Conflictoflaws

Julia Hörnle, Professor of Internet Law, CCLS, Queen Mary University of London[1]

It is now well known that internet users are widely tracked and profiled by a range of actors and the advancements in data science mean that such tracking and profiling is increasingly commercially profitable[2]. This raises difficult questions about how to balance the value of data with individual privacy. But since there is no point in having privacy (or data protection) rights if no redress can be found to vindicate them, it is even more important to investigate how internet users can obtain justice, if their privacy has been infringed. Given the power of Big Tech Companies, their enormous financial resources, cross-jurisdictional reach and their global impact on users’ privacy, there are two main litigation challenges for successfully bringing a privacy claim against Big Tech. One is the jurisdictional challenge of finding a competent court in the same jurisdiction as the individual users.[3] Secondly, the challenge is how to finance mass claims, involving millions of affected users. In privacy claims it is likely that there is significant user detriment, potentially with long-term and latent consequences, which are difficult to measure. This constellation provides a strong argument for facilitating collective redress, as otherwise individual users may not be able to obtain justice for privacy infringements before the courts. In privacy infringement claims these two challenges are intertwined and present a double-whammy for successful redress. Courts in a number of recent cases had to grapple with questions of jurisdiction in consumer collective redress cases in the face of existing provision on consumer jurisdiction and collective redress, which have not (yet) been fully adapted to deal with the privacy challenges stemming from Big Tech in the 21st century.

In Case C-498/16 Max Schrems v Facebook Ireland[4] the Court of Justice of the EU in 2018 denied the privilege of EU law for consumers to sue in their local court[5] to a representative (ie Max Schrems) in a representative privacy litigation against Facebook under Austrian law. By contrast, courts in California and Canada have found a contractual jurisdiction and applicable law clause invalid as a matter of public policy in order to allow a class action privacy claim to proceed against Facebook.[6] In England, the dual challenge of jurisdiction and collective actions in a mass privacy infringement claim has presented itself before the English Courts, first in Vidal-Hall v Google before the Court of Appeal in 2015[7] and in the Supreme Court judgment of Google v Lloyd in November 2021[8]. Both cases concerned preliminary proceedings on the question of whether the English courts had jurisdiction to hear the action, ie whether the claimant was able to serve Google with proceedings in the USA and have illustrated the limitations of English law for the feasibility of bringing a collective action in mass-privacy infringement claims.

The factual background to Vidal- Hall and Lloyd is the so-called “Safari workaround” which allowed Google for some time in 2011-2012 to bypass Apple privacy settings by placing DoubleClick Ad cookies on unsuspecting users of Apple devices, even though Safari was trying to block such third party cookies, used for extensive data collection and advertising. The claimants alleged that this enabled Google to collect personal data, including sensitive data, such as users’ interests, political affiliations, race or ethnicity, social class, political and religious beliefs, health, sexual interests, age, gender, financial situation and location. Google additionally creates profiles from the aggregated information which it sells. The claim made was that Google as data controller had breached the following data protection principles set out in the Data Protection Act 1998 Schedules 1 and 2: 1st (fair and lawful processing), 2nd (processing only for specified and lawful purposes) and 7th (technical and organizational security measures). In particular, it was alleged that Google had not notified Apple iPhone users of the purposes of processing in breach of Schedule 1, Part II, paragraph 2 and that the data was not processed fairly according to the conditions set out in Schedules 2 and 3.

Vidal-Hall[9] concerned the first challenge of jurisdiction and in particular whether the court should allow the serving of proceedings on the defendant outside the jurisdiction under the Civil Procedure Rules[10]. For privacy infringement, previous actions had been brought under the cause of action of breach of confidence[11], which is a claim in equity and, thus it was unclear whether for such actions jurisdiction lies at the place of where the damage occurs. The Court of Appeal held that misuse of private information and contravention of the statutory data protection requirements was a tort and therefore, if damage had been sustained within England, the English courts had jurisdiction and service to the USA (California) was allowed.

The second hurdle for allowing the case to proceed by serving outside the jurisdiction was the question of whether the claimant was limited to claiming financial loss or whether a claim for emotional distress could succeed. The Court of Appeal in Vidal-Hall decided that damages are available for distress, even in the absence of financial loss, to ensure the correct implementation of Article 23 of the (then) Data Protection Directive, and in order to comply with Articles 7 and 8 of the Charter of Fundamental Rights of the EU. The Court therefore found that there was a serious issue to be tried and allowed service abroad to proceed, at which point the case settled.

The more recent English Supreme Court judgment in Lloyd concerned the second challenge, collective redress. As pointed out by Lord Leggatt in the judgment, English procedural law provides for three different types of actions: Group Litigation Orders (CPR 19.11), common law representative actions, and statutory collective proceedings under the Competition Act 1998. Their differences are significant for the purposes of litigation financing in two respects: first the requirement to identify and “sign-up” claimants and secondly, the requirement for individualized assessment of damages. Since both these requirements are expensive, they make collective redress in mass privacy infringement cases with large numbers of claimants impractical.

Group actions require all claimants to be identified and entered in a group register (“opt-in”) and are therefore expensive to administer, which renders them commercially unviable if each individual claim is small and if the aim is to spread the cost of litigation across a large number of claimants.

English statutory law in the shape of the Competition Act 1998 provides for collective proceedings before the Competition Appeal Tribunal in competition law cases only.[12] Since the reforms by the Consumer Rights Act in 2015, they can be brought under an “opt-in” or “opt-out” mechanism. Opt-out means that a class can be established without the need for affirmative action by each and every member of the class individually. The significance of this is that it is notoriously difficult (and expensive) to motivate a large number of consumers to join a collective redress scheme. Human inertia frequently prevents a representative claimant from joining more than a tiny fraction of those affected. For example, 130 people (out of 1.2-1.5 million) opted into the price-fixing case against JJB Sports concerning replica football shirts.[13] Likewise, barely 10,000 out of about 100,000 of Morrison’s employees joined the group action against the supermarket chain for unlawful disclosure of private data on the internet by another employee.[14] Furthermore, s.47C (2) of the Competition Act obviates the need for individual assessment of damages, but limits the requirement to prove damages to the class as a whole, as an aggregate award of damages, as held by Lord Briggs in Merricks v Mastercard[15]. However no such advanced scheme of collective redress has yet been enacted in relation to mass privacy infringement claims.

While the Supreme Court held that Mr Lloyd’s individual claim had real prospect of success, the same could not necessarily be said of everyone in the class he represented. This case was brought as a representative action where Mr Lloyd represented the interests of everyone in England and Wales who used an iPhone at the relevant time and who had third party cookies placed by Google on their device. One of the interesting features of representative actions is that they can proceed on an opt-out basis, like the collective actions under the Competition Law Act. Common law representative actions have been established for hundreds of years and have now been codified in CPR Rule 19.6: “Where more than one person has the same interest in a claim by or against one or more of the persons who have the same interest as representatives of any other person who have that interest”. Thus representative actions are based on the commonality of interest between claimants. The pivotal issue in Lloyd was the degree of commonality of that interest and in particular, whether this commonality must extend to the losses, which claimants have suffered, and proof of damages.

Lord Leggatt in Lloyd emphasized the spirit of flexibility of representative actions. Previous caselaw in the Court of Appeal had held that it was possible for claimants to obtain a declaration by representative action, which declares that they have rights which are common to all of them, even though the loss and amount of damages may vary between them.[16] He held that a bifurcated approach was permissible: a representative action can be brought seeking a declaration about the common interests of all claimants, which can then form the basis for individual claims for redress. Lord Leggatt held that, depending on the circumstances, a representative action could even be brought in respect of a claim for damages, if the total amount of damages could be determined for the class as a whole, even if the amount for each individual claimant varied, as this was a matter which could be settled between the claimants in a second step. He held that, therefore, a representative action can proceed even if a claim for damages was an element of the representative action, as in Lloyd.

Lord Leggatt found that the interpretation of what amounts to the “same interest” was key and that there needed to be (a) common issue(s) so that the “representative can be relied on to conduct the litigation in a way which will effectively promote and protect the interests of all the members of the represented class.”[17] The problem in Lloyd was that the total damage done to privacy by the Safari workaround was unknown.

Lord Leggatt saw no reason why a representative action for a declaration that Google was in breach of the Data Protection Act 1998, and that each member was entitled to compensation for the damage suffered as a consequence of the breach, should fail. However, commercial litigation funding in practice cannot fund actions seeking a mere declaration, but need to be built on the recovery of damages, in order to finance costs. In order to avoid the need for individualised damages, the claim for damages was formulated as a claim for uniform per capita damages. The problem on the facts of this case was clearly that the Safari workaround did not affect all Apple users in the same manner, as their internet usage, the nature and amount of data collected, as well as the effect of the data processing varied, all of which required individualised assessment of damages.

For this reason, the claimant argued that an infringement of the Data Protection Act 1998 leads to automatic entitlement to compensation without the need to show specific financial loss or emotional distress. This argument proved to be ultimately unsuccessful and therefore the claim failed. The Court examined Section 13 of the Data Protection Act 1998, entitling the defendant to compensation for damage, but the court held that each claimant had to prove such damage. The level of distress varied between different members of the represented class, meaning that individual assessment was necessary.

The claimant sought to apply the cases on the tort of misuse of private information by analogy. In this jurisprudence the courts have allowed for an award of damages for wrongful intrusion of privacy as such, without proof of distress in order to compensate for the “loss of control” over formerly private information.[18] Lord Leggatt pointed out that English common law now recognized the right to control access to one’s private affairs and infringement of this right itself was a harm for which compensation is available.

However in this particular case the claim had not been framed as the tort of misuse of private information or privacy intrusion, but as a breach of statutory duty and Lord Leggatt held that the same principle, namely the availability of damages for “loss of control” did not apply to the statutory scheme. He pointed out that it may be difficult to frame a representative action for misuse of private information, as it may be difficult to prove reasonable expectations of privacy for the class as a whole. This may well be the reason that the claim in this case was based on breach of statutory duty in relation to the Data Protection Act. Essentially the argument that “damages” in Section 13 (1) included “loss of control” over private data was unsuccessful. Both Article 23 of the Data Protection Directive and Article 13 made a distinction between the unlawful act (breach of data protection requirements) and the damage resulting, and did not conceive the unlawful act itself as the damage. Furthermore, it was not intended by the Directive or the Act that each and every contravention led to an entitlement to damages. He held that “loss of control” of personal data was not the concept underlying the data protection regime, as processing can be justified by consent, but also other factors which made processing lawful, so the control over personal data is not absolute.

Furthermore, it did not follow from the fact that both the tort of misuse of private information and the data protection legislation shared the same purposes of protecting the right to privacy under Article 8 of the European Convention of Human Rights that the same rule in respect of damages should apply in respect of both. There was no reason “why the basis on which damages are awarded for an English domestic tort should be regarded as relevant to the proper interpretation of the term “damage” in a statutory provision intended to implement a European directive”.[19] He concluded that a claim for damages under Section 13 required the proof of material damage or distress. He held that the claim had no real prospect of success and that therefore no permission should be given to serve proceedings outside the jurisdiction (on Google in the US).

This outcome of Lloyd raises the question in the title of this article, namely whether the cross-border battle on collective actions in mass privacy infringement cases against Big Tech has been lost, or whether on the contrary, it has just begun. One could argue that it has just began for the reason that the facts underlying this case occurred in 2011-2012, and therefore the judgment limited itself to the Data Protection Act 1998 (and the then Data Protection Directive 1995/46/EC). Since then the UK has left the EU, but has retained the General Data Protection Regulation[20] (“the UK GDPR”) and implemented further provisions in the form of the Data Protection Act 2018, both of which contain express provisions on collective redress. The GDPR provides for opt-in collective redress performed by a not-for-profit body in the field of data protection established for public interest purposes.[21] This is narrow collective redress as far removed from commercial litigations funders as possible. Because of the challenge of financing cross-border mass-privacy infringements claims, this is unlikely to be a practical option. The GDPR makes it optional for Member States to provide that such public interest bodies are empowered to bring opt-out collective actions for compensation before the courts.[22] These provisions unfortunately do not add anything to common law representative actions or group actions under English law. As has been illustrated above, representative actions can be brought on an “opt-out” basis, but have a narrow ambit in that all parties must have the same interest in the claim and Lloyd has demonstrated that in the case of distress this communality of interest may well defeat a claim. For group actions the bar of communality is lower, as it may encompass “claims which give rise to common or related issues of fact or law”[23]. But clearly the downside of group actions is that they are opt-in. Therefore, while English law recognizes collective redress, there are limitations to its effectiveness.

The Data Protection Act 2018 imposes an obligation on the Secretary of State to review the provision on collective redress, and in particular, consider the need for opt-out collective redress, and lay a report before Parliament. This may lead to Regulations setting out a statutory opt-out collective redress scheme for data protection in the future.[24] This Review is due in 2023.

Thus, the GDPR and the Data Protection Act 2018 have not yet added anything to the existing collective redress. It can only be hoped that the Secretary of State reviews the collective redress mechanisms in relation to data protection law and the review leads to a new statutory collective redress scheme, similar to that enacted in respect of Competition Law in 2015, thereby addressing the challenge of holding Big Tech to account for privacy infringement.[25]

However the new data protection law has improved the provision of recoverable heads of damage. This improvement raises the question, if the issues in Lloyd had been raised under the current law, whether the outcome would have been different. The Data Protection Act 2018 now explicitly clarifies that the right to compensation covers both material and non-material damage and that non-material damage includes distress.[26] Since non-material damage is now included in the Act, the question arises whether this new wording could be interpreted by a future court as including the privacy infringement itself (loss of control over one’s data). Some of the arguments made by Lord Leggatt in Lloyd continue to be relevant under the new legislation, for example that the tort of statutory breach is different from the tort of misuse of private information and that not each and every (minor) infringement of a statute should give raise to an entitlement for damages. Nevertheless it is clear from the new Act that non-material damage is included and that non-material damage includes distress, but is wider than distress. This means that claimants should be able to obtain compensation for other heads of non-material damage, which may include the latent consequences of misuse of personal information and digital surveillance. There is much scope for arguing that some of the damage caused by profiling and tracking are the same for all claimants. A future representative action in an equivalent scenario may well be successful. Therefore, the battle for collective action against Big Tech companies’ in privacy infringement cases may just have begun.

[1] J.hornle@qmul.ac.uk

[2] Shoshana Zuboff The Age of Surveillance Capitalism (2018)

[3] See further J. Hörnle, Internet Jurisdiction Law & Practice (OUP 2021)

[4] ECLI:EU:C:2018:37; discussed further in J. Hörnle fn 1 Chapter 8

[5] Ie the courts of the consumer’s domicile, if the business directed their activities to that state, Art 17 and Art 18 (1) Brussels Regulation on Jurisdiction (EU) 1215/2021

[6] In Re Facebook Biometric Information Privacy Litigation 185 F.Supp.3d 1155 (US District Court N.D. California 2016) and Douez v Facebook [2017] SCC 33; discussed further in J. Hörnle fn 1 Chapter 8

[7] [2016] QB 1003

[8] [2021] 3 WLR 1268

[9] [2015] 3 WLR 409 (CA)

[10] CPR PD 6B para.3.1(9)

[11] Campbell v MGN Ltd [2004] 2 WLR 1232 (HL)

[12] Section 47B

[13] The Consumers Association v JJB Sports Plc [2009] CAT 2

[14] Various Claimants v WM Morrisons Supermarkets Plc [2017] EWHC 3113 (QB)

[15] [2021] Bus LR 25, para 76

[16] David Jones v Cory Bros & Co Ltd (1921) 56 LJ 302; 152 LT Jo 70

[17] Paras 71-74

[18] by Mann J affirmed in the Court of Appeal Gulati v MGN Ltd [2017] QB 149

[19] Para 124

[20] Regulation (EU) 2016/679, L119, 4 May 2016, p. 1–88

[21] Art 80 (1)

[22] Arts 79 and 80 (2) in relation to effective judicial remedies

[23] CPR Part 19- Group Litigation Orders, Rules 19.10, 19.11

[24] ss. 189-190

[25] The current government, however seems to march in the opposite direction, see Consultation on reform of data protection law https://www.gov.uk/government/consultations/data-a-new-direction

[26] S. 168 (1)

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

(These abstracts can also be found at the IPRax-website under the following link: https://www.iprax.de/en/contents/)

 

E.-M. Kieninger: Climate Change Litigation and Private International Law

The recent Shell ruling by the District Court of The Hague raises the question whether Carbon Majors could also be sued outside the state of their corporate home and which law would be applicable to claims for damages or injunctive relief. In particular, the article discusses possible restrictions of the right to choose between the law of the state in which the damage occurred and the law of the state in which the event giving rise to the damage took place (Art. 7 No. 2 Brussels Ia Regulation and Art. 7 Rome II Regulation). It also considers the effects of plant permits and the role that emissions trading should play under Art. 17 Rome II Regulation.

 

S. Arnold: Artificial intelligence and party autonomy – legal capacity and capacity for choice of law in private international law

Artificial intelligence is already fundamentally shaping our lives. It also presents challenges for private international law. This essay aims to advance the debate about these challenges. The regulative advantages of party autonomy, i.e. efficiency, legal certainty and conflict of laws justice, can be productive in choice of law contracts involving artificial intelligence. In the case of merely automated systems, problems are relatively limited: the declarations of such systems can simply be attributed to their users. Existence, validity or voidability of choice of law clauses are determined by the chosen law in accordance with Art. 3(5), 10(1) Rome I Regulation. If, however, the choice of law is the result of an artificial “black box” decision, tricky problems arise: The attribution to the persons behind the machines might reach its limit, for such artificial decisions can neither be predicted nor explained causally in retrospect. This problem can be solved in different ways by the substantive law. Clearly, national contract laws will differ substantially in their solutions. Thus, it becomes a vital task for private international law to determine the law that is decisive for the question of attribution. According to one thesis of this article, two sub-questions arise: First, the question of legal capacity for artificial intelligence and second, its capacity for choice of law. The article discusses possible connecting factors for both sub-questions de lege lata and de lege ferenda. Furthermore, it considers the role of ordre public in the context of artificial choice of law decisions. The article argues that the ordre public is not necessarily violated if the applicable law answers the essential sub-questions (legal capacity and capacity for choice of law) differently than German law.

 

M. Sonnentag/J. Haselbeck: Divorce without the involvement of a court in Member States of the EU and the Brussels IIbis- and the Rome III-Regulation

In recent years some Member States of the European Union such as Italy, Spain, France, and Greece introduced the possibility of a divorce without the involvement of a court. The following article discusses the questions whether such divorces can be recognised according to Art. 21 Regulation No 2201/2003 (Brussels-IIbis), Art. 30 Regulation No 2019/1111 (Brussels-IIbis recast) and if they fall within the scope of the Regulation No 1259/2010 (Rome III).

 

W. Hau: Personal involvement as a prerequisite for European tort jurisdiction at the centre of the plaintiff’s interests

The case Mittelbayerischer Verlag KG v. SM gave the ECJ the opportunity to further develop its case law on the European forum delicti under Art. 7 No. 2 Brussels Ibis Regulation for actions for alleged infringements of personality rights on the internet. The starting point was the publication of an article on the homepage of a Bavarian newspaper, which misleadingly referred to “Polish extermination camps” (instead of “German extermination camps in occupied Poland”). Strangely enough, Polish law entitles every Polish citizen in such a case to invoke the “good reputation of Poland” as if it were his or her personal right. The ECJ draws a line here by requiring, as a precondition of Art. 7 No. 2, that the publication contains objective and verifiable elements which make it possible to individually identify, directly or indirectly, the person who wants to bring proceedings at the place of his or her centre of interest. While this approach allows for an appropriate solution to the case at hand, it leaves several follow-up questions open.

 

A. Hemler: Which point in time is relevant regarding the selection of a foreign forum by non-merchants according to § 38(2) German Code of Civil Procedure (ZPO)?

38(2) German Code of Civil Procedure (ZPO) permits the selection of a foreign forum only if at least one party does not have a place of general jurisdiction in Germany. In the case discussed, the defendant had general jurisdiction in Germany only when the claim was filed. However, there was no general jurisdiction in Germany when the choice of forum clause was agreed upon. The Landgericht (district court) Frankfurt a.M. therefore had to decide on the relevant point in time regarding § 38(2) ZPO. Given the systematic structure of § 38 ZPO and the law’s purpose of advancing international legal relations, the court argued in favour of the point in time in which the choice of forum clause was agreed upon. The author of the paper rejects the court’s view: He argues that the systematic concerns are less stringent on closer inspection. More important, however, is the fact that the law also calls for the protection of non-merchants. This can only be sufficiently achieved if the point in time in which the claim was filed is regarded as the crucial one.

 

D. Henrich: News on private divorces in and outside the EU

In two decisions the German Federal Court of Justice (“BGH”) had to deal with the recognition of private divorces (divorces without involvement of a state authority). In the first case (XII ZB 158/18) a couple of both Syrian and German nationality had been divorced in Syria by repudiation. While recognition of foreign public divorces (divorces by a state court or other state authority) is a question of procedure, private divorces are recognized if they are effective according to the applicable law, here the Rules of the Rome III Regulation (Article 17(1) Introductory Act to the Civil Code). Because the couple had no common ordinary residence, the Court applied Article 8 lit. c Rome III Regulation. German Law dominating, the Court denied recognition.

In the second case (XII ZB 187/20) the BGH made a reference for a preliminary ruling of the European Court of Justice regarding the recognition of a divorce in Italy in the register office in front of the registrar. The BGH follows the opinion that in such cases it is the consent of the parties that dissolves the marriage, the divorce being a private one. The BGH questions whether in spite of that the divorce could be recognized according to Sec. 21 Council Regulation (EC) No. 2201/2003 or, if not, according to Sec. 46 of the Council Regulation.

 

C. Budzikiewicz: On the classification of dowry agreements

Agreements on the payment of a bride’s dowry are a recurring topic in German courts. It usually becomes the subject of a legal dispute in connection with or after a divorce. This was also the case in the decision to be discussed here, in which the applicant demands that her divorced husband pay for the costs of a pilgrimage to Mecca. Since the case has an international connection due to the husband’s Libyan nationality, the Federal Supreme Court first addresses the controversial question of the characterization of dowry. However, since all connection options lead to German law in the present case, the Court ultimately refrains from deciding the question of characterization. It explains that the agreement on the payment of dowry is to be classified under German law as a sui generis family law contract, which requires notarization in order to be effective. The article critically examines the decision. In doing so, it addresses both the question of characterization of dowry and the need for form of agreements on the payment of dowry under German law.

 

E. Jayme/G. Liberati Buccianti: Private Divorces under Italian Law: Conflict of Laws

Divorce, under German law, is only permitted by a decision of a judge, even in cases where a foreign law is applicable which would allow a private divorce based on the agreement of the spouses. Italy, however, has introduced, in 2014, a divorce by private agreement in two procedures: the agreement of the spouses can be submitted to the public prosecutor who, in case he agrees, will send it to the civil registrar, or, secondly, by a direct application of the spouses to the civil registrar of the place where the marriage had been registered.

The article discusses the problems of private international law and international civil procedure, particularly in cases where Italian spouses living in Germany intend to reach a private divorce in Italy. The discussion includes same-sex-marriages of Italian spouses concluded in Germany which are permitted under German law, but not under Italian law, according to which only a “civil union” is possible. The Italian legislator has enacted (2017) a statute according to which the same-sex-marriage concluded by Italian citizens abroad will have the effects of a civil union under Italian law. The question arises of whether the Italian rules on terminating a civil union will have an effect on the spouses marriage concluded in Germany.

The article also discusses the validity of private divorces obtained in Third States which are not members of the European Union, particularly with regard to religious divorces by talaq expressed by the husband, and the problem whether such divorces are compatible with the principles of public policy. The authors mention also the specific problems of Italian law with regard to religious (catholic) marriages concluded and registered in Italy, where a divorce by Italian law is possible which, however, may be in conflict with a nullity judgment of the catholic church.

 

G. Mäsch/C. Wittebol: None of Our Concern? – A Group of Companies‘ Cross-border Environmental Liability Before Dutch Courts

The issue of cross-border corporate responsibility has been in the limelight of legal debate for some time. In its decision of 29 January 2021, the Court of Appeal of The Hague (partially) granted a liability claim against the parent company Royal Dutch Shell plc with central administration in The Hague for environmental damages caused by its Nigerian subsidiary. In particular, the Dutch court had to address the much-discussed question to what extent domestic parent companies are liable before domestic courts for environmental damage committed by their subsidiaries abroad, and whether domestic courts have international jurisdiction over the subsidiary. With this precedent, the number of cross-border human rights and environmental claims is likely to rise in the near future.

 

H. Jacobs: Article 4(2) and (3) Rome II Regulation in a case involving multiple potential tortfeasors

In Owen v Galgey, the High Court of England and Wales engaged in a choice of law analysis in a case involving multiple potential tortfeasors. The claimant, a British citizen habitually resident in England, was injured in France when he fell into an empty swimming pool. In the proceedings before the High Court, he claimed damages from, inter alia, the owner of the holiday home and his wife, both British citizens habitually resident in England, and from a French contractor who was carrying out renovation works on the swimming pool at the material time. The judgment is concerned with the applicability of Article 4(2) Rome II Regulation in multi-party tort cases and the operation of the escape clause in Article 4(3) Rome II Regulation. While the High Court’s view that Article 4(2) requires a separate consideration of each pair of claimants and defendants is convincing, it is submitted that the court should have given greater weight to the parties’ common habitual residence when applying Article 4(3).

David P. Stewart and David W. Bowker, Ristau’s International Judicial Assistance – A Practitioner’s Guide to International Civil and Commercial Litigation, Oxford University Press (second edition, 2021).

This welcome and comprehensive addition to the area of cross-border dispute resolution and civil procedure in civil and commercial matters was just published and marks the beginning of the New Year under the very best auspices!

The blurb on the publisher’s website reads:

‘Legal practitioners of today are dealing with cross-border disputes in civil and commercial matters in an increasingly complex transnational legal environment. This edition of Bruno Ristau’s multi-volume work International Judicial Assistance brings these complexities to the fore. The revised and updated material offers background, explanations, and practical advice on how to deal with the most important challenges and recent developments in the field of transnational litigation, including issues related to the choice of forum, choice of law, service of process, proof of foreign law, discovery of evidence, and enforcement of judgments.

Written by David P. Stewart and David W. Bowker, internationally renowned experts in public and private international law, this book offers insightful and comprehensive information on cross-border litigation by addressing issues in sequence as they are likely to be encountered in practice. A major focus is the mechanisms for international judicial cooperation and assistance, in particular those provided by regional and international arrangements such as the Hague Conventions on Service, Evidence and Apostilles, choice of court agreements, and the enforcement of judgments, as well as regional arrangements within the OAS and the EU. This book is a necessary addition for litigators in the U.S. and other common law jurisdictions who are involved in cross border disputes.’

Max Planck Institute  invites you on Tuesday, 4 January 2022 at 11 am (CET) to a virtual workshop in our series “Current Research in Private International Law”.

 

Zheng Sophia Tang (Wuhan University) will be speaking on “Smart Court in Cross-Border Litigation”. 

 

About the speaker:

Zheng (Sophia) Tang is a professor at the Wuhan University Institute of International Law, an Associate Dean at the Wuhan University Academy of International Law and Global Governance (China Top Thinktank). She is a barrister, an arbitrator and a mediator. 

 

About the topic:

Smart courts integrate modern technology in the court proceedings to improve the efficiency of trial. It can particularly benefit cross-border litigation, which is remarked by the cost and inconvenience for a party to take part in proceedings abroad. However, the current construction of smart courts primarily focuses on domestic trials and leaves the cross-border litigation behind. Although technology can improve procedural efficiency, legal obstacles in cross-border litigation make the efficiency impossible to achieve. Identity verification, service of proceedings, evidence and hearing are four examples demonstrating how the current law, especially the old-fashioned concept of sovereignty, hampers the functioning of smart courts in cross-border litigation. In order to fully embrace the benefit of smart courts, the concept of judicial sovereignty needs to be reconceptualised in the age of technology.

 

About the virtual workshop series:

The virtual workshop series “Current Research in Private International Law” is organised by Prof. Dr. Ralf Michaels and Michael Cremer. The series features guest speakers and Institute staff members who present and discuss their work on current developments and research topics in private international law. The workshops are geared to scholars who are researching in the field of private international law, but attendance is open to all individuals having an academic interest (including doctoral candidates and students).

 

The virtual workshop will be held as a video conference via Zoom. After having registered no later than 3 January 2022 using this LINK you will receive the login details on Monday afternoon. Please confirm upon registration that you agree to the use of Zoom and that you will not record the event. By attending the event you confirm that you have read and agreed to Zoom’s Terms of Service and Privacy Policy. You will find them here and here.

Meetings & Events

On 1 December 2021, the HCCH hosted HCCH a|Bridged – Edition 2021, an online event focused on contemporary issues relating to the application of the HCCH 2005 Choice of Court Convention, including the promotion of party autonomy. More information is available here.

On 6 and 7 December 2021, the HCCH Administrative Cooperation Working Group on the 2007 Child Support Convention met via videoconference. The Group continued its work as a forum for discussion of issues pertaining to administrative cooperation, discussing in particular the collection of statistics under the Convention. More information is available here.

On 10 December 2021, the HCCH hosted a virtual seminar on the HCCH 2005 Choice of Court Convention and the HCCH 2019 Judgments Convention for the Supreme Court of Ukraine. This was the third of a series of seminars, organised with the generous support of the EU Project Pravo-Justice, aimed at facilitating the proper and effective implementation of the HCCH Conventions and instruments in Ukraine.

Publications and Documentation

On 9 December 2021, the Permanent Bureau announced the publication of translations, in Arabic, Chinese, Russian and Spanish, of the Legal Guide to Uniform Instruments in the Area of International Commercial Contracts, with a Focus on Sales. With these new translations, the Legal Guide is now available in all UN languages. More information is available here.

On 14 December 2021, the Permanent Bureau announced the publication of 21 new translations of the Guide to Good Practice on the Use of Video-Link under the Evidence Convention. With these new translations, the Guide to Good Practice is now available in 23 European Union languages. More information is available here.

Vacancies

Applications are now open for the 2022 Peter Nygh Hague Conference Internship. The deadline for the submission of applications is 30 January 2022. More information is available here.

 

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

 

This Tuesday the Court of Justice delivered its judgment in the case Gtflix Tv, C-251/20, where it has been asked to interpret Article 7(2) of the Brussels I bis Regulation in the context of an online publication allegedly disparaging a legal person and an action for compensation brought by that person before the court of a Member State in the territory of which that content was accessible.

The preliminary question referred to the Court read as follows:

“Must Article 7(2) of [the Brussels I bis Regulation] be interpreted as meaning that a person who, considering  that his or her rights have been infringed by the dissemination of derogatory comments on the internet, brings proceedings not only for the rectification of information and the removal of content but also for compensation for the resulting non-material and material damage, may claim, before the courts of each Member State in the territory of which content published online is or was accessible, compensation for the damage caused in the territory of that Member State, in accordance with the judgment in eDate Advertising (paragraphs 51 and 52), or whether, pursuant to the judgment in [Bolagsupplysningen and Ilsjan] (paragraph 48), that person must make the application for compensation before the court with jurisdiction to order rectification of the information and removal of the derogatory comments?”

In essence, the referring court sought to establish whether the mosaic approach stood up to the test of time (also) in the contexts such as the one described in the preliminary question.

The Court answered in the affirmative.

A person who brings proceedings not only for the rectification of information and the removal of content but also for compensation for the resulting non-material and material damage, may claim, before the courts of each Member State in the territory of which content published online is or was accessible, compensation for the damage caused in the territory of that Member State, despite the fact that – as the Court seems to stress it in its answer – these courts would not have jurisdiction to rule on the rectification or removal of content.

The judgments is available here (in French, so far), with a press release in English.

The University of Antwerp is looking for a doctoral candidate in the domain of International Accountability through the value chain.

The research addresses the question of how entities in the North can be held accountable for human rights infringements that happen in their value chain, often in the South. It examines recent and pending legislation on value chain due diligence in selected countries and/or regional organisations. The research can be approached from the perspective of human rights law, public international law or private international law, including private law mechanisms (either in tort or in contract law).

The deadline for applications is 14 February 2022 and the start date is 15 September 2022. For more information, see the full vacancy text.

After the Coman judgment of 2018, the Grand Chamber of the Court of Justice of the European Union (CJEU) has again rendered a judgment in the field of free movement of citizens that is of importance for private international law. Like in Coman, the judgment in V.M.A. of 14 December 2021 concerned a non-traditional family of which the members sought to make use of their right to free movement in the EU under the Treaty on the Functioning of the European Union (TFEU) and Directive 2004/38. The  Charter of Fundamental Rights of the EU (Charter) was also pertinent, particularly its Article 7 on respect for private and family life, Article 9 on the right to marry and the right to found a family,  Article 24 on the rights of the child, and Article 45 on freedom of movement and of residence.

While Coman concerned the definition of “spouse” under Article 2 of the Directive, in V.M.A. the CJEU addressed the definition of  “direct descendants” in the same provision.

Two women, V.M.A., a Bulgarian national, and K.D.K., a national of the United Kingdom, were married and lived in Spain. A daughter, S.D.K.A., was born in Spain. Her Spanish birth certificate indicated V.M.A. as “mother A” and K.D.K. as “mother”. V.M.A. applied to the Sofia municipality for a birth certificate for S.D.K.A. in order to obtain a Bulgarian identity document for her. She submitted a legalised and certified translation into Bulgarian of the extract from the civil register of Barcelona.

The Sofia municipality refused this application, due to the lack of information on S.D.K.A.’s biological mother and because the reference to two mothers was contrary to Bulgarian public policy.

The Administrative Court of the City of Sofia, to which V.M.A. appealed the municipality’s decision, posed four questions to the CJEU. It sought to know whether Articles 20 and 21 of the TFEU and Articles 7, 24 and 45 of the Charter oblige Bulgaria to recognise the Spanish birth certificate despite its mentioning two mothers and despite the fact that it was unclear who the biological mother of the child was. It also questioned EU Member States’ discretion regarding rules for the establishment of parentage. A further relevant point was Brexit and the fact that the child would not be able to get EU citizenship through the other mother, who is a UK citizen.

The Grand Chamber ruled as follows:

Article 4(2) TEU, Articles 20 and 21 TFEU and Articles 7, 24 and 45 of the Charter of Fundamental Rights of the European Union, read in conjunction with Article 4(3) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, must be interpreted as meaning that, in the case of a child, being a minor, who is a Union citizen and whose birth certificate, issued by the competent authorities of the host Member State, designates as that child’s parents two persons of the same sex, the Member State of which that child is a national is obliged (i) to issue to that child an identity card or a passport without requiring a birth certificate to be drawn up beforehand by its national authorities, and (ii) to recognise, as is any other Member State, the document from the host Member State that permits that child to exercise, with each of those two persons, the child’s right to move and reside freely within the territory of the Member States.

The CJEU thus obliges Bulgaria, through EU law, to recognise the Spanish birth certificate. The CJEU is not concerned with the issue of a  birth certificate in Bulgaria, but rather with the identity document (the requirements under national law for the identity document cannot be used to refuse to issue such identity document – see para 45).

The parentage established lawfully in Spain has the result that the  parents of a Union citizen who is a minor and of whom they are the primary carers, be recognised by all Member States as having the right to accompany that child when her right to move and reside freely within the territory of the Member States is being exercised (para 48)

The CJEU refers to the identity document as the document that permits free movement. This wording seems, on a first reading, to be broader than the ruling in Coman, where the CJEU ruled on the recognition of the same-sex marriage only for purposes of the right to residence. However, in para 57 the Court seems to include the Coman limitation: Such an obligation does not require the Member State of which the child concerned is a national to provide, in its national law, for the parenthood of persons of the same sex, or to recognise, for purposes other than the exercise of the rights which that child derives from EU law, the parent-child relationship between that child and the persons mentioned on the birth certificate drawn up by the authorities of the host Member State as being the child’s parents.

But I’m sure much debate will follow about the extent of the obligation to recognise. As readers might be aware, the European Commission earlier this year set up an Expert Group on the Recognition of Parentage between Member States.

 

 

 

Written by Stephen G.A. Pitel, Western University

Many Canadian and some other conflicts scholars will know that the Uniform Law Conference of Canada (ULCC) has drafted (in 1994) model legislation putting the taking of jurisdiction and staying of proceedings on a statutory footing. This statute, known as the Court Jurisdiction and Proceedings Transfer Act (CJPTA), has subsequently been adopted and brought into force in 4 of Canada’s 13 provinces and territories (British Columbia, Saskatchewan, Nova Scotia, Yukon).

The ULCC has now released a revised version of the CJPTA. It is available here and background information is available here.

The most notable changes, each explained at some length in the commentaries, are as follows: 1. New provisions on exclusive and non-exclusive forum selection clauses in the staying of proceedings (s. 11); 2. A new section on subject matter competence dealing with the foreign immovable property rules (s. 12.2); 3. Use of the phrase “clearly more appropriate” for a stay of proceedings based on forum non conveniens (s. 11); 4. Territorial competence in respect of necessary parties (s. 3(d.1)); 5. Clarification of the meaning of the presumptive connection based on carrying on business in the forum (s. 10(h)).

Disclosure: I was a member of the Working Group for the revised statute. Solely in a personal capacity, I can offer three observations on the revisions. First, s. 12.2 is an attempt to largely (though not perfectly) codify the common law’s Mocambique rule regarding jurisdiction over foreign immovable property (classified as subject matter competence under the CJPTA). Some may find this interesting as there are not many available codifications of this complex rule. Second, the role given to exclusive forum selection clauses reflects the fact that under Canadian common law these are not treated as absolutely binding and instead are subject to a “strong cause” test before they can be disregarded (see ss. 11(3) and (4)). Section 11(5), however, allows a consumer or employer to treat such a clause as non-exclusive rather than exclusive (but also rather than disregarding it altogether). Third, there is a provision for taking jurisdiction (called territorial competence in the CJPTA) over a defendant who is a “necessary party” (s. 3(d.1)). Canadian common law has largely rejected “necessary or proper party” as an acceptable basis on which to exercise jurisdiction, but this flows from the undue breath of what can constitute a “proper party”. The statutory provision uses a very narrow meaning of “necessary party”.

It will now fall to the provinces and territories that have enacted the CJPTA to determine how to act on the changes. It will also be interesting to see if the revised and updated version generates any interest in the provinces and territories that have not so enacted.

All best wishes of the season.

This post has been prepared by He Qisheng, Professor of International Law, Peking University Law School, and Chairman at the Peking University International Economical Law Institute, has published the 7th Survey on Chinese Practice in Private International Law.

 

This survey contains materials reflecting the practice of Chinese private international law in 2020. First, regarding changes in the statutory framework of private international law in China, three legislative acts, one administrative regulation on the Unreliable Entity List and ten judicial interpretations of the Supreme People’s Court were adopted or amended in 2020 on a wide range of matters, including conflict of laws, punitive damages, international civil procedure, etc. Second, 11 typical cases involving Chinse courts’ jurisdiction are selected to highlight the development in Chinese private international law, involving standard essential patents, abuse of market dominance, declaration of non-infringement of patent, asymmetric choice of court agreement and other matters. Third, nine cases on choice of law questions relating, in particular, to habitual residence, rights in rem, matrimonial property regimes and ascertainment of foreign law, are examined. Fourth, five cases involving anti-suit injunction or anti-enforcement injunction are reported and one introduced in detail. Fifth, the first occasion for on international judicial assistance of extracting DNA, as well as three representative cases on the recognition and enforcement of foreign judgments, are discussed. The Statistics of international judicial assistance cases in China is first released in this survey. Finally, this survey also covers five recent decisions illustrating Chinese courts’ pro-arbitration attitude towards the uncertainty brought about by contractual clauses referring to both litigation and arbitration.

Here are the links to the article:

·         Standard link (you may share this link anywhere):
https://academic.oup.com/chinesejil/advance-article-abstract/doi/10.1093/chinesejil/jmab031/6449363

·         Free-access link (see below for how you may use this link):
https://academic.oup.com/chinesejil/advance-article/doi/10.1093/chinesejil/jmab031/6449363?guestAccessKey=4f7f76a9-41f4-4c46-9366-ea0198ab74ca

Table of Contents

1. Introduction
2. Overview

II.A. Report on the Work of the SPC in 2020

II.B. Laws and the SPC’s interpretation

II.C. Provisions on punitive damages

III. Jurisdiction

III.A. Intellectual property

III.A.i. Jurisdiction over the standard essential patent disputes

III.A.ii. Jurisdiction over the disputes of abuse of market dominance

III.A.iii. Jurisdiction over the giving of declaratory judgment in patent disputes

III.B. Choice of court agreement

III.C.i. An asymmetric choice of court agreement

III.C.ii. Choice of court agreement and hierarchical jurisdiction of the Chinese court system

III.C. Other choices in contracts

1. Choice of law

IV.A. Habitual residence

IV.B. Proprietary rights

IV.C. Matrimonial assets

IV.D. Ascertainment of foreign law

1. International judicial assistance

V.A. Statistics of judicial assistance in civil or commercial matters

V.B. Taking of evidence for foreign courts

1. Action preservation and anti-suit Injunction  

VII. Recognition and enforcement of foreign judgments

VIII. International arbitration

VIII.A. Agreements with jurisdiction and arbitration clauses

VIII.B. Construction on “judgment upon the award”

Last week, the Supreme Court of the United States agreed to hear a case concerning Hague Convention on the Civil Aspects of International Child Abduction. Amy Howe has an excellent summary of the case on her blog, Howe on the Court.

Under the convention, children who are wrongfully taken from the country where they live must be returned to that country, so that custody disputes can be resolved there. The convention makes an exception for cases in which there is a “grave risk” that returning the child would expose him or her to physical or psychological harm.

In Golan v. Saada, a U.S. citizen married an Italian citizen in 2015; they had a child, born in Milan, in 2016. The husband was allegedly abusive toward the wife throughout the marriage, but he did not directly abuse their son. In 2018, the wife took the child to the United States and did not return, remaining in a domestic-violence shelter in New York. The husband went to federal court there, trying to compel the child’s return to Italy.

The U.S. Court of Appeals for the 2nd Circuit ruled that, when a district court concludes that a child’s return would pose a grave risk of harm, the district court must consider measures that would reduce that risk. This holding clashes with the holdings of other courts of appeals, which do not mandate the consideration of such measures, particularly in cases involving domestic violence. The case then went back to the district court, which ordered the child’s return to Italy with a variety of protective measures in place – for example, mandatory therapy and parenting classes. The Supreme Court agreed to decide whether courts are required to consider all measures that might reduce the grave risk of harm if the child were to return home.

The case will be argued in the Spring and decided before June 2022; the docket and publicly available filings can be accessed here.

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

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

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

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

Do actions for recovery of sums unduly paid by way of unjust enrichment fall within exclusive jurisdiction under Article 22(5) of the Brussels I Regulation and, if not, do they fall within alternative jurisdiction set out in Article 5(3) in respect of “quasi-delicts”?

This is the twofold question that a Croatian court addressed to the Court of Justice in the case HRVATSKE ŠUME, C-242/20.

Last week, on 9th December, the Court handed down its judgment in this case.

Gilles Cuniberti and Geert van Calster reported and commented on the judgment. I am happy to refer to their contributions. As the judgment has already made object of their interesting analysis, the present post aims solely to complement the initial post about the Opinion presented by AG Saugmandsgaard Øe in the case at hand and the observations made there.

 

A brief reminder of the Opinion and its findings

Back in September, AG Saugmandsgaard Øe presented his Opinion in this case. At the request of the Court, he did only elaborate on the second part of the question presented above – and, technically speaking, the first preliminary question – pertaining to the interpretation of Article 3(5) of the Brussels I Regulation (point 20 of the Opinion).

In essence, he argued that an action for unjust enrichment is not a “matter relating to a contract” in the sense of Article 5(1), save where it is closely connected with a preexisting (or alleged to exist) contractual relationship (points 44-52). Nor it is a “matter relating to tort, delict or quasi-delict” within the meaning of Article 5(3) of the Regulation (point 79).

 

The judgment of the Court On the exclusive jurisdiction

The Court starts its analysis with first part of the question presented in the introduction of the this post – and again, technically speaking, the second preliminary question – on the interpretation of Article 22(5) on the exclusive jurisdiction.

The Court reads this question in the context of a particularity of the case that is brought up by the referring court in its request for a preliminary ruling: an action for recovery of sums unduly paid by way of unjust enrichment falls within the scope of exclusive jurisdiction set out in Article 22(5) where that action concerns an amount levied in the enforcement proceedings and is brought before a court because it is not possible anymore, given the lapse of time (since the date of enforcement), to seek recovery of the levied amount in the same enforcement proceedings? (paragraph 26).

The reasoning of the Court relies heavily on the autonomous character of the action in question with regards to the enforcement proceedings (paragraph 31) and on the predictability argument (paragraphs 30 and 34).

This reasoning leads the Court to conclude that, despite the aforementioned particularity of the case, the action for recovery of sums unduly paid does not fall within the scope of Article 22(5) of the Brussels I Regulation (paragraph 37).

 

On the alternative jurisdiction for contracts/torts

After that, the Court, logically, proceeds to the interpretation of Article 5(3) in order to clarify whether the action in question falls within the scope of that provision.

In short, it considers that due to the lack of the “harmful event” in the meaning of Article 5(3) , an action for recovery of sums unduly paid by way of unjust enrichment cannot fall within the scope of that provision (paragraph 55).

It also clarifies that the unjust enrichment does not, generally speaking, result from the act voluntarily undertaken by the party enriched at the expense of another. Thus, in principle it does not fall within the scope of Article 5(1), as a “matter relating to a contract” (paragraph 45). However, echoing the Opinion delivered by AG Saugmandsgaard Øe, the Cour considers that action “closely linked” to a contract would fall within the ambit of that provision (paragraphs 47 and 48).

 

Already second time’s a charm ?

In the initial post on the Opinion, I speculated that the solution proposed by AG Saugmandsgaard Øe may have brought to mind the proposal made by AG Bobek in the context of actio pauliana in his Opinion delivered in the case Feniks, C-337/17. As a reminder, in the latter Opinion, AG Bobek proposed to consider, in essence, that an actio pauliana cannot be seen as a “matter relating to a contract”, nor it is a “matter relating to tort, delict or quasi-delict”. It has to be brought before the court having jurisdiction under the general rule of jurisdiction, according to the principle actor sequitur forum rei.

Let us speculate and take that proposal one step further: while in order to identify the law governing action pauliana it might be necessary to decide whether this action is contractual or non-contractual in nature and thus falls within the scope of the Rome I Regulation or within the scope of the Rome II Regulation, it is not the case for the contract/tort distinction under the rules of jurisdiction set out in Article 5(1) and 5(3) of the Brussels I Regulation.

In the judgment in the case Feniks, C-337/17, the Court did not follow the proposal advanced by AG Bobek (see paragraph 44 of that judgment). Thus, it did not have to face or even to consider the one-step-forward speculative consequence mentioned above.

By contrast, it decided to do exactly that in the present case.

The Court acknowledges that a non-contractual characterization of the unjust enrichment is mandated by the Rome II Regulation (even though it falls within a scope of a special choice-of-law rule of Article 10), but it does not automatically translate to a similar characterization under the rules of jurisdiction of the Brussels I Regulation (paragraph 46).

 

The judgment can be consulted here.

In its Judgment BT v Seguros Catalana Occidente, EB, Case C-708/20, rendered on 9 December 2021, the Court of Justice of the European Union interpreted Article 13 Brussels Ibis Regulation. Amongst other things, the provision at hand takes into consideration direct actions of the injured party against the insurer domiciled in a Member State. Two main scenarios are taken into account. Either the injured party starts proceedings against the insured, and the insurer joins proceedings at a second moment, or the damaged party brings a direct action against the insurer. In this last case, the court having jurisdiction over the insurer shall have jurisdiction over the insured as well (that is, the contractually weaker party).

 

In Seguros Catalana Occidente, the damaged party, domiciled in the UK, spent some time at a holiday accommodation in Spain, and was there injured due to a fall on the patio. The insurance company of the immovable property was Spanish, and the insured/owner of the premises where the accident occurred, and who previously entered into an accommodation contract allowing the stay of the injured party, was domiciled in Ireland. By making use of its own forum actoris under Article 13(2) Brussels Ibis Regulation, the injured party started proceedings against the insurance company before British courts. British courts were also seised by the injured party for an action in damages against the insured party/owner of the property, who contested jurisdiction arguing that Article 13(3) Brussels Ibis was not applicable as a claim for damages arising from alleged negligence in the provision of a holiday accommodation would not constitute an ‘insurance claim’ (para. 18).

 

Whereas the nature of the injured person’s direct action against the insurer under national law is irrelevant for the purposes of qualifying an action as falling within the notion of ‘insurance matters’ (as already noted in C-463/06), the CJEU accedes to the interpretation that a claim against an insured for damages arising from alleged negligence in the provision of holiday accommodation does not fall within the scope of Article 13(3) Brussels Ibis Regulation, rather it being a matter of tort. For the section on insurance matters to be applicable, ‘the action before the court must necessarily raise a question relating to rights and obligations arising out of an insurance relationship between the parties to that action’ (para. 30). In other words, ‘a claim brought by the injured person against the policyholder … cannot be considered to be an insurance claim merely because that claim and the claim made directly against the insurer have their origin in the same facts or there is a dispute between the insurer and the injured person relating to the validity or effect of the insurance policy’ (para. 31).

 

In the CJEU’s eye, allowing the injured party to bring an action unrelated to insurance matters against the insured on the basis of Article 13(3) Brussels Ibis would circumvent the rules of that regulation concerning jurisdiction in matters of tort and lead to the effect that damaged parties could start proceedings against insurers before their own forum actoris under Article 13(2) ‘in order, subsequently, to bring an action against the insured, as a third party to those proceedings, on the basis of Article 13(3)’ (para. 36).

The Journal of Private International Law and the Singapore Management University will hold a virtual conference on 23 to 24 June 2022. The theme of the conference is Conflicts of Jurisdiction. The conference is designed to assist with the ongoing work of the Hague Conference on Private International Law (HCCH) on Jurisdiction. The speakers are leading private international law scholars and experts, many of whom are directly involved in the ongoing negotiations at the HCCH. Registration to attend the conference will open nearer the time.

The biennial Journal of Private International Law Conference has been delayed until 2023 in order to enable it to take place in person at the Singapore Management University. This conference will be based on a call for papers. We will announce further details in due course.

 

Conference on Conflicts of Jurisdiction

23-24 June 2022

Organised by the Journal of Private International Law and the Singapore Management University

(SGT=Singapore Time; BST=British Summer Time)

 

Day 1

Session 1 Thursday 23 June 2022 – The Common Law Approaches to Conflicts of Jurisdiction

Chair: Professor Jonathan Harris (QC) (King’s College London)

Time Speaker Topic 18.00-18.05 SGT

11.00-11.05 BST Professor Jonathan Harris (QC) (King’s College London) Welcome by Chair 18.05-18.10 SGT

11.05-11.10 BST Dean of Yong Pung How School of Law, Singapore Management University Opening comments 18.10-18.35 SGT

11.10-11.35 BST Professor Campbell McLachlan QC (Victoria University, New Zealand) Overview of some key issues in relation to conflicts of jurisdiction 18.35-19.00 SGT

11.35-12.00 BST Dr Ardavan Arzandeh (National University of Singapore) The Scottish, English and Singapore approach of forum non conveniens in conflicts of jurisdiction cases 19.00-19.25 SGT

12.00-12.25 BST Professor Ronald Brand (University of Pittsburgh) The US approach to forum non conveniens in conflicts of jurisdiction cases 19.25-19.50 SGT

12.25-12.50 BST Professor Mary Keyes (Griffith University) The Australian approach to forum non conveniens in conflicts of jurisdiction cases 19.50-20.05 SGT

12.50-13.05 BST Q&A 20.05-20.20 SGT

13.05-13.20 BST Break

 

Session 2 Thursday 23 June 2022 – Civilian Approaches to Conflicts of Jurisdiction

Chair: Professor Kei Takeshita (Hitotsubashi University and Chair of the HCCH Working Group on Jurisdiction)

Time Speaker Topic 20.20-20.25 SGT

13.20-13.25 BST Professor Kei Takeshita (Hitotsubashi University and Chair of the HCCH Working Group on Jurisdiction) Welcome by Chair 20.25-20.50 SGT

13.25-13.50 BST Professor Tanja Domej (University of Zurich) The EU and Lugano Convention approaches to conflicts of jurisdiction for internal cases (ie within the EU or between Contracting States to the Lugano Convention) 20.50-21.15 SGT

13.50-14.15 BST Professor Geert Van Calster (KU Leuven) The EU approach to conflicts of jurisdiction with non-EU and Lugano States (Articles 33 and 34 of Brussels Ia Regulation)

  21.15-21.40 SGT

14.15-14.40 BST Professors Nadia De Araujo and Marcelo De Nardi (Brazil) Latin American approaches to conflicts of jurisdiction in international cases

  21.40-22.05 SGT

14.40-15.05 BST Professor Zheng (Sophia) Tang (University of Wuhan and Newcastle University) Chinese and some other civilian approaches in Asia to conflicts of jurisdiction

  22.05-22.20 SGT

15.05-15.20 BST Q&A

 

Day 2

Session 3 Friday 24 June 2022 – Work at the Hague Conference on Private International Law on Conflicts of Jurisdiction

Chair: Professor Paul Beaumont (University of Stirling) 

Time Speaker Topic 18.00-18.05 SGT

11.00-11.05 BST Professor Paul Beaumont (University of Stirling) Welcome by Chair 18.05-18.30 SGT

11.05-11.30 BST Professor Fausto Pocar (University of Milan) The work on the Judgments Project in the Hague in the 1990s culminating in the interim text of 2001 18.30-18.55 SGT

11.30-11.55 BST Professor David McClean (University of Sheffield) Lessons from family law notably the provisions on conflicts of jurisdiction including transfers of jurisdiction in the Child Protection Convention 1996 18.55-19.20 SGT

11.55-12.20 BST Dr João Ribeiro-Bidaoui (First Secretary, HCCH) The revived Jurisdiction Project in the Hague – from Experts’ Group to Working Group – possible solutions on conflicts of jurisdiction 19.20-19.45 SGT

12.20-12.45 BST Professor Matthias Lehmann (University of Vienna) Challenges and opportunities for a new binding global instrument on conflicts of jurisdiction 19.45-20.00 SGT

12.45-13.00 BST Q&A 20.00-20.15 SGT

13.00-13.15 BST Break

 

Session 4 Friday 24 June 2022 – Work at the Hague Conference on Private International Law on Conflicts of Jurisdiction (continued)

Chair: Dr Adeline Chong (Singapore Management University)

Time Speaker Topic 20.15-20.20 SGT

13.15-13.20 BST Dr Adeline Chong (Singapore Management University) Welcome by Chair 20.20-20.45 SGT

13.20-13.45 BST Professor Trevor Hartley (London School of Economics) Balancing forum non conveniens and lis pendens (same parties and same subject matter) in a new global instrument on conflicts of jurisdiction 20.45-21.10 SGT

13.45-14.10 BST Professor Yeo Tiong Min (Singapore Management University) Dealing with related actions in a new global instrument on conflicts of jurisdiction 21.10-21.35 SGT

14.10-14.35 BST Professor Franco Ferrari (NYU) Conflicts between courts and arbitration in international cases and how to resolve them in a new global instrument on conflicts of jurisdiction 21.35-22.00 SGT

14.35-15.00 BST Justice Anselmo Reyes (Singapore International Commercial Court and Doshisha University) International commercial courts’ approaches to conflicts of jurisdiction and how they fit with a new global instrument on conflicts of jurisdiction 22.00-22.15 SGT

15.00-15.15 BST Q&A 22.15-22.20 SGT

15.15-15.20 BST Professor Jonathan Harris, Professor Paul Beaumont, Dr Adeline Chong Closing remarks

 

 

Guest post by Willem Theus, PhD Researcher (KULeuven, cotutelle with UCLouvain)

The history of private international law (or ‘conflict of laws’) is incomplete. Private international law textbooks have always referred to the essentials of the history of our discipline.[1] However, these essentials are often solely based on the history of conflict of laws in the West and on the works of western authors such as Huber, Von Savigny and Story. It is undoubtedly true that these authors played an important role and that the  “modern” conflict of laws finds it origin in 19thcentury Europe, when the split between private and public international law occurred.[2] This is however only one part of history.

Conflict of laws systems have been around much longer and are definitely not uniquely western. They were already present in the very first civilizations, with some rules of that ancient history still resembling our present-day rules.[3]Conflict of laws is “the body of law that aims to resolve claims involving foreign elements”.[4] A state or international border is therefore not required to have a conflict of laws system,[5] only different jurisdictions and laws (i.e. legal pluralism[6]) are. A distinction could therefore be made between “external” (i.e. crossing an international State border) conflict of laws or private international law and “internal” conflict of laws (i.e. within one State).[7] Both the historical research and the contemporary study of our field should arguably reflect much more on precolonial and/or non-western conflict of laws systems and on the unique linkage between the national (or “internal”) and international (or “external”) spheres. This is especially so given that “external” conflict of laws rules seem to sometimes guide “internal” conflict of laws cases.[8] I offer one historical example to highlight the new perspectives that such a widening of scope could offer.

In a not so distant and colonial past, there were multiple “internationalized” or mixed courts in various regions and nations. The last such mixed court only closed its doors in 1980.[9] In general, mixed courts were local courts that employed a mixed (read mostly Western) bench, bar and legal system to deal with legal conflicts that had a mixed or “foreign” element, i.e. conflicts not exclusively related to one local or foreign resident population.[10] Those exclusively local or intra-foreigner  -of the same nationality-  legal conflicts were often dealt with by various local or consular courts. The mixed or “foreign” element was however often widely interpreted and therefore quickly kicked in, leading to overlapping jurisdictions in many instances and therefore to a conflict of laws system.

An example of such a set-up is the Tangier International Zone (1923-1956), a treaty-based multinational run zone, which remained under the Sovereignty of the Sultan of Morocco. It had various multinational institutions with local involvement. In the Zone, five different legal systems co-existed, each with their own courts. These were the American Consular Court, the Special Tribunal of the State Bank of Morocco, the Moroccan Sharia courts, the Moroccan Rabbinical courts and the Mixed Court. The latter dealt with all cases that had a “foreign” element (except American as they went to the aforementioned American Consular Court).[11] Both “internal” and “external” conflict of law systems in fact overlap here. Indeed the Mixed Court and the two Moroccan courts were “local” courts with the judges being formally appointed by the Sultan, whereas the American Consular Court was in essence an ad hoc American court in Tangier. The Special Tribunal was some sort of early investment protection court with very limited jurisdiction.

Naturally, in such a set-up conflict of laws cases were frequent, as illustrated by the Toledano-case which came before the Mixed Court. In 1949 a dispute between the heirs of the large inheritance of a Tangerine Jew, Isaac Toledano, broke out. The key question concerned the nationality of Isaac – and as such the questions of jurisdiction and applicable law. During his lifetime Isaac had become a Spanish citizen by naturalization, yet he had seemingly always lived in Morocco. Had he somehow lost his Moroccan citizenship? If so, the mixed courts would have jurisdiction and Spanish law would apply, leading his inheritance to be divided under all his children, including his married daughters. If not, the rabbinical courts of Tangier and rabbinical law would apply, leading to his inheritance to only go to his sons and unmarried daughters. On appeal the court overturned the judgment of first instance that held that he had retained his Moroccan nationality. He was deemed to be Spanish and therefore Spanish law was to be applied.[12]

Such jurisdictional caselaw is only a part of this conflict of laws treasure trove. The caselaw of the mixed courts seemingly encompasses all types of conflict of laws questions and many other legal questions. I have to say seemingly, as the caselaw of the mixed courts has in recent times barely been studied and their archives (if known at all) are scattered throughout the globe. A closer look could undoubtedly open up new perspectives to conflict of laws, and some of these mixed courts’ experiences and case-law could perhaps help to guide ever-recurring questions of personal status matters regarding foreigners. The Emirate of Abu Dhabi has for example reintroduced special personal status provisions for non-Muslim foreigners as reported on conflictoflaws recently. The courts also offer new perspectives for public international law as certain mixed courts acted as “true” international courts when interpreting their treaties. An example is the Court of Appeal of Mixed Court of Tangier going against the International Court of Justice in 1954 when it held that it alone had the authority to provide authoritative interpretations of the Zone’s constitutive treaties.[13] The Mixed Courts could even open new perspectives to EU-law as many early key EU lawyers and judges have ties to certain Mixed Courts.[14] Much work is therefore still to be done. This piece is a call to arms for just that.

[1] Hatzimihail, N.E. (2021) Preclassical Conflict of Laws. Cambridge University Press 51-52.

[2] For an overview of this period see: Banu, R.  (2018). Nineteenth Century Perspectives on Private International Law. Oxford University Press

[3] Yntema, Hessel E. (1953). The Historic Bases of Private International Law. The American Journal of Comparative Law, vol. 2, no. 3, 301.  Yntema refers to the following text found in a Fayoum Papyri: “Contracts between Greeks-who had established colonies in Egypt (red.)-and Egyptians, if in Greek form, should be tried before the chrematists, the Greek courts; if in Egyptian form, before the laocrites, the native courts, in accordance with the laws of the country.”

[4] Okoli, C.S.A. (2020). Private International Law in Nigeria. Hart, 3.

[5] Okoli, Op.cit., 3-7; Yntema. Op.cit., 299

[6] For a good overview of the different meanings of this term see: Benda-Beckmann, B. & Turner, B. (2018). Legal Pluralism, Social Theory, and the State. Journal of Legal Pluralism and Unofficial Law, 50(3), 255–274

[7] This distinction is not new and is used in legislation. See for example: Non-application of This Regulation to Internal Conflicts of Laws. (2016). In A. Calvo Caravaca, A. Davì, & H. Mansel (Eds.), The EU Succession Regulation: A Commentary (pp. 521-529). Cambridge University Press.

[8] Okoli Op.cit, 3.

[9] Pacific Manuscripts Bureau,  Collection MS 1145: Judgements of the Joint Court of the New Hebrides. Retrieved from <https://asiapacific.anu.edu.au/pambu/catalogue/index.php/judgements-of-joint-court-of-new-hebrides> accessed 13 December 2021. It was known as a ‘Joint’ Court and not ‘Mixed’ as there were only two powers involved: France and the UK. Although in French it was still referred to as a Tribunal Mixte. Mixed Courts mostly existed in countries that were not-directly colonized, yet still under heavy Western influence such as Siam, China and Egypt. They were mostly founded due to western distrust for the local legal systems and build forth on the principle of personal jurisdiction (and the connected later principle of extraterritoriality and the connected Capitulations and Unequal Treaties).

[10] Erpelding, M. (2020). Mixed Courts of the Colonial Era. In Hélène Ruiz Fabri (ed), Max Planck Encyclopedia of International Procedural Law. Oxford University Press.

[11] Erpelding, M & Rherrousse, F. (2019) The Mixed Court of Tangier. In Héne Ruiz Fabri (ed), Max Planck Encyclopedia of International Procedural Law. Oxford University Press, paras 22-24.

[12] de Radigues de Chenneviere, C. (5 April 1949). ‘Procès Toledano’. Tangier, P 452/717, AF-12-A-3 (Diplomatic Archives of the Kingdom of Belgium)

[13] Grawitz, M. (1955). Arrêt du 13 août 1954. Annuaire français de droit international, 1(1), 324–328

[14] Erpelding, M. (2020). International law and the European Court of Justice: the Politics of Avoiding History, Journal of the History of International Law, 22(2-3), 446-471.

On 17 December 2021, the UNCITRAL RCAPUM Joint Conference, an event celebrating the 2021 UNCITRAL Asia Pacific Day, is scheduled in the University of Macau (Macau SAR) under the title “Conquering the COVID: Enhancing Economic Recovery through Harmonization of Law Governing MSMEs”. This is the annual conference rising from the successful cooperation between the UNCITRAL Regional Centre for Asia and the Pacific (RCAP) and the University of Macau since 2014. The UNCITRAL RCAP-UM Joint Conference 2021 intends to bring together a group of distinguished experts and scholars to analyze contemporary issues related to the current agenda of UNCITRAL impacting MSMEs and the legal instruments resulting from its previous works. The conference will focus on the following tracks: 1. MSMEs formation: simplification of practices in business registration and transformation of business establishment procedures. 2. Creating congenial legal environment for MSMEs in special economic zones through legal harmonization: regional developments including the Guangdong-Macao in-depth Cooperation Zone. 3. MSME Financing: Financial support, access to credit, and sustainable finance for MSMEs & MSE insolvency, further efforts of UNCITRAL to simplify insolvency procedures, and unify insolvency law. 4. Promotion of viable dispute resolution mechanisms for MSMEs through adaptation of arbitration and mediation. 5. Contemporary legal developments facilitating the establishment and the successful operation of the MSMEs.

As the core legal body of the United Nations system in the field of international trade law, the United Nations Commission on International Trade Law (UNCITRAL) seeks to progressively harmonize and modernize trade laws by preparing and promoting the adoption and use of legislative and nonlegislative instruments in several key areas of commercial law. UNCITRAL RCAP (Incheon, Republic of Korea) was inaugurated in 2012 to promote the work of UNCITRAL in the Asia-Pacific region and provide technical assistance to the states concerning the implementation and uniform interpretation of UNCITRAL texts, thereby diminishing legal obstacles to global commercial transactions. University of Macau, founded in 1981, is the leading comprehensive public university in Macau. It is a resourceful and ambitious educational institution with unique Sino-European heritage and global connections. In 2017, it was ranked within the top-50 universities in Asia by the Times Higher Education Asia University Rankings. It has also been ranked within the top-100 Asian University Rankings in QS World University Rankings. The Faculty of Law of the University of Macau, responsible for organizing the conference, is the oldest law school in Macau. With its diversemultilingual programs and teaching staff of international background, the Faculty has been playing a vital role in promoting legal education and research in Macau and contributing to the build-up of the local legal system. In addition, the Faculty of Law has also successfully held many high-level international conferences and meetings on a range of legal topics.

The registration for the conference is free of charge. Participants should complete registration in advance and obtain confirmation to secure a place at the conference. The deadline for registration is 15 December 2021.  The conference will be held on 17 December 2021 in a mixed format (online and offline). The speakers and participants from outside Macau are invited to take part in the conference via Zoom. The conference will start at 9:30 a.m. (Macau time) and may end late in the evening to accommodate speakers and participants from different time zones.

FOR MORE INFORMATION AND ENQUIRIES, PLEASE CONTACT US AT LAW.UMUNCITRAL@UM.EDU.MO

New civil procedure rules in Singapore

New civil procedure rules (Rules of Court 2021) for the General Division of the High Court (excluding the Singapore International Commercial Court (‘SICC’)) have been gazetted and will be implemented on 1 April 2022. The reform is intended to modernise the litigation process and improve efficiency.[1] New rules for the SICC have also been gazetted and will similarly come into operation on 1 April 2022.

This update focuses on the rules which apply to the General Division of the High Court (excluding the SICC). New rules which are of particular interest from a conflict of laws point of view include changes to the rules on service out. The new Order 8 rule 1 provides that:

‘(1) An originating process or other court document may be served out of Singapore with the Court’s approval if it can be shown that the Court has the jurisdiction or is the appropriate court to hear the action.

…

(3) The Court’s approval is not required if service out of Singapore is allowed under a contract between the parties.

…’

The current rules on service out is to be found in Order 11 of the Rules of Court. This requires that the plaintiff (‘claimant’ under the new Rules) establish that (1) there is a good arguable case that the action fits within one of the heads of Order 11; (2) there is a serious issue to be tried on the merits; and (3) Singapore is forum conveniens.[2] The heads of Order 11 generally require a nexus to be shown between the parties or subject-matter of the action to Singapore and are based on the predecessor to the UK Civil Procedure Rules Practice Direction 6B paragraph 3.1. The wording of the new Order 8 rule 1(1) suggests a drastic departure from the current Order 11 framework; however, this is not the case.

There will be two alternative grounds of service out: either the Singapore court ‘has the jurisdiction’ to hear the action or ‘is the appropriate court’ to hear the action. The first ground of service out presumably covers situations such as where the Singapore court is the chosen court in accordance with the Choice of Court Agreements Act 2016,[3] which enacts the Hague Convention on Choice of Court Agreements into Singapore law. The second ground of service out i.e. that the Singapore court is the ‘appropriate court’ to hear the action could, on one view, be read to refer only to the requirement under the current framework that Singapore is forum conveniens. However, the Supreme Court Practice Directions 2021, which are to be read with the new Rules of Court, make it clear that the claimant still has to show:[4]

‘(a) there is a good arguable case that there is sufficient nexus to Singapore;

(b) Singapore is the forum conveniens; and

(c)  there is a serious question to be tried on the merits of the claim.’

The Practice Directions go on to give as examples of a sufficient nexus to Singapore factors which are substantively identical to the current Order 11 heads.[5] As these are non-exhaustive examples, the difference between the current rules and this new ground of service out is that the claimant may still succeed in obtaining leave to serve out even though the action does not fit within one of the heads of the current Order 11. This is helpful insofar as the scope of some of the heads are uncertain; for example, it is unclear whether an action for a declaration that a contract does not exist falls within the current contractual head of service out[6] as there is no equivalent to the UK CPR PD 6B paragraph 3.1(8).[7] Yet at the same time, the Court of Appeal had previously taken a wide interpretation of Order 11 rule 1(n), which reads:  ‘the claim is made under the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap. 65A), the Terrorism (Suppression of Financing Act (Cap. 325) or any other written law’.[8] The phrase ‘any written law’ was held not to be read ejusdem generis[9] and would include the court’s powers, conferred by s 18 of the Supreme Court of Judicature Act read together with paragraph 14 of the First Schedule, to ‘grant all reliefs and remedies at law and in equity, including damages in addition to, or in substitution for, an injunction or specific performance.’[10] This interpretation of Order 11 rule 1(n) arguably achieves much the same effect as the new ‘appropriate court’ ground of service out.

The new Order 8 rule 1(3) is to be welcomed. However, it is important to note that a choice of court agreement for the Singapore court which is unaccompanied by an agreement to permit service out of Singapore will still require an application for leave to serve out under the ‘has jurisdiction’ ground (if the Choice of Court Agreements Act is applicable) or the ‘appropriate court’ ground (if the Choice of Court Agreements Act is not applicable).

Other provisions in the new Rules of Court 2021 which are of interest deal with a challenge to the jurisdiction of the court. A defendant may challenge the jurisdiction of the court on the grounds that the court has no jurisdiction to hear the action or the court should not exercise jurisdiction to hear the action. A challenge on either ground ‘is not treated as a submission to jurisdiction’.[11] This seemingly obviates the established common law understanding that a jurisdictional challenge which attacks the existence of the court’s jurisdiction (a setting aside application) does not amount to a submission to the court’s jurisdiction, whereas a jurisdictional challenge which requests the court not to exercise the jurisdiction which it has (a stay application) amounts to a submission to the court’s jurisdiction.[12] Further to that, the provisions which deal with challenges to the exercise of the court’s jurisdiction are worded slightly differently depending on whether the action is commenced by way of an originating claim or an originating application. For the former, Order 6 rule 7(5) provides that ‘The challenge to jurisdiction may be for the reason that –  … (b) the Court should not exercise jurisdiction to hear the action.’ For the latter, Order 6 rule 12(4) elaborates that ‘The challenge to jurisdiction may be for the reason that – … (b) the Court should not exercise jurisdiction because it is not the appropriate Court to hear the action.’ The difference in wording is puzzling because one assumes that the same types of challenges are possible regardless of whether the action is commenced by way of an originating claim or originating application – eg, challenges based on forum non conveniens, abuse of process or case management reasons. Given use of the word ‘may’ in both provisions though, it ought to be the case that the different wording does not lead to any substantive difference on the types of challenges which are permissible.

 

[1] See media release here.

[2] Zoom Communications v Broadcast Solutions Pte Ltd [2014] 4 SLR 500 (CA).

[3] Cap 39A.

[4] Supreme Court Practice Directions 2021 (To be read with Rules of Court 2021), p 72.

[5] Ibid, pp 72-73.

[6] Rules of Court, Order 11 rule 1(d).

[7] ‘A claim is made for a declaration that no contract exists …’.

[8] Li Shengwu v Attorney-General [2019] 1 SLR 1081 (CA).

[9] Ibid, [168]-[170].

[10] Ibid, [161].

[11] Rules of Court 2021, Order 6 rule 7(6) (originating claim); Order 6 rule 12(5) (originating application.

[12] Zoom Communications v Broadcast Solutions Pte Ltd [2014] 4 SLR 500 (CA).

This post was contributed by Dr. Vito Bumbaca, who is Assistant Lecturer at the University of Geneva

In a ruling of 2 August 2021 (A v. B, C-262/21 PPU), the Court of Justice of the European Union (CJEU) clarified that a child who is allegedly wrongfully removed, meaning without consent of the other parent, should not return to his/ her habitual residence if such a removal took place as a consequence of the ordered transfer determining international responsibility based on the Dublin III Regulation. The judgment is not available in English and is the first ever emanating from this Court concerning the Brussels IIA-Dublin III interplay.

The Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (Brussels IIA Regulation) complements the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, and is applicable to 26 EU Member States, including Finland and Sweden. The Regulation (EU) No 604/2013 of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) (Dublin III), is pertinent for asylum seekers’ applications commenced at least in one of the 31 Dublin Member States (EU/EFTA), comprising Finland and Sweden, bound by this Regulation.

Questions for a CJEU urgent preliminary ruling:

The CJEU was referred five questions, but only addressed the first two.

‘(1) Must Article 2(11) of [Regulation No 2201/2003], relating to the wrongful removal of a child, be interpreted as meaning that a situation in which one of the parents, without the other parent’s consent, removes the child from his or her place of residence to another Member State, which is the Member State responsible under a transfer decision taken by an authority in application of Regulation [No 604/2013], must be classified as wrongful removal?

(2) If the answer to the first question is in the negative, must Article 2(11) [of Regulation No 2201/2003], relating to wrongful retention, be interpreted as meaning that a situation in which a court of the child’s State of residence has annulled the decision taken by an authority to transfer examination of the file, and to take no further action since the mother and child have left the State of residence, but in which the child whose return is ordered, no longer has a currently valid residence document in his or her State of residence, or the right to enter or to remain in the State in question, must be classified as wrongful retention?’

Contents of the CJEU judgment:

In 2019, a married couple, third-State nationals (Iran), both with regard to Brussels IIA and Dublin III respective Member States, moved from Finland to settle in Sweden. Since 2016, the couple had lived in Finland for around three years. In 2019, a child was born in Sweden. The couple was exercising joint custody over the child in conformity with Swedish law. The mother was holding a family residency permit, in both Finland and Sweden, through the father’s employment rights. The approved duration of the mother’s residency right in Finland was around one year longer than in Sweden.

Two months after the child’s birth, the latter and the mother were placed under Swedish residential care (hostel). Essentially, the Swedish administrative decision to uphold this care protective measure was the result of the father’s violence against the mother, so to protect the child from the risks against his development and health, as well as to prevent his wrongful removal to Iran possibly envisaged by his father. Limited contact rights were granted to the father. A residency permit was requested, individually, by the father and the mother based on the family lien – request respectively filed on 21 November and 4 December 2019.

In August 2020, the mother submitted an asylum request, for the child and herself, before the Swedish authorities. The same month, the Finnish authorities declared themselves internationally responsible over the mother’s and child’s asylum request by virtue of article 12(3) of Dublin III – based on the longer duration of the residency permit previously delivered according to Finnish law. In October 2020, the Swedish authorities dismissed the father’s and rejected the mother’s respective residency and asylum requests, and ordered the transfer of the child and his mother to Finland. Taking into account the father’s presence as a threat against the child, the limited contacts established between them, and the father’s residency right in Finland, the Swedish authorities concluded that the child’s separation from his father was not against his best interests and that the transfer was not an obstacle to the exercise of the father’s visitation right in Finland. In November 2020, the mother and the child moved to Finland pursuant to article 29(1) of Dublin III. In December 2020, the father filed an appeal against the Swedish court’s decisions, which was upheld by the Swedish Immigration Tribunal (‘Migrationsdomstolen i Stockholm’), although it resulted later to be dismissed by the Swedish Immigration Authorities, and then rejected by the Immigration Tribunal, due to the child’s relocation to Finland (CJEU ruling, § 23-24).

In January 2021, the father filed a new request before the Swedish authorities for family residency permit on behalf of the child, which was still ongoing at the time of this judgment (CJEU ruling, § 25). During the same month, the mother deposited an asylum application before the Finnish authorities, which was still ongoing at the time of this judgment – the mother’s and child’s residency permits were withdrawn by the Finnish authorities (CJEU ruling, § 26). In April 2021, the Swedish Court (‘Västmanlands tingsrätt’), notwithstanding the mother’s objection to their jurisdiction, granted divorce, sole custody to the mother and refused visitation right to the father – upheld in appeal (‘Svea hovrätt’). Prior to it, the father filed an application for child return before the Helsinki Court of Appeal (‘Helsingin hovioikeus’), arguing that the mother had wrongfully removed the child to Finland, on the grounds of the 1980 Hague Convention. The return application was rejected. On the father’s appeal, the Finnish authorities stayed proceedings and requested an urgent preliminary ruling from the CJEU, in line with article 107 of the Luxembourg Court’s rules of procedure.

CJEU reasoning:

The Court reiterated that a removal or retention shall be wrongful when a child holds his habitual residence in the requesting State and that a custody right is attributed to, and effectively exercised by, the left-behind parent consistently with the law of that State (§ 45). The primary objectives of the Brussels IIA Regulation, particularly within its common judicial space aimed to ensure mutual recognition of judgments, and the 1980 Hague Convention are strictly related for abduction prevention and immediate obtainment of effective child return orders (§ 46).

The Court stated that, pursuant to articles 2 § 11 and 11 of the Brussels IIA Regulation, the child removal to a Member State other than the child’s habitual residence, essentially performed by virtue of the mother’s right of custody and effective care while executing a transfer decision based on article 29 § 1 of the Dublin III Regulation, should not be contemplated as wrongful (§ 48). In addition, the absence of ‘take charge’ request following the annulment of a transfer decision, namely for the purposes of article 29 § 3 of Dublin III, which was not implemented by the Swedish authorities, would lead the retention not to being regarded as unlawful (§ 50). Consequently, as maintained by the Court, the child’s relocation was just a consequence of his administrative situation in Sweden (§ 51). A conclusion opposing the Court reasoning would be to the detriment of the Dublin III Regulation objectives.

Some insights from national precedents:

In the case ATF 5A_121/2018, involving a similar scenario (cf. FamPra.ch 1/2019), the Swiss Federal Court maintained that a child born in Greece, who had lived for more than a year with his mother in Switzerland, had to be returned to Greece (place of the left-behind parent’s residence) based on the established child’s habitual residence prior to the wrongful removal to Switzerland, notwithstanding his pending asylum application in the latter State. Indeed, the Greek authorities had been internationally responsible over the child’s asylum request on the basis of his father’s residence document. However also in that case it was alleged that the father had been violent against the mother and that a judgment ordering the child’s return to Greece, alone or without his mother (§ 5.3), would not have caused harm to the child under the 1980 Hague Convention, art. 13.

In the case G v. G [2021] UKSC 9, involving a slightly different scenario in that no multiple asylum requests were submitted, the UKSC judged that a child, of eight years old born in South Africa, should not be returned – stay of proceedings – until an asylum decision, based on an asylum application filed in England, had been taken by the UK authorities. The UKSC considered that, although an asylum claim might be tactically submitted to frustrate child return to his/ her country of habitual residence prior to wrongful removal or retention, it is vital that an asylum claim over an applicant child, accompanied or not by his/ her primary carer, is brought forward while awaiting a final decision – in conformity with the ‘non-refoulement’ principle pursuant to article 33 of the 1951 Geneva Convention relating to the Status of Refugees.

Comment:

The CJEU ruling is momentous dictum in that it holds the not any longer uncommon intersection of private international law and vulnerable migration, especially with regard to children in need of international protection in accordance with both Brussels IIA and Dublin III Regulations (cf. Brussels IIA, § 9, and Dublin III, article 2 lit. b). The Luxembourg Court clarifies that a child who is allegedly wrongfully removed, meaning without consent of the other parent, should not return to his/ her habitual residence if such a removal took place as a consequence of the ordered transfer determining international responsibility based on the Dublin III Regulation. It is emphasised that, contrary to the Swiss judgment, the child in the instant case did not have any personal attachments with Finland at the time of the relocation – neither by birth nor by entourage – country of destination for the purposes of the Dublin III transfer. Moreover, the ‘transfer of responsibility’ for the purposes of Dublin III should be contemplated as an administrative decision only, regardless of the child’s habitual residence.

It is observed as a preamble that, according to a well-known CJEU practice, a child should not be regarded as to establish a habitual residence in a Member State in which he or she has never been physically present (CJEU, OL v. PQ, 8 June 2017, C-111/17 PPU; CJEU, UD v. XB, 17 October 2018, C-393/18 PPU). Hence, it appears procedurally just that the Swedish courts retained international jurisdiction over custody, perhaps with the aim of Brussels IIA, article 8 – the child’s habitual residence at the time of the seisin, which occurred prior to the transfer to Finland. On that procedural departure, the Swedish courts custody judgment is substantially fair in that the father’s abuse against the mother is indeed an element that should be retained for parental responsibility, including abduction, merits (CJEU ruling, § 48; UKSC judgment, § 62).

However, it is argued here that, particularly given that at the relevant time Sweden was the child’s place of birth where he lived for around 14 months with his primary carer, the Swedish and the Finnish authorities might have ‘concentrated’ jurisdiction and responsibility in one Member State, namely Sweden, ultimately to avoid further length and costs related to the asylum procedures in line with the same Dublin III objectives evoked by the CJEU – namely “guarantee effective access to the procedures for granting international protection and not to compromise the objective of the rapid processing of applications for international protection” (§ 5, Dublin III). Conversely, provided that the child’s relocation was not wrongful as indicated by the Finnish authorities, and confirmed by the CJEU ruling, the Swedish authorities may have opted for the ‘transfer of jurisdiction’ towards the Finnish authorities on the basis of Brussels IIA, article 15(1) lit. b, indicating the child’s new habitual residence (cf. Advocate General’s opinion, § 41) following the lawful relocation (cf. article 15.3., lit. a).

Importantly, concentration of jurisdiction-responsibility over a child seeking international protection in one Member State, in light of the Brussels IIA-Dublin III interplay, would essentially determine a coordinated interpretation of the child’s best interests (cf. Brussels II, § 12, and Dublin III, § 13), avoiding two parallel administrative-judicial proceedings in two Member States whose authorities may not always come to similar views, as opposed to the present case, over such interests (AG’s opinion, § 48). This is particularly true, if the child (non-)return to his/ her habitual residence might likely be influenced, as stated in the CJEU ruling, by his/ her administrative situation, which would potentially have an impact on the international custody jurisdiction determination. An example of controversial outcome, dealing with child abduction-asylum proceedings, is the profoundly divergent opinion arising from the UK and Swiss respective rulings, to the extent of child return in a situation where the mother, primary carer, is or could be subject to domestic violence in the requesting State.

Similarly, the UKSC guidance, in ‘G v. G’, affirmed: “Due to the time taken by the in-country appeal process this bar is likely to have a devastating impact on 1980 Hague Convention proceedings. I would suggest that this impact should urgently be addressed by consideration being given as to a legislative solution […] However, whilst the court does not determine the request for international protection it does determine the 1980 Hague Convention proceedings so that where issues overlap the court can come to factual conclusions on the overlapping issues so long as the prohibition on determining the claim for international protection is not infringed […] First, as soon as it is appreciated that there are related 1980 Hague Convention proceedings and asylum proceedings it will generally be desirable that the Secretary of State be requested to intervene in the 1980 Hague Convention proceedings” (UKSC judgment, § 152-157). Clearly, the legislative solution on a more efficient coordination of child abduction-asylum proceedings, invoked by the UK courts, may also be raised with the EU [and Swiss] legislator, considering their effects on related custody orders.

– Cross posted at the EAPIL blog.

Thanks to Ilaria Pretelli for the tip-off. 

The XXIInd volume of the Yearbook of Private International Law  (2020/2021) has been released. It contains articles on the most important innovations in multilateral and national private international law by authors from all over the world. The readers will find an analysis on cross-border mobility of union citizens and continuity of civil status by Johan Meeusen as well as how to cope with the obstacles to mobility due to the pandemics (Bernard Haftel) and Brexit (Katarina Trimmings and Konstantina Kalaitsoglou). Two inspiring sections nourish the core of the volume: the editors present the most challenging innovations of Regulation Brussels II ter (EU Regulation 2019/1111), and the consequences of the global reach of the internet for private international law. The National reports section hosts articles on the new Croatian and Uruguayan Private International law Statutes.

The most recent innovations on classical themes of private international law (torts, muslim divorces, the degree of deference by state courts to international commercial arbitral awards, etc.) add to this already rich volume.

Readers are invited to view the table of contents and the foreword by the editors.