EAPIL blog

This post was contributed by Christine Bidaud, who is Professor at the University Jean Moulin – Lyon 3, co-director of the Family Law Center and member of the Research team Louis Josserand.

If there is one subject that divides not only jurists but also States, it is certainly surrogacy. Legal in some countries, prohibited in others, and unregulated in still others, each State develops its own law according to the social mores, values, and history of its society. But it is one thing to prohibit the practice of surrogacy on one’s own territory and another to consider the parenthood of a child born abroad by surrogacy. The French Cour de Cassation has well understood this.

Without going back over the details of the evolution of its case-law, it should be remembered that at first, the Cour de cassation refused to recognise or authorise the recognition in France of the parenthood of children born abroad by surrogacy (see Cour de Cassation, 1st Civil Chamber, 6 April 2011, n° 10-19053, Mennesson, n°09-66486, Labassée & n° 09-17130 and Cour de cassation, 13 September 2013, n°12-18315 & n°12-30138). The Court then accepted the partial transcription of the child’s foreign birth certificate in French civil status registers by limiting it to the biological parent (see Cour de Cassation, Plenary session, 3 July 2015, n°14-21323 & n°15-50002). The second parent, whether a man or a woman, had to adopt the child to establish his or her parenthood. Until the law of 21 February 2022, a requirement for such adoption was that the couple be married.

The Cour de Cassation then decided to go further. Even if in its opinion of 10 April 2019, the ECtHR did not require it, the Cour de Cassation decided to authorise the full transcription of the child’s foreign birth certificate in the French civil status registers. Initially presented as an exceptional solution justified by the circumstances of the Mennesson case, the Cour de Cassation finally generalised this solution (see Cour de cassation, 1st Civil Chamber, 18 December 2019, n° 18-11815 & n° 18-12337 and recently Cour de cassation, 1st Civil Chamber, 13 January 2021, n° 19-17929). The French case law seemed to be well established and yet…

The law on bioethics of 2 August 2021 reformed Article 47 of the Civil Code, which governs the evidentiary value of foreign civil status documents. Even if the evidentiary value of foreign civil status documents must be distinguished from the recognition of parenthood, the two issues are “dangerously” intertwined in the case-law and obviously in the mind of the legislator too. Wishing to put a stop to the case law of the Cour de Cassation, the French Senate had proposed an amendment to introduce a new Article 47-1 into the Civil Code. In essence, the text provided for a return to the previous case law of the Cour de Cassation: partial transcription of the biological parenthood link and adoption of the child by the other parent.

The French National Assembly rejected this amendment and instead amended Article 47 of the Civil Code. The text, which already provided that

‘All civil status records of French citizens and foreigners made in a foreign country and drawn up in the forms used in that country are considered as proof unless other records or documents held, external data, or elements drawn from the record itself establish, if necessary after all useful verifications, that this record is irregular, falsified, or that the facts declared therein do not correspond to reality’,

has been supplemented by the precision that

‘This (reality) is assessed in the light of French law.

The change seems minor at first glance, but it nevertheless calls for a whole series of observations.

The Senate amendment only concerned the transcription of birth certificates of children born abroad by surrogacy into French civil status registers. The new version of Article 47 of the Civil Code does not concern the transcription, but the evidentiary value of all foreign civil status records: birth certificates, as well as others (e.g. marriage, recognition, death, and certificates of stillborn babies). The text introduces a problematic confusion between evidentiary value and transcription of foreign civil status records. A foreign civil-status record does not need to be transcribed into French registers to have evidentiary value. It must only have been established following “the usual forms” of the foreign country (as laid down by the first sentence of Article 47 of the Civil Code). Moreover, it is impossible to require transcription in all cases because transcription of foreign records is only possible when the person(s) concerned by the record have French nationality.

The amendment proposed by the Senate was expressly aimed at surrogacy, which is a bioethical issue. However, Article 47 of the Civil Code relates to the evidentiary value of all foreign civil status records, whether they relate to French citizens or to persons of foreign nationality. What is thus the legitimacy of a new law relating to bioethics to reform this provision? For example, what link can exist between bioethics and a foreign marriage record?

In our opinion, the legal context of the reform of Article 47 is therefore inappropriate and even instrumentalised.

There is still one condition for foreign documents to be evidentiary: they must have been drawn up following the local rules of form. And there are still three grounds for overturning this presumption of evidentiary value: irregularity, falsification, and inconsistency of the facts contained in the document to reality. There is no change for the first two grounds of challenge pursuant to the new version of Article 47. “Irregularity” means that the act respects the foreign local forms. The “absence of falsification” implies that there must be no documentary fraud (e.g. erasure, pasting, or fraud carried out with different computer software), but also more elaborate fraud, sometimes carried out with the complicity of local authorities (one can think of ‘true-false’ records drawn up deceptively and inserted into foreign registers by unscrupulous foreign civil registrars).

The third ground for challenging the evidentiary value – “the lack of conformity of the facts with reality” – has been completed by the strange precision that this reality must be “assessed in the light of French law”. Until now, this condition was interpreted in terms of accuracy or inaccuracy: was the person born in that town? Did the person die on that date? It is logical, facts are true or false. What sense can be given to the requirement that the facts must be conform with reality “assessed in the light of French law”?

Keeping in mind that the goal of the text was to put an end to the case law of the French Cour de Cassation, we can only observe that the legislator makes a confusion between what is a fact and what is not. Parenthood is not a fact: it may result from the effect of the law, from a recognition act, from a possession of status, or from a judicial decision. The new version of Article 47, therefore, invites reasoning in terms of equivalence between what French law allows and what it does not allow. It is no longer a question of factual reality but of legal reality.

Reasoning in terms of legal reality means that we must check if the element of personal status established or constituted abroad has an equivalent in French law. And that must be done for each element that may compose the status of a person: facts such as dates and place of birth, but also everything else, i.e. marriage and parenthood. And how far should this research of equivalence be pushed? Should we, for example, require that marriages celebrated abroad have a civil form because it is the only one that exists in France? Such research would not make sense because it would be the same as considering that a foreign record relating to a marriage celebrated only in the religious form has no evidentiary value in France, even though this marriage would be considered valid. Since 1955, French case law has considered that this question belongs to the conditions of form of marriage and is therefore governed by foreign law (see Cour de cassation, 22 June 1955, Caraslanis). This rule is now written into the Civil Code.

The formulation of the text causes confusion between the evidentiary value of the records and the recognition of the status of persons. The civil status record is used to prove that an event concerning personal status occurred abroad, but this does not mean that this personal status will produce effects in France. With the new version of Article 47 of the Civil Code, everything is mixed up: the element of personal status is checked to ensure that it corresponds to the definition given by French law to give evidentiary value to the foreign civil status record.

The law on bioethics has opened up medically assisted procreation to women couples and single women (Art. 342-10 of the Civil Code). The new Article 342-11 of the Civil Code provides that “At the time of the consent [by the notary] provided in Article 342-10, the couple of women jointly recognises the child”. For the woman who gives birth, parenthood is established in accordance with Article 311-25 which lays down that “‘Regarding the mother, parenthood is established by her designation in the child’s birth certificate”. For the other woman, it is established by the joint acknowledgement provided in the first paragraph of this Article. This is given by one of the two women or, where applicable, by the person responsible for declaring the birth to the civil registrar, who indicates this in the birth certificate. Regarding the woman of the couple who is not carrying the child, she will therefore be the legal mother of the child from the moment of its birth because of prenatal recognition.

So today, it is possible under French law to be the legal mother of a child without having given birth to that child and without the need to use adoption.

When the couple who had recourse to surrogacy abroad is heterosexual, most of the time, the indications written in the foreign birth certificate will only specify “mother:…” and “father:…”. It will not mention whether the woman has or has not given birth. It will only give the identity of the mother. Therefore, the foreign record will not contain any factual inaccuracies. To check if the indications are in conformity with the legal reality assessed in the light of French law, it is then necessary to verify whether French law allows the registration of a woman as a mother without having given birth and without having adopted the child. And this is now possible since the Bioethics Law of 2 August 2021…

The Cour de Cassation is therefore not required to change its case law in this situation. It can continue to transcribe these birth certificates in the French civil status registers. The situation is more problematic regarding men’s couples. In this case, there will be two fathers in the foreign birth certificate. To ensure that this record corresponds to the legal reality assessed under the light of French law, the Civil Code should contain a provision that allows the establishment of a double link of paternal parenthood from the child’s birth, without using adoption. And this provision does not exist. Therefore, it should no longer be possible to transcribe these foreign birth certificates in French civil status registers!

The ECtHR does not systematically condemn States that do not allow the recognition or reconstruction of a parenthood link towards the non-biological parent who has had recourse to surrogacy abroad if the child has a family life with his or her parents. However, special circumstances are required and in its advisory opinion of 10 April 2019, the ECtHR stated that the parenthood link between the child and the intended mother must be established, including through adoption, but that there was no obligation for States to transcribe the child’s full birth certificate. This opinion was issued to surrogacy carried out by a different-sex couple but is perfectly transposable to same-sex couples.

If the French Cour de Cassation only allows the transcription of foreign birth certificates of children born from surrogacy when the parents are of different genders, there would certainly be discrimination between heterosexual and homosexual couples and even more between children who are all born abroad by surrogacy. It is difficult to see how France could not be condemned again by the ECtHR… And the recent Pancharevo Case of the CJEU (analysed here on the blog) can only add arguments in the direction of maintaining the current case law of the French Cour de Cassation.

This post was written by Paul Eichmüller and Verena Wodniansky-Wildenfeld, University of Vienna.

In a recent decision, the Austrian Supreme Court dealt with the interpretation of Article 10(2) of the Succession Regulation. It found that the latter provision does not establish an obligation to initiate probate proceedings ex officio in states having subsidiary jurisdiction. A national Austrian provision concerning the issue of these assets to third countries was thus considered in conformity with EU law, although Article 10(2) explicitly provides that the Member State shall have “jurisdiction to rule on those assets”. The court’s apparent classification of these questions as an acte clair is doubtful.

The Austrian courts were seized by a Canadian company. It was tasked by the Canadian courts to manage the estate of a German citizen, who had moved to Toronto where he established his habitual residence and eventually died in 2017. The deceased had a bank account in Austria where he and his son had jointly rented two safes containing gold “of substantial value”. The Canadian company then brought a request that the gold and the savings should be transferred to it so that it may become part of the general estate in Canada. However, the son opposed this request with regard to the gold on the basis that it was in fact in his own property and not in the deceased’s.

The court of first instance decided to transfer the money and the gold to the Canadian company, which was to hand it to the heirs as assessed in Canada. Concerning jurisdiction, the court based its decision on Article 10(2) of the Succession Regulation. The fact that it simply transferred the assets and did not conduct substantive probate proceedings was based on § 150 AußStrG (Austrian Non-Contentious Civil Procedure Act) – prescribing exactly this course of action in cases of Article 10(2) of the Succession Regulation. Appealing this decision, the son desired a full rejection of the claim on the grounds that § 150 AußStrG would be contrary to Article 10(2) and is thus not to be applied. The gold and the money should be handed to the heirs by Austrian courts themselves and not simply be transferred to the Canadian authorities (i.e. the authorised company).

The Supreme Court ruled that issuing assets of the estate located in Austria, as long as no probate proceedings have been requested, does not violate Article 10(2) of the Regulation. This is laid down in § 150 AußStrG, which prescribes that upon request of a legitimised party, the assets must be transferred to the state in which the deceased had their last habitual residence. Its main argument was that the Succession Regulation does not oblige the competent Member States to initiate proceedings ex officio (para 31; also citing Hertel in Rauscher, EuZPR-EuIPR [2016] Art 23 EuErbVO para 49).

Furthermore, the objective of Article 10(2) of the Succession Regulation would not be thwarted by the Austrian provision, since § 150 AußStrG provides for the issue of assets only if no application for probate proceedings in Austria had been filed. Thus, the legal interests of the parties are protected and the subsidiary jurisdiction stipulated in Article 10(2) is respected. Issuing the assets would be a mere recognition of the foreign (Canadian) decision which legitimised the company to demand their transfer. As this decision originates in a third country, neither the Succession Regulation nor other acts of EU law are inapplicable to such a recognition (para 21).

The Supreme Court considered this assessment of the legal situation and the conformity with EU law to be sufficiently evident, so that a request for a preliminary ruling to the CJEU was not deemed necessary.

To the extent that the jurisdiction established by Article 10(2) of the Succession Regulation is not combined with an obligation to initiate probate proceedings ex officio, the Supreme Court’s decision is to be followed.

In this respect, the procedural autonomy of the Member States is not restricted by EU law, thus the Regulation does not specify whether proceedings ought to be initiated either of the court’s own motion or upon application. The Regulation recognises the different procedural treatment of succession cases in the Member States, which is explicitly outlined, e.g., in Recital 29 (“Where succession proceedings are not opened by a court of its own motion”) and Article 14(c) (“if the proceedings are opened of the court’s own motion”) of the Succession Regulation. Hence, in contrast to probate proceedings in Austria, which are always initiated ex officio, other Member States (such as e.g. Germany, Belgium or Sweden) provide for the transfer of assets to the heirs ex lege without any proceedings being necessary. Therefore, a provision which prescribes that probate proceedings are initiated only on application in all cases where jurisdiction is based on Article 10(2) of the Succession Regulation (such as § 143 AußStrG in Austria) does indeed not violate EU law.

However, by issuing the gold and the savings to Canada, the Austrian authorities effectively transfer the jurisdiction for substantive probate proceedings over these assets to the Canadian authorities. This rejection of the Austrian jurisdiction over the assets located in its territory would happen outside the system of the Succession Regulation – which provides a transfer of jurisdiction in the cases listed in Article 6, but not whenever the court chooses to do so.

While the Succession Regulation does not prescribe how jurisdiction shall be exercised by a particular Member State, it does indeed prescribe that it must be exercised. The Austrian Supreme Court reasons that such a transfer is permissible because it does not interfere with the objectives of the regulation, as the alleged heirs could have brought a request to hold probate proceedings in Austria before anyway (para 27, 33). Yet, it thereby neglects that the transfer of jurisdiction would be final and thus deprives the heirs of the possibility to request proceedings in Austria at a later point in time. The Austrian courts may well choose to remain inactive until proceedings are requested, but then they have to remain exactly that – inactive. Hence, § 150 AußStrG – prescribing the opposite – is incompatible with EU law. While there might well be a case to see this differently, these arguments and the extensive criticism that has justly been raised about this issue by numerous respected Austrian scholars would have at least required a preliminary reference and leave the issue for the CJEU to decide.

The other reason given by the Supreme Court in support of its decision is the fact that it is bound by the recognition of the Canadian (third-state) judgment, which as such falls outside the scope of the Succession Regulation. Yet even when starting from the premise that the Canadian decision needs to be recognised, this will not necessarily result in an obligation of the Austrian authorities to transfer to the assets to Canada.

The decision of the Canadian Court confers upon the company the right (and duty) to collect the deceased’s assets as the estate trustee (para 2) – which is the standard for succession cases in Ontario. However, it did not directly decide on how the succession affects the assets. Recognising the company’s authorisation to receive the assets (i.e. its right of action) is only one of the requirements that need to be fulfilled so that the assets can be transferred to Canada. Yet, the Austrian courts still have to assess whether issuing the assets to a third state is consistent with Austrian law (including EU law).

The analysis shows that the legal question is far from clear and a preliminary reference to the CJEU would therefore have been necessary. While the Supreme Court was correct in its assessment that an ex officio initiation of probate proceedings is not required by the succession regulation, the rest of its judgment cannot be followed from this premise.

The Special Interest Group on Family and Succession Law of the European Law Institute will host a series of webinars on the Application of the EU Succession Regulation in the Member States, organised by a sub-group on Succession Law chaired by Gregor Christandl of the University of Graz.

The five webinars in the series will take place between March and June 2022 and will shed light on the actual practice regarding cross border succession cases in the Member States.

The reporters will open the webinars with short introductory statements and will then take part in a lively panel discussion on the application of the EU Succession Regulation in their respective jurisdictions. The results of these webinars will be presented as comparative reports at an online conference in September 2022. 

A message from Organizers and the programmme is available here.

Attendance is free of charge. A ZOOM link will be sent to those who register at zivilrecht@uni-graz.at.

The EAPIL Young Research Network is looking forward to welcoming the academic and research community to the beautiful city of Dubrovnik on 14 and 15 May 2022 for a closing conference on the EAPIL Young Research Network’s third research project with the title: Jurisdiction Over Non-EU Defendants – Should the Brussels Ia Regulation be Extended?

The research project aimed at facilitating a critical discussion of the possibility envisaged in Article 79 of the Brussels I bis Regulation of extending the personal scope of the jurisdictional rules contained in the Regulation.

The conference will include a presentation of the research project and its core results as well as discussions with the representatives of the European Commission, the Hague Conference on Private International Law and leading scholars. The Conference will be held at the Inter-University Centre located at the address Don Frana Bulića 4, in close vicinity of the Dubrovnik historical centre.

There is no fee for attending the conference and we are providing limited assistance in booking the most appropriate accommodation (as explained in the application form).

Please direct all inquiries regarding the conference to youngresearch@eapil.org.

The Conference Program is available here; the Application Form here.

On 2 March 2022 the US signed the Hague Convention of 2 July 2019 on the recognition and enforcement of foreign judgments in civil or commercial matters. Five more States have already signed the Convention, namely Costa Rica, Israel, the Russian Federation, Ukraine and Uruguay.

So far, none of the above States has ratified the Convention. According to Article 28, two ratifications are needed for the Convention to enter into force.

In July 2021, the European Commission presented a proposal for a Council decision on the accession to the Convention by the European Union. In December 2021, the Council forwarded the draft Council decision to the European Parliament, the consent of which is a precondition for the adoption of the decision pursuant to Article 218 of the TFEU.

Shuai Guo (China University of Political Science and Law of Beijing) authored a book titled Recognition of Foreign Bank Resolution Actions, published by Edward Elgar. The book is part of the series of Elgar monographs in private international law.

This timely book offers a comprehensive study of the mechanism that gives effect to foreign bank resolution actions. In particular, it focuses on how the legal framework for the recognition of foreign bank resolution actions should be structured and proposes detailed legal principles on which effective frameworks should be based.

Shuai Guo conducts both normative and positive law analysis to investigate the status quo of available legal instruments that are used to recognise foreign resolution actions within three representative jurisdictions: the European Union, the United States and mainland China. Building on the traditional legal doctrines of private international law, financial law and insolvency law, this book proposes ten principles that should be applied to foreign bank resolution actions, offering innovative ideas for further research and study. Additionally, it fills the gap in scholarly research on the issue of cross-border bank resolution and formulates rules that would facilitate effective resolution actions across borders to achieve a global orderly resolution for banks.

Recognition of Foreign Bank Resolution Actions will be key reading for researchers and students in the fields of private international law, finance and banking law. The technical legal issues addressed throughout the book will also appeal to insolvency and banking lawyers, as well as policy makers within the field.

The table of contents can be accessed here.

As announced a few weeks ago, the European Association of Private International Law has set up a Working Group charged with responding to a public consultation launched by the European Commission, aimed at gathering evidence on the measures that the EU may adopt to enhance the protection of vulnerable adults in Europe.

The Group consists of seven members: Pietro Franzina (Catholic University of the Sacred Heart, Milan), Estelle Gallant (Toulouse 1 Capitole University), Cristina González Beilfuss (University of Barcelona), Katja Karjalainen (University of Eastern Finland), Thalia Kruger (University of Antwerp), Tamás Szabados (Eötvös Loránd University), Jan von Hein (University of Freiburg).

A webinar will take place on 10 March 2022 from 5 pm to 7 pm CET, organised by the Working Group. The Group intends to present a preliminary draft response and receive feedback from interested experts, practitioners and stakeholders.

Attendance is free, but prior registration is required. Those interested in attending the webinar are invited to fill in the form available here by 9 March at noon.

For information, please write to the Group’s co-chair, Pietro Franzina, at pietro.franzina@unicatt.it.

In March 2022 the Court of Justice will publish three judgments and three opinions.

The decisions correspond to cases C-421/20, Acacia (3 March), C-498/20, BMA Nederland (9 March), and C-723/20, Galapagos BidCo (24 March).

Case C-421/20, Acacia, is a request for a preliminary ruling from the Oberlandesgericht Düsseldorf in a case opposing Bayerische Motoren Werke Aktiengesellschaft against an Italian company, Acacia S.R.L. The defendant manufactures rims for motor vehicles in Italy and sells them throughout the European Union. In Germany, it markets rims under the name ‘WSP Italy’, including the ‘Neptune GT’ model. The claimant considers that the distribution of the rims in Germany by the defendant constitutes an infringement of its Registered Design, whereas the defendant invokes the repair clause in Article 110 of the Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (Community Designs Regulation, CDR). The questions referred concern both the international jurisdiction and the applicable law, and require the interpretation of provisions of the CDR and of the Rome II Regulation:

1. In proceedings for an infringement of Community designs, can the national court dealing with the infringement proceedings having international jurisdiction pursuant to Article 82(5) of the CDR apply the national law of the Member State in which the court dealing with the infringement proceedings is situated (lex fori) to subsequent claims in relation to the territory of its Member State?
2. If Question 1 is answered in the negative: Can the ‘initial place of infringement’ for the purposes of the CJEU judgments in Cases C‑24/16, C‑25/16 (Nintendo v BigBen) regarding the determination of the law applicable to subsequent claims under Article 8(2) 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’) (‘the Rome II Regulation’) also lie in the Member State where the consumers to whom internet advertising is addressed are located and where goods infringing designs are put on the market within the meaning of Article 19 of the CDR, in so far as only the offering and the putting on the market in that Member State are challenged, even if the internet offers on which the offering and the putting on the market are based were launched in another Member State?

Advocate General M. Szpunar had published his opinion in October 2021. No English version is available so far. My translation would be the following:

‘Article 1(1) of Regulation (EC) No. 864/2007 (…) and Article 88 (2) as well as Article 89 (1) (d) of Council Regulation (EC) No. 6/2002 (…) are to be interpreted as meaning that a case in which a court of a Member State is seized pursuant to Article 82(5) of the latter Regulation of an infringement action by a right holder resident in this State against an infringer resident in another Member State, which concerns the offer for sale and the placing on the market of the goods in question in the first Member State, there is a connection to the law of different States within the meaning of Art 1(1) of Regulation No. 864/2007 and, consequently, Article 8(2) of that regulation determines the law applicable to subsequent claims relating to the territory of that Member State.

Article 8(2) of Regulation No 864/2007 must be interpreted as meaning that the term “[country] in which the act of infringement was committed” within the meaning of that provision, insofar as it relates to the determination of the infringement action subsequent claims asserted, relates to the country in which the original infringing act on which the conduct reproached is based was committed.’

The judgment will be adopted by the fifth chamber – E. Regan, K. Lenaerts, C. Lycourgos (as reporting judge), I. Jarukaitis and M. Ilešič.

Case C-498/20, BMA Nederland, was referred to the Court of Justice by the Rechtbank Midden-Nederland. The applicant in the main dispute is ZK, in his capacity as successor to JM, liquidator in the bankruptcy of BMA Nederland BV (‘BMA NL’); the defendant is BMA Braunschweigische Maschinenbauanstalt AG (‘BMA AG’). Stichting Belangbehartiging Crediteuren BMA Nederland acts as intervening party.

In the main proceedings, the liquidator seeks a declaration that BMA AG has breached its duty of care towards the general body of creditors of its sub-subsidiary – the bankrupt company BMA N L- ; that it has thereby acted unlawfully; and that it is liable for the damage suffered by the general body of creditors. In addition, he seeks a declaration that BMA AG is obliged to pay to the estate of BMA NL, for the benefit of the general body of creditors, damages equal to the non-recoverable part of the claims of the general body of creditors against BMA NL.

The Stichting seeks a declaration that BMA AG has acted unlawfully (i) towards all the creditors involved in the bankruptcy of BMA NL, (ii) towards the creditors who relied on BMA NL’s having fulfilled its obligations towards them, since BMA AG was supposed to provide BMA NL with adequate financing for that purpose, (iii) or towards the creditors who could have taken measures to prevent their claims against BMA NL from remaining unpaid had they been aware in advance of the cessation of further financing by BMA AG. The Stichting also claims that BMA AG should be ordered as a third party to pay to each of BMA NL’s creditors, at its first request, the entire amount (including interest) owed by BMA NL to that creditor.

The national court asks the following sets of questions to the Court of Justice:

Question 1

(a) Must the term ‘place where the harmful event occurred’ in Article 7, point 2, of Regulation (EU) No 1215/2012 [Brussels I bis] be interpreted as meaning that ‘the place of the event giving rise to the damage’ (Handlungsort) is the place of establishment of the company which offers no redress for the claims of its creditors, if that lack of redress is the result of a breach by that company’s grandparent company of its duty of care towards those creditors?

(b) Must the term ‘place where the harmful event occurred’ in Article 7, point 2, of the [Brussels I bis Regulation] be interpreted as meaning that ‘the place where the damage occurred’ (Erfolgsort) is the place of establishment of the company which offers no redress for claims of its creditors, if that lack of redress is the result of a breach by that company’s grandparent company of its duty of care towards those creditors?

(c) Are additional circumstances required which justify the jurisdiction of the courts of the place of establishment of the company which offers no redress and, if so, what are those circumstances?

(d) Does the fact that the Netherlands liquidator of the company which offers no redress for the claims of its creditors has, by virtue of his statutory duty to wind up the estate, made a claim for damages arising from tort/delict for the benefit of (but not on behalf of) the general body of creditors affect the determination of the competent court on the basis of Article 7, point 2, of the [Brussels I bis Regulation]? Such a claim implies that there is no room for an examination of the individual positions of the individual creditors and that the third party concerned cannot avail itself of all the defences against the liquidator which it might have been able to use in respect of certain individual creditors.

(e)     Does the fact that a portion of the creditors for whose benefit the liquidator makes the claim have their domicile outside the territory of the European Union affect the determination of the competent court on the basis of Article 7, point 2, of the [Brussels I bis Regulation]?

Question 2

Would the answer to Question 1 be different in the case of a claim made by a foundation which has as its purpose the protection of the collective interests of creditors who have suffered damage as referred to in Question 1? Such a collective claim implies that the proceedings would not determine (a) the domiciles of the creditors in question, (b) the particular circumstances giving rise to the claims of the individual creditors against the company and (c) whether a duty of care as referred to above exists in respect of the individual creditors and whether it has been breached.

Question 3

Must Article 8, point 2, of the [Brussels I bis Regulation] be interpreted as meaning that, if the court seised of the original proceedings reverses its decision that it has jurisdiction in respect of those proceedings, such a reversal also automatically excludes its jurisdiction in respect of the claims made by the intervening third party?

Question 4

(a) Must Article 4(1) of Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations [Rome II Regulation] be interpreted as meaning that ‘the place where the damage occurs’ is the place where the company which offers no redress for the damage suffered by its creditors as a result of the breach of the duty of care referred to above has its registered office?

(b) Does the fact that the claims have been made by a liquidator by virtue of his statutory duty to wind up the estate and by a representative of collective interests for the benefit of (but not on behalf of) the general body of creditors affect the determination of that place?

(c) Does the fact that some of the creditors are domiciled outside the territory of the European Union affect the determination of that place?

(d) Is the fact that there were financing agreements between the Netherlands bankrupt company and its grandparent company which nominated the German courts as the forum of choice and declared German law to be applicable a circumstance which makes the alleged tort/delict of BMA AG manifestly more closely connected with a country other than the Netherlands within the meaning of Article 4(3) of the Rome II Regulation?

The opinion of Advocate General M. Campos Sánchez-Bordona was requested only in relation to the fourth question. In order to answer it he addressed as well the exclusion of non-contractual obligations arising out of the law of companies from the scope of Regulation Rome II under its Article 1(2)(d). I provide here a non-official translation into English:

Article 1(2)(d) of the Rome II Regulation must be interpreted in the sense that it excludes from its scope of application the non-contractual obligations resulting from the infringement of the duty of diligence of partners or administrators when the law attributes the responsibility before third parties, derived from said infraction, to the partners or administrators for company law-related reasons. By contrast, liability arising from a breach of the generic duty of care is not excluded from the scope of the Regulation.

Article 4 (1), of the Rome II Regulation must be interpreted in the sense that the country where the damage occurs is the one where a company has its domicile, when the damage suffered by its creditors is the indirect consequence of economic losses initially suffered by the company itself. The circumstance that the actions are brought by a bankruptcy administrator in his capacity as insolvency liquidator, or by an entity for the defence of collective interests, in favour (but not on behalf) of all the creditors, is without incidence on the ascertainment of such a country. The domicile of some creditors outside the European Union is equally irrelevant.

Article 4(3) of the Rome II Regulation is to be interpreted as meaning that a pre-existing relationship between the tortfeasor and the direct victim (such as, for example, a financing agreement, for which the parties have chosen the applicable law) is an element to be weighed together with the rest of the circumstances, in order to establish whether there is, between the harmful event and a certain country, a manifestly closer connection than that of the same event and the country whose law would apply under Articles 4(1) and (2).

Judges N. Jääskinen, N. Piçarra and M. Safjan (reporting judge) will adjudicate.

The ruling in C-723/20, Galapagos BidCo, will be one delivered by a chamber of five judges (E. Regan, I. Jarukaitis acting as reporting judge, M. Ilešič, D. Gratsias and Z. Csehi), without a previous opinion. The case is pending before the Bundesgerichtshof (Germany), which has referred the following questions in relation to Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (the new insolvency regulation):

1. Is Article 3(1) of Regulation (EU) 2015/848 to be interpreted as meaning that a debtor company the statutory seat of which is situated in a Member State does not have the centre of its main interests in a second Member State in which the place of its central administration is situated, as can be determined on the basis of objective factors ascertainable by third parties, in the case where, in circumstances such as those in the main proceedings, the debtor company has moved that place of central administration from a third Member State to the second Member State at a time when a request to have the main insolvency proceedings opened in respect of its assets has been lodged in the third Member State and a decision on that request has not yet been delivered?
2. If Question 1 is answered in the negative: Is Article 3(1) of Regulation (EU) 2015/848 to be interpreted as meaning that:

(a)     the courts of the Member State within the territory of which the centre of the debtor’s main interests is situated at the time when the debtor lodges the request to have insolvency proceedings opened retain international jurisdiction to open those proceedings if the debtor moves the centre of its main interests to the territory of another Member State after lodging the request but before the decision opening insolvency proceedings is delivered, and

(b)     such continuing international jurisdiction of the courts of one Member State excludes the jurisdiction of the courts of another Member State in respect of further requests to have the main insolvency proceedings opened received by a court of that other Member State after the debtor has moved its centre of main interests to that other Member State?

Let’s move now to the three opinions.

The one of Advocate General P. Pikamäe in case C-7/21, LKW WALTER, is expected on Thursday 9. The  questions come from the Bezirksgericht Bleiburg (Austria), on a case involving LKW WALTER internationale Transportorganisation AG, a company registered in the Austrian commercial register which operates in the field of international carriage of goods, and several defendants. The applicant is claiming EUR 22 168.09 plus interest and costs from the defendants on the ground of lawyers’ liability, because the defendants had failed to comply with the time limit to lodge in Slovenia an objection against a Slovenian decision on enforcement served on the applicant.

It is in those proceedings that the request for a preliminary ruling is made:

1.  Are Articles 36 and 39 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union and the principles of effectiveness and equivalence (principle of sincere cooperation under Article 4(3) TEU), to be interpreted as precluding a provision of a Member State which provides for, as the sole remedy against a decision on enforcement issued by the court without prior adversarial proceedings and without an instrument permitting enforcement, and solely on the basis of the allegations of the party seeking enforcement, an objection, which must be lodged within eight days in the language of that Member State, even if the decision on enforcement is served in another Member State in a language which the addressee does not understand, and the objection is already rejected as being out of time if it is lodged within twelve days?
2.  Is Article 8 of Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service of documents, read in conjunction with the principles of effectiveness and equivalence, to be interpreted as precluding a national measure which provides that, upon service of the standard form set out in Annex II informing the addressee of his or her right to refuse to accept the document within a period of one week, the period also begins to run in respect of bringing the appeal provided for against the decision on enforcement served at the same time, for which a period of eight days is laid down?
3. Is Article 18(1) of the Treaty on the Functioning of the European Union to be interpreted as precluding a provision of a Member State which provides for, as the remedy against a decision on enforcement, an objection, which must be lodged within eight days, and that time limit also applies where the addressee of the decision on enforcement is established in another Member State and the decision on enforcement is not written either in the official language of the Member State in which the decision on enforcement is served or in a language which the addressee of the decision understands?

One week later – thus, on Thursday 17-, M. J. Richard de la Tour will deliver his opinion in C-604/20, ROI Land Investments, a request from the Bundesarbeitsgericht (Germany). In the main proceedings, the defendant is a company operating in the real estate sector; the seat of its central administration is in Canada. The applicant, domiciled in Germany , had been working for the defendant on the basis of a ‘service agreement’ since the end of September 2015. As the parties felt that there was uncertainty surrounding the applicant’s employment status, they decided ‘to transfer’ the contractual relationship to a Swiss company that was to be newly established. In mid-November 2015, they agreed to terminate the ‘service agreement’ with retroactive effect. An accompanying letter from the applicant states that he signed the agreement subject to the condition that an equivalent agreement be concluded in relation to an executive management contract in respect of the Swiss company to be established.

On January 2016, the defendant established a subsidiary, R Swiss AG, under Swiss law. On February 2016, the applicant concluded a written contract of employment with R Swiss for a position as its director; the same day the parties signed a ‘patron agreement’ (as per the terminology used by the parties, commonly referred to as a ‘letter of comfort’). The contract of employment was to be subject to Swiss law.

On July 2016, R Swiss notified the applicant that the contract of employment was to be terminated. By judgment of 2 November 2016, the Arbeitsgericht Stuttgart (Stuttgart Labour Court, Germany) found that the termination was ineffective and ordered R Swiss to pay the applicant a certain amount of money. This judgment became final, but R Swiss did not discharge its payment obligation. Later, bankruptcy proceedings were opened in respect of the assets of R Swiss under Swiss law. At the beginning of May 2017, those proceedings were discontinued owing to a lack of insolvency assets.

In the main proceedings, the applicant seeks, on the basis of the letter of comfort, payment from the defendant of the sums owed by R Swiss according to the aforementioned judgment of the Stuttgart Labour Court. The action was dismissed at first instance on the ground that the German courts lack international jurisdiction. The Berufungsgericht (Court of Appeal), on the other hand, found that the German labour courts do have jurisdiction and upheld the action. By its appeal on a point of law brought before the referring court, the defendant seeks to have the decision at first instance restored.

The success of the defendant’s appeal on a point of law depends therefore crucially on whether the German courts have international jurisdiction. That jurisdiction could arise, first, from Article 21(2) read in conjunction with Article 21(1)(b)(i) of the Brussels I Regulation (question 1), second, from Paragraph 48(1a) read in conjunction with Paragraph 3 ArbGG, although the applicability of that national rule is unclear (question 2) and, third, from Article 18(1) of the Brussels I Regulation, if the applicant can be regarded as a ‘consumer’ within the meaning of that provision (question 3). If the German courts do in fact have jurisdiction, the question also arises as to which national law is applicable to the letter of comfort (question 4). The questions referred to the Court of Justice are:

1. Is Article 6(1) read in conjunction with Article 21(2) and Article 21(1)(b) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (‘Brussels I Regulation’) to be interpreted as meaning that an employee can sue a legal person – which is not his employer and which is not domiciled in a Member State within the meaning of Article 63(1) of the Brussels I Regulation but which, by virtue of a letter of comfort, is directly liable to the employee for claims arising from an individual contract of employment with a third party – in the courts for the place where or from where the employee habitually carries out his work in the employment relationship with the third party or in the courts for the last place where he did so, if the contract of employment with the third party would not have come into being in the absence of the letter of comfort?
2. Is Article 6(1) of the Brussels I Regulation to be interpreted as meaning that the reservation in respect of Article 21(2) of the Brussels I Regulation precludes the application of a rule of jurisdiction existing under the national law of the Member State which allows an employee to sue a legal person, which, in circumstances such as those described in the first question, is directly liable to him for claims arising from an individual contract of employment with a third party, as the ‘successor in title’ of the employer in the courts for the place where the employee habitually carries out his work, if no such jurisdiction exists under Article 21(2) read in conjunction with Article 21(1)(b)(i) of the Brussels I Regulation?
3. If the first question is answered in the negative and the second question in the affirmative:

(a) Is Article 17(1) of the Brussels I Regulation to be interpreted as meaning that the concept of ‘professional activities’ includes paid employment in an employment relationship?

(b) If so, is Article 17(1) of the Brussels I Regulation to be interpreted as meaning that a letter of comfort on the basis of which a legal person is directly liable for claims of an employee arising from an individual contract of employment with a third party constitutes a contract concluded by the employee for a purpose which can be regarded as being within the scope of his professional activities?

4. If, in answer to the above questions, the referring court is deemed to have international jurisdiction to rule on the dispute:

(a) Is Article 6(1) of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) to be interpreted as meaning that the concept of ‘professional activities’ includes paid employment in an employment relationship?

(b) If so, is Article 6(1) of the Rome I Regulation to be interpreted as meaning that a letter of comfort on the basis of which a legal person is directly liable to an employee for claims arising from an individual contract of employment with a third party constitutes a contract concluded by the employee for a purpose which can be regarded as being within the scope of his professional activities?

Finally, Advocate General A.M. Collins’s opinion on C-18/21, Uniqa Versicherungen should be available on the last Thursday of March. I refer to the explanation of the case I made previously, when announcing the hearing last January.

Mathilde Codazzi, who is a master student at the university Paris II Panthéon-Assas, contributed to this post.

In a judgment of 9 February 2022, the French Cour de cassation ruled that the “relationship existing between the parties” required by Article 10(1) of the Rome II Regulation in order to apply the law governing this relationship to a claim of unjust enrichment cannot be found in a contract existing between one of the parties to the non-contractual obligation and a third party, nor in the performance by a party of obligations arising from mandatory provisions of the law applicable to the said contract.

Article 10(1) of the Rome II Regulation reads:

If a non-contractual obligation arising out of unjust enrichment, including payment of amounts wrongly received, concerns a relationship existing between the parties, such as one arising out of a contract or a tort/delict, that is closely connected with that unjust enrichment, it shall be governed by the law that governs that relationship.

Pursuant to a decision of German courts, a German notary was ordered to pay damages to a French bank for failure to comply with his obligation of due diligence (‘obligation de vigilance’: the judgment does not elaborate on this point). The notary’s claim against his civil liability insurer, German company HDI Versicherung, was rejected on the ground that the insurance contract did not cover damage intentionally caused by the insured party. However, pursuant to a German federal statute which requires the insurer to compensate even such damage, HDI Versicherung still compensated the bank. HDI Versicherung then sought to recover from the notary’s professional society (Chambre des notaires) and its insurer, but its claim was rejected by German courts on the ground that it had not been brought within the contractual time period. HDI Versicherung eventually brought a claim for unjust enrichment against the bank in France to obtain restitution of the amount paid under § 812 of the German Civil Code.

In a judgment of 30 June 2020, the Court of Appeal of Metz ruled that German law applied to the action for restitution of payment wrongly received pursuant to Article 10(1) of the Rome II Regulation, on the ground that the compensation was paid by reason of the relationship existing between HDI Versicherung and the notary and of the event giving rise to the damage suffered by HDI Versicherung and the notary was governed by German law, and that the payment had occurred pursuant to mandatory provisions of German law.

The bank appealed and argued that German law cannot apply to the non-contractual obligation between the notary’s insurer and the bank as there was no existing relationship between them.

The French Supreme Court ruled that neither a contract concluded by one of the parties to the non-contractual obligation with a third party, nor the performance of obligations imposed by mandatory provisions of the lex contractus of that contract could characterize the “relationship existing between the parties” in the meaning of Article 10(1) of the Rome II Regulation. Hence the law governing the contract could not apply to the unjust enrichment claim.

It held:

the relationship existing between the parties to the non-contractual obligation cannot result from a contract concluded by one of the parties with a third party, nor from the performance by a party of obligations arising from the contract imposed by the law applicable to this contract.

The scope of the judgment is narrow. The only issue before the Court was whether the lower court had properly applied Article 10(1). The language of the provision clearly clearly limits its scope to existing relationships between the parties to the quasi-contractual claim. The lower court had applied it outside of its scope, and was wrong for this reason alone.

It would have been good to know how the Cour de cassation would have applied the other paragraphs of the Article 10, but it did not need to for the purpose of deciding the appeal, and unsurprisingly did not.

Article 10(2) provides for the application of the law of the common habitual residence of the parties, and was thus irrelevant for this case as well. Article 10(3) then provides for the application of the “law of the country in which the unjust enrichment took place“. It seems clear that this would have designated France, where the French bank had received the payment.

Finally, Article 10(4) provides for a common and general exception clause. In this context, it seems that the contract between HDI Versicherung and the notary should have been highly relevant. Article 10(4), however, provides that the exception clause should only be applied if the non-contractual obligation arising out of unjust enrichment would have been manifestly more closely connected with a country other than the country otherwise designated under Article 10. Would it be so in this case?

The European Expertise and Expert Institute (EEEI) is seeking to recruit a project assistant for a part time position to work on a European project of the EEEI, Find your Expert II (Findex II).

The Findex II project is funded by the European Commission and aims at establishing a common definition of experts and improve the identification and selection of experts at European level.

The project is based on the following statement: Although judicial experts play an indispensable role in civil and criminal justice, there is no common definition of “judicial expert” (also called “expert witness” or forensic expert) across Europe.  Court mostly rely on the result of the expertise when rendering their decision. It is of crucial importance for a fair justice in Europe that experts giving their opinion to courts meet basic professional principles such as competence, independence, impartiality, and integrity as well as a minimal level of professional standards.

Another essential aspect is the possibility for the court to select the “right” expert, i.e., the one that will be able to answer the court’s question on a given case quickly and efficiently.

In order to enhance and converge these aspects throughout Europe, EEEI and EuroExpert as both major European actors of expertise propose to work on: a common understanding of expertise and the use of experts in the judicial field; convergence of nomenclatures, i.e. the lists of expertise fields; requirements of a future IT-search tool for expert.

The job of the project assistant will consist in assisting the various actors of the project. The EEEI expects that candidates will be students at master level or higher.

More details on the job can be found here. More details on the project can be found here.

The Assas International Law Review (Revue de droit international d’Assas) is an open access online journal published once a year by the doctoral school of the University. It features articles on public and private international law written by professors and doctoral students.

The main theme of the 2021 issue is art and international law.

The issue features seven articles on this topic (including one on litigation aimed at returning cultural objects). It also includes short articles summarizing the doctoral theses recently defended at the University and four more articles on various topics.

Of particular note for private international law scholars are the following articles.

In the first article, Marie Elodie Ancel offers a French perspective on the judgment of the UK Supreme Court in Enka v. Chubb (La loi applicable à la Convention d’arbitrage au Royaume-Uni: les enseignements de l’arrêt Enka). She concludes as follows:

Par conséquent, le raisonnement conflictualiste tel qu’il est pratiqué par la Cour suprême du Royaume-Uni ne présente pas de pertinence particulière dans le contexte français. À l’inverse, il serait concevable pour la Cour suprême du Royaume-Uni de s’inspirer de la méthode française et de forger des règles matérielles que les juges anglais pourraient appliquer pour statuer, aux divers moments que le droit anglais leur ménage pour ce faire, sur la validité, l’étendue ou l’interprétation de la clause d’arbitrage. D’ailleurs, comme the validation principle, les présomptions et contre-présomptions censées permettre d’établir un éventuel choix tacite de la loi applicable à la clause d’arbitrage ont la nature de règles matérielles du for. La Cour suprême démontre d’ailleurs un indéniable talent pour créer de telles règles… En théorie, elle pourrait donc l’exercer pour définir directement le régime substantiel des clauses d’arbitrage. Cependant, puisque le Royaume-Uni a intégré la Convention de New York dans sa législation de manière stricte et sans profiter de l’article VII (1) et que la Cour suprême préconise d’appréhender la clause d’arbitrage de la même manière, quel que soit le moment où le juge anglais est amené à en vérifier la validité ou l’efficacité, il ne faut pas espérer de révolution méthodologique outre-Manche. La méthode conflictualiste y sera sans doute encore longtemps pratiquée, quitte à réviser et reconcevoir les présomptions censées établir un choix tacite de la loi applicable. Les deux rives de la Manche ne sont pas près de se réunir.

The second article is written in English by Diana Reisman and is concerned with 2019 Hague Judgments Convention (Breaking Bad: Fail-Safes to the Hague Judgement Convention).

This Note explores a contingency that is neither acknowledged nor addressed by the Judgments Convention: a marked deterioration in the judiciary of a party following the expiration of the twelve-month suspension period. When a state obligates itself, under the terms of the Judgments Convention, to enforce the civil and commercial judgments of another State Party, it does so with confidence in the quality of the judicial culture of that other state, including the degree of fairness and judicial transparency with which cases are prosecuted. However, the integrity of the judiciary is not necessarily enduring, nor is it immune to the effects of political change in the state. Suppose that a State Party whose judicial culture was judged fair and transparent at the time of ratification or accession experiences internal change, leading to a sudden or a gradual alteration in its judicial culture, which causes concerns for some of the other treaty partners. As drafted, the Judgments Convention would oblige the other States Parties to continue to perform their treaty obligations to that State Party. Herein lies the conundrum of the Judgments Convention: It relies on the assumption that its parties’ quality of justice is stable over time such that their private law judgments should be enforced on a fast track in each other’s courts. Should the quality of one state’s justice system later decline, litigants contesting enforcement of one of that state’s civil judgments would have the burden of conforming their objections to the Judgments Convention’s narrow grounds for nonrecognition. Other States Parties would find themselves in the position of recognizing and enforcing problematic civil judgments issued from the compromised State Party.

The 2021 Issue is freely available here.

The environment is on – almost – everybody’s mind.  In particular companies committed to sustainable investment are becoming an increasingly relevant economic factor. Accordingly, their business models are now also frequently the subject of court proceedings, raising  new legal questions, including those concerning private international law. The CJEU has recently had to decide on such a question.

Facts

The Swiss investment firm ShareWood had a clever idea to turn ecological concerns into money: They offered to plant trees in Brazil, harvest them after a couple of years and sell the timber for a profit. Investors were promised ownership of individual trees. They would also rent a piece of land for as long as ‘their’ trees were standing on it. The contracts were expressly submitted to Swiss law.

Soon the relations between the firm and their investors turned sour. Some Austrian residents complained that ShareWood had failed to transfer ownership of the trees to them and sued the firm in Vienna.

Proceedings

The Austrian Supreme Court (Oberster Gerichtshof) considered the law applicable to this dispute. In particular, it was unsure whether the case fell under Article 6(4)(c) of the Rome I Regulation, which makes an exception from the consumer conflicts provisions in the case of “a contract relating to a right in rem in immovable property or a tenancy of immovable property”.

Holding of the CJEU

The CJEU, in a decision dated 10 February 2022, flatly rejects the applicability of Article 6(4)(c) of the Rome I Regulation.

First, the CJEU denies that the contracts concern “a right in rem in immovable property”. Although the investors aimed to acquire property, they targeted the trees and not the immovable property. The Court admits the existence of national provisions under which the tree is considered as being part of the immovable property on which it stands, but wilfully ignores them by applying its famous principle of autonomous interpretation. The Court refers instead to the specific purpose of the contracts, which is to generate income from the sale of the timber. In its view, the trees “must be regarded as being the proceeds of the use of the land on which they are planted” (para 28), and thus not as forming part of the real estate.

Second, the CJEU also denies that the contracts relate to the “tenancy of immovable property” and hence does not fall under the second prong of Article 6(4)(c) of the Rome I Regulation,  despite the fact that the investors rented the land on which their tree stands. The Court of Justice revives here some of its case law regarding the exclusive jurisdiction for such tenancy agreements under the old Article 16(1)  of the Brussels Convention. Specifically, it cites its decision in Klein, where it had ruled that the application of this provision requires “a sufficiently close link between the contract and the property concerned”. The Court now holds that this link would not exist where the lease is intended “merely to enable the sales and services elements provided for in the contract to be carried out” (para 37).

The result is that the choice of law in the contracts could not overcome the mandatory rules in force at the consumers’ habitual residence (Article 6(2) Rome I Regulation). In the specific case, the chosen Swiss law was thus superseded by the mandatory rules of Austrian law.

Comment

The Court of Justice may have oversimplified things a bit. It neglected the fact that the investors pursued a double goal: they wanted not only to make money on the sale of the timber, but also to own the trees while they were growing as a kind of legally protected contribution to the fight against climate change. To ensure this second goal, the contracts stipulated that this ownership would not start after the trees were harvested, but long before. Moreover, the connection with the tenancy of the land was way more straightforward than in  Klein, where a membership in a club had been acquired. Here, the land served the purpose of  growing a specific tree. There was thus a much stronger connection to a particular piece of land.

Conclusion

Despite these weaknesses, the CJEU judgment may still be defended on the grounds  of consumer protection. Indeed, financial profit was a key driver of the whole contractual arrangement and not just a side-issue. In a case like this, the link to the immovable property does not outdo the need for consumer/investor protection. Article 6(4)(c) of the Rome I Regulation should be restricted to those cases that primarily are about rights in immovable property and are not also motivated by a substantial financial purpose. This is the lesson to be learned from ShareWood Switzerland.

If the financial purpose would be dominant, one could think about qualifying the contracts as financial instruments under Art. 6(4)(d) of the Rome I Regulation. Yet this characterisation is difficult given the regulatory definition of this notion (see Annex I C of the Markets in Financial Instruments Directive (MiFID II)). Contracts like the present ones thus fall between the boundaries  of Article 6(4)(c) and (d) of the Rome I Regulation, which is good news for consumers because the rules of Article 6(1) and (2) of the Rome I Regulation, favourable to them, will apply.

Many thanks to Amy Held, Felix Krysa and Verena Wodniansky-Wildenfeld for reviewing this post.

Gary Born (Wilmer Cutler Pickering Hale and Dorr LLP) and Cem Kalelioglu (Wilmer Cutler Pickering Hale and Dorr LLP) contributed an article on choice-of-law agreements in international contracts to Volume 50, Number 1, of the Georgia Journal of International and Comparative Law.

Choice-of-law agreements are widely used in international business transactions, with a substantial majority of all cross-border commercial and investment contracts containing a choice-of-law provision. Virtually all legal systems, and many treaties and other international legal instruments, recognize the presumptive validity of such agreements. Nonetheless, there are significant variations in the treatment of international choice-of-law provisions, including with respect to issues of validity, enforceability, and interpretation, which can lead to a degree of unpredictability in the application of such provisions. This uncertainty undermines the basic purposes of choice-of-law agreements and private international law more generally.

This Article examines the treatment of international choice-of-law agreements under both national and international law. In particular, the Article considers the rules governing the validity and enforceability of such agreements, the exceptions to their presumptive validity and enforceability, and the interpretation of international choice-of-law provisions.

The Article argues that the basic rule of presumptive validity of choice-of-law provisions in international commercial and investment contracts now has the status of a general principle of law and is therefore binding on states as a matter of international law and, in any event, should be adopted as a matter of national policy. This Article also argues that, although there are substantial similarities in the treatment of exceptions to the validity of international choice-of-law provisions in different national and other legal systems, important differences persist. These differences undermine the purposes of such agreements, and thereby impede international trade and investment. The Article examines these differences and proposes heightened uniformity in the rules governing the recognition of international choice-of-law agreements in commercial and investment contracts. Among other things, choice-of-law agreements (i) should not be subject to any “reasonable relationship” requirement, (ii) should be presumptively valid where a non- national legal system is selected and (iii) should be unenforceable on public policy grounds only in exceptional circumstances.

The Article also contends that similar differences exist with respect to the interpretation of international choice-of-law agreements in different legal systems, and that these differences frustrate the intentions of commercial parties. The Article proposes rules of interpretation of international choice-of-law provisions, including presumptions that choice-of-law agreements select only the “local law,” not the “whole law,” of a jurisdiction and that choice-of-law provisions be interpreted liberally, to include most issues of procedure and remedy, as well as non-contractual issues. These uniform rules of interpretation would better serve the objectives of commercial parties and purposes of private international law regimes and the international legal system than does existing treatment of international choice-of-law provisions.

The article is freely accessible here.

The Catholic University of the Sacred Heart in Milan plans to invite young scholars to present the outcome of their doctoral research on any topic within the field of private international law, transnational law or the law of international arbitration, at a dedicated seminar that will be held annually in Milan (the MECSI Seminar). Each MECSI Seminar will revolve around one scholar, selected by a jury constituted for this purpose.

Exceptionally, two MECSI Seminars will take place in 2022. The first will be held on 9 March 2022 at 5 pm. The speaker will be Augustin Gridel, who is a teaching fellow at the Université Paris II Panthéon-Assas. He will deliver a presentation titled Financial Markets and Financial Instruments in Private International Law. Professor Francesca Villata, of the University of Milan, will act as a discussant.

Those interested in presenting their doctoral research at the second MECSI Seminar of 2022, scheduled to take place in November 2022, are encouraged to send an e-mail to Pietro Franzina (pietro.franzina@unicatt.it) by 15 July 2022.

Applicants must be aged less than 35 and may come from any country. They must have already discussed their PhD dissertation at the time when the application is submitted (however, no more than two years must have passed since the dissertation was discussed). Applications must include a copy of the dissertation, an abstract of the dissertation in English and a CV of the author in English.

Applications must also include a proposal for the seminar presentation consisting of a title followed by abstract of about 1.500 words. The subject matter of the presentation must relate to, but should not necessarily coincide with, the topic of the thesis: the applicant may choose, for instance, to concentrate on one aspect of his or her research, or discuss developments occurred after the dissertation was discussed.

All documents accompanying the application must be in pdf format. The selection process involves, for those shortlisted, a Zoom interview.

The Catholic University of the Sacred Heart will cover the travel expenses of the selected scholar up to 600 Euros, and will take care of his or her accommodation at one of the guest houses of the University for up to two nights. During their stay in Milan, the selected scholar will also be invited to give a 45 minute lecture in English to the students attending the course of Private International Law on a topic unrelated to their PhD research.

The French Committee of Private International Law is looking for a part-time assistant (35 hours per year). His/her main tasks will be to transcribe the debates of the Committee meetings, organise meetings and update the website of the Committee.

The main requirements are:  Master’s degree in private international law or PhD student in private international law; Good writing skills and command of the usual computer tools.

The remuneration is 2000 EUR per year and the expected work status is self-employed (auto-entrepreneur).

The position is to be filled as soon as possible and at the latest in May 2022.

Applications should be sent to the General Secretariat of the Committee: Sabine.corneloup@u-paris2.fr and Fabienne.jault@seseke.fr.

The European Association of Private International Law learnt with great sadness the passing of Peter Mankowski. The editors of the EAPIL Blog are most grateful to Ulrich Magnus for contributing the in memoriam published earlier today.

While none of us knew Peter Mankowski as well as Ulrich Magnus, some of the Editors of this blog were on personal terms with him, while others were involved in projects he led and had planned. Peter Mankowski was a great scholar. Not only did he write a staggering amount of publications, but he was also an avid reader of everything published on private international law. in addition, he provided very useful feedback and encouraging comments to other authors.

The Editors of the Blog greatly appreciated his willingness to participate in the online symposia that they organised, often on a (very) short notice, on important decisions of the CJEU with scholars from other European jurisdictions. Peter was always enthusiastic about these online symposia.

One of the last in which he participated was about the CJEU decision in Hrvatske Šume at the start of 2022. He kicked off our online symposium on the case with a lucid analysis, perhaps one of the last works of his busy life.

Reading it again lets us remember why we loved Peter: His text is full of ideas, provides ample references, and testifies of his broad view of international law.

In retrospect, it was only logical that Peter Mankowski would be interested in sharing and debating with other European scholars.

He and Ulrich Magnus were instrumental in the development of a transeuropean dialogue on private international law. We are of course referring to the groundbreaking series of European commentaries on private international law. Magnus and Mankowski were the first to gather teams of European scholars to offer systematic commentaries of the most important European regulations on private international law.

Establishing a truly pan-European forum to discuss issues of private international law is the main goal of the European Association of Private International Law. Peter Mankowski (and Ulrich Magnus) were precursors in this respect. They blazed the trail on which we walk.

This memorial was contributed by Prof. Dr. Ulrich Magnus.

On 10 February 2022 Peter Mankowski passed away, entirely unexpected at the age of only 55. The European community of scholars of Private Law and in particular Private International Law lost one of its most brilliant and productive minds. He leaves behind the almost unbelievable number of about 1500 publications, not few of them counting 1000 and more pages. Even his annotations on court decisions were frequently longer and more intensely documented than many ordinary articles. And his footnotes! He truly used the entire legal materials (legislation, decisions, scholarly works and articles) accessible in Europe and he did not do it for ‘ornamenting’ his considerations but really delved into the sources and brought to the surface what was helpful for the solution of the concrete legal problem.

To this end, his education at the Johanneum, the renowned Hamburg Gelehrtenschule, laid the foundation with Greek and Latin. His study in at the law faculty in Hamburg, the two states exams there, a longer stay in London added to his abilities. Shortly after his habilitation at the University of Osnabrück with Prof. Dr. Christian von Bar he got his first chair: In 2001 he became professor for civil law, comparative law and private international and procedural law at the University of Hamburg. All he needed to become an outstanding scholar he brought with him: besides an excellent knowledge of law and procedure and the language skills the bright mind, the curiosity for new and complicated problems, the creativity and ability to solve them, his unbelievable spirit and endurance to work hard. And besides that, he was a wonderful colleague and friend, with wit and a very good sense of humour but also with great empathy if others faced serious problems. He himself had to undergo a heart-transplantation in 2012 and in 2014 a transplantation of a kidney which his mother sacrificed. I never heard him ever complain about his health problems. Not only in this respect he was incredibly brave and fearless. Peter leaves behind his parents. So many will miss him so much.

Rhona Schuz (Bar-Ilan University) has published an article Comparative Law and the Work of The Hague Conference on Private International Law in relation to Family Law in Ius Comparatum 2022. Ius Comparatum is an open access research series published under the auspices of the International Academy of Comparative Law (IACL).

The paper is a written version of the inaugural lecture given by Rhona Schuz during the first day of the Online Week on Comparative Family Law Methodology organized by IACL and Bucerius Law School back in October 2021. The lecture may be watched here.

The abstract reads as follows:

This lecture highlights the importance of comparative law in the work of the Hague Conference on Private International Law in the field of family law, both in the process of drafting Conventions and in monitoring the implementation of Conventions after they have come into force. Examples are given of the ways in which different types of comparative law studies have been used to inform the work of preparing Conventions and the various comparative law tools which have been adopted in post-Convention efforts to promote uniform implementation. The significance of the post-Convention comparative work is underlined by a brief discussion of the importance of uniform application of Conventions and the real risks of lack of uniformity. Finally, attention is drawn to a few methodological issues which arise in connection with the comparative law work discussed.

The first issue of the Journal du droit international for 2022 has just been released. It contains three articles and several case notes relating to private international law issues.

In the first article, Gian Paolo Romano (University of Geneva) revisits the interplay between “private” international law and “public” international law (Droit international dit « privé » et droit international dit « public » : éléments d’une théorie unitaire et humanisée du droit international).

The English abstract reads :

The doctrine of private international law and the doctrine of public international law rely on two supposedly self-standing theories whose independence is justified by the difference in their subject-matter : public international law mainly deals with relations between States and the international organizations they form, while private international law deals with relations between private individuals and corporations. However, each of these theories comes up against multiple paradoxes and unresolved problems that their specialists candidly acknowledge. The author argues that a unified and human-centered theory of international law promises to overcome such difficulties, to give a more accurate account of the contemporary law of international relations and to facilitate its further progress.

In a second article, Alejandra Blanquet (Catholic Institute of Paris) focuses on the issue of international child abductions in Japan under the 1980 Hague Convention (Le risque juridique au sein de la Convention de La Haye de 1980 : le cas des enlèvements internationaux d’enfants au Japon – À propos de l’arrêt de la première chambre civile de la Cour de cassation du 28 janvier 2021).

The English abstract reads:

When a French judge confirms that a wrongful removal or a retention of a child have taken place, he must apply The Hague Convention of 1980 and order the child’s return to the place of his habitual residence. The only exception accepted to this solution is the fulfillment of one of the situations described on the text, especially the one exposed in Article 13. Exceptional in nature, these situations also received a restrictive interpretation preventing French jurisdictions from taking legal risk into consideration. This concept may be defined, in our opinion, as the danger derived from the content of foreign law, specifically the one from the country of habitual residence of the child, and which application could lead to negative consequences for the child in the event of a return. By excluding its consideration, the Court of Cassation confirms its preference for a restrictive interpretation of Article 13.b while she closes the door to a possible adaptation of the Convention’s solutions that may be useful to face the particular problem of Japanese kidnappings.

In the third article, Élodie Kleider (PhD, Strasbourg & Bâle Universities) discusses the scope and interpretation of the Lugano Convention based on Norwegian and Swiss case law (Convention de Lugano, États tiers et CJUE : entre influence et ignorance, exemples venus de Suisse et de Norvège).

The English abstract reads:

Only a few non-Member States of the European Union benefit from the Lugano Convention of October 30th, 2007. The United Kingdom hoped to join them after the Brexit. Such a position is advantageous : thanks to the convention, the third country enjoys the benefits of the European judicial area, while keeping great flexibility. Jurisdictions of those countries tend to comply with the judgments of the ECJ, but sometimes clearly deviate. Some Swiss and Norwegian decisions will prove it.

The provisions of the Brussels I bis Regulation on insurance matters (Articles 10-16) are complex and often misunderstood. Now the CJEU has clarified their scope in an important judgment.

A British domiciliary, BT, had an accident on a Spanish property. He brought a suit in Britain against not only the Spanish insurer of the property (Seguros Catalana Occidente), but also against the insured landlord (BE). BE, being domiciled in the Republic of Ireland, objected to the jurisdiction of the British courts.

Incidentally, this was one of the last preliminary references submitted by a British court before Brexit. The County Court at Birkenhead sought clarification on the meaning of Art 13(3) Brussels Ibis, which gives parallel jurisdiction over the injured party and the insured where the applicable law allows the latter to be joined as a party (which apparently English law does).

Disputes over liability in insurance matters usually involve three parties: the victim (the “injured party” in the terminology of Section 3 of the Brussels I bis Regulation), the tortfeasor (the “insured person” in the terminology of the same section), and the tortfeasor’s insurer. Hence, the issue in the present case was whether Article 13(3) Brussels I bis allows the injured party to sue the insured party and the insurer in the same court under the special jurisdiction rules of Section 3.

The CJEU’s answer is negative. It ruled that the insured person could not be joined to the claim brought by the injured party against the insurer in the court conferred special jurisdiction in a matter relating to insurance. That meant that the County Court at Birkenhead did not have jurisdiction over BT’s claim against BE, but only over BT’s claim against Seguros Catalana Occidente.

This scission of jurisdiction between the dispute against the insured party and the insurer may seem surprising at first, as it appears inefficient and at odds with the principle of the sound administration of justice. Yet the decision of the CJEU is to be applauded.

As the CJEU correctly points out, Section 3 of the Brussels I bis Regulation only deals with “Jurisdiction in matters relating to insurance”, as indicated by its heading. The action of BT against EB is not an insurance suit, but rather a typical claim in contract or tort, which is governed by the special jurisdiction rules in Section 2 of the Regulation. This approach of the CJEU draws upon classic arguments arising from the Regulation’s text and structure.

Second, the Court also makes a teleological or purposive argument by stressing that the rules of Section 3 seek to correct a certain imbalance in power between either the injured and/or the insured as the weaker party, and the insurer as the supposedly stronger party. Such imbalance does not exist where neither party to the action is an insurer, like in the case of BT’s claim against BE.

Finally, and perhaps most importantly, the CJEU had recourse to the legislative history: According to the Jenard Report (p. 32), Article 13(3) of the Brussels I bis Regulation was enacted to give the insurer the possibility of joining the insured as a third party to proceedings between the insurer and the injured person. It was not intended to give the injured person the right to join the insured party to a suit against the insurer. The latter will usually be brought in the home jurisdiction of the injured person, which is allowed under Article 13(2) in conjunction with Article 11(1)(b) of Brussels I bis (see CJEU Case C-463/06 FBTO Schadeverzekeringen NV v. Jack Odenbreit). The CJEU is correct to stress that allowing the injured person to join the claim against the insured person would open the doors to all sorts of manipulation. For instance, the party injured by a tort could bring an action against the insurer and join the tortfeasor to the dispute instead of using the rules on general and on special jurisdiction (Articles 4, 7(2) of Brussels I bis).

In sum, injured persons cannot join insured persons to direct claims they bring against the insured person’s insurer. They have to bring the two actions separately, and possibly in different courts. BT would thus have to sue EB either in Ireland, EB’s country of domicile (Article 4(1) of the Brussels I bis Regulation), or in Spain as the place where the alleged harm occurred (Article 7(2)). This seems correct as EB is not an insurer and should thus not be subject to the special jurisdiction rules for matters relating to insurance.

— Many thanks to Amy Held, Felix Krysa and Verena Wodniansky-Wildenfeld for their comments on the draft post.