EAPIL blog

On 14 and 15 May 2022 the EAPIL Young Research Network has successfully held a conference on Jurisdiction Over Non-EU Defendants – Should the Brussels Ia Regulation be Extended? in Dubrovnik, Croatia.

The event, which was organized by Tobias Lutzi (University of Cologne), Ennio Piovesani (University of Torino), and Dora Zgrabljić Rotar (University of Zagreb), with the generous support of the Faculty of Law of the University of Zagreb, the Croatian Ministry of Science and Education, and the European Commission in Croatia, brought together around 30 scholars from all around Europe (and beyond) to discuss the findings from the Young Research Network’s third research project.

As such, the conference started with a presentation of the project’s Comparative Report, which the organizers had compiled on the basis of a total of 17 national reports on the domestic provisions on international jurisdiction in the EU Member States. It was followed by two panels, in which the national reporters discussed specific aspects of their respective national laws. The first panel, which was chaired by Tess Bens (Tilburg University), focused on the influence of the Brussels regime on the national laws of the Member States and included contributions from Stefano Dominelli (University of Genoa), Dafina Sarbinova (Sofia University “St. Kliment Ohridski”), and Benjamin Saumier (University of Paris 1 Panthéon-Sorbonne). The second panel, which was chaired by Vassiliki Marazopoulou (Hellenic Energy Exchange), on the other hand, focused on features of the national laws on international jurisdiction that are peculiar to only certain legal systems and contained contributions from Giedirius Ožiūnas (Mykolas Romeris University), Ioannis Revolidis (University of Malta), and Anna Wysocka-Bar (Jagiellonian University).

These first three panels, which were all focused on the comparative part of the project, provided the basis for a wider discussion of the desirability of extending the Brussels Ia Regulation to defendants not domiciled in the EU, potentially at the expense of the national rules on international jurisdiction. Professors Ronald Brand (University of Pittsburgh), Burkhard Hess (MPI Luxembourg), and Margherita Salvadori (University of Torino) all agreed that there was a lot to be said in favour of such an extension, albeit with different emphases. Johannes Ungerer (University of Oxford) and Marko Jovanović (University of Belgrade) were more cautious in their remarks, which focused on the prespectives of non-EU countries.

The conference concluded with a talk by Ning Zhao (HCCH), who presented the work of the Hague Conference on international jurisdiction and discussed its interplay with a possible extension of the Brussels Ia Regulation.

Over the two days of the conference, there appeared to emerge a strong consensus that although the comparative work of the research project provided an excellent basis for the necessary discussion of whether or not the Brussels Ia Regulation should be extended to non-EU defendants, more work needed to be done on the implications on recognition and enforcement of any reform of the Regulation. Thus, the Dubrovnik conference – the contributions to which will be published together with the comparative and national reports will be published later this year by Hart Publishing – marked not only the end of the current project of the Young Research Network but may have also already foreshadowed its next one.

On 12 May 2022, the Court of Justice handed down the judgement in the WJ case (C-644/20) interpreting the Hague Protocol of 2007 on the law applicable to maintenance. The case revolved around the determination of the habitual residence of a creditor in the context of a child abduction.

AP and WJ are Polish nationals who were residing in the UK, where their two children were born. In 2017 AP went to Poland together with children. Later she has informed WJ that she wanted to remain with children in Poland. WJ did not agree. In 2018 the children, represented by AP, claimed monthly maintenance payments from WJ before the Polish court. WJ appeared before this court without objecting to its jurisdiction. That court ordered him to pay to each of his children a monthly maintenance payment in accordance with Polish law. WJ brought an appeal against the judgment before the regional court. In the meantime, the same court ordered the return of the children to the UK, pursuant to the Hague Child Abduction Convention, was as they have been retained unlawfully in Poland and that their habitual residence immediately before that retention was in the UK. EJ appealed the maintenance order.

In accordance with Article 3(1) of the Hague Protocol, maintenance obligations are governed by the law of the State of the habitual residence of the creditor. However, pursuant to Article 3(2) Hague Protocol, in the case of a change in the habitual residence of the creditor, the law of the State of the new habitual residence shall apply as from the moment when the change occurs.

The Polish court had doubts as to whether a child might be considered for the purpose of applying Article 3 of the Protocol as being habitually resident in Poland, a country in which the child was wrongfully retained as confirmed by the decision ordering child’s return to the UK. Hence, it decided to consult the Court of Justice of the EU on that matter.

It is worth noting that the creditor in this case, in accordance with domestic rules on civil procedure, is a child represented by one of parents, namely the mother. Similarly, for the purpose of Article 3(1) of the Protocol, the habitual residence of a child was being discussed. The question who is a creditor in case of a minor child is not uniformly understood in all EU Member States (for details see: the recent position paper of the EAPIL Working Group on Maintenance prepared at the request of the HCCH Special Commission on Maintenance, para. 15-17).

The Court of Justice made some general remarks on the notion of habitual residence serving as a connecting factor in many EU and HCCH instruments, as well as referring to its previous judgments (for example, in Mölk case, C‑214/17). Then, the Court decided to rely on the explanatory report to the Hague Protocol. Point 37 of this report, which was cited by the Court of Justice of the EU, reads as follows

This connection offers several advantages. The main one is that it allows a determination of the existence and amount of the maintenance obligation with regard to the legal and factual conditions of the social environment in the country where the creditor lives and engages in most of his or her activities. As rightly noted by the Verwilghen Report, “[the creditor] will use his maintenance to enable him to live”. Accordingly, “it is wise to appreciate the concrete problem arising in connection with a concrete society: that in which the petitioner lives and will live”.

Hence, in the view of the Court of Justice, the assessment of the habitual residence of a child must consider factual circumstances. Assuming that a return decision handed down pursuant to HCCH Child Abduction Convention might be an obstacle to the conclusion that a child is habitually resident in a state to which the child was abducted, would be contrary to the aim of Article 3 Hague Protocol, as well as principle of the best interest of a child.

Given the above the Court of Justice has rightly decided that a child may acquire a new habitual residence in the state in which the child was wrongfully retained, even if the court of that state orders the return of the child to the state in which the child habitually resided immediately prior to the wrongful retention.

In his PhD thesis Normen als tatsächliche Umstände (Rules as factual circumstances), published in 2021, Alexander Kronenberg analysis how overriding mandatory provisions (OMPs) can be considered at the level of substantive law and how this practice relates to Article 9 of the Rome I Regulation. The thesis examines this question against a comprehensive evaluation of case law and literature. It offers its own explanatory approach as well as a method for the consideration of OMPs within substantive law.

The question how non-forum OMPs should be dealt with has been keeping courts busy for quite some time. The highest judicial ruling on this issue came from the CJEU in Nikiforidis. A more recent case, decided by the Higher Regional Court of Frankfurt (16 U 209/17), concerned an airline’s refusal to carry an Israeli national through a Kuwaiti airport, which it the court’s view was not a breach of contract given the Kuwaiti boycott against Israel. The war in Ukraine and the accompanying sanctions imposed by various states equally raise the question of the extent to which sanctions adopted by other, friendly states can be taken into account under the applicable contract law.

The thesis is thus highly topical. The author describes the content as follows:

Foreign OMPs have been subject to academic debate for a long time. Under the regime of the Rome I Regulation on the law applicable to international contracts, the CJEU’s Nikiforidis judgment of 18 October 2016 (C-135/15) was an important milestone with respect to the interpretation of Article 9 Rome I Regulation, the central provision on OMPs in international contract law. The Court held that Art. 9(3) of the Rome I Regulation is to be interpreted as meaning that OMPs other than those of the forum or those of the lex loci solutionis can neither be applied nor be given effect, as legal rules, by the court of the forum. However, this does not preclude a Member State court from, in the words of the Court, taking such other OMPs “into account as matters of fact in so far as this is provided for by the [applicable] national law”.

This “substantive law level consideration” (“sachrechtliche Berücksichtigung”) is the subject of this dissertation. The CJEU did not deal with the issue in further detail, as it concerns the substantive law of each state and not the European private international law rules. The dissertation develops an overall concept for taking foreign OMPs into consideration as a matter of fact within German substantive contract law.

The book first gives a brief overview of the phenomenon of OMPs and of the provisions and interpretation of Art. 9 of the Rome I Regulation and then moves on to establish that the CJEU was right in considering that Art. 9(3) of the Rome I Regulation bars foreign OMPs not enacted by the state of performance from being taken into account on the conflict-of-law level.

Having stated that a conflict-of-law level consideration of these OMPs is not possible, the book then deals with the possibility of taking them into account as matters of fact on the substantive law level. This type of consideration is in a first step described as being aimed exclusively at the factual circumstances caused by the OMPs in question. These can consist in their enforcement by the enacting state, in third parties essential to the performance of the contract respecting them, or in the influence on the freedom of action of the parties themselves. Because of the factual nature of the consideration, these OMPs cannot influence the legal outcome of a given case in a normative way. It is then demonstrated what this means from a methodological perspective: While applying the substantive law designated by the Rome I Regulation with recourse to the legal syllogism, the OMPs may only form part of the minor premise, which is factual in nature, and must be excluded from the, normative, major premise.

Construed in this factual sense, the taking into consideration of OMPs within the applicable substantive law is not prohibited by the European Rome I Regulation. This is, inter alia, substantiated with the consideration that the opposite approach, i.e., outright ignoring the existence and factual consequences of foreign OMPs while applying the substantive law would violate European fundamental rights.

The work then goes on to show that although the Rome I Regulation neither prohibits nor imposes the substantive law level consideration, this consideration nevertheless is required from the perspective of substantive law. Ignoring factual circumstances exclusively because they are the result of foreign OMPs would lead to an impairment of the functioning of the abstract and general provisions of substantive civil law, and thus, ultimately, to a violation of the principle of equality (Gleichheitssatz). Also, it would violate the fundamental rights of the German Grundgesetz.

Following these considerations, the book develops how the substantive law level consideration is carried out. To achieve this, German case law from the period before the Rome I Regulation came into force is analysed in depth. German courts had already previously resolved cases involving foreign OMPs by taking these OMPs into account within provisions of the applicable contract law. For example, they held that the factual consequences of OMPs could amount to a liberation of the debtor from his obligation due to impossibility, or that a contract which can only be performed by violating a foreign OMP can be void due to immorality.

The dissertation then analyses the so-called datum theory and shows that it is conceived as a way of taking into account unapplicable foreign law provisions as such, i.e., as norms. This theory is therefore discarded as a possible theoretical basis for the substantive law level consideration of OMPs, as this consideration must be exclusively factual.

The analysed case law is then examined for transferability to the Rome I regime. It is shown that the consideration via the immorality provision (§ 138 of the German Civil Code) is in fact a normative consideration of foreign OMPs and can therefore not be applied in cases under the Rome I Regulation. Therefore, alternative ways of resolving these cases under today’s law are developed. The work concludes with the presentation of additional provisions of German contract law that are suited for the substantive law level consideration and, until now, have not been present in German case law.

Alfonso-Luis Calvo Caravaca (University Carlos III of Madrid) and Javier Carrascosa González (University of Murcia), together with the other authors Silvia Marino (University of Insubria), María Asunción Cebrián Salvat (University of Murcia) and Isabel Lorente Martínez (University of Murcia), have edited a book titled European Private International Law, published by Comares.

The editors Alfonso-Luis Calvo Caravaca and Javier Carrascosa González provided for the following preface:

This work presents the updated content of current European private international law. It is, in fact, a book of law written by several authors from Spain and Italy: professors Alfonso-Luis Calvo Caravaca, Javier Carrascosa González, Silvia Marino, María Asunción Cebrián Salvat and Isabel Lorente Martínez.

This book is intended for anyone interested in studying and learning about the private international law system of the European Union. In this sense, it attempts to clearly explain the fundamental structures of this fascinating branch of law as well as to convey a series of interesting, intuitive, constructive and brilliant ideas that may set the course for the future.

This book understands EU private international law as a product of the culture of European society. European private international law is not a mere set of rules, a series of European regulations that come out of nowhere: it is a very important part of the (legal) culture of Europe; it is a cultural product that is part of European civilisation. In this sense, the authors believe in Europe and in the values that Europe has represented for more than two hundred years. We believe in Europe as an ideal of a free and diverse society made up of free and diverse people. This book is a tribute to freedom – to freedom of movement of persons, families, goods, capitals, companies and services, and also a homage to business freedom in a market economy. It is a tribute to private international law, which makes all these freedoms possible. Additional materials for the study of these subject matters, such as European case law and legislation, may be found at http://www.accursio.com/documentos1.php. The book includes beautiful artwork by illustrator Alessandro Sánchez Pennaroli, which helps to convey some of the key ideas contained in each chapter.

The authors would like to thank Umberta Pennaroli for the meticulous revision and translation into English of this work during the four years of its production. Special mention is also due to Silvia Marino, Professor of International Law and European Union Law at the Università dell’Insubria (Italy), who enthusiastically accepted to participate in this hazardous project. Many thanks also to Brian Mc Menamin for all his wise teachings on life and on the English language.

Where we are going we don’t need roads, said Doc Brown in the movie “Back to the Future”. Europe is moving towards a freer society. To achieve a freer world and a freer Europe we do not need roads: we need European private international law. This book is, in short, a hymn to freedom for Europe and to freedom for all people.

The preface, the table of contents and the acknowledgements can be accessed here.

The first meeting of the Special Commission on the practical operation of the 2007 Child Support Convention and on the 2007 Maintenance Obligations Protocol is due to be held on 17, 18 and 19 May 2022.

The purpose of the meeting, which is only open to delegates or experts designated by the Members of the Hague Conference on Private International Law, invited non-Member States and International Organisations that have been granted observer status, is to discuss a range of issues surrounding the interpretation of the two instruments mentioned above and their implementation in the domestic legal systems.

The Hague Conference, through its Permanent Bureau, has recently invited the European Association of Private International Law to take part in the meeting as an observer.

A Working Group has been immediately created for this purpose, formed by Alexandre Boiché (lawyer in Paris), Tena Hoško (University of Zagreb), Anna Nylund (University of Bergen), Francesco Pesce (University of Genova, Chair), Ian Sumner (Tilburg University), Lara Walker (Warwick University), and Anna Wysocka-Bar (Jagiellonian University).

In the space of just a few weeks the Working Group has prepared a position paper focusing on a selection of issues that the Special Commission plans to discuss. The provisional version of the paper, pending a review by the Scientific Council of EAPIL, is available here.

The conclusions reached by the Working Group are as follows:

I. The concept of marriage/spouse, being de jure included in the scope of application of the Convention, unlike other family relationships to which the Convention might apply by virtue of declaration under Art. 63 of the Convention, has a pivotal role in determination of the Convention’s scope. The main problem arises with reference to same-sex marriages. However, other relationships that could be equated to marriage in the national law of the State of origin, such as cohabitation, should also be considered. There are two potential options: (i) allow each Contracting State to define the concept based on its national law (so that differences between the law of the State of origin and the requested State can be faced accordingly) or (ii) find an autonomous definition of the concept; 

II. The concept of creditor: based on domestic experiences, it is clear that there are two opposing models concerning the formal ownership of the legal action. On the one hand, those systems where it is the child him/herself who qualifies as ‘creditor’ acting for the protection of his/her own interests, even if procedurally through an adult (parent) acting on his/her behalf. On the other hand, some State laws provide that a dependent child cannot be the creditor, so the action for the maintenance recovery is brought by the parent on his/her own behalf. It seems that a preference should be (uniformly) given to always granting a direct indication of the real creditor, even in case of a child.

III. The concept of residence: a more precise explanation seems to be appropriate on (i) the “minimum threshold” which can be requested (in addition to the negative definition which is fixed by the second sentence of Art. 9); and/or (ii) the fact that it should be possible for the applicant to be considered as resident in more than just one Contracting State, making him/her able to apply before different Central Authorities under Art. 9. 

IV. the (uniform) interpretation of Art. 4 of the Protocol, considering that the CJEU has explained how this provision should be interpreted when a maintenance debtor applies on the basis of a change in his income, for a reduction in the amount of maintenance awarded by a decision that has become final (see Mölk, C-214/17): considering that the CJEU’s interpretation is only binding for those Contracting States which are EU Member States, it would be necessary to discuss it with non-EU Contracting States, in order to understand how do they interpret this provision; 

V. The relationship between the 2007 Child Support Convention and the Lugano II Convention, as all EU Member States and Norway are parties to both instruments: the instruments seem to suggest different solutions, each pointing to the other one. Considering that Article 52 of the 2007 Child Support Convention allows creditors to select an instrument or arrangement that has more effective rules than the Convention, this could also be interpreted as giving the creditor the right to choose between the 2007 Child Support Convention and the Lugano II Convention. The principle of favor executionis should undoubtedly guide the choices of the court, where the convention to be applied is not directly indicated by the creditor/claimant. In the writers’ opinion, it would be appropriate to provide for a specific duty to inform creditors of the possibility to choose between the two instruments, in certain situations. 

The EAPIL blog will report in the coming days about the meeting of the Special Commission.

Guido Westkamp (Queen Mary Intellectual Property Research Institute) has posted In it for the Money? Academic Publishing, Open Access and the Authors’ Claim to Self-Determination in Private International Law on SSRN.

The abstract reads:

Open access research platforms are increasingly becoming the target of academic publishers claiming copyright infringement. Applicable law considerations are pivotal in such circumstances. The law governing the initial publishing agreement decides, ultimately, the extent to which rights have been transferred and the degree to which courts can exercise judicial control. Academic publishing differ significantly from standard copyright contracts. Academic authors remain customarily unremunerated and concurrently are expected to transfer all rights on an exclusive basis. Exclusivity thus eradicates the proliferation of open access platforms altogether. The article discusses the most relevant concerns that arise in private international contract law under the Rome I-Regulation as a matter of material justice. German substantive copyright contract law and the general principles affording protection to authors underpinning it, most importantly as regards the fundamental principle of equitable remuneration and its limits. The article dismisses the conventional approach as regards both contractual choices of law and the closest connection analysis and proposes, based on more subtle considerations of material justice as a relevant factor in modern EU private international, the application of special conflict rules so as to alleviate the problematic effects of uninhibited contractual freedom of contract, as a mechanism to avoid the designation of, particularly, a common law copyright jurisdiction imposed by way of predetermined terms governs the agreement. The article demonstrates, ultimately, that author’s claims to self-determination must outweigh the commercial interests of publishers, inadvertently providing open access platforms with legal certainty and freedom to republish.

The Ravenna Campus of the Department of Juridical Sciences of the University of Bologna (Italy) has organised in Ravenna (and online), between 18-23 July 2022, a Summer School on Transnational litigation: between substance and procedure.

The program of the School looks at cross-border litigation from a wide perspective, embracing not only civil and commercial matters but also matter as diverse as family law, succession law and climate change litigation. At the core of the program lies the European space of justice, with its private and procedural international law regulations; the comparative and international perspectives are also considered, with several lecturers from Third States. The approach is both theoretical and practical: as a matter of fact, the whole Saturday 23 July session is dedicated to workshops which will involve the participants in the solution of cases and problems.

The Faculty of the Summer School is composed of experts from different jurisdictions with very diverse professional backgrounds. The Director of the School is Prof. Michele Angelo Lupoi, who teaches Civil Procedural Law and European Judicial Cooperation at the University of Bologna. The Vice-Director of the School is Marco Farina, Adjunct Professor of Civil Procedural Law at LUISS University of Rome.

The Summer School is aimed at law students as well as law graduates and law practitioners who want to obtain a specialised knowledge in this complex and fascinating area of international civil procedure. The lectures will be held in a blended way, both in presence and online. In order to download the pre-registration form, please refer to here. An application will be made to the Bar Association of Ravenna to grant formative credits to Italian lawyers who participate in the Summer School.

The Summer School program is available here and includes as speakers Apostolos Anthimos, Caterina Benini, Giovanni Chiapponi, Michael S. Coffee, Elena D’Alessandro, David Estrin, Marco Farina, Francesca Ferrari, Pietro Franzina, Albert Henke, Priyanka Jain, Melissa Kucinski, Claudio Pezzi, Emma Roberts and Anna Wysocka-Bar.

It is possible to register until 2 July 2022. The registration fee is 200,00 €. For further info, please refer here or write and email to micheleangelo.lupoi@unibo.it. 

Paul Beaumont and Jayne Holliday have edited A Guide to Global Private International Law. The book has just been published by Hart / Bloomsbury in its Studies in Private International Law.

The guide provides a substantial overview of the discipline of private international law from a global perspective. It is divided into four sections: (i) Theory; (ii) Institutional and Conceptual Framework Issues; (iii) Civil and Commercial Law (apart from Family Law); (iv) Family Law.

Each chapter addresses specific areas/aspects of private international law and considers the existing global solutions and the possibilities of improving/creating them.

The authors are experts coming from Europe, North America, Latin America, Africa, Asia and Oceania, and include – in addition to the editors – Ardavan Arzandeh, Maria Caterina Baruffi, Giacomo Biagioni, Ron Brand, Janeen M Carruthers, Carmen Otero García-Castrillón, Adeline Chong, Giuditta Cordero-Moss, Mihail Danov, Nadia de Araujo, Albert Font i Segura, Pietro Franzina, Francisco Garcimartín Alférez, Richard Garnett, David Goddard, Chiara Goetzke, Ignacio Goicoechea, Susanne L. Gössl, Uglješa Grušic, Jonathan Harris, Trevor Hartley, Michael Hellner, Paul Herrup, Maria Hook, Costanza Honorati, Mary Keyes, Ruth Lamont, Matthias Lehmann, Jan Lüttringhaus, Brooke Marshall, Lucian Martinez, Laura Martínez-Mora, David McClean, Johan Meeusen, Ralf Michaels, Reid Mortensen, Máire Ní Shúilleabháin, Marta Pertegás, Marta Requejo Isidro, Nieve Rubaja, Verónica Ruiz Abou-Nigm, Sara Sánchez, Rhona Schuz, Symeon C. Symeonides, Koji Takahashi, Zheng Sophia Tang, Paul Torremans, Karen Vandekerckhove, Lara Walker, Brody Warren, Matthias Weller and Abubakri Yekini.

For more details, see here.

A conference on the location of damage in private international law will be held at Paris Cité University on 30 and 31 May 2022.

The conference is convened by Olivera Boskovic and Caroline Kleiner. Speakers include Laurence Idot, Ugljesa Grusic, Aline Tenenbaum, Dmitriy Galuschko, Etienne Farnoux, Veronica Ruiz Abou-Nigm, Ludovic Pailler, Symeon C. Symeonides, Tristan Azzi, Zhengxing Huo, Yuko Nishitani, Yves El Hage, Matthias Lehmann, Sandrine Clavel, François Mailhé, Cyril Nourissat, Sarah Laval, Maud Minois and Pascal de Vareilles-Sommières.

The conference is structured in two parts. The first will be dedicated to the location of damage in specific field of the law (competition law, financial law, personality rights, environment, etc.). The second will address general topics such as party autonomy or cyber torts

The full programme of the conference and details about location and registration can be found here.

Through a comfort letter, one party promises to indemnify a creditor if the latter’s debtor does not pay. This is a means for improving the credit of another party. Particularly widespread are comfort letters issued by a parent company for its subsidiary or vice versa.

But where can the creditor sue if the comfort letter is not honoured? And which law applies to these instruments?

These questions were addressed in a decision by the Court of Appeal of Brandenburg dated 25 November 2020 (reprinted in IPRax 2022, pp. 175 et seq., with a comment by Maximilian Pika, id. pp. 159 et seq.).

A company incorporated under Danish law and headquartered in Copenhagen had provided a comfort letter for one of its subsidiaries in Germany who operated an airport there. Subsequently, insolvency proceedings over the subsidiary were opened in Germany. The insolvency administrator sued the Danish parent company in a German court on the basis of the comfort letter.

In deciding whether it has jurisdiction to hear the case, the Court of Appeal of Brandenburg first discards the insolvency exception in Art 1(2)(d) Brussels I bis Regulation. It argues – quite correctly – that this exception only covers claims that are grounded in insolvency law, but not those under general civil and commercial law. The present claim was one under general civil and commercial law, independently of the fact that it was brought by the insolvency administrator, and thus fell inside the scope of the Brussels Ibis Regulation.

The Court toys with the idea to characterise the comfort letter as a contract for the “provision of services”, which could potentially lead to the Court’s jurisdiction under Art 7(1)(b) Brussels I bis. However, the Court underlines that in this case, the place of performance would not be in its district, but in that of the debtor’s domicile, as the obligation arising from the comfort letter would have to be paid there.

The same would be true, according to the Court, if the comfort letter were to be considered as a simple contract for payment, which would fall under Art 7(1)(a) Brussels Ibis. This provision requires to determine the place of performance under the applicable law (see on its forerunner, Article 5(1) Brussels Convention, CJEU, Tessili, para. 15).

In this context, the Court takes the view that the comfort letter, regardless of whether it is seen as a unilateral declaration of the creditor or a contract, falls under the Rome I Regulation.

In the opinion of the court, the comfort letter had been submitted to German law, as clearly demonstrated by the circumstances of the case, in particular the choice of the German language, the fact that it was issued for the benefit of a German debtor, and that it was submitted to German air traffic authorities to maintain the license of the debtor. Under German substantive law (sec. 269 German Civil Code), payment obligations have to be performed at the creditor’s domicile. Hence, Danish and not German courts would have jurisdiction under Art 7(1)(a) Brussels I bis as well.

Under an autonomous European interpretation, the notion “contracts of services” has to be defined broadly. The Court could have been courageous and just applied Art 7(1)(b) Brussels Ibis. This would have made things much simpler.

However, there is little to quarrel with the result the court has reached. Comfort letters are performed at the domicile of the issuer, or one of the three places mentioned in Art 63(1) Brussels Ibis in case of a company as an issuer, and actions based on them have to be brought there.

This result will be little comfort for those who have received a comfort letter. They should make sure that the letter states a suitable place of performance. Even better is to insist on the insertion of a choice-of-forum clause.

This is the first in a series of posts on the French draft code of private international law of March 2022.

The draft code of private international law contains one single provision on renvoi.

Article 8 of the draft code reads:

Unless provided otherwise in this code, the designation of foreign law includes its rules of private international law. However, French courts and authorities have the obligation to apply those rules only if one party requests it.

The explanatory report explains that the working group debated whether to “maintain” renvoi. The doubts of the working group were based on “comparative law” and the facts that the Hague conventions typically exclude renvoi. Nevertheless, the report explains, it was decided to maintain renvoi, because the Cour de cassation has recently applied it, and because the doctrine has benefits when it leads to the application of a law which is easier to apply for French courts (the explanatory report then gives the example of art 34 of the Succession Regulation).

According to the explanatory report, the working group considered that the purpose of its work was to improve accessibility and intelligibility of the law. Article 8 is not fully satisfactory in this respect.

Article 8 suggests that French courts should always apply foreign choice of law rules. It does not explain whether this should only be the case where the foreign choice of law rule refers to the law of the forum, and, when it does not, whether the law of the third state designated by the foreign choice of law rule should accept renvoi.  In other words, Article 8 does not distinguish between first degree renvoi and second degree renvoi, and does not clarify whether whether second degree is allowed even if it is third or fourth degree renvoi. In fact, a literary interpretation of Article 8 could lead to the conclusion that the provision introduces the English foreign court theory where foreign choice of law rules are applicable without any further requirement.

The explanatory report suggests that the working group conducted a comparative study which revealed that renvoi is typically excluded. It is true that some modern PIL legislations have excluded it, such as Article 15 of the Belgian Code of Private International Law. Yet, many other legislations in the civil law world allow renvoi broadly. If the working group was going to maintain renvoi, maybe it would have been useful to take a look at these other legislations and see with which precision they regulate the issue.

To only take one example, the working group could have looked at the Italian 1995 Private International Law Act, which allows renvoi, and defines its regime much more precisely.

Article 13 Renvoi

1 Whenever reference is made to a foreign law in the following articles, account shall be taken of the renvoi made by foreign private international law to the law in force in another State if:

a) renvoi is accepted under the law of that State.

b) renvoi is made to Italian law.

2 Paragraph 1 shall not apply: a) to those cases in which the provisions of this law make the foreign law applicable according to the choice of law made by the parties concerned; b) with respect to the statutory form of acts; c) as related to the provisions of Chapter XI of this Title.

3 In the cases referred to in Articles 33, 34 and 35, account shall be taken of the renvoi only if the latter refers to a law allowing filiation to be established.

4 Where this law makes an international convention applicable in any event, the solution adopted in the convention in matters of renvoi shall always apply.

Article 34 of the Succession Regulation is also much more detailed than the draft provision of the French code. Whether it was the perfect example to justify the adoption of first degree renvoi is unclear, however, since Article 34 does not require that the law of a third state refers back to the law of the forum, but to the law of another Member State, and that it will not always be easier for a French court to apply the law of another Member State (say Finland) than the law of a third state (say Switzerland).

In July 2018, the French Minister of Justice invited Jean-Pierre Ancel, a former judge of the Cour de cassation (French supreme court for private and criminal matters) to establish a working group for the purpose of reflecting on the codification of French private international law.

In March 2022, the working group handed its work to the Ministry of Justice. It includes a draft code of private international law of 207 provisions, and an explanatory report.

The working group was essentially composed of judges and academics. It included very few members of the bar, and no corporate lawyers (whether from the bar or in house).

As all readers will know, the private international law of EU Member States is dominated by EU legislation. EU Regulations are of universal application in the field of choice law. They occupy a large part of the field of jurisdiction and enforcement of foreign judgments.

Of course, the working group and the draft code recognise this fact, and the working group has abstained to propose rules on issues clearly regulated by EU law.

Nevertheless, one wonders whether it is really worth codifying private international law at national level, and whether it would not be more useful to promote codification at EU level (GEDIP has been reflecting on this for a while and EAPIL has also established a working group).

Interestingly, the Minister of Justice alluded to the issue in its letter inviting judge Ancel to establish the working group (reproduced in annex to the explanatory report). The Minister insisted that a French code would help promoting French law in European and international circles where, the Minister stated, more modern and accessible foreign legislations prevail. This likely explains why the explanatory report states that codification of French private international law will improve the attractiveness of French law.

On 21 October 2022, the French Committee of Private International Law will organise a conference aimed at presenting the draft code.

In the coming weeks, the EAPIL Blog will publish presentations and commentaries of the most salient provisions of the draft code by French and European scholars. The Editors invite readers interested in contributing to this debate to contact them.

A web conference regarding the role of the internet and other technologies within the EU and the international legal order will take place on 13 May 2022, organised by the editorial team of Lex & Forum, a quarterly on Private International Law and International Civil and Commercial Litigation.

Symeon Symeonides (Willamette University) will chair the conference. He will also deliver a presentation in English on the infringement of personality rights via the internet.

The conference will be opened by Dan Svantesson (Bond University) with a presentation on Private International Law and the Internet.

The remaining presentations, in Greek, will be delivered by Ioannis Delicostopoulos (University of Athens), on Personality infringements via internet publications within
the EU legal order, Ioannis Revolidis (University of Malta), on International Jurisdiction and the Blockchain – Time for new rules on international jurisdiction?, Nikolaos Zaprianos (Solicitor) on Smart contracts: Selected issues of civil and private international law, and Konstantinos Voulgarakis (Solicitor), on ICOs: Selected issues of jurisdiction and law applicable.

For registration, click here.

As announced on this blog, the Journal of Private International Law-Singapore Management University Virtual Conference on Conflicts of Jurisdiction will be held online on 23 to 24 June 2022 (6.00 pm to 10.20 pm Singapore time, 11.00 am to 3.20 pm British Summer Time on each day). The event is supported by the Hague Conference on Private International Law (HCCH).

The conference is intended to support the ongoing work of the HCCH on Jurisdiction.

The speakers are leading private international law scholars and experts, many of whom are directly involved in the ongoing negotiations at the HCCH.

Attendance at the conference is complimentary for academics, government and international organisation officials, Journal of Private International Law Advisory Board members and students. Registration is required.

More information on the conference and the link to register can be found here.

Strategic lawsuits against public participation, commonly known as ‘SLAPPs’, are a particular form of harassment used primarily against journalists and human rights defenders to prevent or penalise speaking up on issues of public interest.

The term was coined by Professors George W. Pring and Penelope Canan in their book SLAPPs: Getting Sued for Speaking Out (Temple University Press, 1996).

The phenomenon is now well known everywhere, but anti-SLAPP legislation has so far only been enacted in a few countries, such as Australia or Canada. In the Europe Union, action was not officially taken until the assassination of Maltese journalist Daphne Caruana Galizia in 2017, who was famous in and outside Malta due to her regular reporting of misconduct by Maltese politicians and politically exposed persons. When she was murdered, more than 40 lawsuits (most for pretended libel) had been filed in Maltese courts; some of them are still pending against her heirs and her family.

The Council of Europe has acknowledged as well the need for a Recommendation on Combating SLAPPs, and is currently working on it (the picture on the right belongs actually to the website of Dunja Mijatović, the Commissioner for Human Rights).

Since February 2018, European MEPs have been calling on the EU Commission to promote anti-SLAPP EU legislation giving investigative journalists and media groups the power to request a rapid dismiss of vexatious lawsuits.

Several EP Resolutions are worth being mentioned in this regard: Resolution of 28 March 2019 on the situation of the rule of law and the fight against corruption in the EU, specifically in Malta and Slovakia (P8_TA(2019)0328); Resolution of 25 November 2020 on strengthening media freedom: the protection of journalists in Europe, hate speech, disinformation and the role of platforms (P9_TA(2020)0320); Resolution of 11 November 2021 on Strengthening democracy and media freedom and pluralism in the EU: the undue use of actions under civil and criminal law to silence journalists, NonGovernmental Organisations (NGOs) and civil society (P9_TA(2021)0451). In all three, the EP condemned the use of SLAPPs to silence or intimidate investigative journalists and other actors, and called on the Commission to present a proposal to prevent them.

Parliament’s move did not fall on deaf ears. The growing number of physical, legal and online threats to and attacks on journalists and other media professionals over the past years was reflected in the Commissions’ 2020 and 2021 Rule of Law Reports.

In September 2021, the Commission presented a Recommendation on ensuring the protection, safety and empowerment of journalists and other media professionals in the European Union.

More important from the regulatory perspective (not in terms of scope, however) is the adoption, on 27 April 2022, of a proposal on a Directive covering SLAPPs in civil matters with cross-border implications. In addition, on the same day the Commission approved a complementary Recommendation to encourage Member States to align their rules with the Directive also for domestic cases and in all proceedings, that is, not only civil matters; it also calls on Member States to take a range of other measures, such as training and awareness raising, to fight against SLAPPs. Both texts, which show a broad political ambition, can be accessed here.

The proposed Directive will have to be negotiated and adopted by the European Parliament and the Council before it can become EU law.

By contrast, the Commission Recommendation is described in the official press release as ‘directly applicable’: in the understanding of the Commission, ‘Member States will need to report on implementation to the Commission 18 months after adoption of the Recommendation’. It should be noted that recommendations are not binding acts (a different thing is that the subject of a recommendation is expected to oblige the suggestions made). Moreover, regarding this particular Recommendation the guideline in the sense of aligning national law with the Directive in domestic cases and for all types of proceedings is impossible to comply with until the Directive as such is enacted.

In this post I only intend to present the general features of the proposal and to highlight three of its rules. A couple of comments will be added as quick reactions to which more learned readers may in turn respond.

The proposal is based on Article 81(2)(f) TFEU.

1. The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States.
2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring …

(f) the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States.

Resistance on the side of the Council to this legal base will not come as a surprise (by the way: it may be claimed as well that the Commission is acting outside of clear competences regarding the Recommendation: the principle of conferred competences also applies to non-binding activities of the Union).

To the best of my knowledge, the point was not addressed in any of the meetings of the Expert Group against SLAPP. The only reference to Article 81 TFUE seems to be by way of an answer from the Commission to an expert who asked ‘whether the solutions envisaged will introduce procedural schemes that are new and difficult to enact in different Member States’ in the 6th (and final meeting) of the Expert Group. The Commission replied that ‘the legal basis is linked to article 81 of TFEU which deals with civil matters having cross-border implications but as the Directive is not too prescriptive, Member States will be able to implement the provisions in a way which is consistent with their national systems’.

The proposed Directive aims at enabling judges to swiftly dismiss manifestly unfounded lawsuits against natural and legal persons (not only journalists and human rights defenders, but also academics or researchers) on account of their engagement in public participation. It also requests from the Member States that they establish several procedural safeguards and remedies, such as compensation for damages, and dissuasive penalties for launching abusive lawsuits.

The text consists of 39 recitals and 23 articles divided into six chapters. Recitals 1 to 19 provide in-depth explanations of the SLAPP phenomenon and of related notions in plain and accessible language. Recitals 20 to 34 (actually, recitals 14 and 15 too) define the cross-border setting for the purpose of the Directive, and describe the specific procedural tools and remedies at the service of defendants in SLAPP cases. Recitals 35 and 36 deal with the relationship between the proposed Directive and other EU law acts (none on private international law). Numbers 37, 38 and 39 refer to Denmark and Ireland.

Chapter I (article 1 to 4) is labelled ‘General provisions’. Chapter II (articles 5 to 8) comprises so-called common rules on procedural safeguards. Chapter III (articles 9 to 13) addresses the early dismissal of manifestly unfounded court proceedings. Chapter IV (articles 14 to 16) focuses on remedies against abusive court proceedings. Chapter V (articles 17 and 18) include two rules on protection against third-country judgments. Chapter VI is devoted to the typical final provisions.

Most of the rules of the proposed Directive are purely procedural. In this regard, the proposal appears at first sight as a direct intrusion into the procedural autonomy of the Member States. In fact, if the outcome of the negotiations is similar to the draft, Member States will enjoy most of the times a large marge of manoeuvre when transposing the Directive; actually, it is to be expected that they will be able to claim that existing rules in the domestic systems comply already with (some of) its mandates. Indeed, such rules are normally conceived for domestic litigation; however, courts in the Member States do not usually follow different procedural tracks depending on whether the dispute is purely domestic or has cross-border implications. National procedural provisions created with cross-border litigation in mind are the exception. Interestingly, should new rules be created to accommodate the Directive’s terms, they may get extended to domestic procedures as a consequence of the accompanying Recommendation.

Article 17, ‘Grounds for refusal of recognition and enforcement of a third-country judgment’, and Article 18, ‘Jurisdiction for actions against third-country judgments’, may deserve a different assessment, i.e., Member States are likely to need enacting new rules to transpose these provisions. Pursuant to Article 17

Member States shall ensure that the recognition and enforcement of a third-country judgment in court proceedings on account of public participation by natural or legal person domiciled in a Member State is refused as manifestly contrary to public policy (ordre public) if those proceedings would have been considered manifestly unfounded or abusive if they had been brought before the courts or tribunals of the Member State where recognition or enforcement is sought and those courts or tribunals would have applied their own law.

The Directive imposes not only the public policy exception as a ground for non-recognition or enforcement of a third State decision independently of whether the Member State affected is a party to a bilateral or multilateral convention: it establishes as well the conditions for its application. Although with an open-ended clause, the Directive also defines what ‘abusive’ litigation is under Article 3(3), thus limiting the freedom of the Member States to give contents to the public policy exception.

According to Article 18,

Member States shall ensure that, where abusive court proceedings on account of engagement in public participation have been brought in a court or tribunal of a third country against a natural or legal person domiciled in a Member State, that person may seek, in the courts or tribunals of the place where he is domiciled, compensation of the damages and the costs incurred in connection with the proceedings before the court or tribunal of the third country, irrespective of the domicile of the claimant in the proceedings in the third country.

The ground for jurisdiction is a forum actoris based on domicile. Many Member States have given up fora privileging the claimant except in cases of asymmetry of the parties to the litigation, capable of creating procedural imbalances between them. It is submitted that on many SLAPP occasions this will be the case, therefore the head of jurisdiction, albeit exorbitant at first sight, will be justified. However, it should be considered that publishers houses and journals are sometimes involved in these disputes supporting or sharing the side of the journalist or human rights defender. Be it as it may, and more relevant: with the current wording, the forum actoris will work also against defendants domiciled in a Member State, if they have filed a claim with a third State. Article 19 – a compatibility clause regarding the Lugano Convention- does not change this outcome; actually, it creates a (further) situation where the Convention and the Brussels Ibis Regulation will apply differently.

The Directive includes among other a definition of ‘matters with cross-border implications’, whereby a matter is considered to have such implications unless both parties are domiciled in the same Member State as the court seised. In that case – that is to say, when both parties are domiciled in the Member State of the court seised-, the situation is still cross-border for the purposes of the Directive and the transposing legislation if

(a) the act of public participation concerning a matter of public interest against which court proceedings are initiated is relevant to more than one Member State, or

(b) the claimant or associated entities have initiated concurrent or previous court proceedings against the same or associated defendants in another Member State.

The requirements under (a) will be easy to be met in the era of the internet. As for (b), it describes a situation of lis pendens or of related actions in the sense of the Brussels Ibis Regulation, although only for the purposes of applying the Directive, i.e., without (in principle) any consequence on the rules of Articles 29 to 34 of the Regulation. A ‘without prejudice’ recital would nevertheless be advisable.

Moreover, it is submitted that neither (a) nor (b) should be limited to the involvement of Member States, and that such limitation works against the very aim of the Directive. Moreover, for reasons of consistency relating to Article 18, it would make sense to define ‘cross-border implications’ as including acts of public participation relevant to the Member State of the court seized and third States, as well as the situation of parallel or related litigation in a Member State and a third State. Of course, such extension is likely to increase the doubts as regards the basis of the EU legislative initiative. As an alternative, it can be suggested to the Member States that they adopt national rules similar to the EU ones, to be applied to the situations described above.

— Final note: an open-access paper on strategic litigation (SLAPP and beyond) authored by Prof. B. Hess, MPI Luxembourg, member of the MSI-SLP Committee of Experts on Strategic Lawsuits against Public Participation (Council of Europe), will be published in the days to come. An update will follow.

On 13 May 2022 the Faculty of Law of the Universidad Autónoma de Madrid will host a conference on the protection of transnational data transfers and the limits of the General Data Protection Regulation (Protección de las transmisiones de datos transfronterizas: los límites del RGPD).

The speakers include: Elena Rodríguez Pineau (Universidad Autónoma de Madrid), Elisa Torralba Mendiola (Universidad Autónoma de Madrid), Diana Sancho (University of Westminster), Gloria González Fuster (Vrije Universiteit Brussel), Pedro A. de Miguel Asensio (Universidad Complutense de Madrid), José I. Paredes Pérez (Universidad Autónoma de Madrid), Alexia Pato (Universitat de Girona), Mayte Echezarreta Ferrer (Universidad de Málaga), Clara I. Cordero Álvarez (Universidad Complutense de Madrid), Alfonso Ortega Giménez (Universidad Miguel Hernández de Elche), Carmen Parra Rodríguez (Universidad Abat Oliba CEU), Luis Lima-Pinheiro (Universidade de Lisboa), Eduardo Álvarez-Armas (Brunel University London).

The conference, in Spanish, can be attended either in person or remotely. Registration ends on 10 May 2022. See here for further details, and here for the full program.

The Private International Law Festival will take place on 16 and 17 May 2022 in Edinburgh.

The topics that will dealt with include: private international law and sustainable development; decolonising law and private international law; private international law in Scotland; forum conveniens annual lecture; private international law and sustainable migration governance; interdisciplinary latam perspectives; a book launch; new horizon for private international law.

This event is free, in person only and open to all but registration is required. To secure your place, please register through Eventbrite here.

Further information is available here.

As reported in a recent post, Germany has on 29 April 2022 instituted proceedings against Italy before the International Court of Justice in relation with the fact that Italy is allowing civil claims to be brought against Germany in connection with violations of international humanitarian law committed by the German Reich between 1943 and 1945, in breach of Germany’s jurisdictional immunity as a sovereign State.

A webinar in English, organised by the Department of Law of the University of Ferrara and the Institute of International Studies of the Catholic University of Milan, will take place on 11 May 2022, between 10.30 am and 12.30 pm, via GoogleMeet, to discuss the issues surrounding both the German application and the Italian decree-law of 30 April 2022, whereby the Italian Government addressed at least part of the concerns underlying the initiative of Germany.

The discussion will also revolve around the views that the two States are expected to put forward during the public hearings that are scheduled to take place on 9 and 10 May regarding the request made by Germany for the indication of provisional measures.

The following, among others, will speak at the webinar: Giorgia Berrino (University of Modena and Reggio Emilia), Serena Forlati (University of Ferrara), Karin Oellers-Frahm (Max Planck Institute for Comparative Public Law  and International Law, Heidelberg), Riccardo Pavoni (University of Siena), and Pierfrancesco Rossi (LUISS Guido Carli, Rome).

Attendance is free. See here for further details.

As announced on this blog, the VIII Congress of Private International Law of the University Carlos III of Madrid will take place in dual mode on 12 and 13 May 2022.

It will be devoted to Regulation (EU) 2019/1111 on jurisdiction, recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction.

Under the direction of Juliana Rodríguez Rodrigo, the speakers include: Esperanza Castellanos Ruiz, Javier Carrascosa González, Beatriz Campuzano Díaz, Nuria Marchal Escalona, Giacomo Biagioni, Elena Rodríguez Pineau, Celia Caamiña Domínguez, Mónica Herranz, Ilaria Pretelli, Teresa Peramato Martín, Alfonso-Luis Calvo Caravaca.

The Congress programme and information to attend it are available here.

On behalf of the European Commission (DG JUST), Milieu Consulting is conducting a study on the application of Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I bis Regulation). The aim of the study is to provide solid evidence and analysis of legal and practical issues to assist the European Commission in preparing a report on the application of the Brussels I bis Regulation. To this end, the study will analyse the application of the Brussels I bis Regulation in the Member States and identify the main legal difficulties and practical challenges encountered in practice.

As part of this study, Milieu Consulting is conducting a stakeholder consultation, which includes a series of targeted surveys with key stakeholder individuals and organisations involved in or confronted with the application of the Brussels I bis Regulation. In particular, Milieu developed a technical survey that targets legal practitioners (i.e., judges; lawyers; notaries; bailiffs), academia (i.e., scholars in private international law and relevant sectors, such as consumer protection or business and human rights), and national authorities (i.e., ministries of justice, ministries in charge with consumer protection, ministries of economy) in each Member State. Stakeholders’ views are an important source of information for gaining a concrete understanding of the difficulties in applying rules on jurisdiction, as well as the recognition and enforcement of judgments, in cross-border civil and commercial cases in the EU.

The survey is available here. For more information on the study, please refer to the accreditation letter here.