Conflictoflaws

The Hague Court of Appeal on January 29, 2021 held that Shell’s parent and subsidiary company in Nigeria were liable for oil spillage in Bayelsa State – an oil producing area in Nigeria. The Court held that Shell had failed to prove beyond reasonable doubt that the oil spillage was caused by sabotage by a third party.

The full details on the above important case can be found here

From 15 to 20 February 2021, Università degli Studi di Milano and the European Court of Arbitration, in cooperation with the Law Firms BonelliErede and DLA Piper Italy, organize the first edition of the “Milan Investment Arbitration Week” (MIAW), a series of different events (conferences, round-table debates, legal competitions), held in streaming and related to international investment law and arbitration. Renowned Italian and foreign experts from academia, legal profession and arbitral institutions will address from different angles some of the most relevant topics related to the field. In addition, MIAW will include two legal competitions: the second edition of the Milan Investment Arbitration Pre-Moot and the first edition of the Construction Arbitration Moot, with the participation of several Universities from all around the world. Detailed information available here.

Michiel Posen appropriated a currently popular meme and went (almost) viral. Is his observation right? Comments very welcome.

by Jingru Wang, Wuhan University Institute of International Law

1. Background

A blocking statute is adopted by a country to hinder the extraterritorial application of foreign legislation.[1] For example, the EU adopted Council Regulation No 2271/96 (hereinafter “EU Blocking Statute”) in 1996 to protest the US’s extraterritorial sanctions legislation concerning Cuba, Iran and Libya.[2] Since Donald Trump became the US president, the US government officially defined China as its competitor.[3] Consequently, China has been increasingly targeted by US sanctions. For example, in 2018, the US imposed broad sanctions on China’s Equipment Development Department (EDD), the branch of the military responsible for weapons procurement and its director for violating the US law on sanctions against Russia.[4] In 2020, the US announced new sanctions on Chinese firms for aiding North Korea’s nuclear weapons program.[5] A number of “Belt and Road” countries are targeted by US primary sanctions, which means that Chinese entities may face a high risk of secondary sanctions for trading with these countries. In these contexts, Chinese scholars and policy makers explore the feasibility to enact blocking law to counter foreign sanctions.[6] On 9 January 2021, China’s Ministry of Commerce (hereinafter “MOFCOM”) issued “Rules on Counteracting Unjustified Extraterritorial Application of Foreign Legislation and Other Measures” (hereinafter “Chinese Blocking Rules”), which entered into force on the date of the promulgation.[7]

 

2. Analysis of the Main Content

Competent Authority: Chinese government will establish a “Working Mechanism” led by the MOFCOM and composed of relevant central departments, such as the National Development and Reform Commission. The Working Mechanism will take charge of counteracting unjustified extraterritorial application of foreign legislation and other measures (Art. 4).

Targeted extraterritorial measures: The Chinese Blocking Rules target foreign legislation and other measures unjustifiably prohibit or restrict Chinese parties from engaging in normal economic, trade and related activities with third state’s parties (Art. 2), which is the so-called “secondary sanction”. Namely, if China considers sanctions unilaterally imposed by the US against a third country unjustified and violating international law, it may nullify such sanctions and allow Chinese companies to continue to transact with the third country. These Rules do not impact restrictions on business activities between China and the sanctioning country.

Unlike the EU Blocking Statute, the Chinese Blocking Rules do not provide an annex listing the legislation subject to the blocking but grant the Working Mechanism discretion. To determine whether foreign legislation or other measures fall within the application scope of the Chinese Blocking Rules, the Working Mechanism shall consider (1) the international law and fundamental principle of international relations; (2) potential impact on China’s national sovereignty, security and development interests; (3) potential impact on the legitimate interest of the Chinese party and (4) all other factors (Art. 6). On the one hand, the non-exhaustive list grants the Working Mechanism broad flexibility to analyse on a case-by-case basis. China has repeatedly become the target of US secondary sanctions. An exhaustive list of foreign legislation and other measures is insufficient to deal with the changing situations. On the other hand, China is prudent in confrontation with other countries. In a press conference, the MOFCOM spokesman stated that “the working mechanism will closely follow the inappropriate extraterritorial application of relevant national laws and measures.”[8] Therefore, the response of other countries will influence the enforcement of the Chinese Blocking Rules.

It is noteworthy the Chinese Blocking Rules will not affect China’s performance of its international obligations. These Rules shall not apply to such extraterritorial application of foreign legislation and measures as provided for in treaties or international agreements to which China is a party (Art. 15).

Information reporting system: A Chinese party prohibited or restricted by foreign legislation and other measures from engaging in normal economic, trade and related activities with a third state’s party shall report such matters to the MOFCOM within 30 days (Art. 5). Otherwise, the Chinese party may be warned, ordered to rectify or fined (Art. 13). To encourage the information report, Art. 5 of the Chinese Blocking Rules also provides that the competent authority shall keep such report confidential at the request of the Chinese party. The staff of the competent authority may undertake administrative penalties if they fail with such obligation (Art. 14).

Concerning the Information reporting system, when the report obligation is triggered is unclear. Should the Chinese party report within 30 days after the foreign legislation is published or other measures are taken or after its actual operation is restricted? Moreover, since the Chinese Blocking Rules do not list targeted foreign legislation and other measures, the Chinese party should rely on their judgment to report. Finally, who should report on behalf of the legal person remains to be answered.

Prohibition order: Once the unjustified extraterritorial application of foreign legislation and other measures is confirmed, the Working Mechanism may decide that the MOFCOM shall issue a prohibition order to ban the effect of relevant foreign legislation and other measures (Art. 7). A Chinese party that fails to observe the prohibition order will be punished (Art. 13). Therefore, Chinese parties are forced to comply with either Chinese or foreign laws. In other words, they will be punished by one or the other. To free the party from the dilemma, a Chinese party may apply for exemption from compliance with a prohibition order (Art. 8). China-based subsidiaries of foreign companies are formed under Chinese law. They are considered to be Chinese entities. Therefore, unless otherwise provided by law, they are subject to the prohibition order issued under the Chinese Blocking Rules and can apply for the exemption.

One major uncertainty is whether third state’s parties are subject to the prohibition order. These Rules do not stipulate that foreign entities will be punished by violating the prohibition order or can apply for the exemption. However, it is suggested that the prohibition order may bind the third state’s party for two reasons. Firstly, the US may issue secondary sanctions to prohibit Chinese parties from trading with third state’s parties (Iran as an example), or to prohibit third state’s parties (EU as an example) from trading with Chinese parties. According to Art. 2 of the Chinese Blocking Rules, both situations may obstruct the normal economic, trade and related activities between the Chinese party and the third state’s party. If the prohibition order merely applies to the Chinese party, it cannot protect Chinese businesses from being prejudiced by the US secondary sanctions in the latter situation. Secondly, a Chinese party can bring a lawsuit before the People’s Court against the party who infringes the legitimate interest of such Chinese party by complying with the foreign legislation and other measures covered by the prohibition order (Art. 9). This article does not limit the defendant to “a Chinese party.” Thus it shall include the third state’s party. If the prohibition order does not bind the third state’s party, it is doubtful that such third state’s party is liable for not complying with the prohibition order.

The prohibition order refrains relevant parties from complying with specific foreign legislation and other measures. A question is how should the prohibition order be observed. According to the European Commission’s Guidance Note, the purpose of the EU Blocking Statute is to ensure that business decisions on trading with third States remain free. It does not oblige EU operators to do business with Iran or Cuba. Also, the Chinese Blocking Rules cannot and should not oblige the Chinese party and the third state’s party to engage with each other. Therefore, it raises the worry that these Rules may apply better for breach of existing contract but be more difficult to “force” someone to enter into a contract or in terms of the pre-contractual obligation.

Judicial Remedy: A Chinese party can bring a lawsuit before the People’s Court of PRC against the party who infringes its legitimate interest by complying with the foreign legislation or measures covered by the prohibition order. A Chinese party may also suit the party who benefits from the judgment or ruling made under such foreign legislation or other measures before the People’s Court (Art. 9). Problems may arise if the losing party has no asset in China seized for enforcement by the Chinese court. Other countries may be reluctant to recognize and enforce such judgment.

Government support: Members of the Working Mechanism shall provide guidance and service to Chinese parties to deal with unjustified extraterritorial application of foreign legislation and other measures (Art. 10). Suppose a Chinese party that observes the prohibition suffers significant losses resulting from non-compliance with the relevant foreign legislation and measures. In that case, relevant government departments may provide necessary support based on specific circumstances (Art. 11). Which government department is responsible for these matters? Does “Necessary support” include financial compensation or support on litigation in the sanctioning country? These questions remain to be answered.

 

3. Impact of the Blocking Statute

Considering that China has long suffered from secondary sanctions issued by the US government, promulgating the Chinese Blocking Rules is not a surprise. Overall, the Chinese Blocking Rules attempt to establish three core institutions anticipated by Chinese scholars: (1) blocking the effect and enforcement of specific foreign legislation in China; (2) prohibiting relevant parties from complying with specific foreign legislation and other measures; (3) enabling relevant parties to recover the damage from the party who complies with the foreign legislation and measures covered by the prohibition order. Therefore, a blocking statute serves as both shield and sword to fight against foreign sanctions.

But the function of blocking statute shall not be overemphasized. The same as the EU Blocking Statute, the Chinese Blocking Rules create a quandary for relevant parties.

For Chinese parties, if they comply with the Chinese prohibition order, they have to deal with US penalties. Chinese parties may invoke “foreign sovereign compulsion”[9] as a defence to insulate themselves from certain US sanctions penalties. In determining whether to buy such argument, US courts often consider whether foreign states actively enforce them.[10] The Chinese Blocking Rules can provide a legal basis for Chinese parties to exempt from the US sanctions by strategic enforcement actions. If so, Chinese parties will be relieved to transact with third state’s parties. But the Chinese government may not be willing to provide the same exemption. Out of self-interest, Chinese parties may be more likely to comply with the Chinese Blocking Rules.

These Rules have not yet stipulated the legal result if third states’ parties violate the Chinese prohibition order. In principle, prescriptive jurisdiction can be extraterritorial, but enforcement jurisdiction must be territorial. Therefore, China cannot always extend the effect of Blocking Rules to a third state’s party even if it has the will. However, it is reasonable to assume that third state’s parties may be added to the “unreliable entities list”[11] for disregarding the Chinese prohibition order. It may prompt third state’s parties to observe the Chinese prohibition order voluntarily to preserve their assets and reputation in China. But even if third state’s parties value the Chinese market, it is uneasy for them to choose China over the US.

China has become more active in exploring countermeasures against the US. On 19 September 2020, MOFCOM released provisions on establishing “unreliable entity list.”[12] Promulgation of the Chinese Blocking Rules is another proactive attempt. However, both are departmental rules, which are at a relatively low-level in the Chinese legal system. Predictably, higher-level legislation concerning the extraterritorial effect of foreign legislation and other measures will be enacted in the future. It may prompt China and the US back to the negotiating table.

[1] Menno T. Kamminga, “Extraterritoriality”, Max Planck Encyclopedia of Public International Law, November 2012, para. 26.

[2] COUNCIL REGULATION (EC) No 2271/96, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:01996R2271-20140220.

[3] White House, National Security Strategy of the United States of America, December 2017.

[4] CAATSA – Russia-related Designations, available at: https://www.treasury.gov/resource-center/sanctions/OFAC-Enforcement/Pages/20180920_33. aspx.

[5] North Korea Designations, available at: https://home.treasury.gov/policy-issues/financial-sanctions/recent-actions/20201208.

[6] Ye Yan, “On the EU Blocking Statute”, Pacific Journal, Vol. 28, No. 3, Mar. 2020, pp. 50-66; Huo Zhengxin, “Extraterritoriality of Domestic Law: American Model, Jurisprudential Deconstruction and Chinese Approach”, Tribune of Political Science and Law, Vol. 38, No. 2, Mar. 2020, pp. 173-191.

[7] Rules on Counteracting Unjustified Extraterritorial Application of Foreign Legislation and Other Measures, available at: http://www.mofcom.gov.cn/article/i/jyjl/e/202101/20210103032421.shtml.

[8] The Head of the Department of Treaty of Law of Ministry of Commerce answers press on “Rules on Counteracting Unjustified Extraterritorial Application of Foreign Legislation and Other Measures”, available at:  http://www.mofcom.gov.cn/article/news/202101/20210103029779.shtml.

 

[9] “Foreign Sovereign Compulsion” means that if a party is obliged to do or not to do an act by a state, it may constitute a defence for not complying with the obligation specified by the US law before the US court. See American Law Institute, Restatement of the Law, Third, The Foreign Relations Law of the United States, American Law Institute Publishers, 1990, p. 341.

[10] M. J. Hoda, “The Aerospatiale Dilemma: Why U.S. Courts Ignore Blocking Statutes and What Foreign States Can Do About It”, California Law Review, Vol. 106, No. 1, 2018.

[11] The entity added to the list will be restricted on China-related trade, investment in China and travel or work permits. See “MOFCOM Order No. 4 of 2020 on Provisions on the Unreliable Entity List”, available at:

http://www.mofcom.gov.cn/article/b/fwzl/202009/20200903002593.shtml.

[12] Ibid.

 

Membership 

On 19 January 2021, Namibia deposited its instrument of acceptance of the Statute, becoming the 87th Member of the HCCH. More information is available here. 

Conventions & Instruments  

On 1 January 2021, the HCCH 2000 Protection of Adults Convention entered into force for Belgium. The Convention currently has 13 Contracting Parties. More information is available here. 

On 1 January 2021, the United Kingdom’s new instrument of accession to the HCCH 2005 Choice of Court Convention and new instrument of ratification to the HCCH 2007 Child Support Convention entered into force. The United Kingdom has already been bound by the Choice of Court Convention since 2015 and by the Child Support Convention since 2014, by virtue of the European Union’s approval. To ensure continuity in their application following its withdrawal from the EU, the United Kingdom deposited these new instruments of accession and ratification on 28 September 2020. More information is available here. 

On 18 January 2020, Singapore deposited its instrument of accession to the HCCH 1961 Apostille Convention. With the accession of Singapore, the Apostille Convention now has 120 Contracting Parties. Singapore is the third ASEAN Member State to join the Apostille Convention. It will enter into force for Singapore on 16 September 2021. More information is available here. 

Meetings & Events 

From 22 to 27 January, the Applicable Law Working Group on the HCCH 2007 Maintenance Obligations Protocol met via videoconference. The Group provided guidance in relation to issues of applicable law arising from certain family relationships, the law applicable to preliminary / incidental questions, as well as the interpretation and scope of certain articles of the Protocol. More information is available here. 

Publications & Documentation 

On 29 January, the Permanent Bureau announced the publication of translations, in all European Union languages, of the Practical Handbook for Competent Authorities on the 2007 Child Support Convention, the 2007 Maintenance Obligations Protocol, and the 2009 EU Maintenance Regulation. The translations were made possible with the support of the Directorate-General for Justice and Consumers of the European Commission. The Handbook, originally published in English, French, and Romanian, was jointly developed by the HCCH, the Ministry of Justice of Romania, and the French National School for the Judiciary (ENM). 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. 

Introduction

Cross border relations is bound to generate non-contractual disputes such as personal injury cases. In such situations, the law that applies is very important in determining the rights and obligations of the parties. The difference between two or more potentially applicable laws is of considerable significance for the parties involved in the case. For example a particular law may easily hold one party liable and/or provide a higher quantum of damages compared to another law. Thus, a preliminary decision on the applicable law could easily facilitate the settlement of the dispute between the parties without even going to trial.

Rome II Regulation[1] governs matters of non-contractual obligations. Article 4 of Rome II applies to general torts/delicts such as personal injury cases. It provides that:

1. Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.
2. However, where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply.
3. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.

 

In the recent case of Owen v Galgey & Ors.,[2] the English High Court was faced with the issue of applying Article 4 of Rome II to a personal injury case. This comment disagrees with the conclusion reached by the High Court Judge in displacing English law under Article 4(2) of Rome II, and applying French law under Article 4(3) of Rome II.

 

Facts

The Claimant is a British citizen domiciled and habitually resident in England who brought a claim for damages for personal injury sustained by him as result of an accident in France on the night of April 3rd 2018, when he fell into an empty swimming pool which was undergoing works at a villa in France – a holiday home owned by the First Defendant, whose wife is the Second Defendant. The First and Second Defendants are also British citizens who are domiciled and habitually resident in England. The Third Defendant is a company domiciled in France, and the insurer of the First and Second Defendants in respect of any claims brought against them in connection with the Villa. The Fourth Defendant is a contractor which was carrying out renovation works on the swimming pool at the time of the accident, and the Fifth Defendant is the insurer of the Fourth Defendant. The Fourth and Fifth Defendants are both companies which are domiciled in France.

It was common ground between the parties that French law applied to the Claimant’s claims against the Fourth and Fifth Defendants. But there was a dispute at to the applicable law in relation to his claims against the First to Third Defendants. These Defendants contended that, by operation of Article 4(2) of Rome II, English law applies because the Claimant and the First and Second Defendants are habitually resident in England. However, the Claimant contended that French law applied by operation of Article 4(3) the Rome II because, he says, it is clear that the tort in this case is manifestly more closely connected with France than it is with England.

It was common ground that French law applied under Article 4(1) of Rome II because the direct damage occurred in France in this case; and English law applied under Article 4(2) of Rome II because the Claimant and First and Second Defendants were all habitually resident in England. The legal issue to be resolved was therefore whether under Article 4(3) the tort/delict was manifestly more closely connected to France than it is with England.

 

Decision

In a nutshell, Linden J held that French law applied under Article 4(3) of Rome II. The Court considered Article 4 of Rome II as a whole and read it in conjunction with both the Explanatory Memorandum[3] and Recitals to Rome II.[4]

Linden J held that Article 4(2) created a special rule which automatically displaced Article 4(1), and Article 4(2) was intended to satisfy the legitimate expectation of the parties.[5] On this basis, he observed that Article 4(2) could only apply in two party cases (only one victim and one tortfeasor), and not multi-party situations.[6] Linden J explicitly disagreed with an earlier decision of Dingemans J in Marshall v Motor Insurers’ Bureau & Ors[7] that held that Article 4(2) applied in multi-party situations.[8]

Linden J considered the relevant circumstances that could give rise to applying Article 4(3) in this case in the following chronological order:

1. the desire for a single law to govern the whole case involving the Claimant and the First to Fifth Defendants;[9]
2. the circumstances relating to all the parties in the case;[10]
3. the place of direct damage under Article 4(1);[11]
4. the habitual residences of the parties, including where any insurer defendants are registered at the time of the tortious incident and when the damage occurs;[12]
5. the habitual residence of the Claimant at the time of the consequences of the tort, including any consequential losses;[13]
6. the nationalities of the parties; [14] and
7. the fact that the parties have a pre-existing relationship in or with a particular country.[15]

Linden J held, following previous English decisions,[16] that the burden of proof was on the party that seeks to apply Article 4(3).[17] He held that Article 4(3) could only be applied as an exceptional remedy where a clear preponderance of factors supports its application.[18] However he observed that the facts of the case do not have to be unusual for Article 4(3) to apply, though Article 4(3) was intended to operate in a clear and obvious case.[19]

After considering the submission of the parties in the case, Linden J preferred the Claimant’s submission that Article 4(3) applied in this case. In his words: “France is where the centre of gravity of the situation is located and the preponderance of factors clearly points to this conclusion. This conclusion also accords with the legitimate expectations of the parties.”[20]

Linden J gave great weight to the place of direct damage. In his words:

“The tort/delict occurred in France, as I have noted. This is also where the injury or direct damage occurred. The dispute centres on a property in France and it concerns structural features of that property and how the First, Second and Fourth Defendants dealt with works on a swimming pool there. Although these defendants deny that there was fault on the part of any of them, the First and Second Defendants say that the Fourth Defendant was responsible if the pool presented a danger and the Fourth Defendant says that they were. The allegations of contributory negligence/fault also centre on the Claimant’s conduct whilst at the Villa in France.

The First and Second Defendants also had a significant and long-standing connection to France, the accident occurred on their property…

…the situation in relation to the swimming pool which is said to have been the cause of the accident was firmly rooted in France and it resulted from works which were being carried out by the Fourth Defendant as a result of it being contracted to do so by the First and Second Defendants. The liability of the First and Second Defendants, if any, will be affected by how they dealt with that situation, including by evidence about their dealings with the Fourth Defendant. That situation had no significant connections with England other than the nationality and habitual place of residence of the First and Second Defendants.”[21]

Linden J also gave great weight to the desire to apply a single law to govern the whole case against the First to Fifth Defendants.[22] In his words:

“…the works were carried out by a French company pursuant to a contract with them which is governed by French law. Their insurer, the Third Defendant, is a French company and they are insured under a contract which is governed by French law… It is also common ground that the claim against the Fourth Defendant, and therefore against the Fifth Defendant, also a French company, is entirely governed by French law and will require the court to decide whether the Fourth Defendant or, at least by implication, the First and Second Defendants were “custodians” of the property for the purposes of French law.”[23]

On the other hand Linden J did not give great weight to the common habitual residence, common nationalities and common domiciles of the Claimant and First and Second Defendants, and the place of consequential loss which pointed to England. Linden J did not consider the pre-existing relationship between the Claimant and First and Second Defendants to be a strong connecting factor in favour of English law applying in this case. He did not regard their relationship as contractual but one that appears to be “the agreement resulted from a casual conversation between social acquaintances in the context of mutual favours having been done in the past.”[24] He considered that if there was a contract between the parties, he would have held that French law applied under Article 4(3) of Rome I Regulation[25] because the parties mutually performed their obligations in France.

In the final analysis, Linden J held as follows:

“To my mind the tort/delict in this case is much more closely connected to the state of the swimming pool which, as I have said, was part of a property in France and resulted from the French law contract between the First and Second Defendants and the Fourth Defendant. If any of the Defendants is liable, that liability will be closely connected with this contract. This point, taken in combination with the other points to which I have referred, in my view clearly outweighs the existence of any contract with the Claimant relating to the Villa, even if I had found there to be a contractual relationship and even if it was governed by English law.

Similarly, although I have taken into account the nationality and habitual place of residence of the Claimant and the First and Second Defendants, these do not seem to me to alter the conclusion to which I have come. I have also taken into account the fact that the consequences of the accident have to a significant extent been suffered by the Claimant whilst he was in England, but in my view the other factors to which I have referred clearly outweigh this consideration.

I therefore propose to declare that the law applicable to the claims brought by the Claimant against the First, Second and Third Defendants is French law.”[26]

 

Comment

Owen is the second English case to utilise Article 4(3) as a displacement tool.[27] Interestingly, Owen and Marshall are both cases where Article 4(3) was used to trump Article 4(2) in order to restore the application of Article 4(1). These judicial decisions put to rest any contrary view that Article 4(3) cannot be used to restore the application of Article 4(1), when Article 4(2) automatically displaces Article 4(1). In this connection, I agree with the judges’ conclusion on the basis that Article 4(3) operates as an escape clause to both Article 4(1)&(2). Such an approach also honours the requirement of reconciling certainty and flexibility in Recital 14 to Rome II. A contrary approach will unduly circumscribe the application of Article 4(3) of Rome II.

I do not agree with Linden J that Article 4(2) of Rome II only applies in two party cases (one victim and one tortfeasor) and does not apply in multi-party cases. I prefer the contrary decision of Dingemans J in Marshall. Interpreting Article 4(2) as being only applicable to two party cases is a very narrow interpretation. Moreover, the fact that Article 4(2) is a strong exception to Article 4(1) does not mean that Article 4(2) should be unduly circumscribed. Article 4(2) should not be applied mechanically or without thought. It must be given some common sense interpretation that suits the realities of cross-border relations in torts.

Moving to the crux of the case, I disagree with the conclusion reached by Linden J that French law applied in this case. Applying the test of Article 4(3), the tort was not manifestly more closely connected with France. In other words, it was not obvious that Article 4(3) outweighed the application of Article 4(2). To my mind, the arguments between the opposing parties were evenly balanced as to whether the tort was manifestly more closely connected with France. Article 4(2) in this case, which pointed to English law, was also corroborated by the common domiciles and common nationalities of the Claimant and First and Second Defendants which should have been regarded as a strong connecting factor in this case. In addition, the non-contractual pre-existing relationship between the Claimant and First and Second Defendants, and consequential loss pointed to England, though I concede that these factors are not very strong in this case.

It is important to stress that Article 4(2) of Rome II is a fixed rule and not a presumption of closest connection as it was under Article 4(2) of the Rome Convention.[28] Once Article 4(2) of Rome II applies, it automatically displaces Article 4(1), except Article 4(3) regards the place of damage as manifestly more closely connected with another country. Linden J appeared to give decisive weight to the place of damage and the desire to apply a single law to all the parties in the case, but did not pay due regard to the fixed rule in Article 4(2) and the fact that it was corroborated by other factors such as the common nationalities and domiciles of the Claimant and First and Second Defendants involved in the case.

 

Conclusion

Owen presents another interesting case on the application of Article 4 of Rome II to personal injury cases. It is the second case an English judge would be satisfied that Article 4(3) should be utilised as a displacement tool. The use of the escape clause is by no means an easy exercise. It involves a degree of evaluation and discretion on the part of the judge. Indeed, Article 4(3) is very fact dependent. In this case, Linden J preferred the argument of the Claimant that French law applied in this case under Article 4(3). From my reading of the case, I am not convinced that this was a case where Article 4(3) manifestly outweighed Article 4(2). It remains to be seen whether the First, Second and Third Defendants will appeal the case, proceed to trial or settle out of court.

[1]Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations [2007] OJ L199/40 (“Rome II”). It takes effect in courts of Member States only for events giving rise to damage occurring after 11 January 2009, as decided by the Court of Justice of the European Union (CJEU) in Case C-412/10 Homawoo EU:C:2011:747 [37].

[2] [2020] EWHC 3546 (QB)

[3]Explanatory memorandum from the Commission, accompanying the Proposal for Rome II, COM(2003) 427final (Explanatory Memorandum).

[4] Ibid [15] – [24].

[5] Ibid [26] – [27].

[6] Ibid [27] – [29], [35]. However, the argument as to whether Article 4(2) applied only in two party situations was not put forward before Linden J.

[7] [2015] EWHC 3421 (QB) [17].

[8] Owen (n 2) [35].

[9] Ibid [36] – [38]. In this connection, Linden J considered and followed the decision in of Dingemans J in Marshall (n 7) [18].

[10]Owen (n 2) [39] – [45]. In this connection, Linden J considered and followed the decision of Cranston J in Pickard v Marshall & Ors [2017] EWCA Civ 17 [14] – [15].

[11]Owen (n 2) [46]. Linden J followed Winrow v Hemphhill & Anor. [2014] EWHC 3164 [43], and Dingemans J in Marshall (n 7) [19].

[12] Owen (n 2) [48]

[13] Ibid [49]. Linden J followed Winrow (n 11) [39]&[43] and  Stylianou v Toyoshima [2013] EWHC 2188 (QB). At paragraph 50 Linden J stated that less weight was to be given to this factor.

[14] Ibid [51]. Linden J followed Winrow (n 11) [54]&[55] and Marshall (n 7) [22].

[15] Ibid [52] – [[56]

[16] Winrow (n 11) [16] and Marshall (n 7) [20].

[17] Owen (n 2) [57].

[18]Ibid [58]

[19] Ibid [61].

[20] Ibid [74].

[21]Ibid [75]-[77]

[22] Indeed, it was common ground in this case that the contract of insurance between the First, Second and Third Defendants was governed by French law; the contract between the First Defendant and the Fourth Defendant was governed by French law; the contract of insurance between the Fourth and Fifth Defendants was governed by French law; and the Claimant’s claims against the Fourth and Fifth Defendants are governed by French law. Ibid [12]

[23]Ibid [76].

[24] Ibid [78].

[25]Regulation (Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations [2008] OJ L177/6 (“Rome I”).

[26] Ibid [81] – [83].

[27] Marshall (n 7) was the first case to successfully utilise escape clause as a displacement tool.

[28][1980] OJ L266.

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

 

R. Wagner: Judicial cooperation in civil and commercial matters after Brexit

Brexit has become a reality. When the UK left the EU on 31 January 2020 at midnight, it entered the transition period stipulated in the UK-EU Withdrawal Agreement. During this period, EU law in the field of judicial cooperation in civil and commercial matters applied to and in the United Kingdom. The transition period ended on 31 December 2020. The following article primarily describes the legal situation in the judicial cooperation in civil and commercial matters from 1 January 2021.

Addendum: At the time when this contribution was written, the conclusion of a Trade and Cooperation Agreement between the EU and United Kingdom still was uncertain. Meanwhile, the Agreement of 24 December 2020 has come into existence. It is applicable provisionally since 1 January 2021 for a limited period and will be permanently applicable when after ratification it has formally come into force. The Agreement does not envisage any additional provisions on judicial cooperation in civil and commercial matters between the United Kingdom and the EU. Therefore, it has to be concluded that the present article reflects the current state of law as established by the Trade and Cooperation Agreement (Rolf Wagner).

 

K. Thorn/K. Varón Romero: Conflict of laws in the “Twilight Zone” – On the reform of German private international law on welfare relationships

With the government draft of 25 September 2020, a comprehensive reform of guardianship and care law is approaching which will fundamentally modernize these areas. This reform also includes an amendment to the autonomous conflict-of-law rules in that area. The most important changes within this amendment concern the provisions of the Introductory Act to the German Civil Code (EGBGB). On the one hand, it includes a methodological change to the relevant Article 24 EGBGB which takes greater account of its role as a merely supplementary provision to prior international treaties and Union law. The authors welcome the changes that this will entail but point out that some clarifications are still needed before the reform is completed, particularly in cases of a change in the applicable law. On the other hand, a new Article 15 EGBGB is intended to create a special conflict-of-law rule for the mutual representation of spouses which is based on the also new substantive rule of Section 1358 of the German Civil Code (BGB) and is designed as a unilateral conflict-of-law rule in favour of domestic substantive law. The authors basically agree with the reasoning for this approach and in addition address questions which remain unresolved even after reading the reasoning, in particular the relationship between Article 15 of the Introductory Act to the Civil Code and the conflict-of-law rules of Union law.

 

 D. Coester-Waltjen: Conflict rules on formation of marriage – Some reflections on a necessary reform

The conflict rule on formation of marriages (Article 13 Introductory Law to the Civil Code) underwent several changes during the last years. In addition, societal conditions and circumstances changed considerably. It seems at least questionable whether the cumulative application of the national law of both prospective spouses in case of a heterosexual marriage and the law of the place of registration in case of a homosexual marriage provides a reasonable solution. The article deals with a possible reform of the conflict rule on formation of marriage and envisages whether a comparable solution might be found for other (registered or factual) relationships.

 

U.P. Gruber: Reflections on the reform of the conflict of laws of the registered life partnerships and other partnerships

Under the current law, the formation of a registered life partnership, its general effects and its dissolution are governed by the substantive provisions of the country in which the life partnership is registered. The article deals with a possible reform of this rule. In particular, it addresses the question whether there can be a convergence of the private international law for marriage and registered partnership. Moreover, the article discusses a conflict-of-law rule for de facto relationships.

 

F. Temming: Payment of wage supplements in respect of annual leave constitute a civil and commercial matter within the scope of Art. 1 Brussels Regulation

In its judgement the CJEU holds that an action for payment of wage supplements in respect of annual leave pay brought by a body competent to organize the annual leave of workers in the construction sector against an employer, in connection – among others – with the posting of workers to a Member State where they do not have their habitual place of work, can be qualified as a “civil and commercial matter” for the purpose of the Brussels Ibis Regulation and, thus, falls within the scope of its Article 1. This can even be the case if the competent body is governed by public law, such as the Construction Workers’ Leave and Severance Pay Fund of Austria (hereinafter “BUAK”), provided that it does not act under a public law prerogative of its own conferred by law. This case note argues that the contested section 33h (2b) of the BUAG does not constitute such a prerogative but rather can be construed according to EU law in such a manner that an Austrian court can fully review the accuracy of a claim relied on by BUAK. The importance of the Korana judgement of the CJEU lies in the fact that it ensures the recognition and enforcement of judgments according to Art. 36 ff. of the Brussels I Regulation in favour of these above mentioned bodies. In so doing the CJEU strengthens the regulatory framework set up by the revised Posting of Workers Directive 96/71/EC. It marks the procedural keystone of a long-standing CJEU jurisprudence enabling a special, however adequate and institutionalised system of granting annual leave in the building sector. At the same time, it sends a clear signal towards the Swiss Federal Court that took a contrary view with respect to Art. 1 of the Lugano Convention 2007.

 

 F. Maultzsch: International Jurisdiction for Liability and Recourse Claims in the Wake of Cum-Ex Transactions

The Higher Regional Court of Frankfurt (OLG Frankfurt a.M.) had to deal with issues of international jurisdiction for liability and recourse actions resulting from so-called cum-ex transactions that failed on a tax-based level. In doing so, the court took position on diverse jurisdictional issues under the Brussels Ibis Regulation. These issues covered the requirements of a sufficient contest of jurisdiction by the defendant in appellate proceedings, a possible jurisdiction under Art. 7 No. 5 Brussels Ibis Regulation for disputes arising out of the operations of a branch, aspects of characterization regarding the forum of the contract (Art. 7 No. 1 Brussels Ibis Regulation), as well as the standards of international jurisdiction for a recourse claim from joint and several liability for tax payments. The following article analyses the findings of the court and discusses, inter alia, the application of Art. 26 Brussels Ibis Regulation in cases of a modification of the matter in dispute.

 

J. Schulte: A reinforced EU trademark through a strengthened alternative forum

The EU trademark has been strengthened when it comes to infringements via internet by the recent ECJ decision in AMS Neve, reviving the alternative forum of the place where an act of infringement has been committed or threatened. The Court ruled out an interpretation not congruent with that in Art. 8 (2) Rome II (applicable law) or Art. 7 no. 2 Brussels Ia (international jurisdiction for national trademarks). Instead, it transferred the EU Trademark Regulation’s substantive law understanding, thus guaranteeing a uniform interpretation of the regulation. Competent are the courts of the Member State where the consumers or traders are located to whom an allegedly infringing advertising or offers for sale are directed. This reverses the unfortunate “Parfummarken”-doctrine of the German Bundesgerichtshof and gives plaintiffs more leeway for choosing a forum and the possibility of bringing actions for infringements of EU and national trademarks simultaneously at the same court.

 

H. Schack: Does Art. 27 Lugano Convention permit requiring a special legitimate interest in actions for negative declaratory relief?

In an antitrust dispute between a Swiss watch manufacturer and a British wholesaler the Swiss Federal Court gives up its former holding (BGE 136 III 523) that a Swiss action for negative declaratory relief required a special legitimate interest. Today, at least in international cases, the plaintiff’s mere interest in fixing the forum is sufficient. That strengthens the attractiveness of Swiss courts in transborder cases.

Eduardo Álvarez-Armas is Lecturer in Law at Brunel University London and Affiliated Researcher at the Université Catholique de Louvain. He has kindly provided us with his thoughts on recent proposals for amending the Rome II Regulation. This is the second part of his contribution; a first one on the law applicable to strategic lawsuits against public participation can be found here.

Over the last few months, the European Parliament´s draft report on corporate due diligence and corporate accountability (2020/2129(INL)) and the proposal for an EU Directive contained therein have gathered a substantial amount of attention (see, amongst others, blog entries by Geert Van Calster, Giesela Rühl, Jan von Hein, Bastian Brunk and Chris Thomale). As the debate is far from being exhausted, I would like to contribute my two cents thereto with some further (non-exhaustive and brief) considerations which will be limited to three selected aspects of the proposal´s choice-of-law dimension.

1. A welcome but not unique initiative (Comparison with the UN draft Treaty)

Neither Article 6a of Rome II nor the proposal for an EU Directive are isolated initiatives. A so-called draft Treaty on Business and Human Rights (“Legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises”) is currently being prepared by an Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, established in 2014 by the United Nation´s Human Rights Council. Just like it is the case with the EP´s proposal, the 2nd revised UN draft Treaty (dated 6th August 2020) (for comments on the applicable law aspects of the 1st revised draft, see Claire Bright´s note for the BIICL here) contains provisions on international jurisdiction (Article 9, “Adjudicative Jurisdiction”) and choice of law (Article 11, “Applicable law”).

Paragraph 1 of the latter establishes the lex fori as applicable for “all matters of substance […] not specifically regulated” by the instrument (as well as, quite naturally, for procedural issues). Then paragraph 2 establishes that “all matters of substance regarding human rights law relevant to claims before the competent court may, upon the request of the victim of a business-related human rights abuse or its representatives, be governed by the law of another State where: a) the acts or omissions that result in violations of human rights covered under this (Legally Binding Instrument) have occurred; or b) the natural or legal person alleged to have committed the acts or omissions that result in violations of human rights covered under this (Legally Binding Instrument) is domiciled”.

In turn, the proposed Article 6a of Rome II establishes that: “[…] the law applicable to a non-contractual obligation arising out of the damage sustained shall be the law determined pursuant to Article 4(1), unless the person seeking compensation for damage chooses to base his or her claim on the law of the country in which the event giving rise to the damage occurred or on the law of the country in which the parent company has its domicile or, where it does not have a domicile in a Member State, the law of the country where it operates.” (The proposed text follows the suggestions made in pp. 112 ff of the 2019 Study requested by the DROI committee (European Parliament) on Access to Legal Remedies for Victims of Corporate Human Rights Abuses in Third Countries.)

Putting aside the fact that the material scopes of the EP’s and the UN’s draft instruments bear differences, the EP´s proposal features a more ambitious choice-of-law approach, which likely reflects the EU´s condition as a “Regional integration organization”, and the (likely) bigger degree of private-international-law convergence possible within such framework. Whichever the reasons, the EP´s approach is to be welcomed in at least two senses.

The first sense regards the clarity of victim choice-of-law empowerment. While in the UN proposal the victim is allowed to “request” that a given law governs “all matters of substance regarding human rights law relevant to claims before the competent court”, in the EP´s proposal the choice of the applicable law unequivocally and explicitly belongs to the victim (the “person seeking compensation for damage”). A cynical reading of the UN proposal could lead to considering that the prerogative of establishing the applicable law remains with the relevant court, as the fact that the victim may request something does not necessarily mean that the request ought to be granted (Note that paragraph 1 uses “shall” while paragraph 2 uses “may”). Furthermore, the UN proposal contains a dangerous opening to renvoi, which would undermine the victim´s empowerment (and, to a certain degree, foreseeability). Therefore, if the goal of the UN´s provision is to provide for favor laesi, a much more explicit language in the sense of conferring the choice-of-law prerogative to the victim would be welcomed.

2. A more ambitious initiative (The “domicile of the parent” connection, and larger victim choice)

A second sense in which the EP´s choice-of-law approach is to be welcomed is its bold stance in trying to overcome some classic “business & human rights” conundrums by including an ambitious connecting factor, the domicile of the parent company, amongst the possibilities the victim can choose from. Indeed, I personally find this insertion in suggested Art. 6a Rome II very satisfying from a substantive justice (favor laesi) point of view: inserting that very connecting factor in Art. 7 Rome II (environmental torts) is one of the main de lege ferenda suggestions I considered in my PhD dissertation (Private International Environmental Litigation before EU Courts: Choice of Law as a Tool of Environmental Global Governance, Université Catholique de Louvain & Universidad de Granada, 2017. An edited and updated version will be published in 2021 in Hart´s “Studies in Private International Law”), in order to correct some of the shortcomings of the latter. While not being the ultimate solution for all the various hurdles victims may face in transnational human-rights or environmental litigation, in terms of content-orientedness this connecting factor is a great addition that addresses the core of the policy debate on “business & human rights”. Consequently, I politely dissent with Chris Thomale´s assertion that this connecting factor “has no convincing rationale”. Moreover, I equally dissent from the contention that a choice between the lex loci damni and the lex loci delicti commissi is already possible via “a purposive reading of Art. 4 para 1 and 3 Rome II”. For reasons I have explained elsewhere, I do not share this optimistic reading of Art. 4 as being capable of filling the transnational human-rights gap in Rome II. And even supposing that such interpretation was correct, as draft Art. 6a would make explicit what is contended that can be read into Art. 4, it would significantly increase legal certainty for victims and tortfeasors alike (as otherwise some courts could potentially interpret the latter Article as suggested, while others would not).

Precisely, avoiding a decrease in applicable-law foreseeability seems to be (amongst other concerns) one of the reasons behind Jan von Hein´s suggestion in this very blog that Art. 6a´s opening of victim´s choice to four different legal systems is excessive, and that not only it should be reduced to two, but that the domicile of the parent should be replaced by its “habitual residence”. Possibly the latter is contended not only to respond to systemic coherence with the remainder of Rome II, but also to narrow down options: in Rome II the “habitual residence” of a legal person corresponds only with its “place of central administration”; in Brussels I bis its “domicile” corresponds with either “statutory seat”, “central administration” or “principal place of business” at the claimant´s choice. Notwithstanding the merits in system-alignment terms of this proposal, arguably, substantive policy rationales (favor laesi) ought to take precedence over pure systemic private-international-law considerations. This makes all the more sense if one transposes, mutatis mutandis, a classic opinion by P.A. Nielsen on the three domiciles of a corporation under the “Brussels” regime to the choice-of-law realm: “shopping possibilities are only available because the defendant has decided to organise its business in this way. It therefore seems reasonable to let that organisational structure have […] consequences” (P. A. NIELSEN, “Behind and beyond Brussels I – An Insider´s View”, in P. DEMARET, I. GOVAERE & D. HANF [eds.], 30 years of European Legal Studies at the College of Europe [Liber Professorum 1973-74 – 2003-04], Cahiers du Collège d´Europe Nº2, Brussels, P.I.E.-Peter Lang, 2005, pp. 241-243).

And even beyond this, at the risk of being overly simplistic, in many instances, complying with four different potentially applicable laws is, actually, in alleged overregulation terms, a “false conflict”: it simply entails complying only with the most stringent/restrictive one amongst the four of them (compliance with X+30 entails compliance with X+20, X+10 and X). Without entering into further details, suffice it to say that, while ascertaining these questions ex post facto may be difficult for victim´s counsel, it should be less difficult ex ante for corporate counsel, leading to prevention.

3. A perfectible initiative (tension with Article 7 Rome II)

Personally, the first point that immediately got my attention as soon as I heard about the content of the EP report´s (even before reading it) was the Article 6a versus Article 7 Rome II scope-delimitation problem already sketched by Geert Van Calster: when is an environmental tort a human-rights violation too, and when is it not? Should the insertion of Art. 6a crystallize, and Art. 7 remain unchanged, this question is likely to become very contentious, if anything due to the wider range of choices given by the draft Art. 6a, and could potentially end before the CJEU.

What distinguishes say Mines de Potasse (which would generally be thought of as “common” environmental-tort situation) from say Milieudefensie v. Shell 2008 (which would typically fall within the “Business & Human Rights” realm and not to be confused with the 2019 Milieudefensie v. Shell climate-change litigation) or Lluiya v. RWE (as climate-change litigation finds itself increasingly connected to human-rights considerations)? Is it the geographical location of tortious result either inside or outside the EU? (When environmental torts arise outside the EU from the actions of EU corporations there tends to be little hesitation to assert that we are facing a human-rights tort). Or should we split apart situations involving environmental damage stricto sensu (pure ecological damage) from those involving environmental damage lato sensu (damage to human life, health and property), considering only the former as coming within Art. 7 and only the latter as coming within Art. 6a? Should we, alternatively, introduce a ratione personae distinction, considering that environmental torts caused by corporations of a certain size or operating over a certain geographical scope come within Art. 6a, while environmental torts caused by legal persons falling below the said threshold (or, rarely, by individuals) come within Art. 7?

Overall, how should we draw the boundaries between an environmental occurrence that qualifies as a human-rights violation and one that does not in order to distinguish Art. 6a situations from Art. 7 situations? The answer is simple: we should not. We should consider every single instance of environmental tort a human-rights-relevant scenario and amend Rome II accordingly.

While the discussion is too broad and complex to be treated in depth here, and certainly overflows the realm of private international law, suffice it to say that (putting aside the limited environmental relevance of the Charter of Fundamental Rights of the EU) outside the system of the European Convention of Human Rights (ECHR) there are clear developments towards the recognition of a human right to a healthy or “satisfactory” environment. This is already the case within the systems of the American Convention on Human Rights (Art. 11 of the Additional Protocol to the Convention in the area of Economic, Social and Cultural Rights) and the African Charter on Human and People´s Rights (Art. 24). It is equally the case as well in certain countries, where the recognition of a fundamental/constitutional right at a domestic level along the same lines is also present. And, moreover, even within the ECHR system, while no human right to a healthy environment exists as such, the case-law of the European Court of Human Rights has recognized environmental dimensions to other rights (Arts. 2 and 8 ECHR, notably). It may therefore be argued that, even under the current legal context, all environmental torts are, to a bigger or lesser extent, human-rights relevant and (save those rare instances where they may be caused by an individual) “business-related”.

Ultimately, if any objection could exist nowadays, if/when the ECHR system does evolve towards a broader recognition of a right to a healthy environment, there would be absolutely no reason to maintain an Art. 6a versus Art. 7 distinction. Thus, in order to avoid opening a characterization can of worms, it would be appropriate to get “ahead of the curve” in legislative terms and, accordingly, use the proposed Art. 6a text as an all-encompassing new Art. 7.

There may be ways to try to (artificially) delineate the scopes of Articles 7 and 6a in order to preserve a certain effet utile to the current Art. 7, such as those suggested above (geographical location of the tortious result, size or nature of the tortfeasor, type of environmental damage involved), or even on the basis of whether situations at stake “trigger” any of the environmental dimensions of ECHR-enshrined rights. But, all in all, I would argue towards using the proposed text as a new Art. 7 which would comprise both non-environmentally-related human-rights torts and, comprehensively, all environmental torts.

Art. 7 is dead, long live Article 7.

 

 

written by Cristina González Beilfuss and Marta Pertegás Sender

It is with deep sadness that we write these lines to honour the memory of our dear mentor Alegría Borrás. Alegría unexpectedly passed away at the end of last year and, although she had been battling cancer for a while, she continued working as always. For Alegría was a hardworking fighter who sought and found her notorious place in life with determination, courage and borderless efforts. We believe we speak here for so many of Alegría’s alumni who miss her deeply and are determined to pay tribute to her memory with our work and memories.

We both had the great privilege of Alegría’s support for years and decades, from the moment she taught us at the “barracones” of the Law Faculty of the University of Barcelona until the very last day of Alegría’s life. Her death surprised us all on one of those typical “Alegría’s days” of frantic activity and unconditional support to the projects and institutions she believed in.

With this homage, we by no means pretend to recap all her merits and achievements. We are thankful that, while still alive, Alegría received many distinctions and exceptional prizes for all she meant to the (international legal) community.

All those who once met Alegría may inevitably think of her characteristic high voice and strong presence while remembering her. To us, it is her unique insight, tireless professionalism and devoted expertise that made Alegría the exceptional mentor she was.

In every assignment Alegría carried out – regardless the size of the task or its specific context -, Alegría showed profound dedication and daily perseverance. Behind a  joie de vivre  – how can one by the name of Alegría otherwise come across? – there was an exemplary academic rigor and uncountable hours of day and night work.

Alegría will always be remembered as someone who transformed our discipline in recent years. She did so, from her Chair in Barcelona, where many of us first discovered private international law thanks to her teaching. Her classes were enriched by the many anecdotes of places (Brussels, The Hague…) and instances (the GEDIP, l’Institut, the Academy, …) that, back then, sounded like remote laboratories of private international law. Little did we know that we would marvel around the privilege of sharing missions and tasks with Alegría in such venues in the years to follow.

We have indeed witnessed how Alegría contributed, to the approximation of Spain to such poles of uniform private international law. For decades, Alegría wisely brought Spain to any negotiation table on private international law, and she proudly brought the results of such international work back home. We think it is fair to say that, without Alegría, international and European private international law might not have the right channels to permeate into the Spanish legal system. This is not a sporadic success; it requires titanic efforts and perseverance for decades. Actually, for Alegría, her international work was much more than the daily sessions at the Peace Palace or at the Council, the overnight work in committees and working groups or the taxi rides from and to the airport in rainy and grey weather. There was so much more… She made time for beautifully written and detailed reports to the relevant Ministries, for influential contacts with diplomatic posts and, not to forget, for raising awareness among the academic community. Her regular contributions to the Revista Jurídica de Catalunya , to the Revista Española de derecho internacional or to the Anuario español de Derecho internacional privado guided  Spanish lawyers eager to keep track on “what was going on in Brussels or The Hague”. Alegría knew how the machinery of international relations works and used these insights brilliantly to connect Spain to the international legal community, and vice versa.

The readers of Conflictsoflaws.net may associate the name of Alegría Borrás with significant milestones in the development of private international law over the past decades: Alegría was a key delegate of the Hague’s Children Conventions, the Co-Rapporteur of the Child Support Convention, the Rapporteur of the Brussels II Convention, the author of influential work on conflicts of instruments (perhaps we should refer to the “Borrás clause” as shortcut for the “clauses de déconnection”). We are also aware that there is so much more, because, no matter how important her international projects were, Alegría remained truly anchored at home, in her city and her University as a member of the Acadèmia de Legislació i Jurisprudència de Catalunya for example, where she joined efforts with her very good friend Encarna Roca Trias.

Home, for Alegría, was Barcelona,  no matter how often her international work took her away from them. Her family was her greatest pride and her unconditional top priority. A loving wife, mother and grandmother and an example to so many of us who juggle balls in all these roles…

And the University of Barcelona was not only her academic home but also our meeting point. The private international community has lost a great scholar and a formidable person. Alegría, we thoroughly miss you and thank you so much for all you did for us and so many other alumni of yours. Together, we will persevere in our efforts the way you taught us. Rest in peace.

 

 

 

 

 

On Tuesday, February 2, 2021, the Hamburg Max Planck Institute will host its eight monthly virtual workshop in private international law at 11:00-12:30. Since January of this year, we are alternating between English and German language. Dagmar Coester-Waltjen will speak, in German, about the topic “Von der Staatsangehörigkeits-Anknüpfung zur Berufung der lex loci celebrationis im internationalen Eheschließungs- und Partnerschaftsrecht?” (“From Nationality to Lex Loci in Private International Law of Marriage and Civil Union?” The presentation will be followed by open discussion. All are welcome. More information and sign-up here. This is the eight such lecture in the series, after those by Mathias Lehmann in June, Eva-Maria Kieninger in July, Giesela Rühl in September, Anatol Dutta in October, Susanne Gössl in November, Marc-Philippe Weller in December, and Macjiej Szpunar in January. In February, we will again have an English language event – stay tuned! If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de

The Universidad de Valencia is organizing a seminar entitled “nuevos desafíos y oportunidades de los derechos del menor en asuntos transfronterizos”, to be held on 28 January 2021 online (in Spanish / and Portuguese in one panel). The Conflictus Legum blog published information about this seminar here.

This seminar is held in the context of “Minor’s Right to Information in civil actions (MiRI) – Improving children’s right to information in cross-border civil cases”, a Project co-funded by the European Union Justice Programme 2014-2020, JUST-JCOO-AG-2018, under Grant Agreement No 831608.

Among the speakers are: Cristina González Beilfuss, Andrés Rodríguez Benot, Mónica Herranz Ballesteros, Isabel Reig Fabado, Elena Rodríguez Pineau, Mercedes Soto Moya, María Carmen Chéliz Inglés, Idoia Otaegi Aizpurua, David Carrizo Aguado, etc.

The Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (Regulation Brussels II ter) will be discussed throughout the day (but particularly in panel #1).

Participation is free of charge (and there is no need to register). The link to the seminar is here.

Universidade Portucalense (in Porto, Portugal), and its Research Center – Instituto Jurídico Portucalense and IJP IPLeiria, in collaboration with the University of Vigo, the University of Malaga, the University of Salamanca, the University of Granada and the Federal University of Rio de Janeiro, organize the I International Congress on Civil Procedural Law – The Challenges of Sustainable Global and Digital Development, to be held on 20 and 21 May 2021, in virtual format.

One of the Thematic Lines will be of interest to readers of this blog, namely “Transnational and European Civil Procedure. Global development process and challenges”.

More information here.

The American Journal of International Law’s online publication, AJIL Unbound, has recently published a symposium on the changing face of international commercial dispute resolution around the world.  The symposium, entitled Global Labs of International Commercial Dispute Resolution, includes works by scholars from China, Hong Kong, Europe, UK, US, and Australia.

The contributions consider the emergence of new legal hubs, international commercial courts, and arbitral courts around the world, and their implications for global commercial dispute resolution.

The contributions include:

Introduction by Anthea Roberts

Experimenting with International Commercial Dispute Resolution by Pamela K. Bookman and Matthew S. Erie

The Resolution of International Commercial Disputes – What Role (if any) for Continental Europe? by Giesela Rühl

 

 

Conservative Innovation: The Ambiguities of the China International Commercial Court by Julien Chaisse and Xu Qian

 

The International Commercial Dispute Prevention and Settlement Organization: A Global Laboratory of Dispute Resolution with an Asian Flavor by Guiguo Wang andRajesh Sharma

 

International Commercial Courts in the United States and Australia: Possible, Probable, Preferable? by S.I. Strong

 

Global Laboratories of Third-Party Funding Regulation by Victoria Shannon Sahani

Guest post by Bronwen Manby

In 2014, UNHCR launched a ten-year campaign to end statelessness by 2024. A ten-point global action plan called, among other things, for universal birth registration.  One year later, in September 2015, the UN General Assembly adopted the Sustainable Development Goals (SDGs), an ambitious set of objectives for international development to replace and expand upon the 15-year-old Millennium Development Goals.  Target 16.9 under Goal 16 requires that states shall, by 2030, ‘provide legal identity for all, including birth registration’. The SDG target reflects a recently consolidated consensus among development professionals on the importance of robust government identification systems.

Birth registration, the protection of identity, and the right to a nationality are already firmly established as rights in international human rights law – with most universal effect by the 1989 Convention on the Rights of the Child, to which every state in the world apart from the USA is a party. Universal birth registration, ‘the continuous, permanent, compulsory and universal recording within the civil registry of the occurrence and characteristics of birth, in accordance with the national legal requirements’, is already a long-standing objective of UNICEF and other agencies concerned with child welfare. There is extensive international guidance on the implementation of birth registration, within a broader framework of civil registration.

In a recent article published in the Statelessness and Citizenship Review I explore the potential impact of SDG ‘legal identity’ target on the resolution of statelessness. Like the UNHCR global action plan to end statelessness, the paper emphasises the important contribution that universal birth registration would make to ensuring respect for the right to a nationality. Although birth registration does not (usually) record nationality or legal status in a country, it is the most authoritative record of the information on the basis of which nationality, and many other rights based on family connections, may be claimed.

The paper also agrees with UNHCR that universal birth registration will not end statelessness without the minimum legal reforms to provide a right to nationality based on place of birth or descent. These will not be effective, however, unless there are simultaneous efforts to address the conflicts of law affecting recognition of civil status and nationality more generally. UNHCR and its allies in the global campaign must also master private international law.

In most legal systems, birth registration must be accompanied by registration of other life events – adoption, marriage, divorce, changes of name, death – for a person to be able to claim rights based on family connections, including nationality. This is the case in principle even in countries where birth registration reaches less than half of all births, and registration of marriages or deaths a small fraction of that number. Fulfilling these obligations for paperwork can be difficult enough even if they all take place in one country, and is fanciful in many states of the global South; but the difficulties are multiplied many times once these civil status events have to be recognised across borders.

Depending on the country, an assortment of official copies of parental birth, death or marriage certificates may be required to register a child’s birth. If the child’s birth is in a different country from the one where these documents were issued, the official copies must be obtained from the country of origin, presented in a form accepted by the host country and usually transcribed into its national records. Non-recognition of a foreign-registered civil status event means that it lacks legal effect, leaving (for example) marriages invalid in one country or the other, or still in place despite a registered divorce. If a person’s civil status documents are not recognised in another jurisdiction, the rights that depend on these documents may also be unrecognised: the same child may therefore be born in wedlock for the authorities of one country and out-of-wedlock for another. On top of these challenges related to registration in the country of birth, consular registration and/or transcription into the records of the state of origin is in many cases necessary if the child’s right to the nationality of one or both parents is to be recognised. It is also likely that the parents will need a valid identity document, and if neither is a national of the country where their child is born, a passport with visa showing legal presence in the country. A finding of an error at any stage in these processes can sometimes result in the retroactive loss of nationality apparently held legitimately over many years.  Already exhausting for legal migrants in the formal sector, for refugees and irregular migrants of few resources (financial or social) these games of paperchase make the recognition of legal identity and nationality ever more fragile.

These challenges of conflicts of law are greatest for refugees and irregular migrants, but have proved difficult to resolve even within the European Union, with the presumption of legal residence that follows from citizenship of another member state. The Hague Conference on Private International Law has a project to consider transnational recognition of parentage (filiation), especially in the context of surrogacy arrangements, but has hardly engaged with the broader issues.

The paper urges greater urgency in seeking harmonisation of civil registration practices, not only by The Hague Conference, but also by the UN as it develops its newly adopted ‘Legal Identity Agenda’, and by the UN human rights machinery. Finally, the paper highlights the danger that the SDG target will rather encourage short cuts that seek to bypass the often politically sensitive task of determining the nationality of those whose legal status is currently in doubt: new biometric technologies provide a powerful draw to the language of technological fix, as well as the strengthening of surveillance and control rather than empowerment and rights.  These risks – and their mitigation – are further explored in a twinned article in World Development.

 

Last week, the EAPIL blog published a post on the EU feedback period on modernising judicial cooperation between EU countries – use of digital technology (see here). This feedback period is open until 5 February 2021 (midnight Brussels time) and may be provided by clicking here.  A possible future type of act is a proposal for a regulation.

The relevant documents are: the Inception impact assessment – Ares(2021)172677 (available on the feedback page) and the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions.

In general, the objective and target groups of such feedbacks are: “Inception Impact Assessments aim to inform citizens and stakeholders about the Commission’s plans in order to allow them to provide  feedback  on  the  intended  initiative  and  to  participate  effectively  in  future  consultation  activities. Citizens  and stakeholders  are  in  particular  invited  to  provide  views  on  the  Commission’s  understanding  of  the  problem  and  possible solutions  and  to  make  available  any  relevant  information  that  they  may  have,  including  on  possible  impacts  of  the  different options.” But it is possible for non-EU citizens to provide feedback.

Apparently, an official public consultation – by way of a questionnaire – is upcoming (although there seems to be a mistake on the year on the website).

As stated on the EU website, the summary of this initiative is the following:

“This initiative aims to make judicial cooperation in cross-border cases throughout the EU more efficient and more resilient to crises, such as the COVID-19 pandemic.

It will make it mandatory for the authorities involved in each country to use digital technology, instead of paper, to communicate.

It will improve access to justice by ensuring that individuals, businesses and legal practitioners involved in cases can communicate digitally with the competent authorities in the other countries.”

 

It is worth noting the following excerpt of the Impact Assessment about the likely economic impacts:

“Positive. The initiative could require new investment from EU countries to develop the necessary infrastructure that can interact with e-CODEX. Investment  would  depend  on  the  current national level  of digitalisation, level  of involvement  in the e-CODEX  project, the  interoperability  of  solutions  implemented by EU countries and  the possibility under national law to allow for electronic transmissions. However, in the long run, digitalization of justice would significantly decrease the costs incurred by national justice systems in cross-border procedures.

To  address cost  concerns,  the initiative could  also propose that  the  Commission  develops  and  provides EU countries with a reference implementation software solution (back-end portal) for their national use.

As mentioned in the Communication on the digitalization of justice, the upcoming Multiannual Financial Framework and financial instruments for Next Generation EU could also provide funding.

The EU countries could reduce costs by re-using the infrastructure being developed for the European Investigation Order in criminal proceedings (eEDES) and for Service of Documents and Taking of Evidence also for other judicial cooperation instruments.

With  its  potential  to substantially cut  the cost of participating in cross-border  cases,  the  initiative would also directly  benefit citizens  and  businesses  (including small/medium  firms)  concerned  by  the various  EU civil  law instruments. Use  of  these  instruments  (e.g. the  European  Small  Claims  procedure  and  European Order for Payment) by citizens, businesses and legal practitioners would also increase, through the new electronic access point.”

The EU press release is available here.

 

The Interest Group on Private International Law of the Italian Society of International Law invites you to a series of webinars on current developments in jurisprudence in various topics of private international law.

The webinars will be hosted on Teams by Microsoft 365. In order to attend one or more webinars please write a message to the email address sidigdipp@gmail.com to be added to the relevant Teams group. Once the request has been made for one webinar, there will be no need to repeat it for subsequent events.

The webinars will take place in English except where indicate otherwise.

All webinars will be chaired by Prof. Stefania Bariatti (Università degli Studi di Milano), convenor of the Interest Group.

Programme:

29 January 2021 @ 4-6 PM (CET):

Limiting European Integration Through Constitutional Law? Recent Decisions of the German Bundesverfassungsgericht and their Impact on Private International Law

 Speaker: Christian Kohler, Universität Saarbrücken

 Discussant: Giulia Rossolillo, Università degli Studi di Pavia

 

19 February 2021 @ 4-6 PM (CET):

State Immunity and Jurisdiction in Civil and Commercial Matters in Recent Court of Justice Rulings

Speaker: Alexander Layton, King’s College London

Discussant: Lorenzo Schiano di Pepe, Università di Genova

 

12 March 2021 @ 4-6 PM (CET):

La trascrizione dell’atto di nascita nella recente giurisprudenza della Corte costituzionale italiana (in Italian)

Speaker: Sara Tonolo, Università degli Studi di Trieste

Discussant: Elena Rodriguez Pineau, Universidad Autonóma de Madrid

 

9 April 2021 @ 4-6 PM (CET):

Law Governing Arbitration Agreements in a Recent Judgment of the UK Supreme Court

Speaker: Adrian Briggs, University of Oxford

Discussant: Pietro Franzina, Università Cattolica del Sacro Cuore

 

TBC 23 April 2021 @ 4-6 PM (CET) TBC: 

Jurisdiction in Matters Relating to Cross-Border Torts according to the Recent Volkswagen Judgment of the Court of Justice

 Speaker: Giesela Rühl, Humboldt-Universität zu Berlin

Discussant: Fabrizio Marongiu Buonaiuti, Università di Macerata

 

Eduardo Álvarez-Armas is Lecturer in Law at Brunel University London and Affiliated Researcher at the Université Catholique de Louvain. He has kindly provided us with his thoughts on recent proposals for amending the Rome II Regulation. This is the first part of his contribution; a second one on corporate social responsibility will follow in the next days.

 

On December the 3rd, 2020, the EU commission published a call for applications, with a view to putting forward, by late 2021, a (legislative or non-legislative) initiative to curtail “abusive litigation targeting journalists and civil society”. As defined in the call, strategic lawsuits against public participation (commonly abbreviated as SLAPPs) “are groundless or exaggerated lawsuits, initiated by state organs, business corporations or powerful individuals against weaker parties who express, on a matter of public interest, criticism or communicate messages which are uncomfortable to the litigants”. As their core objective is to silence critical voices, SLAPPs are frequently grounded on defamation claims, but they may be articulated through other legal bases (as “data protection, blasphemy, tax laws, copyright, trade secret breaches”, etc) (p. 1).

The stakes at play are major: beyond an immediate limitation or suppression of open debate and public awareness over matters that are of significant societal interest, the economic pressure arising from SLAPPs can “drown” defendants, whose financial resources are oftentimes very limited. Just to name but a few recent SLAPP examples (For further review of cases throughout the EU see: Greenpeace European Unit [O. Reyes, rapporteur], “Sued into silence – How the rich and powerful use legal tactics to shut critics up”, Brussels, July 2020, p. 18ff): at the time of her murder in 2017, Maltese journalist Daphne Caruana Galizia was facing over 40 civil and criminal defamation lawsuits, including a 40-million US dollar lawsuit in Arizona filed by Pilatus Bank (Greenpeace European Unit [O. Reyes, rapporteur], pp. 9-12); in 2020, a one million euros lawsuit was introduced against Spanish activist Manuel García for stating in a TV program that the poor livestock waste management of meat-producing company “Coren” was the cause for the pollution of the As Conchas reservoir in the Galicia region.

In light of the situation, several European civil-society entities have put forward a model “EU anti-SLAPP Directive”, identifying substantive protections they would expect from the European-level response announced in point 3.2 of the EU Commission´s “European democracy action plan”. If it crystallized, an EU anti-SLAPP directive would follow anti-SLAPP legislation already enacted, for instance, in Ontario, and certain parts of the US.

Despite being frequently conducted within national contexts, it is acknowledged that SLAPPs may be “deliberately brought in another jurisdiction and enforced across borders”, or may “exploit other aspects of national procedural and private international law” in order to increase complexities which will render them “more costly to defend” (Call for applications, note 1, p. 1) Therefore, in addition to a substantive-law intervention, the involvement of private international law in SLAPPs is required. Amongst core private-international-law issues to be considered is the law applicable to SLAPPs.

De lege lata, due to the referred frequent resort to defamation, and the fact that this subject-matter was excluded from the material scope of application of the Rome II Regulation, domestic choice-of-law provisions on the former, as available, will become relevant. This entails a significant incentive for forum shopping (which may only be partially counteracted, at the jurisdictional level, by the “Mosaic theory”).

De lege ferenda, while the risk of forum shopping would justify by itself the insertion of a choice-of-law rule on SLAPPs in Rome II, the EU Commission´s explicit objective of shielding journalists and NGOs against these practices moreover pleads for providing a content-oriented character to the rule. Specifically, the above-mentioned “gagging” purpose of SLAPPs and their interference with fundamental values as freedom of expression sufficiently justify departing from the neutral choice-of-law paradigm. Furthermore, as equally mentioned, SLAPP targets will generally have (relatively) modest financial means. This will frequently make them “weak parties” in asymmetric relationships with (allegedly) libeled claimants.

In the light of all of this, beyond conventional suggestions explored over the last 15 years in respect of a potential rule on defamation in Rome II (see, amongst other sources: Rome II and Defamation: Online Symposium), several thought-provoking options could be explored, amongst which the following two:

1st Option: Reverse mirroring Article 7 Rome II

A first creative approach to the law applicable to SLAPPs would be to introduce an Article 7-resembling rule, with an inverted structure. Article 7 Rome II on the law applicable to non-contractual obligations arising from environmental damage embodies the so-called “theory of ubiquity” and confers the prerogative of the election of the applicable law to the “weaker” party (the environmental victim). In the suggested rule on SLAPPs, the choice should be “reversed”, and be given to the defendant, provided they correspond with a carefully drafted set of criteria identifying appropriate recipients for anti-SLAPP protection.

However, this relatively straightforward adaptation of a choice-of-law configuration already present in the Rome II Regulation could be problematic in certain respects. Amongst others, for example, as regards the procedural moment for performing the choice-of-law operation in those domestic systems where procedural law establishes (somewhat) “succinct” proceedings (i.e. with limited amounts of submissions from the parties, and/or limited possibilities to amend them): where a claimant needs to fully argue their case on the merits from the very first written submission made, which starts the proceedings, how are they meant to do so before the defendant has chosen the applicable law? While, arguably, procedural adaptations could be enacted at EU-level to avoid a “catch-22” situation, other options may entail less legislative burden.

2nd option: a post-Brexit conceptual loan from English private international law = double actionability

A more extravagant (yet potentially very effective) approach for private-international-law protection would be to “borrow” the English choice-of-law rule on the law applicable to defamation: the so-called double actionability rule. As it is well-known, one of the core reasons why “non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation” were excluded from the material scope of the Rome II Regulation was the lobbying of publishing groups and press and media associations during the Rome II legislative process (see A. Warshaw, “Uncertainty from Abroad: Rome II and the Choice of Law for Defamation Claims”). With that exclusion, specifically, the English media sector succeeded in retaining the application by English courts of the referred rule, which despite being “an oddity” in the history of English law (Vid. D. McLean & V. Ruiz Abou-Nigm, The Conflict of Laws, 9th ed., Swett & Maxwell, 2016, p. 479), is highly protective for defendants of alleged libels and slanders. The double actionability rule, roughly century and a half old, (as it originated from Philips v. Eyre [Philips v. Eyre (1870) L.R. 6 Q.B. 1.] despite being tempered by subsequent case law) is complex to interpret and does not resemble (structurally or linguistically) modern choice-of-law rules. It states that:

“As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be of such a character that it would have been actionable if committed in England … Secondly, the act must not have been justifiable by the law of the place where it was done” (Philips v. Eyre, p. 28-29).

The first of the cumulative conditions contained in the excerpt is usually understood as the need to verify that the claim is viable under English law (Lex fori). The second condition is usually understood as the need to verify that the facts would give rise to liability also under foreign law. Various interpretations of the rule can be found in academia, ranging from considering that once the two cumulative requirements have been met English law applies (Vid. Dicey, Morris & Collins, The Conflict of Laws, vol. II, 15th ed., Swett & Maxwell, 2012, pp. 2252-2270, para. 35-111), to considering that only those rules that exist simultaneously in both laws (English and foreign) apply, or that exemptions from liability from either legal system free the alleged tortfeasor (Vid. Cheshire, North & Fawcett, Private International Law, 15th ed., OUP, 2017, p. 885. Similarly, Dicey, Morris & Collins, The Conflict of Laws, vol. II, 15th ed., Swett & Maxwell, 2012, pp. 2252-2270, para. 35-128). Insofar as it is restrictive, and protective of the defendant, double actionability is usually understood as a “double hurdle” (Vid. Cheshire, North & Fawcett, Private International Law, 15th ed., OUP, 2017, p. 885; D. McLean & V. Ruiz Abou-Nigm, The Conflict of Laws, 9th ed., Swett & Maxwell, 2016, p. 479) to obtaining reparation by the victim, or, in other words, as having to win the case “twice in order to win [only] once” (Vid. A. Briggs, The Conflict of Laws, 4th ed., Clarendon Law Series, OUP, 2019, p. 274). Thus, the practical outcome is that the freedom of speech of the defendant is preserved.

A plethora of reasons make this choice-of-law approach controversial, complex to implement, and difficult to adopt at an EU level: from a continental perspective, it would be perceived as very difficult to grasp by private parties, as well as going against the fundamental dogma of EU private international law: foreseeability. This does not, nevertheless, undermine the fact that it would be the most effective protection that could be provided from a private-international-law perspective. Even more so than the protection potentially provided by rules based on various “classic” connecting factors pointing towards the defendant´s “native” legal system/where they are established (as their domicile, habitual residence, etc).

Truth be told, whichever approach is chosen, a core element which will certainly become problematic will be the definition of the personal scope of application of the rule, i.e. how to precisely identify subjects deserving access to the protection provided by a content-oriented choice-of-law provision of the sort suggested (and/or by substantive anti-SLAPP legislation, for that matter). This is a very delicate issue in an era of “fake news”.

Written by Aline Beltrame de Moura, Professor at the Federal University of Santa Catarina, in Brazil

 

 

It is with great satisfaction that we announce the launch of the Portal of the Latin American Center of European Studies (LACES) – www.eurolatinstudies.com.

The portal proposes to create a channel for dialogue and exchange of good practices between Latin America and Europe through the dissemination of innovative scientific research with the Latin American Journal of European Studies, and relevant news and events in the Observatory on European Studies.

The proposed activities are developed within the scope of the Jean Monnet Network “BRIDGE Project” of the Erasmus + Program of the European Commission, which has a research network formed by professors and researchers from several Latin American and European universities.

We inform that we are already open for submissions of articles for the Journal and news for the Observatory.

In addition, we take the opportunity to invite all the academic community to submit their scientific papers to the Workshop event of the I Jean Monnet Network – BRIDGE Seminar on “EU – Latin America Trade and Investment Relations”, which will take place on the 15 March 2021, at the University of Lisbon (Portugal), through online platform.

The best articles will receive a prize, and it will be possible to publish in the Latin American Journal of European Studies, as well as in the Seminar Annals both backed by AAFDL Publisher. It is also possible to present your paper during the event.

Those who are interested must submit their full article until 8 February 2021 to the e-mail: network@eurolatinstudies.com.

For more information: https://eurolatinstudies.com/index.php/laces/announcement/view/2

 

The first issue of 2021’s International and Comparative Law Quarterly  has recently been published. It features a book review by Dr. Nahel Asfour of Dr. Gianluigi Passarelli’s book titled “Contract Law in Contemporary International Commerce: Considerations on the Complex Relationship between Legal Process and Market Process in the New Era of Globalisation [Nomos, Baden-Baden, 2019]. ” It contains no other topic on directly on private international law.

On a personal note, I have earlier read Dr. Passarelli’s book to completion at least twice, and found it to be thought provoking.  His book is focused on the applicable law in the absence of choice under Rome I Regulation, and challenges the approach of the European legislator for giving too much emphasis to certainty through hard and fast rules, at the expense of flexibility. In this connection, he argues that the European legislator’s approach  is contrary to the expectations of international commercial actors. The central theme that motivates the thesis of his book is that legal certainty in choice of law in determining the applicable law in the absence of choice is overrated under Rome I Regulation.  It is unlikely that the European legislator will be convinced  by Dr. Passarelli’s argument that elevates the role of flexibility in the choice of law process, or accept a “regression” to Article 4(5) of Rome Convention style of flexibility that produced  uncertainty among Member States. My verdict is that Dr. Passarrelli’s work will remain relevant to students, scholars, practitioners, judges and legislators in other jurisdictions who prize flexibility over certainty in private international law.

 

Written by Abubakri Yekini

We wish to share with us the shocking news of the demise of Professor Jonathan Fitchen. Prof Fitchen died today, Friday 22nd January 2021. His death was announced by Prof Greg Gordon, the Head of Aberdeen Law School in an e-mail sent to colleagues earlier today. The email noted that Prof Fitchen “had been off work for since summer, when he suffered a serious break to his arm.  Over the last month or so it sadly became clear that this had been caused by a weakening of the bone as a result of the effects of cancer, and although treatment was attempted, the disease had advanced too far for this to be successful”.

Until his death, Fitchen was a Professor of Law at the University of Aberdeen, Scotland. He was also the Director of the Centre for Private International Law and the Convenor of the Board of Examiners for the Law School. Prof Fitchen is the author of The Private International Law of Authentic Instruments which was published in the Hart Studies of Private International Law in November 2020. The first chapter is currently accessible for free online.

Prof Fitchen was promoted to a Personal Chair a week before his death. On a personal note, this was a piece of cheering news to me. I am glad that Prof Fitchen received the news of his promotion and witnessed the publication of the book that has taken him several years of hard work before he died.

Prof Fitchen (together with Prof Beaumont) supervised my PhD thesis which I defended in May 2020. Despite his health challenges, he would always create time to discuss my thesis with me and his feedback is always excellent. He was a great mentor.

He is survived by his wife Kathrin and his children Thomas and Sofia.