Conflictoflaws

The European Commission has published a public consultation on the modernisation of judicial cooperation in civil and commercial matters in the EU (Revision of Regulation (EC) 1393/2007 on service of documents and Regulation (EC) 1206/2001 on taking of evidence).

As indicated in the survey, the aim of this public consultation is to collect stakeholders’ views in relation to the practical operation of the current legal framework of cross-border judicial cooperation in civil and commercial matters, with particular focus on the service of documents and taking of evidence. The consultation should help identify possible problems in connection with the operation of the co-operation mechanisms set by the two Regulations and of their relevance in terms of the establishment of a European area of justice. The consultation will also collect views on possible solutions to the problems identified. For further information, click here.

The public consultation will be open until Friday 2 March 2018. In my view, this is a very interesting and user-friendly survey and thus, I would encourage all of you who have any practical experience with these Regulations or just general interest in them to complete it.

On 15 June 2018 Prof. Dr. Susanne Augenhofer, LL.M. (Yale) will host the 4th round of the Yale-Humboldt Consumer Law Lectures. The Lectures take place in the Senatssaal of Humboldt-University and start at 2pm. This year’s speakers are:

• Prof. Robert C. Post, Sterling Professor of Law, Yale Law School
• Prof. Judith Resnik, Arthur Liman Professor of Law, Yale Law School
• Prof. Reva Siegel, Nicholas de B. Katzenbach Professor of Law, Yale Law Schoo

Participation in the event is free of charge, but requires registration at https://yhcll2018.eventbrite.de by June 1, 2018.

The Max Planck Institute Luxembourg invites young researchers to actively participate in a colloquium on the “Current Challenges for EU Cross-Border Litigation in a Changing Procedural Environment”. The colloquium will precede a larger conference hosted together with the Court of Justice of the European Union on the occasion of the 50th anniversary of the Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters. All candidates are requested to submit their abstract by 15 April 2018.

The 1968 Brussels Convention and its progeny have mainly been designed in reference to a classic cross-border case, with two opposing parties connected to different Member States. The 2012 recast of the Brussels Regulation remains largely indebted to this original setup. Time is already catching up with the Brussels Ibis Regulation, however. Today, the Brussels Regime is challenged by societal and technological changes, pushing the rules to their limits. Recent cases adjudicated by the Court of Justice in the field of data protection and competition law show that the current Regime does not entirely provide a satisfactory framework. Notable issues entail the plurality of parties, both as claimants and defendants, and considerations of public interest. Similar concerns can be raised in relation to consumer law and shareholder protection litigation. Against this backdrop, one can notice the emergence of online platforms that collect claims in order to facilitate cross-border litigation in these areas. At its 50th anniversary, can the Brussels Regime still provide an adequate response to today’s challenges?

On 26 September, the MPI Luxembourg will host a colloquium to look ahead to the current and future challenges for cross-border litigation in a changing European procedural environment. Young professors, post-docs and advanced PhD students who are interested in contributing to the discussions, are invited to submit an abstract of max. 1,000 words, together with their CV, to BrusselsConvention50@mpi.lu by 15 April 2018. The selected candidates will be expected to write a paper and give a presentation during the colloquium; and to prepare and present a poster during the conference that follows. Organised in collaboration with the CJEU on 27-28 September, the conference will bring together members of the CJEU and renown procedural law scholars to look back on 50 years of European civil procedure and discuss the impact and importance of the Brussels Regime for European integration.

The candidates’ papers will then be included in the conference proceedings, along with the contributions of members of the CJEU and procedural law scholars. All travel and accommodation expenses will be covered by the MPI Luxembourg.

Submit an abstract

By Georgia Antonopoulou and Erlis Themeli, Erasmus University Rotterdam

(PhD candidate and postdoc researchers ERC project Building EU Civil Justice)

On February 7, 2018 the French Minister of Justice inaugurated the International Commercial Chamber within the Paris Court of Appeals following up on a 2017 report of the Legal High Committee for Financial Markets of Paris (Haut Comité Juridique de la Place Financière de Paris HCJP, see here). As the name suggests, this newly established division will handle disputes arising from international commercial contracts (see here). Looking backwards, the creation of the International Commercial Chamber does not come as a surprise.  It offers litigants the option to lodge an appeal against decisions of the International Chamber of the Paris Commercial Court (see previous post) before a specialized division and thus complements this court on a second instance.

According to the press release, litigants will have the possibility to conduct proceedings not only in English, but also in other foreign languages. The parties can submit documents in a foreign language without official translation and hearings can be held in a foreign language as well. However, a simultaneous translation of the oral hearing will take place. In addition, the parties may submit their briefs in a foreign language accompanied by a French translation. Finally, the court will render its decisions in French accompanied by a translation in the relevant foreign language. Contrary to the respective German and Dutch legislative proposals, which allow for the conduct of proceedings, including the decisions of the court, entirely in English, the French initiative appears more modest setting multiple translation requirements.

However, France is one more domino piece affected by the civil justice system competition in the European Union. In light of Brexit, the list of European Union Member States opting for the creation of international commercial courts is growing. The legislative proposal for the establishment of Chambers for International Commercial Disputes in Germany (Kammern für Internationale Handelssachen) was the first -though unsuccessful- attempt. Nevertheless, the recent ‘Frankfurt Justice Initiative’ came to revive the seemingly dormant German debate (see previous post). Not far away from Germany, the Netherlands is launching the Netherlands Commercial Court (NCC), which is expected to open its doors in the second half of 2018. Finally, in October 2017, the Belgian Minister of Justice announced the government’s initiative to establish a specialized court in commercial matters, called the Brussels International Business Court (BIBC) (see previous post).

Competing Member States try to attract cross-border litigation, and thus increase the work of the local legal community and related services. As accepted in the press release of this latest French initiative, a good competitive court is a positive signal to foreign investors. It should be reminded that this is not the first time that competitive activities erupt. A few years ago, competing Member States were focused on publishing brochures to highlight the best qualities of their jurisdictions. This time, competitive activities seem to be more vigorous and seem to better address the needs of international litigants. Only time will show how dynamic competition will unfold, and who the winners will be.

The next Biennial Conference of the German Society for International Law (DGfIR) will take place from 20 to 22 March 2019 at the University of Vienna. The conference will deal with the topic Corporate Accountability and International Law. Speakers are Professors Tanja Domej (Zürich), Oliver Dörr (Osnabrück), Anatol Dutta (Munich), Peter Hilpold (Innsbruck), Stefan Huber (Tübingen), Nico Krisch (Geneva), Giesela Rühl (Jena) and Silja Vöneky (Freiburg i. Br.). Further information will soon be available here.

On 4-6 April 2018 the Loyola University Andalusia in Seville (Spain) will host a conference to celebrate the 60th birthday of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

Jointly organized by The United Nations Commission for International Trade Law (UNCITRAL), the Loyola University Andalusia, the University of Zaragoza and the Spanish Club of Arbitration (CEA) the conference analyses key issues and future challenges of the Convention and provides a unique opportunity to meet with professionals and academics from around the world.

Registration is now open via the conference website.

The program is available here and here.

For a limited time (one week), the Elgar Encyclopedia of Private International Law is accessible for free online. Check it out. And then ask your library to buy it.

As reported on this blog, the French Cour de Cassation decided last year that the réserve héréditaire, the portion of the decedent’s estate that is reserved for the legal heirs, is not part of the French ordre public with regard to the Succession Regulation. Now, the Société de Législation Comparée is organizing a conference in Paris on March 15,  to discuss the consequences from the decision. Under the Presidency of Dominique Hascher, there will be presentations by Andrea Bonomi, Professor in Lausanne, and Delphine Vincent, notary in Paris. Hugues Fulchiron, Professor in Lyon, will comment. Registration required. Another website here.

SLS Conflict of Laws Section: Call for Papers and Panels for 2018 SLS Annual Conference at Queen Mary University of London   

This is a call for papers and panels for the Conflict of Laws section of the 2018 SLS Annual Conference to be held at Queen Mary University of London from Tuesday 4th September – Friday 7th September.  This year’s theme is ‘Law in Troubled Times’.

This section is new to the SLS Annual Conference, having been introduced as a trial section last year.

The Conflict of Laws section will meet in the second half of the conference on Thursday 6th and Friday 7th September.

We intend that the section will comprise four sessions of 90 minutes, with 3 or more papers being presented in each session, followed by discussion. At least three of the sessions will be organised by theme. We hope, if submissions allow, to be able to set aside the fourth session for papers by early career researchers (within 5-years of PhD or equivalent).

We welcome proposals from scholars in the field for papers or panels on any issue relating to any topical aspect of the Conflict of Laws (private international law), including but not limited to those addressing this year’s conference theme.

If you are interested in delivering a paper, please submit a proposed title and abstract of around 300 words. If you wish to propose a panel, please submit a document outlining the theme and rationale for the panel and the names of the proposed speakers (who must have agreed to participate), together with their proposed titles and abstracts.   

If you are also interested in delivering a paper or organising a panel, please submit your paper abstract or panel details by 11:59pm UK time on Monday 26th March.  All abstracts and panel details must be submitted through the Oxford Abstracts conference system which can be accessed using the following link –  https://app.oxfordabstracts.com/stages/488/submission – and following the instructions (select ‘Track’ for the relevant subject section). If you experience any issues in using Oxford Abstracts, please contact slsconference@mosaicevents.co.uk.

As the SLS is keen to ensure that as many members with good quality papers as possible are able to present, we discourage speakers from presenting more than one paper at the conference.  With this in mind, when you submit an abstract via Oxford Abstracts, you will be asked to note if you are also responding to calls for papers or panels from other sections.

We should also note that the SLS offers a Best Paper Prize which can be awarded to academics at any stage of their career and which is open to those presenting papers individually or within a panel.  The Prize carries a £250 monetary award and the winning paper will, subject to the usual process of review and publisher’s conditions, be published in Legal Studies.  To be eligible:

• speakers must be fully paid-up members of the SLS;
• papers must not exceed 12,000 words including footnotes (as counted in Word);
• papers must be uploaded to the paperbank by 11.59pm UK time on Monday 27th August; and
• papers must not have been published previously or have been accepted or be under consideration for publication.

We have also been asked to remind you that all speakers will need to book and pay to attend the conference and that they will need to register for the conference by the end of June in order to secure their place within the programme, though please do let me/us know if this is likely to pose any problems for you.  Booking information will be circulated in due course.

We note also that prospective speakers do not need to be members of the SLS or already signed up as members of a section to propose a paper.

We look forward to seeing you, as a speaker or delegate, at the Conflict of Laws session in London.

With best wishes,

Professor Andrew Dickinson, St Catherine’s College, University of Oxford

Dr Lorna Gillies, University of Strathclyde

Dr Máire Ní Shúilleabháin, University College Dublin (Co-Conveners)

The University of Otago recently set up an online platform dedicated to the conflict of laws in New Zealand: www.otago.ac.nz/conflicts/index.html

The platform includes (1) a reference database of New Zealand scholarship on the conflict of laws, originally created by Professor Elsabe Schoeman at Auckland University, (2) a blog, and (3) links to relevant sources and materials.

Feedback and suggestions on the site are much appreciated. In particular, if you are aware of any relevant materials that are currently missing from the database, I would be very grateful if you could let me know.

The fourth issue of 2017 of the Dutch Journal on Private International Law, Nederlands Internationaal Privaatrecht, contains contributions on the likely response of developing countries to the Principles on Choice of Law in International Commercial Contracts 2015 developed by the Hague Conference on Private International Law, the interpretation of Article 9(3) of the Rome I Regulation by the Court of Justice of the European Union in the case Nikiforidis v. Republik Griechenland, the consequences of a ‘hard Brexit’ for the Family Law areas currently covered by EU regulations, and new developments in China’s recognition and enforcement of foreign judgments.

Matthijs ten Wolde & Kees de Visser, ‘Editorial’, p. 725-726.

Akinwumi Ogunranti, ‘The Hague Principles – a new dawn for developing countries?’, 727-746

This paper focuses on the likely response of developing countries to the Principles on Choice of Law in International Commercial Contracts 2015 (hereafter: Principles) developed by the Hague Conference on Private International Law. It makes two claims: that Article 2(4) of the Principles which permits parties to make an unrelated choice of law in international contracts, without generally protecting weaker parties, may not be favourably received by developing countries. Second, that Article 3 of the Principles on non-state law may also not be viewed favourably by developing countries because such provisions are always seen with distrust. In effect, this paper examines the likely reactions of developing countries to these pivotal provisions of the Principles. It then asks the question of whether a new dawn has arrived in private international legislations relating to choice of law or whether developing countries should be charting roads that lead to more places than just The Hague.

A.E. Oderkerk, ‘Buitenlandse voorrangsregels in de context van de Griekse crisis: geen rol voor het unierechtelijk beginsel van loyale samenwerking’, p. 747-758

In its ruling of 18 October 2016, the Court of Justice of the European Union (CJEU) answers a number of questions related to the interpretation of Article 9(3) of the Rome I Regulation, two of which confirm the current legal doctrine on this matter. Firstly, it is confirmed that Article 9 should be interpreted restrictively; no other overriding mandatory rules than those of the forum State or the State where the obligations in the agreement are (to be) fulfilled can be applied. Secondly, it is acknowledged that a national court may take into account other overriding mandatory rules as facts in so far as this is in accordance with the lex causae. In this ruling the Court departs from the doctrine with regard to the temporal scope of the Regulation, holding that the phrase ‘the conclusion of the agreement’ in Article 28 must be interpreted autonomously. The Court also clarifies under which circumstances a long-term contract concluded before 17 December 2009 may fall within the temporal scope of the Regulation. Finally, it is of interest that the Court takes the position that the principle of loyal cooperation has no influence on the (strict) interpretation of Article 9(3).

Just van der Hoeven, ‘Zachte conclusies over de betekenis van een harde Brexit voor het internationaal personen- en familierecht’, p. 759-771

This article gives an overview of the consequences of a ‘hard Brexit’ for the Family Law areas currently covered by EU regulations. It examines the applicability of various international instruments in these areas, and gives a brief answer to the question how the current EU regulations differ from these international instruments.

Yahan Wang, ‘A turning point of reciprocity in China’s recognition and enforcement of foreign judgments: a study of the Kolmar case’, p. 772-789

In the case of Kolmar Group AG v. Jiangsu Textile Co. Ltd. (the Kolmar case), a Chinese court has for the first time recognized and enforced a foreign civil judgment based on reciprocity. This article regards this case as a turning point of reciprocity in China’s recognition and enforcement of foreign judgments. Before 2016, the reliance on treaty-based and factual reciprocity led to some defects in China’s judicial practice, which could be attributed to the strict standards of reciprocity and deficient judicial interpretations. Through the Belt and Road initiative, China is seeking to improve international transactions between China and foreign countries – including some EU countries. In line with this development, the Chinese Supreme People’s Court seems to be transforming the strict criteria of reciprocity, adopting presumed reciprocity in its judicial practice. This article argues that execution of the Belt and Road initiative, establishing an efficient court reporting system and participating in international conventions are essential to China’s judicial reform.

Professor Jen Daskal writes on Just Security about a potential legislative solution to the Microsoft Ireland case pending in the U.S. Supreme Court, which presents the question of whether a U.S. warrant requires Microsoft to hand over a user’s data that Microsoft stores in Ireland:

“A bipartisan group of Senators today introduced the Clarifying Lawful Overseas Use of Data (CLOUD) Act—a bill that moots the pending Supreme Court Microsoft Ireland case and authorizes the executive to enter into bilateral and multilateral agreements so as to facilitate cross-border access to data in the investigation of serious crime. Amazingly, the legislation has the support of both the Department of Justice and Microsoft – the dueling parties in the Microsoft Ireland case. It also has the support of many other tech companies.

As it should.

…”

Read the full post here.

For Professor Daskal’s thoughtful analysis of the conflicts of laws issues presented in the Microsoft case and their relationship to private international law issues, see her earlier analysis here.

On Friday, 13 April 2018, the Albert-Ludwigs-University of Freiburg (Germany) will host a workshop in the framework of the research project “Informed Choices in Cross-Border Enforcement” (IC²BE). Funded by the Justice Programme (2014-2020) of the European Commission, the project aims to assess the working in practice of the “second generation” of EU regulations on procedural law for cross-border cases, i.e. the European Enforcement Order, Order for Payment, Small Claims (as amended by Regulation (EU) 2015/2421) and the Account Preservation Order Regulations. As a result, it is intended to create a database of national case law. The project is carried out by a European consortium (the MPI Luxembourg and the universities of Antwerp, Complutense, Milan, Rotterdam, and Wroclaw) and is coordinated by Prof. Jan von Hein, Freiburg. Confirmed speakers include Professors Gerald Mäsch (University of Münster), Ivo Bach (University of Göttingen), Stefan Huber (University of Tübingen), as well as Dr. Denise Wiedemann (Max-Planck-Institute, Hamburg) and Dr. Bernhard Ulrici (University of Leipzig). Their presentations will be commented on by distinguished practitioners, such as Dr. Max Peiffer (Munich), Prof. Dr. Andreas Baumert (Achern), Dr. David Einhaus (Freiburg) and Dr. Nils H. Harbeck (Hamburg). The language of the workshop will be German. Partcipation is free of charge, but requires a registration. For further information about the program and the process of registration, please click here.

This post has been prepared by

Dr. Jorg Sladic, Attorney in Ljubljana and Assistant Professor in Maribor (Slovenia)

In judgment of 25 October 2017 in case I Cpg 1084/2016 (ECLI:SI:VSLJ:2017:I.CPG.1084.2016) published on 31 January 2018 the Slovenian Appellate Court ruled on a question of implied consent to application of Slovenian law.

Unfortunately the underlying facts are not described with the necessary precision. It would appear that there was a three-person contractual chain between an Austrian, an Italian and a Slovenian commercial company. Apparently the Italian company was the seller, the roles of both the Austrian and Slovenian company are not very clearly described. The underlying transaction that led to the dispute was a contract for the sale of goods concluded under the CISG. The ruling does not state where the seller had the habitual residence, yet the condemnation to perform the payment can only be construed in such a way that the Italian plaintiff was the seller.

The court of first instance condemned the defendant (a Slovenian commercial company) to payment of the sum of 52.497,28 EUR to the Italian claimant (Italian commercial company) and dismissed the Slovenian defendant’s defense of set-off (exceptio compensationis) in the sum of 50.000,00 EUR.

The condemnation was based upon a sales contract for goods concluded under the application of the CISG. The Slovenian defendant contended that the Italian claimant did not sign the double order / mandate addressed to the Austrian third person (named the client or the orderer) who had been instructed to perform the payment to the Italian company. The Austrian client later withheld the performance of payment due to a non signed double order / mandate (double order/mandate is a figure where a principal gives the first mandate to the agent to perform an obligation to a third person (recipient) and the second mandate to the third person (recipient) to accept the performance of such an obligation, see Art. 1035 Slovenian Code of Obligations: Through an instruction one person, the principal, authorizes a second person, the agent, to perform an obligation for the latter’s account to a certain third person, the recipient (the beneficiary), and authorizes the third person to accept performance in the third person’s name. The Slovenian legislative provision corresponds to § 1400 Austrian ABGB, § 784 German BGB and Art. 468 Swiss Code of Obligations). The defendant claimed in his defense of set-off that there was an extra-contractual obligation (a delict) due to lack of performance of the Austrian agent that was caused by the Italian company.

One of the pleas in appeal was that Italian and in the alternative the Austrian substantive law should be applied for assessing the existence of the obligation to be set-off. The Court of Appeal dismissed such a plea. The Slovenian defendant alleged an allegedly mature and liquid non-contractual obligation to be set-off. The assessment of facts narrated by the Slovenian company i.e. the damages set-off due to non signature of an order given to the Austrian company shows that there is in essence a defense of breach of the claimant’s obligation in accepting the performance based on the same facts as the claimant’s claim to payment. The Appellate Court expressly avoided the characterization of the said breached obligation as contractual or as non-contractual. There was only a precisions that the facts underlying both the contractual obligation to perform a payment and the allegedly breached obligation are identical.

According to the Appellate Court in Ljubljana the court of first instance found that there was an implied consent to apply the Slovenian law, neither party contested the application of Slovenian law in the first and also in the appellate instance. The law applicable to the obligation that was claimed in set – off is therefore Slovenian law. Even if such an obligation were non – contractual, Slovenian law would have to be applied under Art. 4(1) and (3) in connection with Art. 15 Regulation (EC) No 864/2007 (Rome II).

The ruling does not contain any explicit connecting factor. The issue is not Art. 17 Rome I Regulation (Regulation (EC) No 593/2008). One can assume that under Art. 1(1) CISG the applicable law is the CISG as Austria, Italy and Slovenia are contracting parties to the said UN convention. However, the interesting part is the reference to the implied consent to the application Slovenian substantive law. Under Art. 4(1)(a) Rome I Regulation (Regulation (EC) No 593/2008) “a contract for the sale of goods shall be governed by the law of the country where the seller has his habitual residence”. This should prima facie be the Italian law, as the Italian company applied for payment after having performed the specific performance under the sales contract. However, not contesting the application of Slovenian substantive law in judicial proceedings in first and also in the appellate instance was then construed as “implied consent” to Slovenian substantive law (Art. 3(2) Regulation Rome I). Seen in pragmatic perspective, in order to avoid a uneasy modus vivendi or fine tuning of Art. 3 and 15 of the Regulation Rome II with Art. 17 Regulation Rome I the Slovenian Appellate Court preferred to refer to Slovenian law even if under conditions that do not easily fit in Art. 3(2) and 10 Rome I Regulation.

On February 7th, a workshop on the EU Matrimonial and Partnership Property Regulations will take place at the University of Strasbourg. Coordinated by Prof. Estelle Naudin and Delphine Porcheron, the workshop will explore the strategies of anticipation provided by the new regulations and some of the practical issues raised by French-German situations.

Speakers include :

• Richard Crône, Notary in Paris, Member of the Institut Notarial Europe et International (INEI)
• Alain Devers, University of Lyon III
• Claire Farge, Lawyer, Member of the Legal Committee of FNDP
• Michel Farge, University of Grenoble-Alpes
• Eric Fongaro, University of Bordeaux
• Estelle Gallant, University Paris I
• Estelle Naudin, University of Strasbourg
• Delphine Porcheron, University of Strasbourg

Click here to access the full program.

On 26 January 2018, the European Commission published the second General Report of the study on procedural law undertaken by the Max Planck Institute Luxembourg. This strand of the study concerned the effect of divergences in national procedural laws on the equivalence and effectiveness of the procedural protection of consumers under EU consumer law. For the first strand of the study, see here.

More information available here.

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

B. Heiderhoff: The new EU Regulations on Matrimonial Property Regimes and on the Property Consequences of Registered Partnerships

The two new EU Regulations on matrimonial property regimes (2016/1103) and on property consequences of registered partnerships (2016/1104) will come into force on 29th January 2019. This contribution provides an introduction to the new acts and analyses their central provisions. Firstly, the material and personal scope of the Regulations are clarified. The author then considers the conflict of laws rules. Here, the Regulation is consistent with Rome III and the 2007 Hague Protocol in allowing a limited choice of law. It is highlighted that the habitual residence at the time of the marriage is of central importance, but that several issues will need further clarification. In particular, the exact time at which the habitual residence of the couple must be established under Article 26 para 1 needs to be fixed. Furthermore, the escape clause in Article 26 para 3 is described as being too narrow. It is then shown that the formal requirements for marriage contracts in Article 25 refer to the lex causae which may cause difficulty. Finally, the rules on jurisdiction are briefly described. The author ends with an overall positive assessment.

T. Koops: Res judicata under the Brussels I Recast – Can the ruling in Gothaer Allgemeine Versicherung ./. Samskip GmbH be reconciled with the Brussels I Recast Regulation?

In Gothaer Allgemeine Versicherung ./. Samskip GmbH the CJEU developed a European concept of res judicata, encompassing not only the operative part of the judgment, but also its ratio decidendi, based on the Brussels I Regulation. This article argues contrary to the CJEU, that today’s European law of Civil Procedure cannot cope with a European concept of res judicata. Far from being a fully-fledged system of law it cannot furnish “its” concept of res judicata with a corresponding system of legal protection. An autonomous concept would sever the connection between the legal effect of a decision and the legal protection of the parties under national laws. Therefore, the effect of a decision, when recognized in another member state, should in principle be determined by the law of the state in which it was rendered. On the other hand, some of the provisions of what is now the Brussels I Recast do indeed require a uniform European concept of res judicata, albeit with a narrow scope. This leaves us with a European law of Civil Procedure under which the concept of res judicata should, but cannot be entirely based on national law.

P.F. Schlosser: Agents acting on behalf of a corporate entity or debtors jointly and severally liable together with it personally bound by jurisdiction agreements in the contract?

The opinion of the Court of Justice in its decision of June 26, 2017, case C-436/16, is correct and cannot be subject to any doubt. A jurisdiction agreement cannot by itself bind persons acting for the respective contract partner in the capacity of a managing director or holder of a power of attorney. The solution is corresponding to what is correct in the framework of arbitration. Persons acting on behalf of the respective contracting party may only be bound by an agreement relating to them specifically and meeting the form requirements of Art. II New York Convention of 1958 or Art. 25 Brussels Ibis Regulation, respectively.

R. Magnus: The jurisdiction at the place of performance for the repayment of a loan

This article comments on a recent decision of the Higher Regional Court in Hamm (Germany), in which the court ruled that for the repayment of a loan Art. 5 Nr. 1 lit. b Brussel I-Regulation conferred jurisdiction upon the courts at the seat of the lender or likewise the seat of the transferring credit institution. The Court decided that the decisive element that constitutes the place of performance in accordance with Art. 5 Nr. 1 lit. b Brussel I-Regulation is the location, where the lender initiated the transfer of the money to the borrower’s bank account. This article discusses the implications of this decision, criticizes its reasoning and considers alternative foundations for the jurisdiction in the case at hand.

G. Schulze: Attributability of a declaration of intent in cases of doubtful agency – triple relevance of the same fact (dreifach relevante Tatsache)

The matter in question was whether a business woman’s declaration of intent should be attributed to herself or to a Spanish joint-stock company (S.L.) which she was an agent of. This question was decisive for jurisdiction (jurisdiction clause, Art. 23, and special jurisdiction, Art. 5 Regulation (EC) No 44/2001) as well as the decision on the merits (payment of remuneration for work). Therefore, the ECJ’s ruling in Kolassa applied (28.1.2015 C-375/13, IPRax 2016, 143) which allows accordingly to the lex fori different requirements for fact adjudication in “good arguable cases”. Given the unional concept of res judicata in Gothaer Versicherungs AG (15.11.2012 C-456/11, IPRax 2014, 163) the ratio of this ruling seems to be outdated, at least in cases within the Single Market.
In private international law the issue at stake is: Which law governs the consequences of a declaration of intent in cases of doubtful agency? Therefore, the German law applicable to contracts and the Spanish law applicable to companies should be considered. Multiple and indirect representation are both questions of substantive law of agency. Nevertheless, the issue should be characterized as a question of contract law: The heart of the problem is who should be a party to the contract. The recently enacted provision on the conflict of laws of agency does not contain any ruling on this problem (Art. 8 Introductory Act to the Civil Code). The Higher Regional Court held rightly that German contract law is applicable to the defendant’s capacity to be sued and, in casu, this capacity was denied.

D. Martiny: Jurisdiction and habitual residence in respect of a deceased cross-border commuter

The case concerns a conflict of local jurisdiction between the Local Court of Pankow/Weißensee, where the succession-waiving daughter of the deceased had her domicile, and the Local Court of Wedding, in whose district the deceased had lived prior to relocating to Poland. The Berlin Court of Appeal (Kammergericht) rules that the deceased still had his habitual residence in Germany despite the fact that he lived in a flat in a rented storage depot in Poland. The court identifies the criteria relevant to the determination, particularly his activities as a “cross-border commuter” in and out of Germany and his not having integrated in Poland. The international competence and local jurisdiction of the Local Court of Pankow/Weißensee for the declaration of a waiver of succession is based on Art. 13 European Succession Regulation in conjunction with § 31 International Succession Proceedings Act (Internationales Erbrechtsverfahrensgesetz; IntErbRVG), independent of Art. 4 European Succession Regulation. Local jurisdiction of the Local Court of Wedding for protective measures can be based on the former habitual residence of the deceased in this district (§ 343 para. 2 Family Proceedings Act – Familienverfahrensgesetz; FamFG).

B. Haidmayer: Parallel divorce proceedings in Germany and Switzerland

The judgment deals with the issue of lis alibi pendens of parallel crossborder divorce proceedings. Under European Union law and domestic law, the first-in-time rule determines the precedence of a proceeding. The moment defining lis alibi pendens is decisive for the priority rule; however, in this regard the two coordination systems of the supranational and the domestic jurisdiction diverge. This contribution analyses the approach taken by the court and particularly examines whether the Brussels IIbis Regulation contains any requirements for parallel divorce proceedings in non-member states.

H. Roth: Vollstreckungsbefehle kroatischer Notare und der Begriff „Gericht“ in der EuGVVO und der EuVTVO

The two important decisions of the ECJ deserve approval. A Croatian notary, acting on the foundation of a “credible deed” by issuing a writ of execution is not a “court” within the meaning of the Brussels Ia Reg. Furthermore, a proceeding concerned with the enforcement of a judgment falls as a “civil matter” within the scope of Art. 1 (1) Brussels Ia Reg., even if a parking fee is charged for a public parking lot, which belongs to the property of the municipality.

K. Siehr: Greek Reduction of Salaries and Employment Contracts Governed by German Law

In some German cities there are Greek schools in which teachers teach the Modern Greek language. These teachers are employed by the Greek government which pays the teachers in Germany, accepts German law as the law governing the labour contracts and agrees to German jurisdiction. In 2009, Greece started to reduce the salaries of teachers and applied this legislation also to teachers in Germany. Some of these teachers sued the Greek Republic in Germany and asked for full payment without the reduction provided in recent legislation. The Federal Labour Court asked the European Court of Justice for a preliminary ruling on Art. 9 Rome I Regulation. The ECJ decided in the case of Greece v. Nikiforidis on 18/10/2016 that foreign overriding mandatory rules, except those of the country of performance (Art. 9 no. 3 Rome I Regulation), cannot be applied directly but may be indirectly taken into account by the substantive law governing the contract. The German Federal Labour Court on 26/4/2017 decided the payment claim of Grigorios Nikiforidis in his favour and declined to recognize Greek legislation of reduction of salaries directly and also decided that under German law no employee is obliged to accept a reduction of his salary without a new contract stipulated between the parties.

J. von Hein/B. Brunk: Shall we let her go? Legal conditions for the cross-border movement of companies

The ECJ cases Cartesio (C-210/06) and Vale (C-378/10) established guidelines for cross-border changes of legal form within the EU. Subsequently, the German Higher Regional Courts Nuremberg and Berlin were confronted with the issue of cross-border movement of companies from other Member States to Germany. Conversely, the OLG Frankfurt judgment concerns the outward migration of a German company for the first time. The company’s decision to transfer its statutory seat to Italy was refused to be registered by the German authorities for reasons of noncompliance with German transformation laws. The OLG Frankfurt allowed the company’s appeal against this refusal arguing that it violated the company’s freedom of establishment (Art. 49, 54 TFEU). The following article discusses the OLG Frankfurt judgment against the background of the ECJ Cases Cartesio and Vale while examining the premises posed by private international law and substantive law.

F. Heindler: International Jurisdiction over Claims of Shareholders relating to the Dieselgate-Scandal

The annotated judgement focuses on the international jurisdiction of Austrian courts for damage claims brought against Volkswagen in the aftermath of the Dieselgate scandal. Volkswagen, by cheating pollution emissions tests, allegedly was in breach of applicable ad-hoc announcement requirements and caused damages to shareholders situated in Austria. The Austrian Surpreme Court in Civil and Criminal Matters (Oberster Gerichtshof), however, referring inter alia to the place where the harmful event occurred, rejected jurisdiction of Austrian courts under the Brussels Ibis Regulation.

F. Koechel/B. Woldkiewicz: Submission by appearance in European Procedural Law and lex fori

Jurisdiction under Art. 26 of the Brussels Ibis Regulation is based on the defendant’s entering of appearance – a procedural act under domestic law. Art. 26 of the Brussels Ibis Regulation and the lex fori are therefore closely interlinked. In a recent judgment, the Polish Supreme Court (Sa¸d Najwyz?szy, 3.2017 – II CSK 254/16) ruled on the interplay of Art. 26 of the Brussels Ibis Regulation and the national rules governing the status of a party and the legal capacity of a defendant. One can only enter an appearance within the meaning of Art. 26 of the Brussels Ibis Regulation, if they are considered as the defendant under domestic law. The question arises, whether the defendant enters an appearance according to Art. 26 of the Brussels Ibis Regulation by submitting factual or legal allegations in writing with regard to his status as a party and his legal capacity. Contrary to the European Court of Justice’s caselaw, the notion of the entering of an appearance should be interpreted autonomously, without unnecessary recourse to the law of the forum State. Generally, written submissions by the defendant on his status as a party to the proceedings and his legal capacity are to be considered as an entering of an appearance within the meaning of Art. 26 of the Brussels Ibis Regulation. Nevertheless, the determination of whether the defendant, in making such submissions implicitly contests the court’s jurisdiction is one that needs to be examined carefully in each single case. The defendant is deemed to implicitly contest jurisdiction according to Art. 26 of the Brussels Ibis Regulation if, from the defendant’s allegations it is objectively apparent for the court and the claimant that the defendant invokes the lack of jurisdiction.

The first Commentary on the Service Regulation (1393/2007) in Greece has just been published.

The volume sheds light on all aspects of cross border service within the EU, approaching the topic both from a domestic and an EU-case law viewpoint.

The authors are the following:

Prof. Arvanitakis (Aristotle University, Thessaloniki): Introduction, Article 1-3 & 8-9

Dr. Triantafyllidis (Judge): Articles 4-7 & 10-11

Ass. Professor Yiannopoulos (Democritus University, Thrace): Articles 12-15

Prof. Vassilakakis (Aristotle University, Thessaloniki) : Article 16

Dr. Anthimos (Lecturer, European University Cyprus): Articles 17-26

This book is part of an ambitious project, inspired by two of the authors (Prof. Arvanitakis & Prof. Vassilakakis), which aims at publishing a full set of Commentaries on Private International Law EU – Regulations in Greek. The project kickstarted with the publication of the Commentary on the Brussels II bis Regulation (2016). Commentaries on the Small Claims and at a later stage the Brussels I a Regulations will follow.

Written by Tobias Lutzi, DPhil Candidate and Stipendiary Lecturer at the University of Oxford.

Yesterday, the ECJ has rendered its decision in Case C-498/16 Maximilian Schrems v Facebook Ireland Limited. The case will be of interest to many readers of this blog as its facts are not only closely linked to the ECJ’s well-known decision in Case C-362/14 Schrems but also could have come straight out of a conflict-of-laws textbook.

Maximilian Schrems has been litigating against Facebook and the way in which the company uses the personal data of its users since 2011, when he first submitted a range of complaints to the Irish Data Protection Commissioner. In 2013, he submitted another complaint, which ultimately lead to the annulment of the ‘Safe Harbour’ framework between the EU and the US in the aforementioned decision; the proceedings continued with a reformulated version of this complaint and have recently been referred to the ECJ for a second time. Over the course of this litigation, Schrems built a reputation as a privacy activist, publishing two books, giving talks and lectures, and founding a non-profit organisation that uses ‘targeted and strategic litigation’ to enforce privacy and data protection laws across Europe.

The proceedings that gave raise to yesterday’s decision by the ECJ are formally unrelated to the aforementioned litigation. In 2014, Schrems set out to bring a ‘class action’ against Facebook for numerous violations of privacy and data protection laws. For this purpose, 25,000 Facebook users assigned their claims to him. Only eight of these claims, regarding Schrems’ own Facebook account and Facebook ‘page’ as well as the accounts of seven other users from Austria, Germany, and India, formed the object of the present proceedings. The claims were brought at Schrems’ domicile in Vienna, Austria, based on the special head of jurisdiction for consumer contracts in Art 16(1) Brussels I (= Art 18(1) of the recast Regulation).

The proceedings raised two separate questions, which the Austrian Oberster Gerichtshof ultimately referred to the ECJ:

• Can Schrems still be considered a consumer in the sense of Art 15(1) Brussels I, despite his continued activism and professional interest in the claims?
• If so, can he also rely on the privilege of Art 16(1) Brussels I regarding claims that have been assigned to him by other consumers who are domiciled in (a) the same EU Member State; (b) another Member State; (c) a non-member State?

Following the Advocate General’s opinion (reported here), the Court answered the first question in the positive (I.) and the second one in the negative (II.). Both answers are testimony to a nuanced interpretation of the special rules of jurisdiction for consumer contracts (III.).

1. The Consumer Exception

According to the ECJ’s well-known decisions in Case C-269/95 Benincasa and Case C-464/01 Gruber, the assessment of whether a party is a ‘consumer’ in the sense of Art 15(1) Brussels I does not depend on their subjective qualities but on the ‘the position of the person concerned in a particular contract’ (Benincasa, [16]), which must have been ‘concluded for the purpose of satisfying an individual’s own needs in terms of private consumption’ (ibid, [17]); where a contract has been concluded for a purpose that is partly private and partly professional, the professional aspect of it must be ‘so slight as to be marginal’ for the contract to still fall under the provision (Gruber, [39]).

In the present case, this definition raised two questions. The Court first had to decide whether the assessment was to be made only at the moment when the contract was originally concluded or whether subsequent changes of circumstances must also be taken into account. It held that

[38] … a user of [a digital social network] may, in bringing an action, rely on his status as a consumer only if the predominately non-professional use of those services, for which the applicant initially concluded a contract, has not subsequently become predominately professional.

Second, the Court had to decide whether this was the case for Schrems, who had originally entered into a contract with Facebook for private purposes but subsequently developed a professional activity involving litigation against Facebook. According to the Court,

[39] … neither the expertise which [a] person may acquire in the field covered by those services nor his assurances given for the purposes of representing the rights and interests of the users of those services can deprive him of the status of a ‘consumer’ within the meaning of Article 15 [Brussels I].

[40] Indeed, an interpretation of the notion of ‘consumer’ which excluded such activities would have the effect of preventing an effective defence of the rights that consumers enjoy in relation to their contractual partners who are traders or professionals, including those rights which relate to the protection of their personal data. …

Interestingly, the Court put little emphasis on the possible distinction between Schrems’ private Facebook ‘profile’ and his arguably professional Facebook ‘page’ (see [34]–[36]). Instead, it seemed to generally exclude ‘representing the rights and interests of the users’ of a particular service from the range of professional activities that might prevent the contract for this service from being considered a consumer contract. The Court explicitly linked this interpretation to the objective of ensuring a high level of consumer protection in Art 169 TFEU. Thus, its decision might not even have been different had Schrems joined Facebook with the sole aim of enforcing his (and other users’) rights. This way, the Court effectively sidestepped the problems created by the increasingly wide range of uses to which social media and other online platform accounts can be put, which the Advocate General had so colourfully described as ‘fifty shades of (Facebook) blue’ (Opinion, [46]) – and which, for the time being, remain unaddressed.

1. Jurisdiction for Assigned Claims

With regard to using the second alternative of Art 16(1) Brussels I to bring claims that have been assigned to the claimant by other consumers at the claimant’s domicile, the Court held:

[45] The rules on jurisdiction laid down, as regards consumer contracts, in Article 16(1) of the regulation apply, in accordance with the wording of that provision, only to an action brought by a consumer against the other party to the contract, which necessarily implies that a contract has been concluded by the consumer with the trader or professional concerned ….

…

[48] … [T]he assignment of claims cannot, in itself, have an impact on the determination of the court having jurisdiction …. It follows that the jurisdiction of courts other than those expressly referred to by Regulation No 44/2001 cannot be established through the concentration of several claims in the person of a single applicant. … [A]n assignment of claims such as that at issue in the main proceedings cannot provide the basis for a new specific forum for a consumer to whom those claims have been assigned.

This interpretation seems to align well with earlier decisions by the Court, according to which the special head of jurisdiction in Art 16(1) Brussels I is only available personally to the consumer who is party to the consumer contract in question (Case C-89/91 Shearson Lehman Hutton, [23]; Case C-167/00 Henkel), [33]), and according to which the assignment of a claim does not affect international jurisdiction under the Brussels I Regulation (Case C-352/13 CDC Hydrogene Peroxide, [35]–[36]).

An interesting, and arguably unfortunate, side effect of this restrictive interpretation is that it may even exclude the consolidation of the claims of other Austrian consumers in the same forum, considering that the second alternative of Art 16(1) does not only contain a rule of international jurisdiction but also determines local (internal) jurisdiction. In this regard, the Advocate General argued that an additional forum in which such consumer claims could be brought could be created under national law (Opinion, [117]), a proposition that does not appear easily reconcilable with the clear wording of Art 16(1).

Contrary to the claimant’s press release, though, the fact that a consumer is not allowed to avail him- or herself of the privilege in Art 16(1) Brussels I in order to bring the claims 25,000 other consumers that have been assigned to him at his or her domicile does not mean that company’s can ‘divide and conquer’ and ‘block enforcement of consumer rights’. A claimant is free to rely on the first alternative of Art 16(1) Brussels I (which mirrors Art 2(1)) and bring all claims in the defendant’s Member State of domicile, the procedural law of which will then decide on whether the claims may be consolidated.

III. A Nuanced Approach to the Consumer Exception

What seems to emerge from the decision is a nuanced approach to the special provisions for consumer contracts. The Court applies a rather flexible interpretation to Art 15(1) Brussels I, allowing for changes of circumstances to be taken into account but also distinguishing the enforcement of (consumer) rights from other types of professional activities. At the same time, it interprets the special head of jurisdiction in Art 16(1) restrictively, limiting the privilege to each individual consumer and excluding the possibility of other consumers assigning their claims to one who is domiciled in what may appear as a more favourable forum.

Of course, there may well be strong arguments for the existence of such a possibility, especially in cases where each individual claim is too small to justify litigation but the sum of them is not. But it seems questionable whether Art 16(1) Brussels I would be the right instrument to create such a mechanism of collective redress – and, indeed, whether it should be the Court’s role to implement it.

The Hellenic Republic is the sole EU Member State which provides for the application of Sharia law in its territory for more than a century. A recent amendment is granting Greek Moslems the right to opt-out, and resort to domestic civil law. At the same time, the new law respects the right to opt-in for the application of Sharia law, upon the condition of mutual agreement between the parties.

Law 4511/2018 was enacted on January 15. It contains only one article (the second simply declares that the law will be in force upon publication in the State Gazette), which amends the previous status of Sharia courts in Greece. A new Paragraph (4) is added to Art. 5 Law 1920/1991. By virtue of the new provision, the jurisdiction of the Mufti becomes the exception, whereas (until today) it was the rule for Greek Moslems living in the region of (Western) Thrace. The Mufti has jurisdiction for a vast number of family and succession matters, which are listed under Article 5.2 Law 1920/1991. A prerequisite is that the parties have submitted the above matters to Sharia law.

The new law grants the right to each party to seek Justice before domestic courts, and in accordance with Greek substantive and procedural law. The Mufti may exercise jurisdiction only if both parties file an application for this cause. Once the case is submitted to the Mufti, the jurisdiction of national courts is irrevocably excluded.

In addition, the new law paves the path for a more structured procedure before the Mufti: A drafting Committee will be authorized to prepare a decree, which will shape (for the first time) the Rules and Regulations of the Mufti ‘courts’. Signs of a formalized process are already clearly visible in the new law (Article 4.b).

Inheritance matters are also regulated by the new legislation: In principle they are subjected to Greek law, unless the testator solemnly states before a notary public his wish to submit succession matters to Sharia law. A parallel application of Greek and Sharia law is not permitted. However, revocation of the testator’s declaration is allowed, pursuant to Greek succession law provisions embedded in the Civil Code.

The new law has certainly conflict of laws ramifications too, most notably in light of the recent Sahyouni case of the CJEU. In this respect it is important to underline that all decisions rendered by the Mufti are passing through a hybrid process of domestic exequatur, which is rudimentarily regulated under Article 5.3 Law 1920/1991. Failure to submit the Mufti decisions to domestic courts’ scrutiny, deprives them of res iudicata and enforceability. Hence, EU Member States courts, whenever confronted with a request to recognize or enforce Mufti decisions within their jurisdiction, will always have to examine whether a Greek court has granted full faith and credit to the Mufti’s ruling.