currency control regulations.

[1588] are the defendants’ arguments:

it  could not possibly be said that the connections to Cyprus were not real and substantial.  The Corporate Defendants were not themselves Ukrainian (they were incorporated in England and the BVI) and they were managed by Cypriot professional directors; indeed it was the Bank’s own case that the Individual Defendants’ control of and influence over the Corporate Defendants was through Primecap, a Cypriot corporate services provider established by Cypriot lawyers.  [It was also argued] that Cyprus was the country in which the money which was the subject of the Bank’s claim continued to be located when it was transferred on by the Corporate Defendants.  Another factor which counted against a manifestly closer connection to Ukraine was that the prepayments were received by the Corporate Defendants in US$ rather than UAH.

Of note in the judge’s analysis (which of course kicks off [1589] with the observation that ‘all circumstances’ and ‘manifestly’ mandate a high bar for A10(4)) are

• [1589] the comparison is between countries, not laws: “the court’s task is to ascertain whether there is a country, which has a manifestly closer connection to the restitutionary obligation – i.e., the focus is on the country not the law.  In the present case, the exercise required by Article 10(4) is a comparison of the connection between the restitutionary obligation and Cyprus on the one hand and between the restitutionary obligation and Ukraine on the other.”
• [1590] “The comparison is between connections to Cyprus and connections to Ukraine.  Connections to third countries may go to show that not every factor apart from the place of receipt points inexorably to Ukraine, but if they do not point to Cyprus, their usefulness is limited”. (Unless of course, one assumes, if they were to point to a third country hence also its applicable law altogether, but that does not seem to be the case here).

I do not think this is correct. Those wishing to show that A10(3) is to be dislodged by application of A10(4), need to show that that the obligation in unjust enrichment, is manifestly more closely connected to another country, following from all circumstances of the case. Arguably the connections to third countries undermine the A10(4) analysis and therefore are most useful: even if they do not point to the A10(3) country. Of note in this context is that A10(3) is not the result of a most closely connected analysis: it is simply a vector introduced for predictability and certainty. I imagine this may have featured in permission to appeal.

• [1591]: control over Primecap’s activities was exercised by individuals in Ukraine, both generally and for the specific transactions concerned. “The connection to Cyprus is in fact and substance more limited than the place of its establishment and operations might otherwise indicate.  The enrichment occurred in Cyprus (a factor which will always of course be present where it said that Article 10(4) should displace the prima facie rule in Article 10(3)), but the expense was sustained by the Bank in the Ukraine.  I also think that, because steps which gave rise to an unjust enrichment were component parts of a fraud practised on a Ukrainian bank, structured in the way that it was to avoid Ukrainian currency control obligations, and closely interrelated to torts governed by Ukrainian law in which the loss was sustained in Ukraine, points to a very close connection to Ukraine.”

The finding in favour of engaging A10(4) comes despite what the judge [1592] called an argument “with real substance”: the DNA of the whole scheme:

“a transfer out of Ukraine, and (more importantly for the claim in unjust enrichment) a receipt by a recipient outside Ukraine, was an essential element of what all parties accept (for different reasons) was a loan recycling scheme intended to avoid Ukraine’s currency control regulations.  I agree that the fact that it was necessary for any enrichment to occur outside Ukraine, detracts from any connection between the restitutionary obligation and Ukraine, and makes it more difficult for the Bank to say that the connection to Ukraine is manifestly closer than Cyprus.”

All in all it is the ‘control’ element it seems which swayed the judge. If that finding stands, it would be useful eg in the Dyson claims.

Next, on the application of Article 26 Rome II on limitation periods and public policy.

The findings on A26 were made obiter [1995] ff, and with reference ia to the Court of Appeal in Begum v Maran: in essence, Trower J notes the very high bar for Article 26 and would have held that that bar has not been reached in casu.

If and when I hear of an appeal, I shall update.

Geert.

EU Private International Law, 4th ed, 2024, Chapter 4.

Consideration ia of A10 Rome II: law applicable to unjust enrichmentSC Commercial Bank Privatbank v Kolomoisky & Ors [2025] EWHC 1987 (Ch) http://www.bailii.org/ew/cases/EWH…

— Geert Van Calster (@gavclaw.bsky.social) 2025-08-06T10:16:52.929Z

[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.]

Cathay Biotech Inc v Wegochem Europe BV ECLI:NL:RBAMS:2025:3091 is a judgment of relevance to the meaning of ‘arising from’, used frequently in Rome II, Regulation 864/2007; as well as a salutary lesson in how not to apply Article 4 Rome II.

First, on the issue of ‘arising from’ in Article 8.

An alternative to ‘arising from’ used in Rome II is ‘arising out’, for instance in Article 7’s environmental claims: see e.g. Begum v Maran and see my paper on A7 here.

In China, patent infringement judgments have been issued regarding the production of nylon. PRC infringement continues by other entities that have also been held to account by Chinese courts. In current proceedings the patent holder sues a Dutch buyer of the nylon for unlawful conduct, arguing it knew or consciously accepted the significant risk that it was trading in infringing products.

In determining applicable law under Rome II, Cathay Biotech argue A4 is engaged; Wego Europe suggests A8(1) applies:

Article 8
Infringement of intellectual property rights
1. The law applicable to a non-contractual obligation arising from an infringement of an intellectual property right shall be the law of the country for which protection is claimed.
2. In the case of a non-contractual obligation arising from an infringement of a unitary Community intellectual property right, the law applicable shall, for any question that is not governed by the relevant Community instrument, be the law of the country in which the act of infringement was committed.
3. The law applicable under this Article may not be derogated from by an agreement pursuant to Article 14.

The court sides with Cathay Biotech: [5.6]:

The court agrees with Cathay Biotech that it bases its claim on unlawful conduct by Wego Europe… Although this alleged unlawful conduct by Wego Europe originates from the theft of trade secrets by third parties and (subsequent) patent infringements committed by third parties, this does not mean that there is an obligation between Wego Europe and Cathay Biotech ‘arising from’ an infringement of an intellectual property right as referred to in [A8(1) Rome II]. After all, the focus is on the unlawful conduct of Wego Europe described above, not on the question of whether Wego Europe (itself) infringes Cathay Biotech’s Chinese patents. The invocation of a patent right is therefore not the core of the dispute. The scope of the Rome II Regulation and Article 8 means that the aforementioned article only concerns claims relating to a non-contractual infringement of these (intellectual property) rights.

I disagree. Cathay’s claim as it is summarised in 4.4 walk and talks intellectual property rights infringement:

Cathay Biotech bases its claim, in summary, on the following. Wego Europe acts unlawfully towards Cathay Biotech by importing and distributing [long chain dicarboxylic acid] LCDA from the Facility in Europe, while knowing that the production of these LCDA by Hilead and the Users infringes Cathay Biotech’s Chinese patents and that many Chinese court rulings in this regard are being systematically ignored. Wego Europe facilitates the unlawful actions of Hilead and the Users by creating a market for these parties and knowingly profits from their unlawful conduct.

Patent infringement is not a context for Cathay’s claim against Wego: it is its roots and branch. The statutory construction of both ‘arising from’ and ‘out’ (similarly, see Lliuya v RWE where no time was wasted at all on whether climate claims ‘arise out’ of environmental damage) instruct a causal link at the lower level of causal intensity.  Cathay’s claim and its formulation approaches that of conspiracy to cause or at the very least purposedly profit from patent infringement. That in my view must fall within Article 8.

Once Article 8 so dismissed, the court then goes off the rails in its Article 4 locus damni analysis. [5.7 and 5.8]

• it links A4 Rome II squarely to A7(2) Brussels Ia, recalling that Article’s split between Handlungsort and Erfolgort.
• It then squarely suggests that within the A4 Rome II analysis, claimant may chose either Handlugsort or Erfolgort as determining the applicable law (plainly wrong);
• it identifies each distribution center within the EU as a Handlungsort. This is as such an interesting proposition, echoing my suggestions for competition law; yet it is completely out off place in the A4 Rome II analysis.
• it considers Chinese law as applicable law under the Handlungsort analysis (although this would require Cathay’s economic loss (its consolidated accounts are in China) to be considered as ‘direct’ damages per A4, instead of eg the place of the loss of market share in the EU Member States as places of direct damage);
• it finally ends up [5.10] in Dutch law as applying to the claim as a whole under A4(3)’s escape clause, in essence because The Netherlands is held to be the locus delicti commissi: Wego is held to have organised its nylon distribution entirely from The Netherlands.

The judgment amounts to very poor engagement with Rome II.

Geert.

EU Private International Law, 4th ed. 2024. Chapter 4.

Applicable law, patent infringement claimInteresting judgment on (non)application of A8 Rome II viz EU-domiciled purchaser of product made following patent violationMeaning of 'arising from' IPR infringementCathay Biotech v Wegochem ECLI:NL:RBAMS:2025:3091 deeplink.rechtspraak.nl/uitspraak?id…

— Geert Van Calster (@gavclaw.bsky.social) 2025-05-27T07:00:33.048Z

A note on Sidoli v Sidoli [2025] EWHC 1425 (Ch) in which Dew DM deals with a classic issue of characterisation aka qualification,  namely whether the claim at issue is one in rem or one in succession.

[Note [15] an interesting side issue viz the ethics of having deciding a case with reference to an earlier one, Del Curto v Del Curto, with which he disagrees and in which he was on the losing side].

The Italian proceedings, recognition of which is being sought, vindicate Claimants’ rights over Davide Sidoli’s estate, including their rights to assets situated in England and Wales. This in essence begs the question whether the subject matter of the action in Italy was immoveable property not in Italy, hence engaging the Mozambique rule. Kireeva v Bedzhamov features of course.

[27] Dew DM remarks justifiably with respect to characterisation

Claims, in whatever jurisdiction, often have a multiplicity of subject-matter, even more so where the dispute relates to an entitlement to assets from an estate, where the subject-matter can variously be described as the Will, the estate generally, or the individual assets of that estate. Conflicts of law principles, however, often ask the court to decide in an overall sense what the subject matter of a dispute is before determining what system of law applies to it.

[28] it follows that the approach not to be followed is that if one can identify within the claim an asset which is both immoveable and out of the original court’s jurisdiction then any registration under the 1933 Act must be set aside. [29] The subject matter of the claim that was before the Italian Court was Davide’s succession. It was that which was at issue and it was the determination of those issues of succession which gave the Claimants, under Italian law, a right to compensation (and other orders) over the whole of Davide’s estate.

Hence the subject matter of the proceedings in Italy was not immoveable property. However he then holds, having analysed the 1933 Act in both its historical context and its statutory language, that the claim at issue falls within the meaning of the ‘administration of the estate of a deceased person’ over which as a result of the provisions of the 1933 Act, the Italian courts did not and should not have exercised jurisdiction.

Contrasting Sidoli with Del Curto, it is clear that a clarification by the Court of Appeal may be warranted seeing as the outcome of a registration process may now depend on which first instance judge one finds itself in front of.

Geert.

In conflict of laws exam season, excellent example of relevance of qualification aka characterisationWhether claim is in rem or in succession, leading to different outcomes for recognition of Italian judgment in E&WSidoli v Sidoli [2025] EWHC 1425 (Ch)www.bailii.org/ew/cases/EWH…

— Geert Van Calster (@gavclaw.bsky.social) 2025-06-11T07:06:15.153Z