Conflictoflaws

Gustavo Moser and Michael McIlwrath  have just published “Negotating International Commercial Contracts” (with Eleven publishers). More information is available on the publisher’s website.

The authors have kindly provided us with the follow summary:

The choices of law and forum are seldom negotiated in great depth, despite presenting far reaching implications, often more than what negotiators would generally consider or predict. Poorly negotiated clauses of law and forum might (and often do!) result in unwelcome surprises and costly mistakes. Negotiating these clauses has always been, and is likely to become even more, pivotal to a contract’s ‘well-being’ going forward, particularly in light of Brexit and the pandemic

It is therefore a rather opportune time to consider a few key issues in the negotiation (prospective) and enforcement (actual) of choice of law and choice of jurisdiction clauses.

For example, what law applies to a defective choice of law clause or, in the absence of it, to the main contract, or, rather, to a (defective or otherwise) dispute resolution clause? In which court should I initiate legal proceedings and what are the main commercial risks and benefits of such choice.

 It is also pertinent to rethink prospective choices: what is the optimal law(s) to my contract based on a pre-selected set of variables and preferences (e.g. approach given to contract interpretation, contract performance, mandatory rules or gap-fillers)? Are there any other contractual arrangements which might be of particular interest?What are the main difficulties to bear in mind when considering choice of law and choice of dispute resolution clauses?

The above and many more questions are raised and discussed in our recently published book Negotiating International Commercial Contracts: Practical Exercices (Eleven 2020) The 80+ exercises, with inspiration from real-life scenarios, invite the readers to understand the importance of these clauses. The book further aims to provide guidance to anyone involved in contract negotiation as to how they may more effectively make informed and commercially sensible choices in their deals.

The public consultation on the EU initiative modernising judicial cooperation between EU countries – use of digital technology is open from 16 February 2021 until 11 May 2021 (midnight Brussels time), click here. We have previously reported on the EU feedback period of this initiative here (which is a previous step and is part of the roadmap).

The public consultation consists of a questionnaire with 15 questions (mainly multiple-choice). An interesting question is the following:

“9) In case it is decided to propose a new EU legal instrument, what aspects of digitalisation should it regulate (Multiple choice – one or several replies are possible): – The mandatory or optional nature of electronic communication with and between competent national authorities – The legal validity of electronic documents and evidence – The conditions for the use of electronic signatures/seals – The responsibilities for data protection obligations – The architecture of the IT system to be used – Other (Please elaborate in the box below).”

With regard to the purpose of this initiative, the EU website states the following:

“This consultation concerns cross-border judicial cooperation in the European Union. It refers to civil, commercial and criminal cases and involves, for various reasons, more than one EU Member State. The European Commission is planning a new initiative aiming at digitalising cross-border judicial cooperation procedures. The purpose is to make use of new digital tools for electronic communication between courts, other competent authorities of the Member States and also to give the possibility to individuals and businesses to start proceedings and to communicate with the courts and the other competent authorities in other EU countries electronically, to be able to submit electronic documents from the comfort of their homes and offices. Currently, the communication from individuals/businesses to judicial authorities and between the public authorities themselves is carried out mainly on paper, which causes delays, involves more costs and is susceptible to crises such as COVID-19 pandemic. The European Commission seeks the views and opinions of stakeholders and all persons who could be impacted by the future initiative in order to take them into consideration when deciding on the possible options and the way forward.”

Burkhard Hess, Europäisches Zivilprozessrecht, De Gruyter 2021.

Just over ten years after the first edition of Europäisches Zivilprozessrecht (European Civil Procedure) by Burkhard Hess (director Max Planck Institute for Procedural Law, Luxembourg) a second –  even more voluminous and impressive – edition was published early 2021. While updating this book after a decade that marks not only the further expansion  but perhaps also the coming of age of European Civil Procedure is an immense task in itself, this new addition also expands in breadth. Particularly noteworthy is the new part on the interaction between European law and national civil procedure, including out-of-court procedures.

A must-read or even must-have for German readers having an interest in European Civil Procedure!

The blurb on the publisher’s website reads:

This book explores the European law of civil procedure from a systematic and dogmatic perspective by comprehensively assessing and providing a detailed explanation of all the instruments adopted in this area of the law. Based on the case law of the Court of Justice of the European Union, it expounds on the legislative powers of the Union, the different regulatory levels of European procedural law, its underlying concepts and legislative techniques. Against this background, it addresses the interfaces of the European law of civil procedure with the civil procedures of the EU Member States and the judicial cooperation with third States. The 2nd edition of this treatise also focusses on latest developments such as the protection the independence of the judiciary and of the rule of law in the Member States of the European Union. Moreover, it tackles alternative dispute resolution and arbitration, as well as the latest policy of the EU Commission in the digitization of national justice systems. To further contextualize the development of the European law of civil procedure, it also provides the reader with a thorough understanding of preliminary reference procedures before the Court of Justice. In its final chapter, it addresses the current policy debate towards a European code of civil procedure.

This reference book is an essential reading for academics, regulators, and practitioners seeking reliable and comprehensive information about the European law of civil procedure. It also addresses trainee lawyers and students interested in cross-border litigation and dispute resolution, as well as those who wish to specialize in European business law.

A webinar event on “Corporate Due Diligence and Private International Law” organized by the NOVA Centre for Business, Human Rights and the Environment, will hold on February 25, 2021 at 15:00 – 17:30 CET. For more information on the event and how to register see here

by Professor Dr Eva-Maria Kieninger, Chair for German and European Private Law and Private International Law, University of Würzburg, Germany

The Supreme Court’s decision in Okpabi v Royal Dutch Shell (2021 UKSC 3) concerns the preliminary question whether English courts have jurisdiction over a joint claim brought by two Nigerian communities against Royal Dutch Shell (RSD), a UK parent company, as anchor defendant, and a Nigerian oil company (SPDC) in which RSD held 30 % of the shares. The jurisdictional decision depended (among other issues that still need to be resolved) on a question of substantive law: Was it “reasonably arguable” that RSD owed a common law duty of care to the Nigerian inhabitants whose health and property was damaged by the operations of the subsidiary in Nigeria?

In the lower instance, the Court of Appeal had not clearly differentiated between jurisdiction over the parent company and the Nigerian sub and had treated the “arguable case”-requirement as a prerequisite both for jurisdiction over the Nigerian sub (under English autonomous law) and for jurisdiction over RSD, although clearly, under Art. 4 (1) Brussels Ia Reg., there can be no such additional requirement pursuant to the CJEU’s jurisprudence in Owusu. In Vedanta, a case with large similarities to the present one, Lord Briggs, handing down the judgment for the Supreme Court,  had unhesitatingly acknowledged the unlimited jurisdiction of the courts at the domicile of the defendant company under the Brussels Regulation. In Okpabi, Lord Hamblen, with whom the other Justices concurred, did not come back to this issue. However, given that from a UK point of view, the Brussels model will soon become practically obsolete (unless the UK will still be able to join the Lugano Convention),  this may be a pardonable omission. It is to be expected that the English courts will return to the traditional common law restrictions on jurisdiction such as the “arguable case”-criterion and “forum non conveniens”.

Although the Supreme Court’s decision relates to jurisdiction, its importance lies in the potential consequences for a parent company’s liability on the level of substantive law: The Supreme Court affirms its previous considerations in Vedanta (2019) and rejects the majority opinion of the CoA which in 2018 still flatly ruled out the possibility of RDS owing a duty of care towards the Nigerian inhabitants. Following the appellants’ submissions, Lord Hamblen minutely sets out where the approach of the CoA deviated from Vedanta and therefore “erred in law”. The majority in the CoA started from the assumption that a duty of care can only arise where the parent company effectively “controls” the material operations of the sub, and furthermore, that the issuance of group wide policies or standards could never in itself give rise to a duty of care. These propositions have now been clearly rejected by the Supreme Court as not being a reliable limiting principle (para 145). In the present judgment, the SC affirms its view that “control” is not in itself a meaningful test, since in practice, it can take many different forms: Lord Hamblen cites with approval Lord Briggs’s statement in Vedanta, that “there is no limit to the models of management and control which may  be put in place within a multinational group of companies” (para 150). He equally approves of Lord Briggs’s considerations according to which “the parent  may incur the relevant responsibility to third parties if, in published materials, it holds itself out as exercising that degree of supervision and control of its subsidiaries, even if in fact it does not do so. In such circumstances its very omission may constitute the abdication of a responsibility which it has publicly undertaken” (para 148).

Whether or not the English courts will ultimately find a duty of care to have existed in either or both of the Vedanta and Okpabi sets of facts remains to be seen when the law suits have been moved to the trial of the substantive issues. Much will depend on the degree of influence that was either really exercised on the sub or publicly pretended to be exercised.

On the same day on which the SC’s judgment was given (12 February 2021), the German Federal Government publicly announced the key features of a future piece of legislation on corporate social resonsibility in supply chains (Sorgfaltspflichtengesetz) that is soon to be enacted. The government wants to pass legislation before the summer break and the general elections in September 2021, not the least because three years ago, it promised binding legislation if voluntary self-regulation according to the National Action Plan should fail. Yet, contrary to claims from civil society (see foremost the German “Initiative Lieferkettengesetz”) the government no longer plans to sanction infringements by tortious liability towards victims. Given the applicability of the law at the place where the damage occurred under Art. 4 (1) Rome II Regulation, and the fact that the UK Supreme Court in Vedanta and Okpabi held the law of Sambia and Nigeria to be identical with that of England, this could have the surprising effect that the German act, which the government proudly announced as being the strictest and most far-reaching supply chain legislation in Europe and the world (!!), would risk to fall behind the law in anglophone Africa or on the Indian sub-continent. This example demonstrates that an addition to the Rome II Regulation, as proposed by the European Parliament, which would give victims of human rights’ violations a choice between the law at the place of injury and that at the place of action, is in fact badly needed.

Luís de Lima Pinheiro, Professor of Law at the University of Lisbon, has given his so-called “Last Class” earlier this week, thus putting an end to his activity as a Professor at the graduate level in this Law School (while remaining active in post-graduate courses).

The online lecture, in Portuguese, is available here.

In a landmark decision in the case of Okpabi and others v Royal Dutch Shell Plc and Another, the United Kingdom Supreme Court (“UKSC”) ruled on a jurisdictional issue on whether the claimants/appellants have an arguable case that the defendants/respondents – Royal Dutch Shell (an English domiciled company) – owed them a common law duty of care so as properly to found jurisdiction against a foreign subsidiary company (Shell Petroleum Development Corporation Limited, domiciled in Nigeria) as a necessary and proper party to the proceedings. This jurisdictional aspect was concerned with whether there was a real issue to be tried against the anchor defendant – Royal Dutch Shell (an English domiciled company).

The facts of the case was that the claimants/appellants, who are Nigerian citizens alleged that as a result of the negligence of  Shell Petroleum Development Corporation Limited, numerous oil spills have occurred from oil pipelines and associated infrastructure operated in the vicinity of the claimants’/appellants’ communities. It is said that these oil spills have caused widespread environmental damage, including serious water and ground contamination, and have not been adequately cleaned up or remediated. It is also alleged that as a result of the spills, the natural water sources in the claimants’/appellants’ communities cannot safely be used for drinking, fishing, agricultural, washing or recreational purposes.

The High Court and Court of Appeal resolved this jurisdictional issue against the claimants/appellants, but the UKSC found merit in their appeal.

By Maria Hook (University of Otago, New Zealand) and Jack Wass (Stout Street Chambers, New Zealand)

When a couple divorce or separate, and the court is tasked with identifying what property is to be allocated between the parties, calculation of the net pool of assets usually takes into account certain debts. This includes matrimonial debts that that are in the sole name of one spouse, and even certain personal debts, ensuring that the debtor spouse receives credit for that liability in the division of matrimonial property.  However, where a spouse owes a liability that may not, in practice, be repaid, deduction of the debt from the pool of the couple’s property may result in the other spouse  receiving a lower share of the property than would be fair in the circumstances. For example, a spouse owes a debt to the Inland Revenue that is, in principle, deductible from the value of that spouse’s assets to be allocated between the parties. But the debtor spouse has no intention of repaying the debt and has rendered themselves judgment-proof. In such a case, deduction of the debt from the debtor spouse’s matrimonial property would leave the other spouse sharing the burden of a debt that will not be repaid.

This result is patently unfair, and courts have found a way to avoid it by concluding that, in order to be deductible, the debt must be one that is likely to be paid or recovered (see, eg, Livingstone v Livingstone (1980) 4 MPC 129 (NZHC)). This enquiry can give rise to conflict of laws issues: for example, there may be questions about the enforceability of a foreign judgment debt or the actionability of a foreign claim. Ultimately, the focus of the inquiry should be on the creditor’s practical chances of recovery.

In the relatively recent Cook Islands case of Webb v Webb, the Privy Council ([2020] UKPC 22) considered the relevance of a New Zealand tax debt to matrimonial property proceedings in the Cook Islands. The Board adopted a surprisingly narrow approach to this task. It concluded that the term “debts” only included debts that were enforceable against matrimonial property (which in this case was located in the Cook Islands), and that the debts in question were not so enforceable because they would be barred by the “foreign tax principle”.  Lord Wilson dissented on both points.

Background

The parties – Mr and Mrs Webb – lived in the Cook Islands when they separated. Upon separation, Mr Webb returned to New Zealand. Mrs Webb commenced proceedings against Mr Webb in the Cook Islands under the Matrimonial Property Act 1976 (a New Zealand statute incorporated into Cook Islands law), claiming her share of the couple’s matrimonial property that was located in the Cook Islands.

Mr Webb, however, owed a judgment debt of NZ$ 26m to the New Zealand Inland Revenue. He argued that, under s 20(5) of the Act, this debt had to be deducted from any matrimonial property owned by him. Under s 20(5)(b), (unsecured) personal debts had to be deducted from “the value of the matrimonial property owned by” the debtor spouse to the extent that they “exceed the value of any separate property of that spouse”. Given the size of Mr Webb’s debt, the effect of s 20(5)(b) would have been to leave Mrs Webb with nothing.  She argued that the debt fell outside of s 20(5)(b) because it was not enforceable in the Cook Islands and Mr Webb was unlikely to pay it voluntarily.

Whether the debt had to be enforceable against the matrimonial property in the Cook Islands

Lord Kitchin, with whom the majority agreed, concluded that s 20(5)(b) only applied to debts that were either enforceable against the matrimonial assets or likely to be paid out of those assets. Debts that were not so enforceable were not to be taken into account when dividing the matrimonial assets (unless the debtor spouse intended to pay them by using those assets in his name). A different interpretation would lead to “manifest injustice”, because if the Inland Revenue “cannot enforce its judgment against those assets, Mr Webb can keep them all for himself” (at [41]). If the Inland Revenue could not execute its judgment against the assets, and Mr Webb did not pay the debt, the reason for applying s 20(5)(b) – which was to protect a debtor spouse’s unsecured creditors – disappeared.

Lord Kitchin considered that this conclusion found support in Government of India v Taylor, where Viscount Simonds (at 508) had explained that the meaning of “liabilities” in s 302 of the Companies Act 1948 excluded obligations that were not enforceable in the English courts. The result in that case was that a foreign government could not prove in the liquidation of an English company in respect of tax owed by that company (at [42]).

In Webb, the judgment debt in question was a personal debt incurred by Mr Webb. However, Lord Kitchin seemed to suggest that the outcome would have been no different if the debt had been a debt incurred in the course of the relationship under s 20(5)(a) (at [46]). The word “debts” had the same meaning in s 20(5)(a) and (b), as referring to debts which are enforceable against the matrimonial property or which the debtor spouse intends to pay.

Lord Wilson did not agree with the Board’s interpretation. He considered that it put a gloss on the word “debts” (at [118]), and that it had “the curious and inconvenient consequence of requiring a court … to determine … whether the debt is enforceable against specified assets” (at [120]). Rather, a debt was a liability that was “likely to be satisfied by the debtor-spouse” or that was “actionable with a real prospect of recovery on the part of the creditor” (citing Fisher on Matrimonial Property (2nd ed, 1984) at para 15.6) – regardless of whether recovery would be against matrimonial or other assets (at [123]).

Applying this interpretation to the tax liability in question, Lord Wilson concluded that the liability was clearly actionable (because it had already been the subject of proceedings) and that the Inland Revenue did have a real prospect of recovery in New Zealand (at [126]-[127]). Mr Webb was living in New Zealand and was presumably generating income there, and the Commissioner had applied for the appointment of receivers of his property. This was sufficient to conclude that the debt was enforceable in New Zealand, “including on a practical level” (at [131]).  The facts were different from the case of Livingstone v Livingstone (1980) 4 MPC 129, where the New Zealand Court had concluded that a Canadian tax debt could “for practical purposes” be disregarded because the debtor had already left the country at the time the demand was issued, he had no intention of returning and he had removed his assets from the jurisdiction. In such a case, if the debtor spouse were permitted to deduct the foreign tax debt without ever actually repaying it, they could take the benefit of the entire pool of matrimonial assets and thus undermine the policy and operation of the whole regime.

In our view, Lord Wilson’s interpretation is to be preferred. The relevant question should be whether the debt is one that will be practically recoverable (whether in the forum or overseas). A debt may still be practically recoverable even if it is not enforceable against the matrimonial assets and is unlikely to be paid out of those assets. It is true that, in many cases under s 25(1)(b), the chances of recovery would be slim if the matrimonial assets are out of reach and the debtor spouse has no intention of paying the debt voluntarily (which seemed to be the case for Mr Webb: at [62]). By definition, personal debts are only relevant “to the extent that they exceed the value of any separate property of that spouse”, so in practice their recoverability would depend on future or matrimonial assets. Lord Wilson’s assessment of the evidence – as allowing a finding that there was a real likelihood that Mr Webb would have to repay the debt in New Zealand – is open to question on that basis. But that doesn’t mean that the debts must be enforceable against the matrimonial assets. While this interpretation would lead to fairer outcomes under s 25(1)(b) – because it avoids the situation of the debtor spouse not having to share their matrimonial assets even though the debt is recoverable elsewhere – it could lead to strange results under s 25(1)(a), which provides for the deduction of matrimonial debts that are owed by a spouse individually. It would be unfair, under s 25(1)(a), if such debts were not deductible from the value of matrimonial property owned by the spouse by virtue of being unenforceable against that property, in circumstances where the debts are enforceable against the spouse’s personal property.

The Board’s reliance on Government of India v Taylor [1955] AC 491 (HL) in this context is unhelpful. The question before the House of Lords was whether a creditor could claim in a liquidation for a debt that would not be enforceable in the English courts (regardless of whether the debt would be enforceable over certain – or any – assets). Under the Matrimonial Property Act, on the other hand, the court is not directly engaged in satisfying the claims of creditors, so the debt need not be an obligation enforceable in the forum court.  Neither need it be an obligation enforceable against matrimonial property, wherever located. It simply needs to be practically recoverable.

Whether the debt was enforceable against the matrimonial property in the Cook Islands

As we have noted, Lord Wilson argued that there was a real prospect of the debt being paid – the implication being that this was not a case about a foreign tax debt at all. Mr and Mrs Webb were New Zealanders, and Mr Webb had relocated to New Zealand before the proceedings were commenced in 2016 and had stayed there. The practical reality was that unless he found a way to meet his revenue obligations he would be bankrupted again. Lord Kitchin noted Mr Webb’s apparent determination to avoid satisfying his liabilities to the IRD. Nevertheless, there was no suggestion that Mr Webb would leave New Zealand permanently to live in the Cook Islands and there enjoy the benefits of the matrimonial property.

Nevertheless, the majority’s analytical framework required it to consider whether the tax debt was enforceable against the matrimonial property in the Cook Islands. The majority found that for the purpose of the foreign tax principle, the Cook Islands should be treated relative to New Zealand as a foreign sovereign state, despite their close historical and constitutional ties (and found that the statutory mechanism for the enforcement of judgments by lodging a memorial, cognate to the historical mechanism for the enforcement of Commonwealth judgments, did not exclude the foreign tax principle).

It was obvious that bankruptcy was a serious prospect, the IRD having appointed a receiver over Mr Webb’s assets shortly before the hearing before the Board. That begged the question whether the IRD could have recourse to the Cook Islands assets, but on this point the case proceeded in a peculiar way. The Board observed that it had been given no details of the steps that a receiver or the Official Assignee might be able to take to collect Cook Islands assets, going so far as to doubt whether the Official Assignee would even be recognized in the Cook Islands “for the Board was informed that there was no personal bankruptcy in the Cook Islands and the position of Official Assignee does not exist in that jurisdiction.” Section 655(1) of the Cook Islands Act 1915 states that “Bankruptcy in New Zealand shall have the same effect in respect to property situated in the Cook Islands as if that property was situated in New Zealand”, but the Board was not prepared to take any account of it, the provision having been introduced for the first time at the final appeal and there being some doubt about whether it was even in force.

The unfortunate consequence was that the Board gave no detailed consideration to the question of how the foreign tax principle operates in the context of cross-border insolvency, a point of considerable interest and practical significance.

The common law courts have been prepared to recognise (and in appropriate cases, defer to) foreign insolvency procedures for over 250 years, since at least the time of Solomons v Ross (1764) 1 H Bl 131, 126 ER 79 where the Court of Chancery allowed funds to be paid over to the curators of a debtor who had been adjudicated bankrupt in the Netherlands. But the relationship between this principle and the foreign tax principle has never been clear.

The UNCITRAL Model Law on Cross-Border Insolvency 1997 preserves states’ ability to exclude foreign tax claims from an insolvency proceeding. As to the common law, the New Zealand Law Commission (expressing what may be the best guide to the content of Cook Islands law) observed in 1999 that the policy justification for refusing enforcement of foreign tax judgments may not apply in the same way in the context of cross-border insolvency where the collective interests of debtors are concerned. It noted that a number of countries (including Australia, the Isle of Man and South Africa) had moved past an absolute forbidding of foreign tax claims where such claims form part of the debts of an insolvent debtor subject to an insolvency regime. It thus concluded that “foreign taxation claims may sometimes be admitted to proof in a New Zealand bankruptcy or liquidation.” While the Privy Council had a number of difficult issues to confront, it is perhaps unfortunate that they did not take the opportunity to bring clarity to this important issue.

The first issue of Lloyd’s Maritime and Commercial Law Quarterly for 2021 features the following private international law articles:

Adrian Briggs, “A Conflict of Comity in the Enforcement of Judgments”

Patrick Dunn-Walsh “Insurance Litigation under the Recast Brussels Regulation”

Anthony Kennedy “A Place to Start”

Myron Phua and Serena Seo Yeon Lee “Taxonomising “Quasi-Contractual” Anti-suit Injunctions” 

Steve Peers (University of Essex) has just published a series of Brexit-related documents on Twitter, two of which appear to confirm that by leaving the European Union, the UK also (believes to have) ceased to be a party to the 1968 Brussels Convention and the 1980 Rome Convention – which many have argued might revive between the UK and those EU Member States who are parties to them.

The two letters, sent by the UK Government to the Council of the EU, both contain the following paragraph:

The Government of the United Kingdom hereby notifies the Secretary-General of the Council of the European Union that it considers that the [Brussels Convention] / [Rome Convention] ceased to apply to the United Kingdom and Gibraltar from 1 January 2021, as a consequence of the United Kingdom to be a Member State of the European Union and of the end of the Transition Period.

Gustavo Cerqueira, Nicolas Nord (dir.), La connaissance du droit étranger: À la recherche d’instruments de coopération adaptés. Études de droit international privé comparé, Préface : Hélène Gaudemet-Tallon, Paris : Société de législation comparée, coll. “Colloques”, vol. 46, 2020, 268 p. Click here.

The authors’ foreword reads as follows (English translation):

“On November 28, 2019, jurists from various backgrounds met at the french Cour de cassation in Paris to reflect on suitable instruments for international cooperation in establishing the content of foreign law.

This conference is in line with the work previously carried out within the Société de législation comparée on the subject of foreign law. In particular, it continues the reflections started at the conference concerning the controls on constitutionality and conventionality of foreign law, which was held on September 23, 2016 at the Cour de cassation. This event brought together academics and practitioners from several European, North and South American countries and resulted in the publication of a book in 2017 by the Society.

This approach is also part of the continuity of research carried out in other learned societies at the global or regional level.

The conference of November 28, 2019 confirmed the need for such reflection. On the one hand, all of the contributors affirmed the important place now given to foreign law in the settlement of disputes. This is due, among other things, to the growth of international family and business relationships, the growing demand for recognition of situations established abroad and the possibilities for those concerned to choose the applicable law. On the other hand, the participants attested to the increased role of different legal professions in the application of foreign law. While judges and civil registrars were more traditionally exposed to such a burden, notaries and lawyers in their dual mission of advice and drafting of acts are currently called upon to take into account or implement foreign law.

In this context, while it appears that European Union law is often at the origin of the involvement of these different actors in the application of foreign law, another, more recent phenomenon seems to increase occurrences of dealing with such a law: the extensive jurisdictional competition to which the European States are engaged because of Brexit. Indeed, Paris, Amsterdam, Brussels and other capitals are establishing courts and chambers specialized in international litigation and in the application of foreign law. This phenomenon is also spreading to major cities, either international, such as Frankfurt am Main or Hamburg, or regional, such as Saarbrücken, in Germany.

The stakes are crucial. The search for suitable instruments for a good knowledge of foreign law is essential for national laws in full legislative and jurisprudential evolution. Indeed, these changes specific to each system reinforce the need for access to reliable content of foreign law in order to guarantee the legal certainty of litigants, as well as to avoid civil liability of legal service providers or even fraud in manipulation of foreign solutions.

The research envisaged in this colloquium is unfolding, of course, in an environment in which there are formal and informal cooperation mechanisms, the effectiveness of which is only partial in the face of the complexity of the phenomena that cover the application of foreign law. Indeed, they were conceived to deal with a foreign law that supposed to be stable and simple and not shifting and plural in its sources. These mechanisms, not very visible, are also unknown to the practitioners themselves. Current discussions at European (EU) and international (Hague Conference) level attest to the urgency of thinking about responses in this area, using one or more relevant and effective instruments.

This is what the conference on knowledge of foreign law: in search of suitable cooperation instruments meant to answer. To this end, based on an indicative and non-exhaustive questionnaire, the issue of establishing an inventory was first raised, and then discussions ensued on the solutions adapted to the various requirements revealed both by the type of situation to be treated and by the category of professional involved. In this last respect, the needs of the judge and the notary were different, as were those of the registrar and the lawyer.

The adaptation was also considered in the light of the various questions specific to the original system. While the objective may a priori be to achieve the adoption of a general instrument with the widest possible geographical scope, it quickly appeared vain to try to favor such an approach at present. On the one hand, each profession has different needs, on the other hand, the level of development of the different systems compared is not the same. While some countries lag behind and struggle to adopt satisfactory rules in this area, others are at the forefront and therefore are not really in demand for a cooperation instrument whose usefulness does not seem obvious to them.

In this perspective, different paths for reflection have been explored. They range from the revitalization of old instruments to the creation of specialized institutions at internal, international or European level, including the establishment of specific mechanisms or the use of artificial intelligence. Such abundance shows the crucial nature of the issue and the vitality of the reflections carried out, but also the relevance of having debated it and the need to continue doing so.

In this sense, the next stage of this debate could be that of the opportunity of adopting a European regulation on the matter. In addition to the interest of such an instrument at the European level, it could serve as an impetus for other regional groups, such as Mercosur.” (our emphasis)

Prefaced by Professor emeritus Hélène Gaudemet-Tallon (Paris II Panthéon Assas), the book contains the following contributions (most of them in French).

Préface

Hélène GAUDEMET-TALLON

Avant-propos

Gustavo CERQUEIRA and Nicolas NORD

Introduction

Cyril NOURISSAT, Connaissance du droit étranger et coopération internationale : entre nécessité impérieuse et difficultés à surmonter

 I. État des lieux

En France

La magistrature

François ANCEL, La connaissance du droit étranger. État des lieux – La magistrature

Cyril ROTH, Le droit étranger, irréductiblement inconnaissable : leçons tirées de la création d’une collection de lois exotiques

L’avocature

Dominique FOUSSARD, Le point de vue d’un avocat au Conseil d’État et à la Cour de cassation

Olivier BERG, L’avocat et le droit étranger : entre connaissance et représentation

L’état civil

Nicolas NORD, Le droit étranger devant l’officier de l’état civil. État des lieux

Dans le voisinage

Jochen BAUERREIS, La connaissance du droit étranger en Allemagne

Guillermo PALAO MORENO, La connaissance du droit étranger en Espagne

Pietro FRANZINA, La connaissance du droit étranger : cadre juridique et moyens disponibles en Italie

Lukas HECKENDORN URSCHELER, La connaissance du droit étranger en Suisse. Une multitude de moyens

En Amérique Latine

Gustavo Ferraz DE CAMPOS MONACO, La connaissance du droit étranger en Amérique

 II. Solutions envisageables

Du point de vue des universitaires

Patrick KINSCH, La preuve de la loi étrangère par renvoi préjudiciel

Gustavo CERQUEIRA, Fondamentalisation du droit et justice prédictive. Deux phénomènes à prendre en compte pour la connaissance du droit étranger

Guillermo PALAO MORENO, La connaissance du droit étranger : évaluation de la situation en Espagne et propositions dans une perspective européenne

Maria Rosa LOULA, The challenges in accessing applicable foreign law and international cooperation in Brazil

Du point de vue des praticiens

Le magistrat

Jean-Noël ACQUAVIVA, Connaissance du droit étranger et coopération internationale. Solutions prospectives : l’opinion d’un juge

Le notaire

Jean-Louis VAN BOXSTAEL, La connaissance du droit étranger. Le point de vue d’un notaire

Du point de vue des institutions

Marie VAUTRAVERS, Le point de vue du Bureau du droit de l’Union, du droit international privé et de l’entraide civile, direction des affaires civiles et du Sceau, France

Rodrigo RODRIGUEZ, Knowledge of Foreign Law and the London Convention of 1968 – Council of Europe’s CDCJ

Wolfgang ROSCH, La connaissance du droit étranger et la Cour de justice de l’Union européenne

Nicolas NORD, La Commission Internationale de l’État Civil

Propos conclusifs

Françoise Monéger

Annexes

Questionnaire envoyé aux contributeurs

Programme du Colloque

Liste des contributeurs (auteurs, orateurs, et présidents des séances)

The full table of contents, the preface and the forewords are available here (in French).

More information: https://legiscompare.fr/ecommerce/fr/197-la-connaissance-du-droit-etranger-a-la-recherche-d-instruments-de-cooperation-adaptes

As has now become tradition, the Annual Conference of the Society of Legal Scholars (SLS) will feature a section dedicated to Conflict of Laws. In 2021, the conference will take place between 31 August and 3 September at the University of Durham and virtually (further information on the conference can be found here). The new conveners of the Conflict of Laws section, Lauren Clayton-Helm and Bobby Lindsay, have kindly provided the following Call for Papers.

SLS Conflict of Laws Section: Call for Papers/Panels for 2021 SLS Annual Conference at Durham University and virtually

This is a call for papers and panels for the Conflict of Laws section of the 2021 Society of Legal Scholars Annual Conference to be held at the University of Durham, from Tuesday 31st August – Friday 3rd September.  The Conflict of Laws section will meet in the first half of the conference on 31st August – 1st September and will have four sessions, each lasting 90 minutes.

If you are interested in delivering a paper or organising a panel, please submit your paper abstract or panel details by 11:59pm UK time on Friday 26th March 2021.  All abstracts and panel details must be submitted through the Oxford Abstracts conference system which can be accessed using the following link – https://app.oxfordabstracts.com/stages/2483/submitter – and following the instructions (select ‘Track’ for the relevant subject section). If you registered for Oxford Abstracts for last year’s conference, please ensure that you use the same e-mail address this year if that address remains current. For those whose papers are accepted, the original submission offers the facility to upload a full paper nearer the time. If you experience any issues in using Oxford Abstracts, please contact http://slsconference@mosaicevents.co.uk.

We intend to host the 2021 conference in person, with an online option for those who would prefer to participate virtually. The precise format of the conference will be confirmed by the end of April. When submitting an abstract you will be asked to indicate whether you would wish to present in person or virtually. Please note that this indication is not binding and it is merely to assist with conference planning.

Decisions will be communicated by the end of April.

We welcome proposals for papers and panels on any issue relating to the conflict of laws/private international law. We welcome proposals representing a full range of intellectual perspectives and methodological approaches in the subject section, and from those at all stages of their careers.

Those wishing to present a paper should submit a title and abstract of around 300 words. Those wishing to propose a panel should submit a document outlining the theme and rationale for the panel and the names of the proposed speakers (who must have agreed to participate) and their abstracts.  Sessions are 90 minutes in length and so we recommend panels of three to four speakers, though the conference organisers reserve the right to add speakers to panels in the interests of balance and diversity.

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

Please also note that the SLS offers two prizes. First, The Best Paper Prize, which can be awarded to academics at any stage of their career and which is open to those presenting papers individually or within a panel.  The Prize carries a £300 monetary award and the winning paper will, subject to the usual process of review and publisher’s conditions, appear in Legal Studies.  To be eligible:

• speakers must be fully paid-up members of the SLS (Where a paper has more than one author, all authors eligible for membership of the Society under its rule 3 must be members. The decision as to eligibility of any co-authors will be taken by the Membership Secretary, whose decision will be final.)
• papers must not exceed 12,000 words including footnotes (as counted in Word);
• papers must be uploaded to the paperbank by 11:59pm UK time on Monday 23rd August;
• papers must not have been published previously or have been accepted or be under consideration for publication; and
• papers must have been accepted by a convenor in a subject section and an oral version of the paper must be presented at the Annual Conference.

Last year the Society launched the Best Paper by a Doctoral Student Prize, which is open to currently registered doctoral students who are members of the Society. The Prize is £300. There is no link to publication in Legal Studies arising from this award, but any winner would be welcome to submit their paper for consideration by the Society’s journal. To be eligible:

• speakers must be fully paid-up members of the SLS who are Doctoral students. (Where a paper has more than one author, all authors eligible for membership of the Society under its rule 3 must be members and all authors must be Doctoral students, whatever their discipline). The decision as to eligibility of any co-authors will be taken by the Membership Secretary, whose decision will be final;
• papers must not exceed 12,000 words including footnotes (as counted in Word);
• papers must be uploaded to the paperbank by 11:59pm UK time on Monday 23rd August;
• papers must not have been published previously or have been accepted or be under consideration for publication; and
• papers must have been accepted by a convenor in a subject section and an oral version of the paper must be presented at the Annual Conference.

We have also been asked to remind you that all speakers will need to book and pay to attend the conference and that they will need to register for the conference by Friday 18th June 2021 in order to secure their place within the programme, though please do let us know if this deadline is likely to pose any problems for you. Booking information will be circulated in due course, and will open after the decisions on the response to the calls are made.

With best wishes,

Dr Lauren Clayton-Helm (l.clayton-helm@northumbria.ac.uk)

Dr Bobby Lindsay (bobby.lindsay@glasgow.ac.uk)

Co-convenors, Conflict of Laws Section

Issues relating to succession and administration of estate of a deceased person raise significant issues in Nigerian private international law (or conflict of laws), whether a person dies testate or intestate. In the very recent case of Sarki v Sarki & Ors,[1] the Nigerian Court of Appeal considered the issue of what court had territorial jurisdiction in a matter of succession and administration of estate of a deceased person’s property under Nigerian conflict of laws dealing with inter-state matters. While this comment agrees with the conclusion reached by the Court of Appeal, it submits that the rationale for the Court’s decision on the issue of territorial jurisdiction for succession and administration of estates under Nigerian private international law in inter-state matters is open to question.

In Sarki, the claimants/respondents were the parents of the deceased person, while the defendant/appellant was the wife of the deceased person. The defendant/appellant and her late husband were resident in Kano State till the time of his death. The deceased was intestate, childless, and left inter alia immovable properties in some States within Nigeria – Bauchi State, Gombe State, Plateau State, Kano State, Jigawa State and the Federal Capital Territory, Abuja. The deceased’s family purported to distribute his property in accordance with Awak custom (the deceased’s personal law) with an appreciable proportion to the defendant/appellant. The defendant/appellant was apparently not pleased with the distribution and did not cooperate with the deceased’s family, who tried to gain access to the deceased’s properties. The claimants/respondents brought an action against the defendant/appellant before the Gombe State High Court. The claimants/respondents claimed inter alia that under Awak custom, which was the personal law of the deceased person, they are legitimate heirs of his property, who died childless and intestate; a declaration that the distribution made on 22 August 2015 by the deceased’s family in accordance with Awak custom, giving an appreciable sum of the property to the defendant/appellant is fair and just; an order compelling the defendant/appellant to produce and hand over all the original title documents of the landed properties and boxer bus distributed by the deceased family on 22 August 2015; and cost of the action. In response, the defendant/appellant made a statement of defense and counter-claim to the effect that she and the deceased are joint owners of all assets and properties acquired during their marriage; a declaration that the estate of the deceased is subject to rules of inheritance as envisaged by marriage under the Marriage Act[2] and not native law and custom; a declaration that as court appointed Administratrix, she is entitled to administer the estate of the deceased person; an order of injunction restraining the claimants/respondents to any or all of the assets forming part of the estate of the deceased person based on custom and tradition; and costs of the action.

The Gombe State High Court held that the Marriage Act was applicable in distributing the estate of the deceased person and not native law and custom. However, he distributed the property evenly between the claimants/respondents and defendant/appellants evenly on the basis that it will be unfair for the claimants/respondents as parents of the deceased not to have access to the deceased property. The defendant/appellant successfully appealed this ruling and won on the substantive aspect of the case. The private international law issue was whether the Gombe State High Court had territorial jurisdiction in this case, rather than the Kano State High Court where the defendant/appellant alleged the cause of action arose? The defendant/appellant argued that the cause of action arose exclusively in Kano State because that is where the deceased lived and died, and the defendant/appellant had obtained letters of administration issued by the Kano State High Court. The defendant/appellant lost on this private international law issue.

The Court of Appeal began on the premise that the issue of whether Gombe State or Kano State had jurisdiction was a matter of private international law, and not an issue of that was governed by a States’ civil procedures rules that governs dispute within a judicial division.[3] It also held that it is the plaintiff’s statement of claim that determines jurisdiction.[4] The Court of Appeal then approved its previous decisions that in inter-state matters of a private international law matter, a State High Court is confined to the location of the cause of action.[5] In this connection, the Court of Appeal rejected the argument of counsel for the defendant/appellant and held that the cause of action arose both in Kano and Gombe State – the latter State being the place where the dispute arose with the deceased’s family on the distribution of the deceased’s estate. Thus, both the Kano State High Court and Gombe State High Court could assume jurisdiction over the matter.[6] The Court of Appeal further held that other States such as Kano, Bauchi and Plateau could also assume jurisdiction because letters of administration were granted by the State High Courts of these jurisdictions.[7] In the final analysis, the Court of Appeal held that the claimants/respondents could either institute its action in either Gombe, Kano, Bauchi and Plateau – being the place where the cause of action arose, but procedural economy (which leads to convenience, saving time, saving costs, and obviates the risk of conflicting orders) encouraged the claimants/respondents to concentrate its proceedings in one of these courts – Gombe State High Court in this case.[8] Accordingly, this private international law issue was resolved in favour of the claimants/respondents.

There are three comments that could be made about the Court of Appeal’s judgments. First, it appears the issue of territorial jurisdiction was raised for the first time on appeal. It does not appear that this issue was raised at the lower court. If this is the case, it is submitted that the defendant/appellant should have been deemed to have waived its procedural right on jurisdiction on the basis that it submitted to the jurisdiction of the Gombe State High Court. Matters of procedural jurisdiction can be waived by the parties but not substantive jurisdiction such as jurisdiction mandatorily prescribed by the constitution or enabling statutes in Nigeria.[9] The issue of territorial jurisdiction among various State High Courts was a procedural matter and should have been raised promptly by the defendant/appellant or it would be deemed to have waived its right to do so by submitting to the jurisdiction of the Gombe State High Court.

Second, the Court of Appeal appeared to miss the point that there are Nigerian Supreme Court authorities that addressed the issue before it. According to the Supreme Court of Nigeria, in matters of succession and administration of states, the lex situs is given a predominant role for matters of jurisdiction purposes so that a Nigerian court would ordinarily not assume jurisdiction over foreign property, whether in an international or inter-state matter. Nigerian courts, as an exception, apply the rule to the effect that, where the Court has jurisdiction to administer an estate or trust, and the property includes movables or immovables situated in Nigeria and immovables situated abroad, the court has jurisdiction to determine questions of title to the foreign immovables for the purpose of administration. Again Nigerian courts apply this rule both in inter-State and international matters.[10] This rule established by the Nigerian Supreme Court in accordance with the English common law doctrine should have guided the Court of Appeal to hold that since it had jurisdiction over the deceased immovable properties in Gombe State, it also had jurisdiction over other immovable properties constituting the deceased’s estate in other States in Nigeria. The issue of where the cause of action arose was clearly irrelevant.

This brings me to the third and final comment – the issue of territorial jurisdiction. The Nigerian Supreme Court has held in some decided cases that in inter-state matters, a State High Court cannot assume jurisdiction over a matter where the cause of action is exclusively located in another State, irrespective of whether the defendant is resident and willing to submit to the court’s jurisdiction.[11] This current approach by the Supreme Court may have influenced the Court of Appeal to be fixated on the issue of territorial jurisdiction and confining itself to where the cause of action arose. Looking at the bigger picture, the current approach of the Nigerian Supreme Court in relation to matters of action in personam demonstrates a clear misunderstanding of applying common law private international law matters of jurisdiction in inter-state matters.[12] If a defendant is resident in a State and/or willing to submit, it shouldn’t matter where the cause of action arose in inter-state and international matters. Indeed, there is no provision of the Nigerian 1999 Constitution or enabling statute that prohibits a State High Court from establishing extra-territorial jurisdiction in inter-state or international matters, provided the defendant is resident and/or wiling to submit to the Court’s jurisdiction. The approach of the Nigerian court also risks making Nigerian courts inaccessible in matters of international commercial litigation in matters that occur exclusively outside Nigeria, thereby making the Nigerian court commercially unattractive for litigation.[13] Therefore it is time for the Supreme Court to overrule itself and revert to its earlier approach that held that in inter-state or international matters a Nigerian court can establish jurisdiction, irrespective of where the cause of action arose, where the defendant is resident and/or submits to the jurisdiction of the Nigerian court.[14]

In my final analysis, I would state that the Court of Appeal in Sarki reached the right conclusion on the issue of private international law, but the rationale for its decision is open to question. Moreover, though this private international law issue was resolved against the defendant/appellant, it substantially won on the substantive issues in the case. If this case goes on appeal to the Supreme Court, it should be an opportunity for the Supreme Court to set the law right again on the concept of jurisdiction in matters of succession and administration and estates, and overrule itself where it held that in inter-state matters, a State High Court is restricted to the place where the cause of action arose, irrespective of whether the defendant is resident and/or willing to submit to its jurisdiction.

[1] (2021) LPELR – 52659 (CA).

[2] Cap 218 LFN 1990.

[3]Sarki (n 1) 13-14.

[4] Ibid  14.

[5] Ibid  14-18, approving Lemit Engineering Ltd v RCC Ltd (2007) LPELR-42550 (CA).

[6] Sarki (n 1) 21.

[7]Ibid 21-3.

[8] Ibid 23-5, approving Onyiaorah v Onyiaorah (2019) LPELR-47092 (CA).

[9] See generally Odua Investment Co Ltd v Talabi ( 1997 ) 10 NWLR (Pt. 523) 1 ; Jikantoro v Alhaji Dantoro ( 2004 ) 5 SC (Pt. II) 1, 21 . This is a point that has been stressed by Abiru JCA in recent cases such as Khalid v Ismail ( 2013 ) LPELR-22325 (CA ); Alhaji Hassan Khalid v Al-Nasim Travels & Tours Ltd ( 2014 ) LPELR-22331 (CA) 23 – 25 ; Nigerian National Petroleum Corporation v Zaria ( 2014 ) LPELR-22362 (CA) 58 – 60; Obasanjo Farms (Nig) Ltd v Muhammad ( 2016 ) LPELR-40199 (CA). See also The Vessel MT. Sea Tiger & Anor v Accord Ship Management (HK) Ltd (2020) 14 NWLR (Pt. 1745) 418.

[10] Ogunro v Ogedengbe (1960) 5 SC 137; Salubi v Nwariaku (2003) 7 NWLR 426.

[11] Capital Bancorp Ltd v Shelter Savings and Loans Ltd (2007) 3 NWLR 148; Dairo v Union Bank of Nigeria Plc (2007) 16 NWLR (Pt 1059) 99. See also Mailantarki v Tongo & Ors (2017) LPELR-42467.

[12]See generally Abiru JCA in Muhammed v Ajingi LPELR-20372 (CA) 23 – 25, 25 – 26;  CSA Okoli and RF Oppong, Private International Law in Nigeria (1st edition, Hart, Oxford, 2020) 95-103; AO Yekini, “Comparative Choice of Jurisdiction Rules in Cases having a Foreign Element: are there any Lessons for Nigerian Courts?” (2013) 39 Commonwealth Law Bulletin 333; Bamodu O., “In Personam Jurisdiction: An Overlooked Concept in Recent Nigerian Jurisprudence” (2011) 7 Journal of Private International Law 273.

[13] See for example First Bank of Nigeria Plc v Kayode Abraham (2003) 2 NWLR 31 where the Court of Appeal held the lower court did not have jurisdiction because the cause of action arose exclusively outside Nigeria. This decision was however overturned by the Supreme Court in First Bank of Nigeria Plc v Kayode Abraham (2008) 18 NWLR (Pt 1118) 172.

[14] See generally Nigerian Ports Authority v Panalpina World Transport (Nig) Ltd (1973) 1 ALR Comm 146.

Invitation by Pietro Franzina

The Catholic University of the Sacred Heart in Milan will host a webinar on The Fundamental Rights of Persons with Cognitive Disabilities in Cross-border Situations – Time for Italy and Spain to Join the Hague Adults Convention, on 22 February 2021, from 5 pm to 7 pm CET.

The speakers – Philippe Lortie (First Secretary of The Hague Conference on Private International Law), Salomé Adroher Biosca (Comillas Pontifical University), Pietro Franzina (Catholic University of the Sacred Heart) and Geraldo Maciel Rocha Mendes Ribeiro (University of Coimbra) – will analyse the Hague Convention of 13 January 2000 on the International Protection of Adults and the prospect that Italy and Spain might join the thirteen States which are currently bound by that regime.

Attendance is free. No prior registration is required.

For more information, including the link to access the webinar, see here.

Written by Dr Ben Köhler, MPI Hamburg

Last week, following severe criticisms of its procurement strategy and a dispute with AstraZeneca over the delays in delivery of the vaccine, the EU Commission has published the Advance Purchase Agreement for the Production, Purchase and Supply of a Covid-19 Vaccine in the European Union (APA) it had concluded with AstraZeneca in August 2020. Although some important clauses were blackened at the request of AstraZeneca, the document gives interesting insights into the procurement practice of the EU and has incited a plethora of comments by the legal experts. Despite the broad coverage in legal and non-legal press, the issue of applicable law has received comparably little attention (but see Till Maier-Lohmann on the CISG’s potential applicability). In its first part, this post will argue that, as far as one can tell by the published document, the CISG is likely to be the applicable law to the contract, before outlining some of the consequences of the CISG’s potential application in the second part.

1. The CISG as the applicable law to the APA?

The issue of the applicable law would be considered by Belgian courts that are exclusively competent under the APA’s forum selection clause (§ 18.5 (b) APA). Since Belgium is a Contracting State to the CISG, Belgian courts are bound to apply the CISG’s provisions on its sphere of application that take precedence over the conflict rules in the Rome I-Regulation (Article 25 Rome I-Regulation). Pursuant to Article 1 (1) (a) CISG, the Convention applies to contracts of sale of goods between parties that have their places of business in different Contracting States.

1. Vaccine procurement as a (private) contract for the sale of goods?

The CISG does not distinguish between private law and public law entities and is not limited to contracts between private parties.[1] It is therefore applicable to sales contracts concluded by public law entities such as States if these entities do not act in exercise of their sovereign powers but iure gestionis like a private person could act as well,[2] irrespective of whether a public law tender procedure has preceded the conclusion of the contract.[3] The tender process that precedes the conclusion of the contract also does not fall under the exclusion of sales by auction in Art. 2 (b) CISG.[4]

A more nuanced question is whether the APA is a contract for the sale of goods. The question may seem moot since the parties themselves have labelled the agreement Advance Purchase Agreement and the contract provides for the delivery of vaccines against payment. However, it also contains some other elements that may be relevant for the qualification as a sales contract under Articles 1, 3 CISG. The first question is whether the buyers’ involvement in the manufacturing process is relevant. Pursuant to Article 3 (1) CISG, the Convention applies to the sale of goods to be manufactured unless the party ordering the goods undertakes to supply a substantial part of the materials. Indeed, the APA contains an obligation of the buyers to “use Best Reasonable Efforts to assist AstraZeneca in securing the supply” of drug substances and other materials (§ 6.1 APA) as well as an obligation to provide funding to AstraZeneca in order to enable it to procure the necessary materials (§ 7.1 APA). However, this assistance and funding does not seem to amount to an undertaking to supply a substantial part of the materials, particularly as the contract stipulates that “AstraZeneca shall secure the supply of all drug substances […] and drug product capacity […] as well as components critical to the development, manufacture and supply of the Initial Europe Doses” (§6.1). The second question is whether the obligation to deliver vaccines is “the preponderant part of the obligations” of the seller under Article 3 (2) CISG. Here, it seems clear that the core of the contract is the delivery of the vaccines, not the provision of a service of any kind. Other obligations, such as the reporting obligations (§§ 6.3, 10.2 APA), only seem to serve a complementary purpose to ensure the successful delivery of effective vaccines.

Finally, the APA purports to be merely an advance agreement.[5] The decisive factor is, however, not the designation of the agreement but whether it already contains the essential features of a sales contract.[6] The APA contains obligations to produce and deliver the vaccine for AstraZeneca (using their ‘best reasonable efforts’ in the manufacturing) and obliges the Commission and the Participating Member States to acquire vaccines. The APA is thus a sales contract for the purposes of Article 1 (1) (a) CISG.[7]

1. Parties having their places of business in different Contracting States?

Pursuant to Article 1 (1) (a) CISG, the parties to the APA need to have places of business in different Contracting States. The first difficulty is thus to identify the parties to the APA.[8] According the APA, the parties are AstraZeneca AB and the European Commission “acting on behalf and in the name of the member states of the European Union”. The APA goes on to state that “[t]he Commission, the Participating Member States and AstraZeneca may each be referred to herein individually as a ‘Party’ and collectively as the ‘Parties’.” Taken at face value, this would mean that, on the side of the buyers, both the European Commission and the Participating Member States are the parties to the contract in terms of Article 1 (1) (a) CISG. This understanding is in line with the APA’s provisions that not only contain obligations of the Participating Member States but also of the Commission (see e.g. § 9.1 APA).

The parties to the APA need to have their respective places of business in different Contracting States, irrespective of where the goods are manufactured or whereto they are delivered.[9] As per the APA, AstraZeneca AB has its place of business in Sweden while the Commission has its place of business in Brussels. Both Belgium and Sweden are Contracting States. Questions arise only in relation to some of the 27 Participating Member States.[10] While most Participating Member States are Contracting States to the CISG, Ireland and Malta are not. Portugal recently acceded to the CISG but the Convention has not yet entered into force. Amongst the other Participating Member States, Sweden has its place of business in the same Contracting State as AstraZeneca, ie in Sweden,[11] and Finland and Denmark are Contracting States in general but have declared a reservation under Article 94 CISG that exempts sales contracts between parties with their places of business in different Scandinavian States from the CISG’s sphere of application.[12]According to the prevailing view, however, in cases of multiparty contracts, it is sufficient that one party on either side of the transaction have their respective places of business in different Contracting States for the whole contract to be governed by the CISG.[13] Given that the Commission and most of the Participating Member States have their respective places of business in Contracting States other than Sweden, Finland or Denmark, the CISG would be applicable. I have argued elsewhere that the prevailing view is too expansive and that, in cases of multiparty contracts, courts should apply Article 10 (a) CISG by analogy to the different parties (rather than merely to different places of business) on either side of the transaction.[14] Even if one were to follow this approach, the APA would arguably still fall within the sphere of application of the CISG, since the most closely connected place of business on the side of the buyers seems to be the place of business of the Commission that is acting on behalf and in the name of the Participating Member States. The Parties to the APA thus have their respective places of business in different Contracting States pursuant to Article 1 (1) (a) CISG.

However, even if one of the parties were considered to have its place of business in a non-Contracting State,[15] the Convention would still apply by virtue of Article 1 (1) (b) CISG since the Belgian conflict of laws rules, most notably Article 3 (1) Rome I-Regulation, would point to the law of Belgium as a Contracting State to the CISG.

1. Exclusion of the CISG by the Parties in the APA?

The Parties are free to exclude the CISG pursuant to Article 6 CISG. In their choice of law clause, the Parties have chosen the “laws of Belgium” to govern the APA. Although the question of whether the parties wished to exclude the Convention is to be decided on a case-by-case basis, it seems firmly established that, as a general matter, the choice of the law of a Contracting State does not amount to an exclusion of the Convention as the CISG forms part of the Contracting State’s law.[16] Importantly, Belgian courts have repeatedly held that the choice of Belgian law includes the Convention. The choice of law clause would thus in principle not impede the application of the Convention by Belgian courts.

An analysis of the publicly available documents seems to suggest that Belgian courts would indeed apply the CISG to the APA if a claim was brought.[17]

1. Some of the consequences of the CISG’s application

The question one might ask now is: does it matter at all whether the CISG is applicable? After all, there are a lot of detailed provisions in the contract, for instance on force majeure (§ 18.7 APA) and termination for cause (§ 12.3 APA), that take precedence over the default rules laid down in the Convention (Article 6 CISG). I will briefly outline two of the many consequences of the application of the CISG to the APA.

1. Interpretation of contract

Many of the issues that are currently debated with respect to the contract are ultimately issues of interpretation of contract. For instance, the questions of whether AstraZeneca is only obliged to deliver vaccines that are produced in the EU or of how to apply the notion of ‘best reasonable efforts’ will turn on how different sections of the APA are interpreted. The relevant CISG provision here is Article 8 CISG, although the Convention’s rules on interpretation may, to a certain extent, be modified by the APA’s provisions, most notably by the clause on interpretation of the agreement (§ 18.1 APA) and the Entire Agreement-Clause (§ 18.9 APA). Pursuant to Article 8 (1), (2) CISG, the interpretation of the contract is controlled by a common intention of the parties and, lacking such intention, by the understanding of a reasonable third party.

2. Allocation of vaccines amongst several buyers in cases of shortage of supply

It was reported that AstraZeneca limited its delivery to the EU while fulfilling its obligations towards other third-party buyers such as the United Kingdom. The allocation of scarce goods amongst competing buyers has been debated in CISG scholarship and the prevailing opinion seems to point to a pro rata delivery to the different buyers in proportion to their respective contractual entitlements.[18] Of course, this default position may need to be reconsidered in light of the provisions of the APA, eg the default allocation between Participating Member States on a pro rata basis reflecting the size of their respective populations (§ 8.3 (b)) or AstraZeneca’s warranties (§ 13 APA).

Conclusion

The above analysis may be surprising: Why should a Convention that is unknown even to many lawyers govern the arguably most important procurement contracts in recent European history? Conversely, however, one might ask which legal instrument should be more appropriate to govern an international sales contract between 29 Parties from 27 different States? More than forty years after its adoption, the CISG may face its first test on global centre stage – it will be up to the test!

[1] Peter Mankowski in: Mankowski (ed.), Commercial Law (C.H. Beck Hart Nomos, 2019), CISG, Art. 1, para. 31; Ulrich G. Schroeter, „Grenzfragen des Anwendungsbereichs und international einheitliche Auslegung des UN-Kaufrechts (CISG)“, IHR 2019, 133, 134.

[2] Mankowski (n 1) Art. 1, para. 31.

[3] Schroeter (n 1) 134.

[4] Ulrich Magnus in: Staudinger-BGB, CISG, [2018], Art.2, para. 34; Schroeter (n 1) 134; Frank Spohnheimer in: Kröll, Mistelis & Perales Viscasillas (eds), UN Convention on Contracts for the International Sale of Goods (CISG) (2nd edn, C.H. Beck Hart Nomos 2018), Art. 2, para. 30.

[5] Till Maier-Lohmann, “EU-AstraZeneca contract – applicability of the CISG?”.

[6] See Magnus (n 4) Art. 1, para. 13; Ingeborg Schwenzer & Pascal Hachem in: Schwenzer (ed.), Schlechtriem & Schwenzer Commentary on the UN Convention on the International Sale of Goods (CISG) (4th edn, C.H. Beck Oxford University Press 2016) Art. 1, para. 8.

[7] Maier-Lohmann (n 5); see, on the application of the CISG to purchase options, Magnus (n 4) Art. 1, para. 41; Schwenzer & Hachem (n 6) Art. 1, para. 10.

[8] Maier-Lohmann (n 5).

[9] See Clayton P. Gillette & Stephen D. Walt, The UN Convention on Contracts for the International Sale of Goods – Theory and Practice (2nd edn, Cambridge University Press 2016) 27; Magnus (n 4) Art. 1, para. 11, with further references.

[10] See APA, Schedule B.

[11] Maier-Lohmann (n 5), with the question of how this may affect the CISG’s applicability.

[12] According to the prevailing opinion, the reservation is also to be applied in other Contracting States such as Belgium, Johnny Herre in: Kröll et al. (n 4) Art. 94, para. 5; Schwenzer & Hachem (n 6) Art. 94, para. 7.

[13] Schweizerisches Bundesgericht, Entscheid vom 28.5.2019 – 4A_543/2018, CISG-online no. 4463, IHR 2019, 236; Ulrich G. Schroeter, „Irrtumsanfechtung nach nationalem Recht und Anforderungen an Ausschlussvereinbarungen bei Anwendbarkeit des UN-Kaufrechts (CISG)“, IHR 2019, 231, 232.

[14] Claude Witz & Ben Köhler, “Panorama Droit uniforme de la vente internationale de marchandises“, Recueil Dalloz 2020, 1074, 1077.

[15] See, the question of Maier-Lohmann (n 5), hinting at AstraZeneca’s presence in the UK.

[16] Maier-Lohmann (n 5); see, with further references, CISG Advisory Council Opinion no. 16: “Exclusion of the CISG under Article 6, Rapporteur: Lisa Spagnolo, Comment 4 (b) (i); Mankowski (n 5) Art. 6, para. 8.

[17] See also Maier-Lohmann (n 5): „the Convention’s applicability cannot be excluded from the outset”.

[18] Christoph Brunner in: Brunner & Gottlieb (eds), Commentary on the UN Sales Law (CISG) (Kluwer 2019) Art. 79, para. 12; Schwenzer in: Schwenzer (ed.) (n 6) Art. 79, para. 28; Ben Köhler, Die Vorteils- und Gewinnherausgabe im CISG (MohrSiebeck, forthcoming 2021) 225.

Carlos Santaló Goris, Researcher at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law and Ph.D. candidate at the University of Luxembourg, offers a summary and a compelling analysis of the Czech domestic legislation regarding the EAPO Regulation.

Introduction

On 22 January 2021, the Czech Chamber of Deputies approved “the government act amending Act No. 6/2002 Coll., on courts, judges, lay judges and the state administration of courts and amending certain other acts (the Courts and Judges Act), the wording of later regulations, and other related laws, according to the Chamber of Deputies 630 as amended by the Chamber of Deputies”. The reform is now pending before the Czech Senate.

The first legislative implementation of the EAPO Regulation in the Czech national law

This act introduces the very first amendment of the Czech domestic legislation regarding Regulation No 655/2014, establishing a European Account Preservation Order (“EAPO Regulation”).

The act foresees the concentration of all the applications for EAPOs in one single court, and namely the Prague 1 District Court (Obvodní soud pro Prahu 1). Nowadays, based on the information available in the e-justice portal, the competent court corresponds to the territorially competent court in the debtor’s domicile. However, if the debtor lives outside the Czech Republic, the competent court is the one of the district where the debtor is domiciled.

The upcoming reform envisaged with the act will also affect the application mechanism to gather information on the bank accounts established in Article 14 of the EAPO Regulation. Creditors can also request to investigate if debtors hold bank accounts in the other Member States. Each Member State has an information authority which is charge of searching for the information on the bank accounts. Member States had to notify the Commission with the names of the information authorities by 16 July 2016.

Currently, there is no central information authority in the Czech Republic. Any district court with territorial competence over the debtor’s domicile is an information authority for the purposes of the EAPO Regulation. When the debtor is not domiciled in the Czech Republic, the information authority is the competent court in the district where the bank, which holds the accounts, is located. This can result in challenges for the courts of other Member States searching the information. In case the creditor even ignores the name of the debtor’s bank, how can the competent authority to provide the information on the bank accounts be identified? One Luxemburgish judge has experienced this very dilemma.

The information on the bank accounts is obtained directly from the banks. Czech courts submit a request to “all banks in its territory to disclose, upon request by the information authority, whether the debtor holds an account with them” (Article 14(5)(b) of the EAPO Regulation).

Eventually, if the reform is approved by the Czech Senate, the information authority will also be centralized in the Prague 1 District Court.

The reasons behind the implementation

According to Dr. Katerina Valachová, the member of the Czech Chamber of Deputies who sponsored the amendments concerning the EAPO Regulation, the reform is due to “the complexity of the legislation on the EAPO, as well as the short deadlines set by the EAPO Regulation”. Having a single court for all the EAPO applications will help in terms of specialization. Furthermore, since most of the headquarters of the banks that operate in the Czech Republic are located within the area of the Prague 1 District Court when the court acts as an information mechanism, it can obtain the information on the bank accounts from the banks faster.

The Czech reform in the European context

Establishing a central authority to gather information on the bank accounts is the most common solution followed among those Member States in which the EAPO Regulation applies. Only four out of the twenty-six Member States (France, Finland, Latvia, and the Netherlands), have opted for a complete decentralized information authority. Two other Member States, Austria, and Italy adopted a hybrid approach: they have a central authority when the debtor is domiciled abroad and a decentralized authority when the debtor is domiciled in the country.

However, establishing a centralized court to handle all EAPO applications is a less common choice among other Member States. Only three countries have appointed centralized courts to issue EAPOs: Austria, Slovakia, and Finland.

The Czech Republic’s two neighbouring Member States, Slovakia and Austria, introduced a partial centralization of the EAPOs applications. In Slovakia, the Banská Bystrica District Court (Okresný súd Banská Bystrica) handles all the EAPO applications when the debtor’s “general territorial affiliation cannot be determined” within the Slovakian territory. In Austria, the Vienna Inner City District Court (Bezirksgericht Innere Stadt Wien) is responsible for issuing all the EAPOs when requested before initiation of the proceedings on the merits and before the enforcement of the judgment on the merits of the claim.

Finland has gone a step further than Austria and Slovakia. Similarly, to the ongoing Czech reform, it appointed one sole court – the district court of Helsinki – responsible for issuing all EAPOs.

Outside the EAPO Regulation scheme, we can also find examples of domestic “centralized courts” responsible for other European civil proceedings. For instance, in Germany the European Payment Order (“EPO”) was centralized in the Local Court in Wedding, Berlin. In 2019, France the French legislator approved the creation of a centralized court, which will handle all the EPO applications.

A more efficient application of the EAPO Regulation

Establishing a centralized court for the EAPO Regulation in Czechia is very welcome among those of us who want the EAPO Regulation to become a successful instrument. The future central court will become specialized with the EAPO Regulation, an instrument that can result too complex and requires a certain amount time for its adequate understanding. The centralization will also assure a coherent and uniform application of the EAPO Regulation at the Czech national level. Moreover, in case an issue on the interpretation of the text of that Regulation arises, that centralized court might be more willing to make a preliminary reference to the European Court of Justice (“ECJ”) than regular judges who might not encounter many applications for EAPOs. The ECJ has itself expressly acknowledged the benefits of the centralization in the context of the Maintenance Regulation. In fact, in C-400/13, Sanders and Huber, the ECJ affirmed that “a centralization of jurisdiction, such as that at issue in the main proceedings, promotes the development of specific expertise, of such a kind as to improve the effectiveness of recovery of maintenance claims, while ensuring the proper administration of justice and serving the interests of the parties to the dispute” (C-400/13, Sanders and Huber, 18 December 2014, ECLI:EU:C:2014:2461, para. 45).

Hopefully, in the future more Member States will follow the example of Czechia or Finland and will concentrate the application of the EAPO in a sole court in their territories.

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on 11 February 2021 at 8:00 am (Mexico City time – CST), 3:00 pm CET time. The topic of the webinar is the HCCH Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children – a perspective from Europe and will be presented by Professor Beatriz Campuzano Díaz (in Spanish).

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The U.S. Supreme Court issued its decision yesterday in Federal Republic of Germany v. Philipp. This is the case we previewed here concerning the Guelph treasure, allegedly taken by Nazis from its Jewish owners via a coerced sale for a fraction of its value prior to World War II. The heirs of the rightful owners and the government had agreed to conciliate the claim before a German Commission, which found that the taking had not been coerced. Dissatisfied with the decision, the heirs sued in Washington under the expropriation exception to the Foreign Sovereign Immunities Act, which provides that a foreign state is not immune from jurisdiction of the U.S. courts in cases “in which rights in property taken in violation of international law are in issue.” The District Court and the DC Circuit held that Germany was not immune, and the Supreme Court granted Germany’s petition for review. There were a number of issues at play in this case, but Germany’s primary argument was that a state does not violate international law by expropriating the property of its own nationals.

The Court, in a unanimous decision by Chief Justice Roberts, sided with Germany. When the FSIA was enacted in 1976, Roberts said, it was “clear” that a taking of property violated international law only when a state took an alien’s property. The text of the statute also “places repeated emphasis on property and property-related rights, while injuries and acts we might associate with genocide are notably lacking.” Put simply, the Court viewed the statute as linked to direct expropriation of alien property, and not as a way for U.S. courts to hear any claims arising under international law. Repeating a theme against asserting U.S. jurisdiction to acts occurring abroad, Justice Roberts stressed that “United States law . . . does not rule the world,” and noted that the Court will interpret our laws to “to avoid, where possible, “producing friction in our relations with [other] nations.”

Due to its decision on the expropriation exception, the Court did not need to decide whether comity provided an independent basis for dismissal. The court also issued a one-sentence opinion vacating a lower-court ruling in Republic of Hungary v. Simon, a similar lawsuit brought by Holocaust survivors seeking compensation for Hungary’s confiscation of Jewish property.