EAPIL blog

A corrigendum to Regulation (EU) 2020/1784 of 25 November 2020 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (the Recast Service Regulation) has been published on the Official Journal of the European Union of 2 February 2023 (L 405).

It concerns Article 33, which is about the information that Member States must share with the Commission so that the latter can make it available to the public at large.

Article 33(1) refers to such information as is required under Articles 3, 7, 12, 14, 17, 19, 20 and 22 of the Regulation. This includes, for example, the names and addresses of receiving agencies, the professions or competent persons that are permitted under national law to effect the direct service of documents, whether national law requires a document to be served within a particular period, etc.

The correction is, specifically, about Article 33(3). As originally published, the latter provision read as follows:

The Commission shall publish the information communicated in accordance with paragraph 1 in the Official Journal of the European Union, with the exception of the addresses and other contact details of the agencies and of the central bodies and the geographical areas in which they have jurisdiction.

According to the corrigendum, Article 33(3) should read instead:

The Commission shall publish the information communicated in accordance with paragraph 1 through appropriate means, including through the European e-Justice Portal.

As this is presented as a corrigendum, rather than an amendment to the Regulation, the revised text is meant to apply as of the date of application of the Regulation, that is, 1 July 2022. In fact, the information referred to in Article 33(3) has never been published on the Official Journal, and appears to be already available on the European Judicial Atlas in Civil Matters, which can be reached through the e-Justice Portal.

The author of this post is Lydia Lundstedt, who is an Associate Professor and Senior Lecturer at Stockholm University. In the interest of transparency, author notes that she previously wrote an expert legal opinion on behalf of BSH Hausgeräte.

On 22 February 2024, Advocate General (AG) Emiliou’s Opinion on the interpretation of Article 24(4) Regulation (EU) No 1215/2012 (Brussels I bis) in BSH Hausgeräte (C-339/22) was published.

Article 24(4) confers exclusive jurisdiction “in proceedings concerned with the registration or validity of patents” upon “the courts of the Member State in which the … registration has been applied for, [or] has taken place …”.

AG Emiliou opines that Article 24(4) 1) does not encompass infringement proceedings even after an alleged infringer pleads the invalidity of the foreign patent; and 2) does not apply to proceedings concerning patents registered in third states, but that a Member State court may give Article 24(4) reflexive effect on the basis of national law. See here for a brief synopsis of the facts and the questions referred and GAVC LAW for a good review of the opinion.

Article 24(4) Does Not Apply to Infringement Proceedings Even After Invalidity is Pleaded

Prior to the CJEU ruling in GAT (C-4/03), there were three possible interpretations of what is now Article 24(4). GAT ruled out the first interpretation, i.e., that the provision does not apply to preliminary questions, by holding that what is now Article 24(4) applied to “all proceedings relating to the registration or validity of a patent, irrespective of whether the issue is raised by way of an action or a plea in objection”. In describing this background, the AG calls GAT an “unfortunate decision” because it goes beyond what is necessary to fulfil the raison d’être of Article 24(4), which in the AG’s view, is deference to national sovereignty. He explains that because an invalidity finding in an infringement proceeding has only inter partes effects, it does not encroach upon the sovereignty of the state of patent registration. He states that if the EU legislator had not codified GAT when it amended the Regulation, he would have advised the CJEU to overturn GAT.

Even after GAT and its codification, uncertainty remained concerning which of the remaining two interpretations of Article 24(4) were correct, namely, 1) that once invalidity is raised, infringement proceedings fall within Article 24(4) and the infringement court loses its jurisdiction (broad reading) or 2) that while validity falls within Article 24(4), infringement does not. Thus, a court having jurisdiction over an infringement dispute based on the rules in the Regulation retains its jurisdiction over the infringement claim but may not determine validity (narrow reading).

The AG finds that the narrow reading is the “lesser evil” because it better aligns with the system and objectives of the Regulation. Specifically, he finds that it better respects the relationship between the general rule in Article 4 and the exception in Article 24(4), and also better ensures legal certainty as the defendant will not be able to undermine the plaintiff’s choice of jurisdiction by raising a validity defence.

Moreover, the AG notes that a narrow reading ensures that a defendant cannot “torpedo” the proceedings and deny the patent holder its right to intellectual property and to an effective remedy (see Article 17(2) and Article 47 of the EU Charter and 41(2) TRIPS) by raising invalidity so late in the proceedings that the statute of limitations has expired so the patent holder cannot initiate new proceedings before the court of registration.

That said, the AG argues that Article 47 of the Charter requires the infringement court to take the invalidity defence into account and he offers practical guidelines on how a Member State court should procced. He suggests that if an invalidity defence has been properly raised, the infringement court should make a preliminary analysis of how a court in the state of registration would decide the matter (compare Solvay (C‑616/10), where such an analysis is done before granting a preliminary injunction) and balance the patent holder’s right to an effective remedy as well as the requirement of efficiency of procedure with the alleged infringer’s right of defence and the sound administration of justice. If the invalidity defence is serious, the Member State court having jurisdiction over the infringement claim should instruct the defendant to initiate invalidity proceedings in the state of patent registration within a set deadline and stay the infringement case in accordance with its procedural rules until the validity question has been decided by the courts/authorities of the state of registration.

Member State Courts May Give Article 24(4) Reflexive Effect

The AG notes that the reflexive effect of Article 24(4) has implications for the interpretation of the other rules in Article 24 and for Article 25 on prorogation agreements. The starting point for the AG’s analysis is that the Regulation has a “design flaw” in that while it applies to disputes where the defendant is domiciled in a Member State and the subject matter is closely connected to a third state, it was not designed for such disputes. Thus, the AG opines that the gap needs to be filled in by one of three ways.

The AG rejects the first way, i.e., applying Articles 24/25 by analogy to such situations, because it goes against the clear wording of these articles which refer to a “Member State” and also because previous CJEU case law had already held that the Articles did not apply (see IRnova (C-399/21) concerning patents registered in third states and Coreck Maritime (C-387/98) concerning prorogation agreements in favour of third states). The AG also notes that such a solution would be inconsistent with the system of the Regulation.

The AG also rejects a second way whereby Member States courts having jurisdiction over such disputes based on a rule in the Regulation, are bound to exercise that jurisdiction. Referring to the “design flaw” mentioned above, the AG first opines that an absence of specific provisions addressing these situations cannot be interpreted to mean that Member State courts must exercise jurisdiction. The AG notes that there is nothing in the wording or recitals of Articles 33 and 34 that suggests that these provisions are exhaustive. Articles 33 and 34 allow a Member State court to stay proceedings under certain circumstances if proceedings are already pending in a third state court. The AG also rejects the argument that Owusu (C-281/02) supports this interpretation. In that decision, the CJEU stated “Article 2 of the Brussels Convention [now Article 4 of the Regulation] is mandatory in nature and that, according to its terms, there can be no derogation from the principle it lays down except in the cases expressly provided for by the Convention”. The AG notes that in Owusu the CJEU declined to answer the second question which dealt with the specific situation here. The AG also notes that Coreck Maritime and Mahamdia (C‑154/11) suggests that Member State courts are permitted to give effect to prorogation agreements in favour of third state courts.

Second, the AG opines that such an interpretation (i.e. the second way) would be at a variance with the raison d’êtreof Article 24 to give deference to sovereignty and of Article 25 to respect party autonomy. Moreover, he states that this interpretation would not contribute to legal certainty because a resulting Member state judgment would not be valid in the third state and the issue may be relitigated there resulting in irreconcilable judgments.

Third, the AG notes that the Lugano Convention and the 2005 Hague Convention do not remedy these problems because they only bind a few states and therefore unilateral solutions within the framework of the Regulation are needed.

Lastly, the AG rejects the argument that this interpretation was the clear intention of the EU legislator noting that it was not expressed in the text of Regulation, the travaux preparatoires are generally not clear, and in any case, must be understood in the context whereby the EU legislator abandoned the idea of achieving a comprehensive solution to disputes connected to third states.

The AG suggests therefore a third way of filling the gap, i.e. that the Regulation permits Member State courts that have jurisdiction over such disputes pursuant to a rule of the Regulation, to decline jurisdiction on the basis of national law. That said, the AG opines that the Member State courts’ discretion is limited by EU law in that 1) a Member State court may refuse to exercise jurisdiction over a dispute connected to a third State only where the matter in dispute (i.e. patent invalidity) would fall within the scope of Article 24 had the matter been located in a Member State, or where a choice-of-court agreement in favour of a third state otherwise fulfils the requirements laid down in Article 25; and 2) a Member State court must respect the rules on the protection of weaker parties and the exclusive jurisdiction of the courts of another Member State. However, even when these conditions are fulfilled, the AG opines that a Member State court is not required to decline jurisdiction if there is a risk for denial of justice. The AG rejects the argument that this creates a risk for legal uncertainty because this way gives narrow discretion to the Member state courts under specific circumstances.

Comment

I heartily agree with the AG opinion concerning the scope of Article 24(4) so I will limit my comments to his opinion on the reflexive effect of Article 24(4). It seems a bit odd to start off with the premise that there is a design flaw in the Regulation that the CJEU needs to fix instead of accepting the Regulation as it is and interpreting it accordance to the CJEU’s methods of interpretation. The wording of the provisions and the system of the Regulation suggest that Member State courts may not give Articles 24 and 25 reflexive effect under national law.

Indeed, Articles 24 and 25 expressly apply only to Member State courts and Articles 33-34 expressly apply to third state courts. Articles 33-34 are the only rules in the Regulation that permit a Member State court to decline or stay jurisdiction in favour of a third state court. In particular, recital 24 instructs that when applying Articles 33-34, a Member State court may take into consideration

whether the court of the third State has exclusive jurisdiction in the particular case in circumstances where a court of a Member State would have exclusive jurisdiction.

An e contrario interpretation suggests that a Member State may not decline jurisdiction in other situations (except where a higher norm demands this). Moreover, if the Member States already had discretion to give Article 24 and 25 reflexive effect, then Articles 33-34 are superfluous. Lastly, Article 6 exhaustively informs when the Member State courts may apply national rules.

With regard to the objective of Article 24 of giving deference to sovereignty, an argument can be made that, in the absence of an international obligation, the EU does not give third state sovereign interests the same weight as Member State interests. A similar argument can be made with respect to Article 25, i.e., that the EU intentionally refuses to give effect to third state prorogation agreements outside of its treaty obligations, e.g. 2005 Hague Convention on Choice of Court Agreements. That said, the situations involved in Articles 24 and 25 are not completely congruent as Article 25 raises the issue of party autonomy, which is arguably a fundamental right. Also, introducing a discretionary reflexive effect does not further the objective of legal certainty including strengthening the legal protection of persons established in the European Community as it will be less easy to identify in which court one can sue and be sued.

Curiously, the AG’s solution has the unfortunate result that it extends to third states the very solution that the AG criticizes. On the one hand, the AG is critical of GAT and its codification in Article 24(4) because it goes beyond what is necessary to fulfil Article 24(4)’s objective of giving deference to the sovereignty interests of the state of patent registration. On the other hand, the AG suggests that deference to sovereignty interests of the state of patent registration requires that the Member State courts give Article 24(4) reflexive effect when a matter would have fallen under Article 24(4) had the patent been registered in another Member State instead of a third state.

When it comes to the application of Article 24(4), as the AG notes, the CJEU is now “trapped in the solution that it initially adopted”. This is not the case however when giving Article 24(4) reflexive effect. There is no reason why the rule cannot be adapted to better serve its objective without going beyond what is necessary. As noted, deference to the sovereignty interests of a third state does not require a Member State court that is exercising jurisdiction on the basis of a rule in the Regulation to decline jurisdiction over a question concerning a third state patent’s invalidity when the question is raised in infringement action. Thus, there is no reason to “reflexively” apply Article 24(4) to these situations. In contrast, if an alleged infringer sued a patent holder in a Member State on the basis of a rule in the Regulation asking the court to invalidate with erga omnes effect a patent registered in a third state, Article 24(4) should “reflexively” apply as a matter of EU law giving effect to a recognised rule of public international law that one state will not invalidate the public law acts of another state.

The website you’re visiting has been on-line since December 2019. It has undergone only minor changes since.

The time has come to offer readers some new features and a new design.

Between 7 and 10 March 2024 a newly designed website will replace the existing one. Information on the European Association of Private International Law and its activities will prove easier to retrieve, and members will benefit from improved opportunities for exchange and cooperation.

One notable innovation of the new website consists in the creation of a reserved area for the members of the Association (“MyEAPIL”). Through MyEAPIL, members will be able to update their profile and browse the members’ database. They will also be able to check whether the Association has received their fees (by the way, fellow members, if you haven’t paid your fees for 2024, please take a moment to do so as soon as practical: just fill in this form).

EAPIL members will be receiving their login credentials on 11 March 2024 by e-mail (the sender’s address is noreply@eapilapp.org).

The redesign of the new website will also offer an opportunity to fix some technical issues. We’re aware that some of those who have subscribed to be notified of the publication of new posts on the EAPIL blog have not been receiving such notifications recently. Sincere apologies to those affected. We’re working on the problem and trust it’ll disappear once the new website is on-line.

In order to facilitate the transition towards the new website, the EAPIL blog will take a break for a couple of days. No new posts will be published on 7 and 8 March. Posting will resume with the usual pace on 11 March 2024.

The contents of the website will remain accessible at all times during this passage. The display of some pages, however, may occasionally be problematic in the meanwhile. Many thanks in advance for your understanding.

In case of doubts, feel free to get in touch with us at blog@eapil.org.

Curious about how the new website will look like? Please find below the screenshots of the new home page and some other pages.

As regards private international law, March 2024 starts at the Court with the delivery of AG N. Emiliou’s opinion on C-774/22, FTI Touristik, on Thursday 7 – an opinion previously scheduled for February.

By its single question, the Amtsgericht Nürnberg (Germany) asks the CJEU whether Article 18(1) of the Brussels I bis Regulation determines, not only international judicial jurisdiction, but also internal territorial jurisdiction. In addition, this court questions the foreign element required for the application of the Brussels I bis regulation.

In the dispute in the main proceedings, a consumer filed a claim against FTI, a professional providing tourist services, in relation to a package trip. Both parties to the dispute are domiciled in the same Member State, namely Germany; the only cross-border element is constituted by the destination of the trip outside that Member State. The consumer sued before the court of his domicile. FTI relies on the rules of German territorial jurisdiction to argue lack of jurisdiction, in that these rules designate as territorially competent jurisdiction that of the headquarters of FTI Touristik.

According to the referring court, under national rules it does not have territorial jurisdiction to hear the dispute. Venue could only be deduced from the application of the Brussels I bis Regulation, more specifically its Article 18, paragraph 1. Thus the question:

Is Article 18(1) of [the Brussels I bis Regulation] to be interpreted as meaning that, in addition to providing for international jurisdiction, the rule also concerns a provision on the territorial jurisdiction of national courts in matters relating to a travel contract where both the consumer, as a traveller, and the other party to the contract, the tour operator[,] have their seat in the same Member State, but the travel destination is situated not in that Member State but abroad (so-called ‘false internal cases’) with the consequence that the consumer can make contractual claims against the tour operator supplementing national provisions on jurisdiction at the court of his or her place of residence?

The case has been allocated to a chamber of five judges (S. Prechal, N. Wahl, J. Passer, L. Arastey Sahún, and F. Biltgen acting as reporting judge).

One week later, on Thursday 14, AG M. Szpunar will communicate his opinion on C-86/23, HUK-COBURG-Allgemeine Versicherung II. The Varhoven kasatsionen sad (Bulgaria) asks :

Must Article 16 of 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 (Rome II Regulation) be interpreted as meaning that a rule of national law, such as that at issue in the main proceedings, which provides for the application of a fundamental principle of the law of the Member State, such as the principle of fairness, in the determination of compensation for non-material damage in cases where the death of a close person has occurred as a result of a tort or delict, may be regarded as an overriding mandatory provision within the meaning of that article?

This question is raised in the context of an action for compensation against the insurance company HUK-COBURG, for the moral damage suffered by the parents of the deceased on a traffic accident. The accident took place in Germany; at the time it happened, there was a valid civil liability insurance contract between the driver and the German insurance company HUK-COBURG-Allgemeine Versicherung AG.

The parents of the deceased are Bulgarian nationals permanently resident in Bulgaria. In 2017 they filed claims with the Sofiyski gradski sad (Sofia City Court) against the German insurer for payment of insurance compensation for each parent as compensation for non-material damage suffered as a result of the death of their daughter. The request was declared partially founded at first instance; the appeal court overruled, finding the claimants had not demonstrated that the pain and suffering suffered had caused damage to their health, which, under German law applicable under Article 4(1) of the Rome II Regulation, would constitute a prerequisite for compensation for non-pecuniary damage. The court also rejected the argument put forward by the parents according to which Bulgarian law should be applied under Article 16 of the Rome II Regulation.

On cassation, the Varhoven kasatsionen sad (Supreme Court of Cassation), noted that there is contradictory case law from the Bulgarian courts on the question of whether the Bulgarian provision at stake constitutes a mandatory provision derogating within the meaning of Article 16 of the Rome II Regulation, leading, in the main dispute, to the exclusion of German law.

The preliminary reference will be addressed by judges C., Lycourgos,  J.C. Bonichot, S. Rodin, L.S. Rossi, and O. Spineanu-Matei acting as reporting judge.

Next event with interest for PIL readers is the hearing of March 20, regarding case C-227/23, Kwantum Nederland et Kwantum België. The questions by the Hoge Raad der Nederlanden (Netherlands) are:

1. Does the situation at issue in these proceedings fall within the material scope of EU law?

Should the preceding question be answered in the affirmative, the following questions are also submitted:

2. Does the fact that copyright on a work of applied art forms an integral part of the right to protection of intellectual property enshrined in Article 17(2) of the Charter mean that EU law, in particular Article 52(1) of the Charter, in order to limit the exercise of copyright (within the meaning of Directive 2001/29/EC) on a work of applied art by application of the material reciprocity test of Article 2(7) Berne Convention for the Protection of Literary and Artistic Works requires this limitation to be provided for by law?

3. Must Articles 2, 3 and 4 of Directive 2001/29/EC and Articles 17(2) and 52(1) of the Charter, read in the light of Article 2(7) BC, be interpreted as meaning that it is solely for the EU legislature (and not for national legislatures) to determine whether the exercise of copyright (within the meaning of Directive 2001/29/EC) in the European Union can be limited by application of the material reciprocity test provided for in Article 2(7) BC in respect of a work of applied art whose country of origin within the meaning of the Berne Convention is a third country and whose author is not a national of an EU Member State and, if so, to define that limitation clearly and precisely (see judgment of 8 September 2020, Recorded Artists Actors Performers, C 265/19, EU:C:2020:677)?

4. Must Articles 2, 3 and 4 of Directive 2001/29/EC, read in conjunction with Articles 17(2) and 52(1) of the Charter, be interpreted as meaning that as long as the EU legislature has not provided for a limitation of the exercise of copyright (within the meaning of Directive 2001/29/EC) on a work of applied art by application of the material reciprocity test of Article 2(7) BC, EU Member States may not apply that test in respect of a work of applied art whose country of origin within the meaning of the Berne Convention is a third country and whose author is not a national of an EU Member State?

5. In the circumstances at issue in the present proceedings and given the time of the establishment of (the predecessor of) Article 2(7) BC, are the conditions of the first paragraph of Article 351 TFEU satisfied for Belgium, meaning that Belgium is therefore free to apply the material reciprocity test provided for in Article 2(7) BC, taking into account the fact that in the present case the country of origin acceded to the Berne Convention on 1 May 1989?

The case revolves around the question whether an object of applied art, namely a chair designed in the United States of America, enjoys, in the Netherlands and in Belgium, copyright protection as a “work of applied arts”. The main dispute confronts Vitra, which holds the rights to the chair, and Kwantum, which operates a chain of interior design stores in the Netherlands and Belgium, on the grounds that the latter has marketed a chair which, according to Vitra, would infringe its copyright.

Before the referring court, Kwantum notes that the chair has, in more than 70 years of existence, never benefited from copyright protection in its country of origin – the United States of America. She argues in particular that Vitra cannot invoke such protection in Belgium and the Netherlands, having regard to the criterion of material reciprocity contained in Article 2(7) of the Berne Convention, which constitutes an exception to the principle of national treatment provided for in Article 5, paragraph 1, of this convention.

The deciding judges will be A. Arabadjiev, T. von Danwitz, P.G. Xuereb, A. Kumin, plus I. Ziemele as reporting judge. AG M. Szpunar will announce the date of delivery of the opinion at the end of the hearing.

Finally, on March 21, the same chamber, this time with A. Kumin reporting, will publish the decision in C-90/22, Gjensidige. I reported briefly on facts and questions here. AG N. Emiliou’s opinion was published on December 14, 2024. The Lietuvos Aukščiausiasis Teismas (Lithuania) asks:

1. Can Article 71 of Regulation No 1215/2012 [the Brussels I bis Regulation], having regard to Articles 25, 29 and 31 and recitals 21 and 22 thereof, be interpreted as permitting the application of Article 31 of [the CMR] also in cases where a dispute falling within the scope of both those legal instruments is the subject of an agreement conferring jurisdiction?

2. Having regard to the legislature’s intention to strengthen the protection of agreements conferring jurisdiction in the European Union, can Article 45(1)(e)(ii) of [the Brussels I bis Regulation] be interpreted more broadly, as covering not only Section 6 of Chapter II of that regulation but also Section 7 thereof?

3. After assessment of the specific features of the situation and the resulting legal consequences, can the term “public policy” used in [the Brussels I bis Regulation] be interpreted as covering the ground for deciding not to recognise a judgment of another Member State where the application of a specialised convention, such as [the CMR], creates a legal situation in which both the agreement conferring jurisdiction and the agreement on the applicable law are not observed in the same case?

AG Emiliou did not consider it necessary to answer to the first question in light of what he deemed the correct answer to the following ones. He proposes the Court to interpret Article 45(1)(a) and (e)(ii) of the Brussels I bis regulation as meaning:

that the grounds for the refusal of recognition set out therein do not apply to a situation in which the court of origin established its jurisdiction on the basis of one of several rules contained in a specialised convention, within the meaning of Article 71 of Regulation No 1215/2012, which include – but do not classify as exclusive – a choice-of-court agreement, and when the court of origin was not the court designated by the choice-of-court agreement concluded by the parties concerned.

And also

as meaning that an error, when established, as to the determination of the applicable law cannot, per se, lead to the recognition of a judgment being refused on the ground that it is contrary to the public policy of the State addressed.

This post was contributed by Horatia Muir Watt and Dominique Bureau, who are respectively professors at Sciences Po Law School (Paris) and Paris II Law Faculty. This is the fourth contribution to the EAPIL’s online symposium on the ruling of the Court of Justice in Inkreal, after the posts of  Sergi Gimenez, Gilles Cuniberti and Pedro de Miguel Asensio.

The ECJ’s ruling enables parties to an intra-European domestic contract (meaning, connected solely to one Member state) to submit their future disputes to the courts of another Member state. The broad justification for this new step is the respect for party autonomy and the subsequent need for effectiveness of exclusive choice of court agreements within the common judicial area (judgment, §26, §36). While the reference to such principles does not come as a surprise in the latter context, their relevance with regard to the specific problem at the heart of the ongoing dispute is hardly convincing. Not that there is any lack of other, more technical, arguments. However, the dialectics are somewhat circular, to say the least. This may be linked to the fact that the Advocate General’s Opinion had proposed the opposite solution, possibly indicating in turn an internal division within the Court.

The novelty in the solution is that a choice of foreign forum in a purely domestic or uni-located situation is governed by Article 25-1 of the Brussels I bis Regulation and permissible thereunder. There is no need, then, for the underlying agreement to have any “foreign elements”. Indeed, in this case, not only was there was no link with the Member State whose courts had been chosen (as now uncontroversially allowed in the case of international forum agreements, whether otherwise intra-European or not), but further, there was no circumstance, past or present, which might attach the disputed contract to any country (whether or not a Member State) other than the one in which the parties were already established at the time the contract was concluded and were still so at the date of the court proceedings.

We see this as problematic. Not only by reason of the pattern of argument deployed here (I), but also because of the epistemology at work (II), and, most importantly, the underlying political economy of the final outcome (III).

I. Pattern of Argument

The problem affecting the reasoning in the judgment lies in a methodological slippage. At first glance, the Court carries out a classical exercise in legal hermeneutics: the wording of article 25-1 is examined (pt. 21), consolidated thereafter by a teleological analysis (pt. 26), then a logical justification (pt. 32), and finally the confrontation with a counter-example in the form of the 2005 Hague Convention (pt. 36). Why the latter did not serve, rather, as an analogy; why the silence of the text was taken to be permissive rather than as an implicit reference to the content or practice of other EU instruments, including Regulation Rome I; why there was no consideration of the delicate balance struck between the policy of free movement and the protection of domestic regulatory objectives in Member States…can of course all be ascribed to the normal mysteries of judicial interpretation.

Nevertheless, given the controversial nature of the legal issue and the potential import of the outcome, the location of the tipping point of the argument (pt. 22-23) comes as a surprise. From this point onwards, all the justifications put forward, whether teleological, logical or contextual, all presuppose a conception of the relationship between the internal and the international, which is precisely at the heart of the dispute.

The latter comprises two successive questions. Does the applicability of Article 25 of Regulation Brussels I bis require the contractual relationship (to which the choice of forum agreement pertains) to be international (or at least non-exclusively domestic, as under its twin article 3§3 of Regulation Rome I on choice of law)? If so, does the sole choice of a foreign court by the parties to such a relationship suffice to fulfill this condition? But answering the second question in the affirmative quite simply negates any prior requirement and merges the two problems into one. As Advocate General J. Richard de la Tour observed, if we hold that recourse to a provision of Regulation No 1215/2012 presupposes the existence of a condition of internationality, it would be fallacious to assume that this is fulfilled through an agreement between the parties. In other words, this way of framing the question puts an end to any further, non subjective, requirement of “internationality”. With the sequence of questions reversed, the reasoning then becomes circular.

This objection could be disqualified as merely aesthetic if it were not for a series of interconnected consequences. These may differ of course according to the structure of the court system in any given country. But let us take France as an example. In the case of an exclusively domestic contract, subject to French law, some forum agreements of which the effect would be to modify the rules of domestic territorial venue – for instance, choosing a court in Paris rather than in Marseilles – would be void under article 48 French Code of Civil Procedure. But then, according to the ECJ’s new ruling, an agreement between the same parties in the same circumstances, but conferring jurisdiction on a court in Rome (rather than in Paris), would be perfectly valid. If the parties are attempting (together or separately) to shop, for various reasons, for a more favorable forum than Marseilles, this opening comes as a godsend.

Indeed, following the ruling, it means that the agreement to take the dispute to a foreign court would have to be enforced – meaning that the court of a Member State other than the one designated under the otherwise applicable rules of domestic civil procedure would have to stay and then possibly decline jurisdiction – assumedly, even if the dispute falls within the scope of mandatory provisions of the (domestic) law of that forum. Thus, in the French example above, the same contract might also contain a choice of (any) foreign law. The latter choice would normally be subject (without prejudice) to the mandatory provisions of local (French) law, under article 3 § 3 of Regulation Rome I. However, if the court of the other Member State designated in the choice of forum agreement were to disregard such provisions – or, rather, since this whole situation is henceforth to be thought of as international, if it were to decline to exercise the option offered by article 9§3 of Regulation Rome I in favour of an overriding statute at the place of performance-, there is no guarantee that a “second look” could make them effective at the ultimate, enforcement stage. Indeed, the violation of an overriding or mandatory rule – and even less a domestic mandatory provision – does not necessarily prevent a judgment handed down in one Member State from becoming effective in another. Moreover, the proviso in article 25 is hardly a protection when it states, in relation to the effectiveness of parties’ choice of court: “unless the agreement is null and void as to its substantive validity under the law of that Member State”, that is, the law of the chosen forum!

In other words, since, it is easy to see how given domestic legal provisions – both substantive and procedural – become irrelevant unless the parties have decided otherwise.  For the moment we must put aside some insidiously nagging questions, beyond the scope of article 25 of Brussels Ibis Regulation: will this expansive permission to engage in jurisdictional barrier-crossing grow into a common understanding as to the merits of party autonomy, so as to apply to cases in which the chosen forum is in a third country? And in such cases is the protection of European mandatory laws (as in the ECJ’s Ingmar line of case-law) sufficient to ensure “jurisdictional touchdown” (“Transnational Liftoff and Juridical Touchdown: The Regulatory Function of Private International Law in an Era of Globalization.” Columbia Journal of Transnational Law 40.2 (2002): 209-274)?  Presumably, a contractual choice in favour of a Member State by parties to a domestic contract in a third country will also be upheld, even if void under the law of the latter?

To come back for the time being to agreements subject to article 25, it might be argued, in response to our objection, that the erasure of the distinction between the domestic and the international as far as choice of court clauses are concerned increases the protection of weaker parties within the European Union, by reason of  the various special asymmetrical fora contained in Chapter II, Section 2 of the Regulation (which might be absent under local rules of civil procedure). A worker or consumer who is obliged to sue in the court of the professional defendant’s domicile in a purely domestic case could, simply by “internationalising” the contract – albeit with the unlikely consent of the employer or seller/service provider – benefit from the availability of a forum closer to home. But if such an advantage is truly important, it would surely be better to oblige Member States to provide the relevant protective forum by means of secondary EU legislation to that effect (as for detached workers, for instance), rather than upsetting the existing general equilibrium between international jurisdictional freedom and domestic procedural and regulatory constraints, with far wider ripple effects.

It could also be said that the “special” jurisdictional rules of article 7 of Regulation Brussels I bis already intrude into local rules of venue. But these have, until now, been triggered only in international cases, that is, when there is, initially, a “conflict of jurisdictions”, in other words a doubt, given the multiple connections of the substantive agreement between the parties, as to which court is apt to decide the case (as the Court accepts: judgment §22). Henceforth, in a domestic context, economic actors can opt out of local rules of venue in contract cases. They are not usually free to change the rules, say in tort cases, within a given Member State.  But, as from now, we may wonder why they should not be able to do so, with a little help from further analogizing. Or is there really something specific about contracts that mandates a more expansive approach to party autonomy?

II. Epistemological Issues

How then to understand the Court of Justice’s resolute erasure of the distinction between the domestic and the international – in the very specific context of Article 25 of the Brussels I bis Regulation, but of which the thrust could be significantly broader? Of course, the alternative approach would have meant defining an objective parameter to trigger the liberal regime – free choice of forum – defined therein. Where exactly to place the threshold of the international? This is undeniably a challenge in itself, as we well know from the long endeavor behind the Rome Convention/Regulation Rome I to define the thrust of party autonomy in respect of choice of law. But at this point one may simply wonder why the Court did not borrow from the (albeit imperfect) definition of article 3 § 3 of the latter, twin, instrument.

This approach sets a limit to freedom of choice of a foreign law in cases that are wholly domestic “but for” the choice itself. Arguably, the terms of the difficulty are not identical when it comes to jurisdiction: in matters of choice of law, it is easier to set a limit to party freedom by subjecting the contract to the domestically mandatory rules of the country in which, but for the agreement,  all the other conceivable connecting factors converge. However, applied to choice of forum agreements under article 25 of the Brussels Ibis Regulation, the “but-for” approach would have allowed each Member State to decide, similarly, for itself, whether party autonomy should or not prevail over countervailing considerations (linked inter alia, in turn, to the content of the applicable substantive law under art. 3§3 of Regulation Rome I).

If party autonomy has conquered new ground with such apparent ease, it is probably because the trend embodied in the ECJ’s new judgment was already present in a series of steps that appeared to need only a little prompting to expand in the same direction. From the contrat sans loi to a forum without a jurisdiction… the Court seems to have fallen into the trap of the “authority paradigm” (an epistemological difficulty amply explored by G.H. Samuel (‘Is Law Really a Social Science? A View from Comparative Law’ (2008) 67 Cambridge Law J. 288), in the sense that the solution is represented as dictated by its own specific legal logic, leading as it were in a straight line to an inescapable outcome: the blurring of the boundary between the internal and the international (or European). Given the silence of the text of article 25 on this point (which nevertheless constitutes the framework for the reasoning adopted), arguments beyond a purely literal interpretation were necessary. As observed above, the analogies and counterexamples supplied by the Court tended to cancel each other out and could have worked both ways. Are there further possible justifications?

Arbitration as an area of investigation provides food for thought. Arguably, there is a certain parallelism between choice of forum agreements and arbitration, which both allow, broadly speaking, an opt-out by private actors from a given legal system. It might be said, therefore, that, since domestic arbitration is permitted in many Member States (but it is difficult to generalise in a field that is not subject to European Union law), there is no reason to be more restrictive in respect of a domestic forum agreement in favour of a foreign court. However, such an argument is hardly convincing. Firstly, and precisely, because domestic arbitration is only permitted under the conditions laid down by a given national legal system, which decides for itself the extent it allows parties to exit its own court system. Secondly, because even in pro-arbitration jurisdictions such as France, the will of the parties is powerless to transform a domestic arbitration into an international one.

What can be said, however, is that the expansion of international arbitration is certainly at the root of a pervasive and under-theorized conception of party autonomy, perceived or used as a generalized derogation from any regulation or control originating in the public sphere (“regulatory lift-off” in the terms of Robert Wai, cited above). It is true that arbitration serves to free the parties from the public domain and by doing so encourages the privatization of the dispute resolution industry. This is not exactly the case here, since the freedom granted is exercised to the benefit of the courts of another Member State. However, the dual phenomena of artificial internationalization of domestic agreements and privatization of the access to justice are not unrelated. More rarely analyzed in this light, unfettered free movement serves an identical political and economic function with regard to both. It authorizes what we have previously called “metaphorical mobility”.  In other words, the license given to economic actors to insert choice-of-forum and choice-of-law clauses in their contracts, and thus tailor the applicable legal regime, is but a different instantiation of the free movement of goods and services in the common market: a form of legal and jurisdictional mobility without moving.

But the distinction between domestic and international cannot be erased – with the wave of a magic wand aka the will of the parties – without counting the costs downstream. At least, if we wish to preserve a measure of pluralism of national legal orders (or if we are legally obliged to do so, where competences are divided and layered, as in the European Union). Even liberal antitrust law teaches us that healthy competition (whether between players or, internationally, between laws) encounters its limits in the risk of creating a monopoly. Thus, outside this framework, it would have been possible to reflect on the very meaning of the boundary between the domestic and the international in the context of jurisdictional conflicts and elsewhere, or to consider more broadly (which amounts to the same thing) the scope to be conferred on party autonomy, which nothing – not even the competitive paradigm of the internal market in which the law unfolds here – obliged the Court to extend. Furthermore, in the silence of a text (and even then…) alternative and equally plausible schemes of intelligibility always exist. In this case, other avenues were perfectly conceivable. This is borne out by the conclusions of the Advocate General – without reference, which is regrettable, to the various debates within the field. It is not as if there has not been critique, and for a long time, of the autonomy/privatization/mobility nexus and its political economy, both within and beyond the confines of the European Union. The terms of this discussion deserved to be taken up. We can only regret the absence of any trace of such considerations in the judgment – if only to refute the objections – in what is undoubtedly a radical move in the evolution of the ECJ’s case law on contractual matters. The legitimacy of the Court’s role in the careful construction of a pluralist European legal and judicial area, is at this price, when it is called upon to rule, on the basis of an individual dispute, on a legal issue of much wider political, social and economic import. To present the position taken on this point as being dictated by legal logic is to flatten or depoliticize the difficulty.

III. Political Economy

At this point, then, we are prompted to look further into the ideological dimension of the outcome. As with free choice, or the distinction between the public and the private spheres, the problem is less in the principle itself (of mobility, party autonomy, private agency…) than in the disqualification of all types of local regulation, perceived exclusively as hindrances to the fulfillment of a higher political and economic goal. From this point of view, erasing the difference between the domestic and the international obeys a classic competitive paradigm, promoted with regard to a certain conception, now largely called into question, of neoliberal economic analysis of law. Thus, allowing the choice by the parties of a forum in another country in domestic contracts (already the principle when the situation is pluri-located) would supposedly create the conditions for an “upward” competitive spiral, thus improving the quality of jurisdictional services across the board as a result of this pressure.

Indeed, the ECJ’s ruling uses the tools of private international law to implement a project based on a specific, and by no means undebatable, economic rationality. Thus, the linchpin of the regulatory competition thesis was largely theorized within Chicago law and economics in the area of the (largely post-war) market for corporate charters. Thereafter, echoing such ideas from across the Atlantic, free metaphorical mobility, or “barrier-crossing” from the public to the private (the very definition of neoliberalism), empowered the unhindered movement of companies within the European internal market. From that point, was there any good reason to distinguish the fate of internal mandatory rules in company law from that of those governing mere commercial contracts: one might even be said to imply the other? Indeed, while most of the prohibitions enshrined in domestic commercial contract law in liberal regimes are presented as exceptions to the freedom of the parties, whereas large swathes of company law is mandatory in the domestic order with the aim of protecting third parties (rules relating to minimum capital, for example, or “blue sky” statutes..). Yet these provisions are largely neutralized by free circulation (as in Centros etc). If the founders of a company can choose to opt out of an applicable regulatory regime by artificially “internationalizing” or moving (formally) across borders, why not allow other forms of metaphorical mobility in contractual cases, through the insertion of choice of law and forum agreements in domestic agreements?

Reminiscent of the neoliberal model of economic analysis just mentioned, such was the plea by J. Damman and H. Hansmann, inspired by the real or supposed virtues of the legislative or regulatory competition induced by the American intra-federal market for corporate charters (‘Globalizing Commercial Litigation’, 94 Cornell L. Rev. 1 (2008)). In vogue at the neoliberal end of the last century when redistributional and environmental concerns were largely ignored, this now outdated, or highly contested, economic analysis of law, still has its supporters, including in France (counterintuitively… but is this the effect of the arbitration lobby, or merely of an academic fashion lag?). Interestingly, the same authors had initially advocated the introduction of a generalized system of “extraterritorial” courts (in other words, established outside their country of origin but administering the justice of the latter, abroad) precisely to enable competition between legal orders through an unfettered access to multiple, competing courts, even in purely domestic situations (perhaps forgetful that such a technique was actually implemented across colonial and neocolonial empires, including by the United States in China, until surprisingly recently…). But of course, a choice of forum agreement does the job in terms of competition, nearly as well.

It is precisely this model – the competitive paradigm – that may have inspired the Court of Justice here, as it has all those who continue to approve a very liberal use of contractual freedom of choice, whether of court or law. But despite the astonishing and recurrent success of the very idea of the “law market”, the difficulty remains of determining the threshold of the license to opt out of local regulatory limits in domestic cases. In the case of jurisdiction agreements, it could be explained by the impulse, in the long term, to standardize all the rules governing “special” jurisdiction among Member States, and thus, indirectly (as seen above) all contract law. Without going back over all the ground already covered in the fierce debates at the turn of the century on the unification of European private law, we shall simply observe that the prerequisite for successful legal harmonization (within the European Union) is the existence of a minimum of shared (equivalent) ground. The failure of the project to codify European private law (even in the sole area of contract) is perhaps an indication that such a consensus does not exist.

Moreover, if we adopt a structural approach to the problem, and move on from the indirect unification of domestic law to the circulation of judgments resulting from choice-of-court clauses, we can only point out that there is no such thing as complete “fungibility” of Member State judgments under the Brussels I bis Regulation itself, which, even after the abolition of exequatur, still allows for the ultimate intervention of local public policy (and on issues involving fair and equitable process is obliged to do so under relevant human or fundamental rights law). It is therefore to be expected that freeing up elective clauses ex ante will only multiply the number of cases of refusal to enforce the resulting decisions ex post. In other words, the lower the threshold of autonomy at the outset, the greater the degree of control at the end. The well-known example of the two contrasting perspectives, French and American, on “arbitrability” or the extent of party freedom in international arbitration (preventive threshold or control of awards) illustrates this phenomenon of “communicating vessels”. In respect of the new regime of jurisdictional clauses under the ECJ’s ruling, we can bet that the threshold issue – i.e., the reappearance of legitimate impediments to the free exercise of will – will quickly reappear downstream.

We also know that corporate mobility within the internal market has not been without its problems. The case law of the European Court of Justice bears witness to a long, shifting and subtle negotiation between the requirements of free movement and the aims protected by the legislative “obstacles” raised by member states in the name of various equally legitimate aims or policies (be they economic, social, environmental, etc.). Such judicial negotiation in case of conflict is the very “dynamic” of the principle of proportionality within the internal market (to use A. Marzal Yetano’s excellent expression in La dynamique du principe de proportionnalité. Essai dans le contexte des libertés de circulation du droit de l’Union européenne, Institut Universitaire de Varenne, 2014). This tension between multiple values is apparent both in corporate matters and in the field of contractually provided services, whether in terms of jurisdiction or applicable law. This is because any legal rule adopted in a democratic regime is the fruit of complex compromises between potentially contradictory interests, so that in the event of conflict in a particular case, no simplistic equation by which one should prevail other the other makes any sense – if to do so means ignoring the balance previously achieved…

A Conference on Cross-Border Dispute Resolution will be held in Dubrovnik on 8-10 May 2024 organized by the Law Schools of the University of Pittsburgh, Verona and Zagreb.

The Conference will deal with cross-border professional responsibility and privilege, aspects of international arbitration and international litigation. Each day will include discussion-oriented presentations and workshops on practical international arbitration and litigation issues.

Speakers include Ron Brand, Marco Torsello, Franco Ferrari, Milena Đorđević, Dora Zgrabljić Rotar and Giesela Ruhl.

The full programme is available here.

For registration and further info see here and here.

On 22 February 2024, the Law Commission of England and Wales published a call for evidence to help them identify the most challenging and prevalent issues of private international law that arise from the digital, online, and decentralised contexts in which modern digital assets and electronic trade documents are used. They seek the views and evidence of a diverse body of stakeholders from a wide range of perspectives and jurisdictions to ensure their future work on this project will strike the appropriate balance between the theoretical aspect of the law and its practical application. The responses will inform the next steps. They seek responses by Thursday 16 May 2024.

The call for evidence can be downloaded here. A summary of the call can be downloaded here. Responses to the call for evidence should be submitted here.

The Law Commission describes the problem that their project aims to address as follows.

The Problem

When parties to a private law dispute are based in different countries, or the facts and issues giving rise to the dispute cross national borders, questions of private international law arise. In which country’s courts should the parties litigate their dispute? Which country’s law should be applied to resolve it? How can the judgment be enforced in another country? Private international law is the body of domestic law that supplies the rules used to determine these questions.

Problems of private international law are by no means a recent phenomenon. The conditions that give rise to problems of private international law date from at least the fourth century BC. The problems are, however, becoming more difficult and increasingly pervasive because modern technologies challenge the territorial premise on which the existing rules of private international law have been developed.

In this respect, the advent of the internet in the late 1980s has been a catalyst of socio-economic change that has posed significant challenges for private international law. More recent innovations, such as crypto-tokens and distributed ledgers, add novel and arguably intractable problems to these existing challenges.

[The Law Commission’s] project has a particular focus on crypto-tokens, electronic bills of lading, and electronic bills of exchange. This is because these assets are prevalent in market practice, whilst also posing novel theoretical challenges to the methods by which issues of private international law have traditionally been resolved.

The Project

In recent years, a significant aspect of the Law Commission’s work has focused on emerging technologies, including smart legal contracts, electronic trade documents, digital assets, and decentralised autonomous organisations (DAOs). [The Law Commission’s] work has shown that these technologies raise issues of private international law.

In [the Law Commission’s] final report and Bill for work on electronic trade documents, [the Law Commission] noted that there are private international law difficulties associated with electronic trade documents, in particular the inherent difficulties in determining the geographical location of the documents.

However, [the Law Commission] recognised that many of these issues arise in relation to digital assets more broadly. During the passage of the Electronic Trade Documents Act 2023, [the Law Commission] committed to considering these issues in a more general project on private international law and emerging technology.

In 2022, the UK Government asked the Law Commission to conduct this project considering how private international law rules will apply in the digital context. In particular, the Law Commission is asked to consider the disputes which are likely to arise in the digital context (including contractual, tortious and property disputes), and make any reform recommendations it considers necessary to Government.

The post below was written by Pedro De Miguel Asensio, who is Professor of Private International Law at the Complutense University of Madrid. This is the third contribution to the EAPIL’s online symposium on Inkreal, after the posts of Sergi Gimenez and Gilles Cuniberti.

The main contribution of the Inkreal judgment is to establish that Article 25 of the Brussels I bis Regulation allows the parties to a contract, even if they are domiciled in the same Member State and all the elements of the contract are located in that State, to confer jurisdiction to settle the disputes arising from the contract on the courts of another Member State. In fact, this case has provided the Court of Justice with the opportunity to address a question which had been referred to it previously, but which it was unable to rule on at the time because the request for a preliminary ruling was withdrawn by the Portuguese Supremo Tribunal de Justiça and the case removed from the register (EU:C:2017:237).

In particular, among the questions already referred to the Court of Justice in case C-136/16, Sociedade Metropolitana de Desenvolvimento, in connection with the practice relating to the conclusion contracts under the terms of the ISDA Master Agreement, was whether, in a dispute between two national companies of a Member State concerning swap contracts, the existence therein of clauses conferring jurisdiction in favour of another Member State constitutes a sufficient international element to give rise to the application of the Brussels I bis Regulation. Now, the Inkreal judgment in the framework of case C-566/22 answers a similar question in the affirmative and clarifies that the mere agreement of the parties to a contract designating the courts of a Member State other than that of their common domicile as having jurisdiction is sufficient for the legal situation to have an international element for the purposes of the jurisdiction rules of the Brussels I bis Regulation.

Although it is a criterion that could give rise to misgivings insofar as it could leave it to the parties to circumvent, within the limited framework of Article 25 of the Brussels I bis Regulation, the jurisdiction of the courts of the only Member State with which the contract is connected (as the Advocate General emphasised in his Opinion in Inkreal, EU:C:2023:768) and may sometimes cause serious inconvenience to one of the parties (as raised in the second of the questions referred for a preliminary ruling in case C-136/16), the approach adopted by the Court seems the better view. Its position reinforces: (a) consistency between the Brussels I bis Regulation and other Union instruments on judicial cooperation in civil matters (see I, infra); (b) the objectives of predictability and legal certainty in the application of the Brussels I bis Regulation (II, infra); and (c) the particular significance of the Union’s private international law instruments as an element of integration (III, infra).

I. Consistency between the Brussels I bis Regulation and Other Union Instruments on Judicial Cooperation in Civil Matters

The judgment confirms previous case law according to which the application of the rules of jurisdiction of the Brussels I bis Regulation is in any case subject to the existence of an international element, which corresponds to the fact that it is an instrument relating to judicial cooperation in civil matters having cross-border implications, in the terms of Article 81(1) TFEU. However, the judgment not only confirms that for such international element to be present it is sufficient that the situation raises “questions relating to the determination of the jurisdiction of the courts in the international sphere” (para. 22 referring to the IRnova judgmen, EU:C:2022:648), but also adds as a novelty the clarification that such a circumstance is present whenever the parties to a contract are established in a Member State other than the court seised on the basis of the relevant jurisdiction agreement, insofar as in such situations the question arises of determining the courts of which of those Member States has international jurisdiction to hear the dispute in question (paras. 23-25).

In order to reach that conclusion, the judgment attributes a particular relevance to the definition of “cross-border cases” in Article 3(1) of Regulation (EC) No 1896/2006 creating a European order for payment procedure, which provides that “a cross-border case is one in which at least one of the parties is domiciled or habitually resident in a Member State other than the Member State of the court seised”. Apart from the relevance given in the judgment to the coordination between the Brussels I bis Regulation and Regulation (EC) No 1896/2006, the approach taken by the Court of Justice also seems to be supported by the content of Regulation (EC 593/2008 on the law applicable to contractual obligations (Rome I Regulation).

Recital 15 to the Rome I Regulation states:

Where a choice of law is made and all other elements relevant to the situation are located in a country other than the country whose law has been chosen, the choice of law should not prejudice the application of provisions of the law of that country which cannot be derogated from by agreement. This rule should apply whether or not the choice of law was accompanied by a choice of court or tribunal.

Consequently, Recital 15 and Article 3(3) of the Rome I Regulation seem to be based on the assumption that the parties to a contract may choose a court of a Member State as having jurisdiction, even if all the relevant elements of the situation prior to their choice of forum (and law) are located in another Member State (regarding the interpretation of Article 3.3 Rome I Regulation in the context of insolvency proceedings, see CJEU Judgment of 8 June 2017, Vynils, C-54/16, EU:C:2017:433, concerning an apparently domestic Italian contract that conteined “a clause stating that English law is the chosen law and a clause choosing the jurisdiction of the London Maritime Arbitrators Association”, para. 20).

In so far as the judgment in Inkreal holds that the rules of jurisdiction in the Brussels I bis Regulation apply only where there is an element of internationality, for which it is sufficient that a purely domestic contract designates a court of another Member State as having jurisdiction, since such a situation “raises a question relating to the determination of international jurisdiction” (para. 24), it is also consistent with the approach underlying the Rome I Regulation. A sort of parallel may be drawn mutatis mutandis between that category and that of a situation “involving a conflict of laws” as regards the field of applicable law. Also, under the Rome I Regulation, in the different context of the applicable law, it is necessary to determine in which situations a foreign element is present, since the rules of the Rome I Regulation only apply “in situations involving a conflict of laws” (as stated in Article 1(1) and recently examined by the Court of Justice in its judgment of 14 September 2023, Diamond Resorts Europe and Others, C‑632/21, EU:C:2023:671, para. 51).

II. Objectives of Predictability and Legal Certainty in the Application of the Brussels I bis Regulation

The judgment highlights that making the application of Article 25 of the Brussels I bis Regulation subject to a finding that the contract has additional links (beyond the agreement conferring jurisdiction) with the Member State of the chosen court would undermine the objective of legal certainty and predictability. It would make it difficult for the designated court before which the action is brought to determine its jurisdiction and increase the risk of parallel proceedings and irreconcilable judgments (paras. 27 to 31).

Although the lis pendens rules of the Brussels I bis Regulation would significantly reduce the risk of parallel proceedings, there is no doubt that the requirement to identify additional elements capable of demonstrating the cross-border impact of the dispute would constitute a significant factor of uncertainty. Illustrative in that respect was the list of potential international elements in addition to the jurisdiction agreement contained in the third of the questions referred for a preliminary ruling in case C-136/16 in relation to the swap contracts at issue. Such elements included the fact that foreign companies were invited to submit proposals to participate in the contracts, that one of the parties is owned by a foreign entity, that under the terms of the contract the parties may transfer their rights and obligations to subsidiaries in other countries, that the contracts at issue had certain connections to contracts concluded with foreign entities, etc.

Moreover, hypothetically, it should be noted that if it had been decided that Article 25 of the Brussels I bis Regulation requires additional factors of internationality to be applied, a particularly broad interpretation in the context of the Union would have been justified. The outcome in practice might not be very different from that resulting from the new judgment.

For example, why would the following not be sufficient connections. First, the mere fact that for one of the parties the contract in question has connections to a different international contract which are relevant to that party. Second, the fact that one of the contracting parties belongs to a group of companies with connections to the Member State in which the designated court is located (for instance, this seemed to be the situation -perhaps with some additional elements- in the notorious El Majdoub judgment, concerning a contract between parties domiciled in Germany with a jurisdiction clause in favour of a court in Leuven (Belgium), see paras 10, 13 and 16 of CJEU Judgment of 21 May 2015, El Majdoub, C‑322/14, EU:C:2015:334).

III. Significance of EU Private International Law rules as an Instrument of Integration 

The broad scope of Article 25 Brussels I bis Regulation is also justified by the Court of Justice as reflecting mutual trust in the administration of justice within the Union and contributing to the development of an area of freedom, security and justice (para. 35). Indeed, the development of civil judicial cooperation within the Union, based on the principle of mutual recognition of judgments, has led to the creation of a judicial area, many elements of which are closer to the treatment of purely internal situations than to strictly international ones. This is reflected, for example, in the contrast between the treatment of situations in which lis pendens arises between Member States of the Union and those concerning parallel litigation in a Member State and a third State.

The criterion adopted in Inkreal is a further step in this direction of overcoming state borders, which is projected onto areas where party autonomy prevails and the choice of the courts of a Member State without any apparent connection with the dispute will typically respond to the legitimate interests of the parties. In practice, moreover, the choice of a court of that other Member State will normally go hand in hand with the choice of its law as the law applicable to the contract. As regards the position of the Member State in which all other elements of the contract are located, Article 3(3) of the Rome I Regulation will be relevant. According to that provision, the choice of law (and court) by the parties does not prejudice the application of provisions of the law of that other country which cannot be derogated from by agreement. Consequently, the mandatory rules applicable to the contract will be those of the Member State where all the other elements relevant to the contract are located and not those of the Member State whose courts adjudicate the case and whose law has been chosen by the parties (without prejudice, of course, to the effectiveness of the mandatory rules under Article 9 of the Rome I Regulation).

Given the specificity of the Union’s integration framework, and the particular scope of judicial cooperation in civil matters, the Court is justified in expressly rejecting that the provisions of the 2005 Hague Convention on Choice of Court Agreements should constitute a point of reference in the interpretation of Article 25 of the Brussels I bis Regulation. Pursuant to Article 1(1) of the Convention, its jurisdiction rules only apply either if the parties are not resident in the same State, or if some element relevant to the dispute other than the location of the chosen court has a connection with some other State (see “Explanatory Report” by T. Hartley and M. Dogauchi, paras. 41-43).

Hence, the broad interpretation of Article 25 of the Brussels I a Regulation and its application to purely domestic contracts does not apply to jurisdiction agreements designating the courts of a third State, even if it is a State with which the Union and its Member States are bound by the 2005 Hague Convention on Choice of Court Agreements. Nor does it apply directly in situations where the effectiveness of jurisdiction agreements in favour of a third State is governed by the domestic law of the Member State seised.

Concluding remarks

Unlike in case C-136/16, Sociedade Metropolitana de Desenvolvimento, the Court was not requested in Inkreal to clarify if the application of such a jurisdiction agreement may be waived where the choice of the courts of a Member State other than that of the nationality of the parties causes serious inconvenience for one of those parties and the other party has no good reason to justify such choice. However, the reasoning by the Court seems to support the view that within the specific framework of the Brussels I bis Regulation (and its interplay with the Rome I Regulation) such a concern is of limited significance. This is without prejudice that the possible review of the regulatory framework in order to provide certain protection to small or medium-sized enterprises in a position of contractual imbalance against choice of forum agreements unilaterally imposed on them, is an issue that merits special attention. In any event, such protection would be especially necessary with regard to jurisdiction agreements in favour of the courts of a third State, which in principle fall outside the scope of the Brussels I Regulation.

— This post is based on the post published in Spanish by the author on 8 February 2024, and a short case comment to be published in the journal La Ley Unión Europea.

This is the second contribution to the EAPIL Online Symposium on Inkreal. The first contribution was written by Sergi Gimenez.

As reported earlier on this blog, the CJEU ruled in Inkreal s.r.o. v. Dúha reality s.r.o. (Case C‑566/22) that Article 25 of the Brussels I bis Regulation applies to clauses stipulated in domestic contracts if such clauses provide for the jurisdiction of the court of another Member State.

The CJEU held that domestic contracts providing for the jurisdiction of the court of another Member State have, for that reason alone, an international element which suffices to trigger the application of the Brussels I bis Regulation in general and Article 25 in particular. The clause is thus validated and effective.

Geert van Calster is delighted about this excellent judgment, that Pedro de Miguel Asensio and Matthias Weller also welcome. I disagree.

International Element Required?

The judgment recalls that an international element is required to trigger the application of the Brussels I bis Regulation. The Brussels I bis Regulation was adopted on the basis of Article 81 of the Treaty on the Functioning of the European Union, which gives competence “in civil matters having cross-border implications”. As a result, the court ruled in Owusu that there should be an international element to trigger the application of the Regulation.

The CJEU finds that an international element exists in this case for two reasons. The first is that the proceedings were initiated in a another Member State. The second is the jurisdiction clause itself, which designates a foreign court.

Both of these elements are purely subjective, insofar as they are the result of the will of the parties. Party autonomy suffices to create the international element. And, indeed, the will of a single party, the plaintiff, seems to suffice, as the initiation of the proceedings in another State is deemed sufficient. In this respect, the court relies on the definition of cross border litigation in the European Order of Payment Regulation which refers to the initiation of the proceedings in another Member State. But in the context of the Brussels I Bis Regulation, what really matters is party autonomy and the provision of a jurisdiction clause. In the absence of such a clause, the application of the objective rules of jurisdiction will always grant jurisdiction to the only Member State connected with the dispute, irrespective of where the proceedings were initiated. In contrast, enforcing jurisdiction clauses could be a real game changer.

Adopting subjective criteria such as the inclusion of a jurisdiction clause suggests that, although it cannot rule that the Regulation applies to domestic disputes, the court is ready to interpret the cross border implications test as broadly as possible, so that it can, in effect, extend the reach of the Regulation to domestic disputes.

So what will come next? What will be the other subjective criteria justifying the application of the Regulation and Article 25? Will it be enough for the parties to provide “this is an international contract” in the preamble of their contract? And what about remote objective criteria? For instance, what about the foreign grand parent of one of the local parties to the contract?

The End of the National Rules governing Jurisdiction Clauses?

Many member States have national rules limiting the enforceability of jurisdiction clauses in domestic disputes. In France, for instance, such clauses are only enforceable among certain categories of professional parties (‘commercial people’), and they need to be stipulated in “very apparent characters”.

After Inkreal, it will be possible to bypass those rules by providing, in domestic contracts, the jurisdiction of a Belgian or Luxembourg court. What is the legitimacy of the EU to disapply those rules? One could debate whether party autonomy should be promoted and local parties should always be allowed to choose their preferred court. But certain Member States have made the policy decision that choosing the competent court can have far reaching consequences, and party autonomy should only be allowed between sophisticated actors where it can be established that the parties made an informed choice. What is the legitimacy of the CJEU to cancel this policy decision?

Of course, one could think that national rules will remain applicable and prevent the same parties from including a similar clause providing for another city within the same Member State. But will they? Maybe not, if the parties insisted in their contract that they strongly feel that it is, or want it to be, an international contract.

Coherence with Hague Convention irrelevant

Interestingly, the 2005 Hague Convention on Choice of Court Agreements provides that it only applies to international cases, which are defined objectively:

Art. 1 (2) For the purposes of Chapter II, a case is international unless the parties are resident in the same Contracting State and the relationship of the parties and all other elements relevant to the dispute, regardless of the location of the chosen court, are connected only with that State.

The Court, however, rules that the same definition is not found in the Brussels I bis Regulation, and that there is no reason to seek a coherent interpretation. Instead, as already mentioned, the court prefers to seek coherence with the European Order for Payment Regulation, because it relates to judicial cooperation in civil matters. But is it really convincing, given that this regulation does not include any rule validating party autonomy?

Irrespective of these poor contextual arguments, the result is disastrous. For parties and lawyers providing for jurisdiction clauses (and choice of law clauses) in international contracts, it is critical to avoid developing different legal regimes and to interpret the relevant instruments (Brussels I bis, Rome I, 2005 Hague Convention) coherently whenever it is possible. Most practitioners have a hard time understanding some of the most basic concepts of private international law. They do not need these extra subtleties.

This is the first contribution to the EAPIL’s Online Symposium on Inkreal. It is authored by Sergi Gimenez, who is an Associate Lecturer of Private International Law at the Universitat Pompeu Fabra in Barcelona and a partner in the law firm Augusta Abogados.

In its judgment of 8 February 2024 in Inkreal (Case C-566/22), the Court of Justice of the European Union (“CJEU”) has concluded that there is no impediment for parties to a contract established in the same EU Member State (e.g. Spain) to agree on the jurisdiction of the courts of another Member State (e.g. Germany) to settle their contractual disputes, even if the contract in question has no other connection with the designated Member State. The doctrine established by the CJEU, perhaps questionable in some respects, opens up interesting prospects for companies to choose the dispute resolution mechanism that suits them best, even in purely domestic contractual relations.

Background

Between June 2016 and March 2017, an individual (“FD”) residing in Slovakia lent money to the Slovak company Dúha reality s.r.o. (“Dúha”). The two loan agreements signed between the parties contained a clause whereby the parties agreed that any disputes arising from the loans would be settled “by a court of the Czech Republic having substantive and territorial jurisdiction”.

In early December 2021 FD transferred the claims under the loan agreements in favour of Inkreal s.r.o. (“Inkreal”), a company also incorporated under Slovak law and established in Slovakia.

Since Dúha did not repay the loans, Inkreal sued Dúha before the Supreme Civil and Criminal Court of the Czech Republic at the end of the same month of December, as foreseen in the above mentioned clause.

Doubts then arose as to the possible invalidity of the above-mentioned attribution agreement. Since the dispute concerned a contract governed by Slovak law and was between two Slovak companies, with no connection to the Czech Republic, the Court questioned its possible lack of international jurisdiction. In view of the doubts that arose, the Czech Supreme Court turned to the CJEU for clarification.

The Question

The Czech Supreme Court’s doubts arose from the fact that neither the loan agreements nor the disputing parties have any connection with the Czech Republic. However, the case-law of the CJEU has consistently required that there be an “international element” in the disputes in order for the Brussels I bis Regulation to apply. Thus, the referring court wondered whether the mere will of the parties, by including a clause submitting to the courts of another State, was sufficient to confer an international character on their contractual relationship. If that is not the case, the situation would be purely internal and the EU regulation would not be applicable. In such a case, the possible jurisdiction or lack of jurisdiction of the Czech courts would have to be examined in the light of the internal rules of the Czech Republic itself.

Judgment

In addition to hearing the arguments submitted by the parties involved and analysing the Opinion of the Advocate General (who expressed a view contrary to that reflected in the judgment), the CJEU also took into account the observations submitted by the European Commission and some States that wished to participate. The CJEU concluded that a jurisdiction agreement by which the parties to a contract established in the same Member State agree that the courts of another Member State shall have jurisdiction to hear disputes arising out of that contract falls within the scope of Article 25(1) of the Brussels I bis Regulation even if that contract has no connection with that other Member State.

Reasoning of the CJEU

The CJEU reaches the above conclusion using reasoning that is questionable in some cases but imbued with an undoubtedly practical sense. Although the CJEU insists on its settled case law to the effect that the application of the jurisdiction rules of the Brussels I bis Regulation requires the existence of an “international element”, the truth is that the final decision greatly relativises this requirement.

According to the CJEU, the dispute between Inkreal and Dúha falls within the definition of the concept of a “cross-border case” since the parties are established in a Member State other than that to which the Czech court seised on the basis of the agreement conferring jurisdiction in question belongs (para 23). The CJEU adds that the fact that the main dispute raises a question concerning the determination of international jurisdiction (that of the Czech Supreme Court) reinforces the idea of the existence of a cross-border element (Recital 24).

Paragraph 25 of the judgment contains the key to the CJEU’s decision in determining that

the existence of an agreement conferring jurisdiction on the courts of a Member State other than that in which the parties are established in itself demonstrates the cross-border implications of the dispute in the main proceedings.

In this way, the CJEU opens the way for the parties to a contract to decide, solely by their own free will, to “internationalise” a situation that from any other point of view would be considered purely internal.

To justify its view, the CJEU relies on eminently practical reasons: maintaining that the clause on submission to foreign courts is covered by the Brussels I bis  Regulation allows the plaintiff and the defendant to easily determine the court before which they can sue and be sued, and it also allows the court seised to easily rule on its own jurisdiction. According to the CJEU, the alternative of the court having jurisdiction being determined in accordance with the national rules of private international law of the Member States concerned would lead to greater legal uncertainty, since the application of different national rules could lead to divergent solutions.

Commentary and Possible Implications

Until now, in contractual matters, individuals could “internationalise” a domestic situation with regard to the law applicable to their contract. Indeed, Article 3(1) of Regulation (EC) No 593/2008 (Rome I ) gives a wide freedom of choice of the law applicable to contracts by stating that “the contract shall be governed by the law chosen by the parties“. Thus, in principle, even the parties to a purely domestic contract can choose a foreign law. Notwithstanding this freedom of choice of law, Article 3(3) of the same Rome I Regulation provides for a corrective mechanism to prevent possible abuses or excessively opportunistic choices: if all the relevant elements of the contract (e.g. the place of establishment of the parties, the place of performance of the services or delivery of the goods, etc.) are located in a country other than the country whose law is chosen, the mandatory rules of the first country will continue to apply. Thus, in purely domestic contracts the foreign law chosen by the parties will only apply in those respects in which the law to which the contract is objectively linked does not contain mandatory rules. Article 3(4) of the Rome I Regulation provides for an identical limitation for purely intra-EU cases: if all the elements of the situation are located in two or more EU Member States and the parties choose the law of a third State, such a choice does not prejudice the application of mandatory rules of Community law.

The restrictions provided for in the Rome I Regulation on the law applicable to the contract are not transferable to forum selection clauses. In fact, in its decision, the CJEU has not imposed any kind of limitation on the choice of the courts of another Member State (beyond the restrictions on exclusive and protective forums or those relating to public policy provided for in Article 45). Thus, two or more companies located in the same Member State and concluding a purely internal contract can now decide that any disputes between them will be settled by the courts of a different Member State. And it should be remembered that, by submitting a case to the courts of another Member State, the latter acquire exclusive jurisdiction to hear the case, unless the parties have agreed otherwise.

Until now, in order to transfer a purely domestic dispute to another State, the parties had the mechanism of arbitration at their disposal, agreeing that the seat of the arbitration tribunal would be in another country. With the new doctrine set by the CJEU, the parties may also opt for the ordinary courts of another EU Member State if they consider it appropriate, whether for reasons of speed, efficiency, cost, specialisation or any other reason. Obviously, before making a decision, other aspects must be taken into account, including possible adverse elements such as language difficulties, the added complexity involved in making notifications or taking evidence abroad or even the problems arising from the need to prove to the foreign judge the content of the substantive rules chosen by the parties if these rules are not those of the designated judge.

On 8 February 2024, the CJEU ruled in Inkreal s.r.o. v. Dúha reality s.r.o. (Case C‑566/22) that Article 25 of the Brussels I bis Regulation applies to clauses stipulated in domestic contracts if such clauses provide for the jurisdiction of the court of another Member State.

Most early commentators have welcomed this judgment, including Geert van Calster, Pedro de Miguel Asensio and Matthias Weller.

The Advocate General, however, had opined differently. Should Inkreal be praised for promoting party autonomy? Should it be criticised, instead, for extending the reach of EU law beyond its competence?

In the coming days, the EAPIL Blog will host an online symposium on Inkreal. Readers interested in participating should contact the editors of the blog (blog@eapil.org), or directly comment on the posts in the symposium.

The question which law applies to the blockchain and assets recorded thereon, such as cryptocurrencies, stablecoins or other token, is one of the most hotly debated issues in the conflict of laws (see e.g. the recent book ‘Blockchain and Private International Law‘).

A conference on this topic will take place on 11 and 12 April 2024 in Vienna and remotely. It is organised by the University of Vienna, in cooperation with the Interdisciplinary Association of Comparative and Private International Law (IACPIL) and the European Banking Institute (EBI).

The conference will bring together academics, technology experts, and lawyers, from various EU member states, the UK, Switzerland, and Japan. Two of the international organisations active in this field – the HCCH and UNIDROIT – will also be represented.

Topics include the law governing crypto-custody, secured transactions in digital assets, and the law applicable to Decentralized Finance (DeFi). Fundamental issues such as the need for a ‘blockchain revolution’ in Private International Law or the role of consumer law will also be discussed.

The full programme can be downloaded here. Participation is free of charge. Please register for either physical attendance or online participation by 6 April 2024 at service.rechtsvergleichung@univie.ac.at.

This post was written by Prof. Dr. Bea Verschraegen, Verena Wodniansky-Wildenfeld and Laurenz Faber.

On 28 November 2023, the Interdisciplinary Association of Comparative and Private International Law (IACPIL) held a conference on the legal protection of vulnerable adults in Central and Eastern Europe.

Against the backdrop of demographic and scientific developments impacting this field of the law, the event was attended with great interest by internationally renowned academics and practitioners.

The conference, held in the historic premises of the University of Vienna, commenced with a welcome address by Professor Matthias Lehmann (University of Vienna, Raboud Universiteit Nijmegen). Professor Bea Verschraegen (University of Vienna) then led through the first half of the event, which focused on a comparative analysis of vulnerable adults’ protection in Central and Eastern Europe.

Professor Masha Antokolskaia (Vrije Universiteit Amsterdam) presented first results of a comparative examination by FL-EUR (Family Law in Europe: Academic Network), a research platform consisting of experts from 31 jurisdictions. Professor Antokolskaia explained that FL-EUR conducted a detailed assessment of the protection of vulnerable adults in European countries with the aim of promoting cooperation “in books and in action”. Pointing to the adoption of the UN Convention on the Rights of Persons with Disabilities (UN CRPD), she outlined the need for substantial reform in the overwhelming majority of European countries. Professor Antokolskaia explained that the status of these reforms was assessed based on extensive country reports received from 31 jurisdictions. Providing an insight into the work of FL-EUR, she highlighted the methodological difficulties that arise in the comparative examination of vulnerable adult protection, inter alia due to the lack of a historic ius commune in this area.
While the project is still in progress, FL-EUR was already able to identify trends among the European countries: while some have undergone major reforms either before or after the adoption of the UN CRPD, many have only passed “patchwork” reforms or no sufficient reforms at all. Professor Antokolskaia underlined these differences by examining specific examples of vulnerable adult protection, such as the transition towards “support before representation”. In the bigger picture, the presentation observes that many Eastern European countries have not yet undergone the necessary “paradigm shift” but a minority are already far along or have completed this process.

After a spirited discussion on the implications of the comparative analysis presented by Professor Antokolskaia, the second part of the conference, led through by Professor Matthias Lehmann, was dedicated to cross-border issues.

Professor Bea Verschraegen examined current conflict of laws issues relating to the protection of vulnerable adults. She drew attention to the Hague Convention on the Protection of Adults, which focuses on adults who, because of an impairment or insufficiency of their personal faculties, are unable to protect their interests in cross-border situations.

Professor Verschraegen highlighted the increasing number of adults in need of protection and the variety of protective measures prescribed by the national law of their place of residence. These measures range from court-ordered protection to the assistance of pre-arranged third parties.
She expressed concern about the limited regional scope of the Hague Convention, as only 11 EU Member States are parties, and its complexity, which poses challenges to its effective application. In practice, it is not entirely clear what kind of ex ante and ex post measures are covered by the Convention. The same may apply to private mandates.

She pointed out that there is no EU instrument governing judicial cooperation in the field of adult protection. The proposed regulation aims to change this. In this context, Professor Verschraegen argued for a broader perspective beyond the dominant narrative of an ageing society, advocating the inclusion of all adults from the age of eighteen. Citing alarming statistics predicting a significant increase in new cancer cases by 2040, she stressed the urgency of implementing comprehensive policies that address both age-related diseases such as dementia and the unforeseen challenges faced by young adults.

The ongoing debate about the possible reorientation of the Convention and the proposal in line with the UN Convention on Disability or its effectiveness in its own right was also the focus of the presentation. While acknowledging the complexities, Professor Verschraegen suggested that a robust articulation of private international law rules and human rights instruments might suffice, underlining the need for careful consideration.

The discussion went on to explore issues arising from the Convention on the Rights of Persons with Disabilities, including private autonomy, self-determination and dignity. Professor Verschraegen questioned the fact that both Conventions monitor fundamental rights from a bird’s eye view, without a feasibility test. In societies that define individuals as worthy members of society if they work and earn enough money, individuals tend to define themselves in this way. Employment is therefore the test of worth in society and for individuals. This may be one of the reasons why the ageing population and the vulnerable and disabled are seen as a burden. However, younger adults face enormous problems, they too may be unable to work, impaired and vulnerable.

She highlighted that private autonomy, self-determination, and dignity are driving principles used in many countries, more specifically in the context of living and dying wills. However, their qualification shows a wide variety. As the EU Proposal aims at guaranteeing EU-wide recognition, clarification of what exactly ought or ought not to be recognized would be most useful.

Professor Verschraegen’s presentation was followed by a lively discourse on the complexities of the protection of vulnerable adults in cross-border settings. The event was concluded with closing remarks by Professor Florian Heindler (Sigmund Freud University, Vienna).

Over the course of the conference, the consensus emerged that the legal protection of vulnerable adults, specifically in Central and Eastern Europe, remains a highly topical issue with meaningful developments to be expected both on a substantive and a conflict-of-laws level. In this context, new questions raised during the discussions may have already foreshadowed future publications and conferences.

Justin Borg-Barthet, Katarina Trimmings, Burcu Yüksel Ripley and Patricia Živković, from the University of Aberdeen, have accepted the invitation of the editors of the blog to present their co-edited book, titled ‘From Theory to Practice in Private International Law: Gedächtnisschrift for Professor Jonathan Fitchen’, published by Bloomsbury Publishing. The text below is cross-posted on Conflictoflaws.net.

When our colleague and friend Prof Jonathan Fitchen passed away on 22 January 2021, we were comforted in our grief by an outpouring of messages of condolence from private international lawyers around the world. We had known, of course, of the impact and importance of Jonathan’s work to the world of private international law scholarship. His monograph on authentic instruments, for example, will remain an essential reference on that subject for many years to come. Jonathan’s impact on the world of private international law scholars was, to a degree, less obvious. He was an unassuming man. He did not seek to command the attention of every gathering he attended, and he might have been surprised to realise how often he did just that. He was tremendously well-liked and well-respected for his wit, his self-deprecating sense of humour, and his empathy.

This book seeks to capture in it some of the immense esteem in which Jonathan was held. That much will of course be of interest to the many scholars and practitioners who had the privilege of Jonathan’s acquaintance. The intellectual generosity of the contributing authors will ensure, however, that this volume will also be of great value to those who encounter Jonathan for the first time in these pages. Taken together, the chapters in this book address the major conceptual and practical challenges of our time: from stubborn definitional dilemmas, such as the deployment of key terms in international child abduction cases, to contemporary concerns about disruptive technologies like cryptocurrencies, to core conceptual challenges regarding the unintended consequences of our discipline’s professed neutrality.

The collection is divided into three main parts. Following a preface in which Prof Xandra Kramer paints a vivid picture of Jonathan’s humanity, humour and wit, and an introduction by ourselves as the editors, Part I includes four chapters which address conceptual matters relating to the nature and scope of private international law. Part II is made up of seven chapters concerning civil and commercial matters in private international law. Part III includes two chapters on family matters in private international law.

Part I: The Evolving Nature and Scope of Private International Law

The first substantive chapter is a tour de force by Alex Mills in which he explores the unsettled relationship between private international law and legal pluralism. Mills observes that private international law is both a product and producer of pluralism, in addition to being internally pluralist in its self-conception. Mills’ analysis will be of great interest to readers seeking to discern private international law’s place in the taxonomy of the study of law, whether they are observing that taxonomy from the perspective of a comparatist, a conflicts scholar, or a public international lawyer.

The following chapter also engages with the problem of pluralism in private international law. Thalia Kruger focuses specifically on mediated settlements with a view to illuminating their meaning for the purposes of transnational law. Kruger does a wonderful job of building on Jonathan Fitchen’s work by providing technical and normative analysis of the public faith to be accorded to private agreements. Ultimately, she welcomes a movement towards the upholding of settlement agreements but cautions against potential abuse of vulnerable parties.

The problem of vulnerability is the central focus of the next chapter, by Lorna Gillies. Gillies provides robust, systematic analysis of the theory and practice of our discipline’s treatment of vulnerable parties. This is, of course, one of the central problems in a discipline whose professed neutrality is capable of furthering and entrenching inequalities. Gillies argues persuasively that the application of Fredman’s four pillars of asymmetrical substantive equality would equip private international law better to address inherent risks of vulnerability.

Asymmetries of private power remain the focus of discussion in the following chapter on the under-explored relationship between our discipline and feminist scholarship, authored by two of the editors. Justin Borg-Barthet and Katarina Trimmings set out to contribute to a nascent discussion about sex-based vulnerability and how this is (un)seen by much of the literature and law. It is argued, ultimately, that private international law requires more sustained engagement with feminist scholarship if it is to avoid acting as an instrument for the entrenchment of substantive inequalities.

Part II: Civil and Commercial Matters in Private International Law

Unsurprisingly, given the focus of much of Jonathan Fitchen’s written work, Part II on civil and commercial matters makes up around half of the volume. It begins with Andrew Dickinson’s meticulous analysis of the meaning of “damage” in EU private international law. Dickinson notes that, despite the central importance of the term to the operation of much of EU private international law, there is little clarity as to its meaning. His chapter sets out to remedy this shortcoming through the articulation of a hitherto undeveloped taxonomy of “damage” which promises to become an essential tool in the arsenal of students, teachers, practitioners, and adjudicators of private international law.

Another editor, Burcu Yüksel Ripley, authored the next chapter, which addresses cryptocurrencies. Our discipline’s continued preoccupation with definitional clarity remains very much in evidence in this discussion of challenges posed by disruptive technologies. Yüksel Ripley notes that attempts to characterise cryptocurrencies as a thing/property are unsatisfactory in principle, and that they therefore lead to conceptually unsound outcomes. She proposes instead that analogies with electronic fund transfers provide more promise for the determination of the applicable law.

In the next chapter, by Laura Carballo Piñeiro, the volume returns to another major theme of Jonathan Fitchen’s scholarly output, namely the effectiveness of collective redress mechanisms. Carballo Piñeiro observes that access to justice remains restricted in most jurisdictions, and that a common EU approach remains lacking. Although the courts have provided some routes to collective redress, Carballo Piñeiro argues that a robust legislative response is paramount if corporate accountability for environmental harm is to be realised in Europe.

Private international law’s ability to engage with concerns regarding environmental sustainability remains a key focus of analysis in Carmen Otero García-Castrillón’s chapter concerning the discipline’s place in international trade agreements. The chapter advocates the bridging of an artificial systemic separation between the private and the public in the international system. It is argued that the extent of private power in the international system merits attention in trade agreements if sustainable development goals are to be attained.

Giesela Rühl also addresses concerns regarding private international law’s ability to be deployed in matters which are traditionally reserved to public and public international law. Her chapter considers innovations introduced through the German Supply Chain Due Diligence Act (Lieferkettensorg-faltspflichtengesetz – LkSG) which establishes mandatory human rights due diligence obligations in German companies’ international supply chains. Rühl laments the lack of attention paid to private international law in German law. She makes an especially compelling case for any future EU interventions to recognise the need to engage with private international law if legislation is to be effective.

The uneasy public-private divide in transnational law remains in evidence in Patricia Živković’s chapter concerning what she describes as “creeping substantive review” in international arbitration. Živković decries a lack of conceptual clarity in courts’ treatment of arbitral determinations, particularly insofar as public policy is deployed as an instrument of substantive review of private adjudication. She argues that international legislative intervention is needed if prevailing inconsistencies of treatment are to be resolved.

Fittingly, Part II is rounded off with a discussion of that part of private international law to which Jonathan Fitchen made his most enduring scholarly contribution, namely authentic instruments. Zheng Tang and Xu Huang discuss authentic instruments in Chinese private international law. Like Jonathan’s work, this chapter provides readers of English language scholarship with a rare example of in-depth analysis of concepts which are unfamiliar in the Anglo-American tradition. The chapter’s compelling arguments for legal refinements will also be of use, however, to readers who wish to identify possible improvements to Chinese law.

Part III: Family Matters in Private International Law

The final part of the book turns to family law, an area in which Jonathan provided ample instruction to students, but which was not especially in evidence in his written work. In keeping with the previous parts of the book, our discipline’s need for definitional clarity and consistency are very much apparent in the chapters in this part, as is the somewhat existential concern regarding the proper delineation of the public and the private. As the authors in this part observe, each of these matters has far-reaching effects on the apportioning of rights and obligations in circumstances which are deeply meaningful to the lives of litigants.

Aude Fiorini’s chapter considers flawed reasoning in the US Court of Appeals judgment in Pope v Lunday. Fiorini illustrates the substantive flaws in the Court’s treatment of the habitual residence of neonates, but also highlights a broader concern regarding the potential for unconscious bias in judicial decision-making. Through the judgment in Pope, Fiorini raises alarms regarding inconsistent judicial treatment of similar situations which turn on appreciation of circumstances establishing the habitual residence of a child. She argues, particularly compellingly in our view, that the interests of justice require greater conceptual clarity and consistency.

In the final chapter, by Anatol Dutta, the interactions of the public and the private return to the fore. Taking his cue from Jonathan Fitchen’s work on authentic instruments, Dutta explores the concept of private divorce under the Brussels IIter Regulation. Concerns regarding decisional autonomy are very much in evidence in this chapter, which considers the meaning of private divorces and the extent to which they enjoy recognition in the EU private international law system. Ultimately, Dutta welcomes measures which restrict private divorce tourism in the EU.

Conclusions

This book was born of a collective wish to remember and honour a much-loved scholar of private international law. In that, we trust that it has already fulfilled its purpose. However, each chapter individually and the book taken as a whole also capture the state of the art of private international law. Ours remains a discipline in search of systemic normative clarity and in episodic need of technical refinement. This collection provides tantalising glimpses of possible answers to both the essential question of the treatment of the private in the attainment of public goods, and in relation to longstanding vexing technical questions.

To preserve and further Jonathan Fitchen’s legacy as an educator of private international lawyers, editorial royalties from the sale of the book will be donated to the Jonathan Fitchen Fund of the Development Trust at the University of Aberdeen. Direct individual donations to the fund are also welcome and appreciated.

This post was written by Silvia Marino, Professor of EU law at the University of Insubria in Como, and Director of the EAPIL Winter School.

The first edition of the EAPIL Winter School in European Private International Law took place at the Department of Law, Economics and Cultures of the University of Insubria in Como from 12 to 16 February 2024.

The five-day course was organized by the University of Insubria in partnership with the University of Murcia, the Jagiellonian University in Kraków and the J.J. Strossmayer University of Osijek. Financial support was provided by the International Insubria Summer/Winter Schools programme and through a Jean Monnet Module named “European Private International Law: Recent Trends and Challenges” (EuPILART).

The School’s programme, set out by a dedicated EAPIL Working Group consisting of Javier Carrascosa González, Silvia Marino and Anna Wysocka-Bar, addressed a broad range of concerning Personal Status and Family Relationships.

Thirty people, coming from Belgium, Germany, Italy, Panama, Poland, Portugal, Romania, Spain, Turkey, the United Kingdom and Ukraine, attended the School. Most were either PhD students with an interest in European Private International Law or young practicing lawyers.

12 February

Camelia Toader, former Judge at the Court of Justice of the European Union, and Ioan-Luca Vlad, attorney at law, kicked off the Winter School with an introductory lecture on cross-borders families and the free movement of persons within the EU. They discussed the historical development of the law in this area, the relevance of judicial cooperation to the enjoyment of fundamental rights and the freedom of movement enshrined in EU law. They stressed the need for a uniform and coherent set of rules of private international law governing the broad range of issues that cross-border families experience in practice.

Pietro Franzina, Professor of International Law at the Catholic University of Sacred Hearth in Milan, provided an overview of the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union, delving into their mutual relationships and their impact on private international law. He noted that human rights concern may require, depending on the circumstances, that private international law rules.

In the afternoon, Satu Heikkilä, lawyer and non-judicial Rapporteur at the European Court of Human Rights, went through the case law of the Strasbourg Court relating to Article 8 of the European Convention on Human Rights, which enshrines the right for respect of private and family life.

Special attention was devoted in her lecture to the concern for continuity of personal and family status across national borders and the rulings of the Court that address that concern.

13 February

Day two started with a discussion with participants aimed to identify the main problems faced by cross-borders families in Europe, moderated by Silvia Marino. The attendees exchanged views on what they perceived to be the most relevant challenges. The discussion put the bases for the closing workshop scheduled for day five, aimed to assess whether the current rules of private international law in force in the EU properly address such challenges.

Michael Wilderspin, former Legal Advisor of the European Commission, discussed the concept of mutual recognition, as understood in EU law for the purposes of free movement and in the context of private international law. The lecture presented the relevant case law of the Court of Justice of the European Union.

In the afternoon, Anna Wysocka-Bar, Senior Lecturer at the Jagiellonian University, offered a comparative overview of some European Countries legislations on sex reassignment and went through the pertinent case law of the European Court of Human Rights and the Court of Justice of the European Union.

Katja Karjalainen, Senior Lecturer at the University of Eastern Finland, examined the issues that surround the protection of vulnerable adults in cross-border situations, stressing the importance of cooperation among States in this area, notably in light of the 2000 Hague Convention on the Protection of Adults.

14 February

On day three, Laura Carpaneto, Associate Professor at the University of Genova, provided an overview of the provisions on parental responsibility in the Brussels II ter Regulation. She also introduced the issue of surrogacy, especially in light of the ongoing Parentage Project at the Hague Conference of Private International Law.

Ester di Napoli, Research Fellow at the University of Ferrara,  discussed a number of issues relating to adoption, covering both inter-country adoption and the recognition of foreign adoption decrees. Starting from a human rights perspective, she focused, in particular, on the 1993 Hague Convention and the issues raised by its practical operation.

Cristina González Beilfuss, Full Professor at the University of Barcelona, addressed the sensitive issue of surrogacy. She shared some inspiring views on parenthood grounded on non-genetic ties, and outlined the policies that are likely to shape any harmonisation effort in this area through EU  legislation.

Finally, Nadia Rusinova, attorney at law in the Netherlands and in Bulgaria, presented the topic of child abduction. She discussed a practical case showing the interplay of the 1980 Hague Child Abduction Convention, the 1996 Hague Child Protection Conventions and the Brussels II ter Regulation.

15 February

Day four started with a lecture by Etienne Pataut, Full Professor at the Paris 1 – Sorbonne University, on Acceptance and recognition of personal status. He discussed the relationship between the European Union and the International Commission on Civil Status, stressing the important role played by the latter and the potential of continuing cooperation between the two.

Ian Summer, Judge and Full Professor at Tilburg University, addressed the cross-border recognition of marriages and registered partnerships. He provided a comparative overview before encouraging participants to discuss in groups about the issue of recognition in cases involving unknown legal institutions.

Máire Ní Shúilleabháin, Associate Professor at the University College of Dublin, focused on cross-border separations and divorce, in light of the 1970 Hague Convention on the Recognition of Divorces and Legal Separations, the  Brussels II ter Regulation and Rome III Regulation, in light domestic and European case law.

The closing lecture of the day,  by Javier Carrascosa González, Full Professor at the University of Murcia, dealt with remedies against infringements to rights of personality. The focus was on the interaction of family law rules with tort law, and the potential of the latter for the protection of indivudals from the violation of rights related to private life.

16 February

Day five started with three parallel sessions. The first one, on The recognition of unknown family status: the pillar cases: Coman, Pancharevo and beyond, was chaired by Anna Wysocka-Bar; the second one, on The right to name according to ECtHR and CJEU case-law, was guided  by Silvia Marino; Javier Carrascosa González led the discussion on The notion of habitual residence: comparing HCCH and EU systems.

Participants were invited to choose among the three and take part in the discussion, based, among other things, on reading materials that had been shared before the start of the Winter School.

Raffaele Sabato, judge at European Court of Human Rights, held the final lecture. He illustrated the key principles arising from the case law of the European Court of Human Rights on the right to respect for private and family life, and discussed the need for private international law rules that reflect the evolving notion of family and the emerging challenges faced by people on the move.

— The topic of the next edition of the EAPIL Winter School will be announced in the coming weeks. Stay tuned!

By a decision of 21 December 2023, the Danish Supreme Court held that a Swedish default judgment concerning a loan agreement could not be enforced in Denmark on the ground that the service procedure that preceded the judgment was inadequate in an international situation.

Background

In 2014, a Swedish bank filed a plaint in a Swedish court to sue a debtor for not fulfilling a loan agreement. As the defendant did not appear after the court had fulfilled the Swedish standards for service of documents, a default judgment was rendered. In 2022, the bank asked the Swedish court for a certificate under Article 53 of the Brussels I bis Regulation. With that certificate, the bank sought enforcement of the Swedish default judgment in a Danish court. Both the Danish court of first instance and the Danish court of appeal held that the Swedish judgment was enforceable in Denmark under the Brussels I bis Regulation. However, the Danish Supreme Court came to a different conclusion.

Decision

First, the Danish Supreme Court found that the lower instances’ application of the Brussels I bis Regulation was wrong as the Swedish proceedings had been initiated before 15 January 2015. Under Article 66 para. 1 of the Brussels I bis Regulation, it is the older Brussels I Regulation that applies for matters initiated before that date. Here, it can be noted that both regulations are applicable in Denmark despite Denmark’s special status in EU’s civil law cooperation due to a parallel agreement between the EU and Denmark.

The exceptions to the rule on presumption for enforcement of judgments from other member states in Article 45 follow from Articles 4 and 35 in the Brussels I Regulation. Article 34 para. states that it is a ground for refusal that a default judgment has been rendered without the defendant having been duly served. With reference to the CJEU’s judgments C-327/10, Hypoteční banka, EU:C:2011:745, and C-292/10, Cornelius de Visser, EU:C:2012:142, the Danish Supreme Court held that the Brussels I Regulation requires a court to investigate the domicile of the defendant to fulfil its service obligations. Though the domicile of the defendant was unknown to the Swedish court, it was clear to that court that the defendant was a Danish citizen. Nonetheless, the Swedish court made no investigations into whether the defendant was domiciled there. Consequently, the Danish Supreme Court held that the Swedish default judgment may not be enforced in Denmark.

Comment

The Danish Supreme Court decision is a good example of the practical application of the “principles of diligence and good faith” that the CJEU set as a standard for the investigations that a court must perform to trace a defendant. To investigate whether a defendant has regained domicile in a country where he or she is a citizen or to which he or she has a strong connection is probably an absolute minimum requirement.

Even if the presumption for recognition and enforcement has been changed between the old Brussels I Regulation and the Brussels I bis Regulation, it is noteworthy that the same ground for recognition exists also in Article 45 (1)(b) of the Brussels I bis Regulation.

A on online conference on the international recovery of maintenance by public bodies is set to take place on 15 May 2024, between 2 and 5 pm CEST, hosted by the German Institute for Youth Services and Family Law (DIJuF).

The event concept is as follows.

The Child Support forum is pleased to invite every interested stakeholder to an open conference deepening the topic of cross-border maintenance recovery by public bodies.

Due to the increase in international mobility of families, the need for immediate child support in case of default of maintenance payment is growing. This support often consists of advance maintenance payments granted by public authorities, which then must be reimbursed by the debtor. The enormous sums of money that states spend on these benefits make the cross-border enforcement of maintenance by public bodies an important political issue. 

The first three meetings of the Child Support Forum showed that there is a great need for exchange between the public bodies. On the one hand, they face different hurdles in enforcing their claims due to the diversity of the maintenance support systems. On the other hand, common problems were also identified. The results of this work will be presented.

In a future perspective, it is clear that the tension between the need for more support for children, for an effective recovery of maintenance against debtors, and debtor protection is growing. It will be interesting to discuss to what extent the States make the grant of benefits dependent on the legal possibilities for reimbursement. For example, in the light of the text of the 2007 Convention and of the EU-Maintenance Regulation, public bodies currently have less support from Central Authorities when they seek reimbursement of maintenance support than children do when they claim child maintenance. Thus, the question arises as to whether debtor protection still justifies this legal situation and how maintenance debtors can be protected from double claims when it is no longer the child alone but a public body that seeks the recovery of maintenance payments.

The conference will mark the end of a series of three seminars on the topic of maintenance recovery by public bodies and is intended to provide insight into its socio-political and legal aspects as well as a unique opportunity for exchange with experts from different fields (academics, Central Authorities, public bodies from different countries). 

The conference program can be found here. Attendance is free, but prior registration (here) is required.

The first issue of the Journal du droit international for 2024 has been released. It contains two articles and several case notes relating to private international law issues.

In the first article, Héloïse Meur (Paris VIII University) analyses new French provisions on PIL aspects of unfair commercial practices (Entre la lettre et l’esprit de la loi EGALIM 3, quel avenir pour le droit international privé du « petit » droit de la concurrence ?).

The English abstract reads:

For the first time, the French Lawmaker enacted provisions related to private international law aspects of unfair commercial practices law. Article 1 of the law of 30 March 2023 to strengthen the balance in commercial relations between suppliers and distributors, known as the “EGALIM 3” or “Descrozaille” law, states that the rules related to restrictive practices and price transparency apply “to any agreement between a supplier and a buyer relating to products or services marketed on French territory. These provisions are a matter of public policy. Any dispute relating to their application falls within the exclusive jurisdiction of the French courts, subject to compliance with European Union law and international treaties ratified or approved by France, and without prejudice to recourse to arbitration”. This provision would make it possible to fight the circumvention strategies of large retailers, which consist in setting up purchasing entities abroad and concluding choice of law and choice of forum clauses to avoid the application of the provisions of the French Commercial Code. However, by refusing to refer to traditional concepts of private international law such as the overriding method of mandatory provisions (“lois de police”), the French lawmaker leaves open the question of the impact of the amendments on positive private international law and further adds to the important legal uncertainty in this field of law. This paper proposes to analyse the causes of these omissions to hope to guarantee more legal certainty for international contracts in general and distribution contracts in particular, contracts initially targeted by unfair trading practices law.

In the second article, Alejandra Blanquet (Paris-Est Créteil University) examines the difficult coordination between kafalaand adoption in cross-border context following a Franco-Spanish comparative perspective (L’articulation entre kafala et adoption : le cas espagnol et ses enseignements pour le droit international privé français).

The English abstract reads:

The adoption of children with ‘personal prohibitive status’ is forbidden by way of law in Spain and France. It results in any gateway between kafala, and adoption being closed. However, the firmness of this statement must be qualified. Indeed, by retaining a soften approach of it some Spanish Audiencias provinciales have recently allowed certain kafalas to become adoptions. This new approach is based on a selective gateway opened to judicial kafalasconstituted in respect of makfouls abandonned in their home country. This kind of kafalas may therefore, in some cases, become adoptions. This mechanism does not mean that the statutory prohibition is repealed but confirms the extent to which its force may be subject to modulations in order to avoid the excessiveness in which its strict implementation may result in some cases. The selective gateway requires the best interest of the child to be assessed in concreto and invites the judge to analyse, and if necessary to relativise the effects of an international “flawed” adoption. Thus, the Spanish example shows that the discussion on the link between kafala and adoption is far from being over and offers new perspectives for analysing the question in both Spanish and French Law.

The table of contents of the issue can be accessed here.

The Supreme Court of Greece (Areios Pagos) ruled on 22 March 2023 on the validity of a choice of forum agreement concluded between a bank and its clients (Areios Pagos, ruling No. 441/2023).

The key issue in the dispute was whether the bank’s clients ought to be characterised as ‘consumers’ for the purposes of the Brussels I bis Regulation.

First Instance Proceedings

Four natural persons, all domiciled in Thessaloniki, brought proceedings in Thessaloniki against a Cypriot bank, seeking compensation for damages suffered as a result of an investment made through the bank. According to the bank, it was a rather secure investment proposal.  The claimant’s expression of interest had been filed with the Thessaloniki branch of the Cypriot bank.

The bank challenged the jurisdiction of the seised court. It relied for this on a clause conferring jurisdiction on Cypriot courts, featured in documents which the bank and its clients had exchanged in preparation of the investment.

Strangely enough, the claimants did not submit a reply to the challenge, and simply failed to produce any supplementary pleadings. As a result, the court of first instance of Thessaloniki upheld the challenge and declined jurisdiction.

Appeal Proceedings

The four clients lodged an appeal against the judgement with the Court of Appeal of Thessaloniki. They claimed that they concluded the contracts as consumers, and that the terms and conditions relied upon by the bank, including the choice-of-court clause, were abusive.

The appeal was dismissed on the ground that, at first instance, the clients had failed to take a stance on the bank’s plea of lack of jurisdiction, and had failed to challenge the validity of the bank’s terms and conditions based either on the Greek legislation on consumer protection, or on Article 15 of the Brussels I bis Regulation. The Court of Appeal stressed that, according to Greek procedural law, a failure to raise the above issues at first instance entails that a later challenge is foreclosed.

Supreme Court Proceedings

The Supreme Court reversed the judgement. It began by observing that the clients ought in fact to be characterized as consumers. It then held that the failure to examine ex officio the abusive nature of the choice of forum clause was not a sufficient ground to quash the judgment. In fact, the Supreme Court agreed with the Court of Appeal that the alleged unfairness of a bank’s terms and conditions is not an issue that a first instance court is required, or permitted, to raise by its own motion. The clients only raised the point in the proceedings before the Court of Appeal, which they are barred to do pursuant to Article 527 of the Code of Civil Procedure.

That said, the Areios Pagos held that the Court of Appeal had erred in relying on the (uncontested) plea made by the bank that Greek courts lacked jurisdiction, instead of assessing whether an agreement conferring jurisdiction on Cypriot courts had in fact been entered int between the parties. The Supreme Court observed that the lower courts contented themselves to infer the existence of such an agreement from the fact that the clients failed to reply to the bank’s assertion (an implicit confession within the meaning of Article 261(2) of the Greek Code of Civil Procedure, even though no express reference to that provision had been made by the bank).

Incidentally, the Supreme Court denied the four clients’ request to submit a reference to the Court of Justice of the European Union for a preliminary ruling. It did so on the grounds that the unfairness of a contractual term cab only be assessed against the circumstances existing at the time of the conclusion of the contract and in light of the other clauses of the contract. It  is for the consumer to provide evidence of such circumstances, and he must do so in the manner prescribed by the applicable procedural rules.

Remarks

The Supreme Court’s assertion whereby the unfairness of a term is not something a court may assess of its own motion, where the consumer failed to raise the issue of unfairness and to provide evidence of the circumstance in which the contract was concluded, demonstrates the need for enhanced dissemination of the case law of the Court of Justice among domestic judicial authorities.

In fact, the Areios Pagos did not mention, let alone discuss, a single ruling of the Court of Justice relating to the seised court’s power to intervene by its own motion for the sake of protecting the rights of consumers. The Court of Justice has already addressed issues in this connection and is witnessing a number of new preliminary references concerning the topic. Especially in regards to ex officio control on second instance, one could refer to the the cases Eva Martín Martín v EDP Editores SL , Erika Jőrös v Aegon Magyarország Hitel Zrt., and Dirk Frederik Asbeek Brusse and Katarina de Man Garabito v Jahani BV.

Finally, some thoughts on the claimants’ alleged tacit approval of the choice of forum clause relied upon by the bank. How could someone assert that a claimant who chose to file an action before a certain court, and has already pleaded on the merits of the case, is later tacitly accepting the lack of that same court’s jurisdiction? One might speculate that the lawyers for the claimants simply forgot to file their brief to contest the plea of the bank: a failure that eventually decided the fate of the claim. This is one reason why courts should be permitted some activism, overcoming the inflexible procedural autonomy that Member States enjoy.

Still, it takes two to tango. By dismissing the request of the claimants for a preliminary reference to the Court of Justice, the Greek Supreme Court shows its reluctance to cooperate and contribute to the consolidation of European Procedural Law.

The seventh edition of the French leading treatise on the European law of jurisdiction and foreign judgments in civil and commercial matters (Compétence et exécution des jugements en Europe – Règlements 44/2001 et 1215/2012 – Conventions de Bruxelles (1968) et de Lugano (1988 et 2007)) has just been published.

It is authored by Emeritus Prof. Hélène Gaudemet-Tallon and Prof. Marie-Elodie Ancel (both Paris II University).

The blurb reads:

Les textes étudiés dans cet ouvrage – Convention de Bruxelles du 27 septembre 1968, règlements 44/2001 et 1215/2012 – portent sur la compétence directe ainsi que sur la reconnaissance et l’exécution des décisions ; ils doivent assurer la réalisation d’un véritable « espace judiciaire européen » en matière civile et commerciale. Le règlement 1215/2012 (dit Bruxelles I bis) a apporté des modifications substantielles au règlement 44/2001. L’application de ces textes est guidée par une riche jurisprudence de la Cour de justice de l’Union européenne.

Dans le cadre de l’AELE, les Conventions de Lugano de 1988, puis de 2007, ont adopté des systèmes « parallèles », d’abord à la Convention de Bruxelles de 1968 puis au règlement 44/2001. La Convention de 2007 est en vigueur entre tous les États de l’Union européenne, la Norvège, l’Islande et la Suisse.

Cette septième édition, tenant compte de l’évolution des textes et de la jurisprudence ainsi que de la sortie du Royaume-Uni de l’Union européenne, a pour ambition d’être utile non seulement aux universitaires (étudiants et enseignants) s’intéressant au droit international privé européen, mais aussi aux praticiens (magistrats, avocats, notaires) qui appliquent ces textes.

More details are available here.