EAPIL blog

The new issue of International & Comparative Law Quarterly (Volume 70, Issue 3) is out. Some of articles concern directly or indirectly questions of private international law. Their abstracts are provided below.

The whole issue is available here. Some of articles are available in open access.

A. Poon, Determining the Place of Performance under Article 7(1) of the Brussels I Recast, pp. 635-663

This article calls for a reassessment of the methodology in determining the place of contractual performance under Article 7(1) of the Brussels I Regulation Recast. The first part of the article deals with Article 7(1)(a). It argues that in light of the adoption of autonomous linking factors under Article 7(1)(b), more types of contracts presently not covered within the ambits of Article 7(1)(b) should centralise jurisdiction at the places of performance of their characteristic obligations. The second part of the article considers the way Article 7(1) operates when there are multiple places of performance under the contract. The test devised by the Court of Justice of the European Union in this regard is not only difficult to apply, but the application of the test also often does not guarantee a close connection between the claim and the court taking jurisdiction. This article argues that when a claim is made in respect of a contractual obligation to be performed in more than one Member State, Article 4 should be applied instead of Article 7(1).

A. Xu, A New Solution Concerning Choice-of-Law for the Assignment of Debts, pp. 665-696. Available in open access.

This article explores a solution to the choice-of-law issues concerning both voluntary and involuntary assignments arising in a domestic forum. The focus is on English private international law rules relating to cross-border assignments. A distinction is made between primary and extended parties as the foundation for choice-of-law analysis. Drawing on insights from the distinction of the use value and exchange value of debts found in economics, this article proposes a new analytical framework for choice-of-law based on a modified choice-of-law theory of interest-analysis.

S. Caserta, P. Cebulak, Resilience Techniques of International Courts in Times of Resistance to International Law, pp. 737-768

International courts are increasingly called upon to adjudicate socially divisive disputes. They are therefore exposed to a heightened risk of backlash that questions their authority and impedes the implementation of their judgments. This article puts forward an analytical framework for mapping the resilience techniques used by international courts to counter this growing resistance. Case studies involve the Court of Justice of the European Union, which has been cautious in its stance regarding democratic backsliding in Hungary and Poland, and the Caribbean Court of Justice, which has engaged in legal diplomacy while adjudicating both on the land rights of indigenous groups and on Lesbian Gay Bisexual Transgender Queer and Intersex (LGBTQI) rights. It is argued that, in order to effectively avoid and mitigate backlash, international courts should deploy resilience techniques that go beyond merely exercising their judicial function. The successful deployment of resilience techniques can allow international courts to become significant actors in global governance during a time of crisis for the international liberal order.

This post was contributed by Nicolas Kyriakides, who is a practising lawyer in Cyprus and an Adjunct Faculty at the University of Nicosia, and Laura McBride, a BA Jurisprudence student at the University of Oxford.

On 6 July 2021, Robin Knowles J handed down a lengthy judgment in the case of Province of Balochistan v Tethyan Copper Company Pty Ltd [2021] EWHC 1884 (Comm), in the Commercial Court subdivision of the Queen’s Bench Division of the High Court of England and Wales.

This case was to settle various preliminary issues in an arbitration dispute, and provides an interesting insight into the workings of substantive jurisdiction and separability in arbitration.

Background

The Province of Balochistan is one of the four provinces of Pakistan and is rich in natural resources, including gold.

The defendant is an Australian company, owned by two of the world’s biggest mining companies, Antofagasta and Barrick Gold, and had been exploring the Chagai Hills in Balochistan as a possible location for mining. For that purpose, a contract – the Chagai Hills Exploration Joint Venture Agreement (CHEJVA) had been formed in 1993 between BHP Minerals Intermediate Exploration Inc. and the Balochistan Development Authority, but BHP had been replaced as a party to the contract through a Novation Agreement in 2006 which introduced Tethyan Copper (TCCA).

The Islamabad High Court granted a Scheme of Arrangement, which broadly transferred TCCA’s rights to its wholly owned subsidiary (TCCP). After years of exploring, a Mining Lease application was made by TCCP to the Government of Balochistan, which was refused, and two arbitrations have followed – one through ICSID, and one through the ICC – as well as a case in the Supreme Court of Pakistan.

The Province of Balochistan claimed that the ICC arbitral tribunal did not have jurisdiction because the CHEJVA was void, and therefore the arbitration agreement contained within it was also void. This is based on the ‘Corruption Allegation’, which is the allegation that the CHEJVA and related agreements were void due to the existence of corruption.

Robin Knowles J’s robust analysis and thorough discussion laid bare a breadth of important points when it comes to substantive jurisdiction and separability of agreements in the context of arbitration. The ability to preclude parties from denying the jurisdiction of the tribunal is key to ensuring that an arbitration can occur successfully. The learned judge found multiple ways to ensure that the arbitration could occur in line with the actual submissions that the parties had advanced to proceed with the arbitration in the first place.

The Corruption Allegation, as it stood, appears to have had the possibility of preventing the two parties from having any non-litigious solution to their standoff, but Robin Knowles J effectively threw it out as a possible challenge to the jurisdiction of the ICC’s arbitral tribunal.

The sanctity of arbitration agreements, even in invalid, ineffective, or void contracts, is clearly demonstrated through the reasoning of Robin Knowles J, who carefully ensures both deference to the Supreme Court of Pakistan and the continuance of successful arbitration, especially in a case as complex as this.

This case reflects the importance of preserving such international deference and the ability to maintain relations across multiple jurisdictions, which has cemented London as a global centre of arbitration between warring international organisations.

Ruling

Robin Knowles J was asked to give judgment on eight issues:

• Whether the Corruption Allegation is precluded by section 73(1) of the Arbitration Act 1996
• Whether the Corruption Allegation is precluded pursuant to the doctrine of waiver by election
• Whether TCCA is precluded by an issue estoppel arising from the Judgment of the Supreme Court of Pakistan from alleging separability of the arbitration agreement
• Whether TCCA is precluded by an issue estoppel arising from the Judgment of the Supreme Court of Pakistan from denying that the arbitration agreement is governed by the law of Pakistan
• Whether the Province of Balochistan is precluded by section 73 of the 1996 Act from denying separability of the arbitration agreement
• Whether the Corruption Allegation seeks impermissibly to challenge the ICC tribunal’s decision on the merits of the claim before it
• Whether the Province of Balochistan cannot pursue the Corruption Allegation on the basis that it was not included in the Arbitration Claim Form
• Whether an application dated 21 January 2021 by the Province of Balochistan to amend the Arbitration Claim Form should be granted?

A further two issues were dependent upon the answer given to the fifth issue.

The analysis began with extensive outlining of the Supreme Court of Pakistan’s judgment to see what the Court actually said with reference to corruption. The Supreme Court of Pakistan found that the CHEJVA was made contrary to the Balochistan Mining Concession Rules 1970 and the later Balochistan Mining Rules 2002, both of which were implemented in conformity with the Mineral Development Act 1948. The Government of Balochistan, under these rules, is able to relax the requirements outlined in the Rules in cases of hardship, and the applicant must show special circumstances warranting the exercise of such power. The hardship was never demonstrated, yet the rules were relaxed, in what the Supreme Court described as relaxations granted in excess of authority and therefore ultra vires. This means that the CHEJVA was made contrary to law, and hence was unenforceable. Beyond this, s23 of the Contract Act 1872 allows for a contract to be void if the object or consideration is unlawful, including if it opposes public policy – the contract, in its violation of the BCMR, was opposed to public policy, and therefore unlawful on these grounds as well.

Noticeably, there was not much discussion of corruption in the Supreme Court of Pakistan’s judgment. Indeed, Robin Knowles J made it clear that corruption was not the turning point in deciding that the CHEJVA was void, but the court had observed that there were disclosures of corruption. Descriptions or references to corruption are insufficient to found the claim that it rendered the contract void.

Issue (1) – Waiving The Corruption Allegation?

The first, and most substantial, issue concerns whether the Province of Balochistan was precluded from making the Corruption Allegation based on s73(1) of the Arbitration Act 1996, which says that a party continuing in an arbitration without making an objection about the substantive jurisdiction of the arbitral tribunal may not raise the objection later unless he proves that he did not know and could not with reasonable diligence have discovered this.

The Province, before the Supreme Court of Pakistan had delivered their reasoning, argued that there was no jurisdiction for arbitration, but that rather there should have been judicial review by the court system of Pakistan in reference to a decision made by the Licencing Authority under the BMR 2002 being a product of corruption. Furthermore, it argued that the Supreme Court of Pakistan should be able to determine the validity, legality, and vires of the CHEJVA before the arbitration even occurs, as the appropriate forum is Pakistan.

The ICC tribunal, however, disagreed with this argument by the Province, as they found that arbitration clause within the CHEJVA was separable from the larger agreement, and may be governed by a different law – in this case, arguably English law, as the chosen seat of arbitration is London, although the agreement did also reference international law – nor was there any formal challenge to the Tribunal’s jurisdiction by the Government. Following the delivery of the judgment of the Supreme Court of Pakistan, the Province argued that the entire contract being null and void meant that the jurisdiction of the ICC tribunal, arising from the contract, would also be illegal.

However, they did not ask the ICC’s arbitral tribunal to make an independent case of corruption leading to the invalidity of the arbitration agreement, and while the arbitral tribunal acknowledged that there were references to corruption within the Supreme court of Pakistan’s judgment, this was not the basis upon which the contract was declared void. The arbitral tribunal, in its Rulings on Preliminary Issues, decided that the Supreme Court did not make any findings of corruption and did not invalidate any agreement on this ground, but made no ruling itself upon the question of corruption because no separate arguments or evidence had been put before it.

Following the arbitral tribunal’s Rulings on Preliminary Issues, an exchange between the parties and tribunal occurred, wherein the latter offered to the parties a slightly different course of action, where the Rulings would be given as a Partial Award. Between the time of the grant of award and the transfer of the award itself, the right to object to substantive jurisdiction of the ICC tribunal would not be lost under s73 where the objection had been made in the proceedings which led to the Rulings. However, there were no objections, whether one was not made for the reasons under s73(1) or any other reason.

After this exchange, the Province said that it had recently uncovered ‘new evidence of extensive corruption by TCC’, and claimed that it was not too late to raise the issue of corruption, because the evidence had required the cooperation of third parties who had not been previously involved when the time had come to allege corruption originally.

It was open to the Province to request the ICC tribunal look at the issue of corruption as one which went to jurisdiction, not only to merits of claims under arbitration. The Province did not take this course of action, but confined the request to the merits of the claims, and Robin Knowles J felt that, by consulting an international law firm in doing so, they appreciated what they were doing. The Province identified an exception in English law to the general practice rule that corruption has no impact upon the jurisdiction of the arbitral tribunal and that the doctrine of separability is preferred, in that where bribery impeaches the arbitration clause in particular, then there is the possibility that the general rule no longer applies.

They did not wish to pursue this to vitiate TCC’s claim, nor did they acknowledge that the issue that, if the practice rule in English law also existed in Pakistan’s laws, they could not identify a suitable exception which would allow them to claim no jurisdiction.

The jurisdictional issue, then, was whether the Supreme Court of Pakistan had decided that the arbitration agreement was void, including on the basis of corruption, which is not the Corruption Allegation as defined above, which is wider. Raising the contention that there was contention is not enough to raise it as a jurisdictional objection, and raising the contention as a jurisdictional objection that the Supreme Court of Pakistan had decided that the arbitration agreement was void, including on the basis of corruption, is not the same thing as raising corruption as a jurisdictional objection.

As a consequence of this, the Corruption Allegation was ruled to be precluded by s73(1) of the 1996 Act because the Province did not make the jurisdictional objection to the ICC tribunal that the CHEJVA and related agreements were void due to the existence of corruption, even though with reasonable diligence the Province had the knowledge it needed to raise the objection.

Issue (2) – The Corruption Allegation: Waiver by Election

The second issue focused on the doctrine of election, which applies where a choice has to be made between two inconsistent courses of action. The Province had made a decision not to pursue the argument that the arbitration agreement in the CHEJVA was vitiated by corruption on behalf of TCC, which Robin Knowles J held to be a clear, unequivocal choice. Consequently, the Corruption Allegation is additionally precluded by the doctrine of waiver by election.

Within this issue, the principle of separability was also introduced. Section 7 of the 1996 Act provides that an arbitration agreement which was part of an “invalid, non-existent, or ineffective” larger agreement is not regarded as such, and is treated as a distinct agreement. While it was common ground that s7 applied before the ICC tribunal, the Province denied it.

Issue (3) – Issue Estoppel Against TCCA: Separability of the Arbitration Agreement

The notion that a judgment of a court in another jurisdiction is capable of giving rise to an issue estoppel in proceedings before the English courts has been in existence for over half a century in England. The focus of the issue estoppel here is whether the Supreme Court of Pakistan decided that the arbitration agreement was not separable from the CHEJVA, or if it was otherwise saved by the principle of separability.

Robin Knowles J identified that, while no part of the CHEJVA had escaped the Supreme Court of Pakistan’s judgment and indeed the Court had decided that there was no separability, there was an issue of who was in fact a party to the case in Pakistan. TCCP, the wholly-owned subsidiary of TCCA, was before the court, but a shared commercial interest does not make TCCP a privy to TCCA. As a result, TCCA is not precluded from alleging separability of the arbitration agreement by an issue estoppel arising from the judgment of the Supreme Court of Pakistan.

Issue (4) – Issue Estoppel against TCCA: The Governing Law of the Arbitration Agreement

The fourth issue was dealt with shortly. It was ruled that TCCA was not precluded by an issue estoppel arising from the judgment of the Supreme Court of Pakistan from denying that the arbitration agreement is governed by the law of Pakistan, for the same reasons that they were not precluded under issue (3).

Issue (5) – Separability: s73 of 1996 Act

The Province could have argued, for the fifth issue, that the lack of jurisdiction included the fact that the arbitration agreement is not separable, but they chose to not argue this, and in fact argued the opposite way during the arbitration. Robin Knowles J highlighted that the party raising an objection to jurisdiction must deal with separability when relevant in order for them to prevail. Due to the Province’s failure to do this, they are now precluded by s73 of the 1996 Act from denying the separability of the arbitration agreement under English law.

Issue (6) – Challenge on the Merits

The Corruption Allegation was not raised as a jurisdictional objection before the ICC tribunal but was raised as part of its defence on the merits. In its Partial Award, the ICC tribunal found that the ICSID tribunal’s dismissal of corruption allegations in the arbitration under the Bilateral Investment Treaty had a “preclusive effect” in the ICC arbitration. A party bringing a jurisdictional challenge under s67 of the 1996 Act may challenge the arbitral tribunal’s findings of fact which are relevant to that challenge, and the facts which have been treated as having preclusive effect may also be challenged. However, it is not for the Court to handle the aspects of jurisdiction challenge to which the findings of fact would be relevant.

The ICC tribunal had addressed the findings of fact as part of its consideration on the merits, and the Province had accepted their jurisdiction to determine TCC’s claims, so the effect of allowing a Corruption Allegation to be advanced within its s67 challenge would allow the Province to challenge the ICC’s treatment of the merits of dispute. The Province must raise the evidence relating to corruption with the tribunal, not the court as a challenge to the jurisdiction of the tribunal.

Issue (7) – The Arbitration Claim Form, and Issue (8) – Amendments to the Claim Form

These two issues together referred to the Claim Form submitted by the Province. The Province had incorrectly referenced corruption as one of the reasons for the Supreme Court of Pakistan’s decision in the claim form, but proper analysis of the judgment as above made it clear that corruption was not one of the grounds for the judgment. The Province did not include the Corruption Allegation in the claim form, so therefore cannot pursue it in arbitration. Indeed, the amendments under issue (8) relied upon the proposition that the Supreme Court had decided in favour of corruption. As a consequence, the ability to amend the form was denied.

The authors of this post are Lena Hornkohl, LL.M. (College of Europe), Senior Research Fellow Max Planck Institute Luxembourg for Procedural Law, and Priyanka Jain, LL.M. (Coventry University), Research Fellow Max Planck Institute Luxembourg for Procedural Law.

On 15 July 2021, the Court of Justice of the European Union (CJEU) issued an important judgment regarding the interpretation of Article 7(2) of the Brussels I bis Regulation in the context of the Trucks cartel with huge implications beyond the competition law context.

Essentially, the CJEU held that Article 7(2) of the Regulation concerns both international and territorial jurisdiction. However, Member States are free to centralise the handling of particular types of disputes, such as disputes relating to anti-competitive practices, to a single specialised court. Outside of such specialisation, Article 7(2) confers international and territorial jurisdiction on the court within whose jurisdiction the harmed undertaking purchased the goods affected by those arrangements or, in the case of purchases made by that undertaking in several places, the court within whose jurisdiction the harmed undertaking’s registered office is situated.

Background

In 2016, the European Commission had fined several truck manufacturers for cartel infringements conducted between 17 January 1997 and 18 January 2011 in proceedings under Article 101 TFEU and Article 53 of the EEA Agreement. Between 2004 and 2009, RH, established in Cordoba (Spain), purchased five trucks from a Spanish subsidiary of the cartelists with registered offices in Madrid (Spain). Subsequently, RH brought an action for cartel damages against the parent companies (with domicile outside of Spain) and the Spanish subsidiary before the Juzgado de lo Mercantil no 2 de Madrid (Commercial Court No 2, Madrid, Spain).

The Spanish court was uncertain as to how Article 7(2) of the Brussels I bis Regulation is interpreted, mainly whether it concerns international and territorial jurisdiction. In its judgment, the CJEU now largely follows the opinion of Advocate General Jean Richard De La Tour of 22 April 2021.

Private Enforcement of EU Competition Law and Article 7(2) of the Brussels I bis Regulation

Article 7(2) of the Brussels I bis Regulation confers jurisdiction on the courts for the ‘place where the harmful event has occurred’. Particularly in the context of cross-border infringements of Article 101 TFEU, the place where the damage occurred has been a constant source for preliminary references.

To recap where we stand today: In CDC Hydrogen Peroxide (C-352/13), the CJEU established that in cartel damages actions brought against defendants domiciled in the various Member States and who participated in the cartel infringement at different times in different places, the harmful event occurred in relation to each alleged victim on an individual basis. This can entail the place where the claimant company has its registered office. In Tibor-Trans (C‑451/18), the CJEU transferred the established dual concept for Article 7(2) Brussels Ibis Regulation to private enforcement of competition law: the place where the harmful event has occurred is intended to cover both the place where the damage occurred and the place of the event giving rise to it. It means that the defendant may be sued, at the applicant’s option, in the courts for either of those places.

The CJEU already held in Tibor-Trans that if it is apparent from the decision at issue that the infringement established in Article 101 TFEU giving rise to the alleged damage covered the entire EEA market, the place where that damage occurred, is in that market, of which the individual Member States form part. In the present judgment, Volvo and Others, the CJEU underlines this once more for Spain in particular (para. 31).

Article 7(2) of the Brussels I bis Regulation Confers International and Territorial Jurisdiction

The CJEU then goes beyond established case law and touches upon an issue relevant beyond cartel damages actions: Article 7(2) Brussels Ibis Regulation confers both international and territorial jurisdiction on the courts for the place where the damage occurred (para. 33). In case a Member State has jurisdiction according to Article 7(2) Brussels Ibis Regulation (i.e. international jurisdiction), Article 7(2) Brussels Ibis Regulation also determines which court within the Member State has jurisdiction (i.e. territorial jurisdiction) – both according to the autonomous interpretation of Article 7(2) Brussels Ibis Regulation. Member States cannot apply different criteria for the conferral of jurisdiction (para. 34).

In its reasoning, the Court first refers to the wording of the provision. Indeed, Article 7(2) Brussels Ibis Regulation points specifically to ‘the courts for the place where the harmful event occurred’ and not simply (the territory of) the Member States alone. This interpretation is also in line with the CJEU’s reasoning in Wikingerhof (C-59/19), which concerned an abuse of dominance case and in which the CJEU referred to the court in particular (and not only the Member State’s territory as a whole). Second, the CJEU resorts to a historical interpretation and a rare literature review, as it mentions that its interpretation is following P. Jenards report on the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (sadly leaving out P. Schlosser’s report previously cited by the Advocate General).

Member State Competence: Centralisation of Jurisdiction in Specialised Courts

However, the Member States have not lost all their say in the matter. The CJEU noted that the Member States have the option, as part of the organisational competence for their courts, to centralise the handling of disputes relating to anti-competitive practices in certain specialist courts (paras. 34 – 37). This specialised court would have exclusive jurisdiction irrespective of where the damage occurred within the Member State. Unfortunately, the CJEU did not use the opportunity to clarify how this centralisation would be possible given the absence of any centralisation rules in the underlying dispute.

In its reasoning, the CJEU stressed the complexity of the rules applicable to cartel damages actions, which argues in favour of centralisation of jurisdiction within the Member States. Furthermore, the CJEU mainly follows Advocate General De La Tour’s analogy to the Sanders and Huber (C-400/13 and C-408/13) judgment by stating that ‘a centralisation of jurisdiction before a single specialised court may be justified in the interests of the sound administration of justice’. While Sanders and Huber concerned a matter relating to cross-border maintenance obligations under Regulation EC No 4/2009, the ideas can indeed be transferred to the Brussels I bis Regulation, as the disputed provision of Regulation EC No 4/2009 in Sanders and Huber was one of the provisions relating to the rules on jurisdiction which replaced those in the Brussels I bis Regulation. In Sanders and Huber, the CJEU established that, although the jurisdiction rules have been harmonised by the determination of common connecting factors, the specific identification of the competent court remains a matter for the Member States.

Surprisingly and contrary to Advocate General De La Tour (and the EU legislator in procedural contexts), the CJEU does not expressly mention procedural autonomy and the principles of equivalence and effectiveness. Likely, as general principles of EU law, they are a no-brainer in the view of the Court: Member States have the organisational competence to centralise proceedings, subject to compliance with the principles of equivalence and effectiveness.

Absence of Specialised Court: The Place Where the Goods are Purchased or the Harmed Undertakings Registered Office

For Member States without any centralisation rules, such as in the present case, the CJEU provides further guidance on identifying the place where the damage occurred to ascertain the court having jurisdiction within the Member State in cartel damages actions. Naturally, as both territorial and international jurisdiction are determined by Article 7(2) Brussels Ibis Regulations, the following statements are also applicable to international jurisdiction.

The CJEU here combines two strains of case law, which from now on should be considered one after the other. First, by analogy outside of competition law to Verein für Konsumenteninformation (C‑343/19), it held that the place where the affected goods were purchased determines which court has jurisdiction (paras. 39, 40). However, this is rightfully only applicable when ‘the purchaser that has been harmed exclusively purchased goods affected by the collusive arrangements in question within the jurisdiction of a single court’ since ‘[o]therwise, it would not be possible to identify a single place of occurrence of damage with regard to the purchaser harmed’. Second, the CJEU refers to CDC Hydrogen Peroxide and the above-mentioned concept of the harmed company’s registered office (paras. 41, 42). In case of purchases made in several places, which is likely in the context of big, lengthy cartels, the courts of the place where the harmed undertaking has its registered office have jurisdiction.

In its justification, the CJEU rightfully refers to the principles of proximity, predictability and sound administration of justice. Both – the place where the goods were purchased and the harmed company’s registered office – allow a certain proximity and efficacious conduct of proceedings. The CJEU also gives a clear, predictable roadmap for claimants and, thus, predictability: in case the affected goods were purchased in one place, that court has jurisdiction; in case the goods were purchased in several places, the court within whose jurisdiction the harmed undertaking’s registered office is situated, has jurisdiction.

Comment and Conclusion

The judgment fills in another gap in the Article 7(2)-saga. Article 7(2) Brussels I bis Regulation nevertheless generally remains to be one of the troublemakers of the Brussels I bis Regulation, which will be up for a possible revision or at least a report soon (Article 79 Brussels I bis Regulation: 11 January 2022).

For now, the judgment has vast implications in- and outside of the competition law context. In the competition context, it determines a clear roadmap for international and territorial jurisdiction in the sense of Article 7(2) of the Brussels I bisRegulation outside of centralisation. In general, the judgment underlines a prevailing opinion in academia: Article 7(2) Brussels Ibis Regulation confers both international and territorial jurisdiction.

Particularly for competition law, but also for other sectors which are highly complex or demand technical expertise, the judgment highlights the huge potential for centralised and specialised courts (recently also discussed in an article available here). At the moment, Member States largely lack centralised and specialised courts in the competition context. Advocate General De La Tour already underlined that the centralisation of jurisdiction promotes the development of the necessary specific expertise. This idea can be spun even further. The efficiency of centralised and specialised courts could be increased by introducing competition lay judges. They could make the expensive experts in cartel damages actions to some degree obsolete. At the centralised courts, the competition lay judges could assess a case based on their particular professional qualifications and business experience, which allows for a practical and appropriate judgment in competition disputes.

Beyond competition law, we want to mention another area that is in desperate need of concentration provisions: collective consumer redress. Establishing a centralised court for collective redress is essential, in our opinion, for the Representative Actions Directive to become a successful instrument. The future central court could ensure a uniform and coherent application of the Directive and become a specialised court with judges skilled in dealing with the complexity of collective litigation.

Inspiration can be taken from initiatives of centralisation in the other Member States. In the Czech Republic, the Parliament recently passed an Act (218/2021) that enables the concentration of applications for recovery under the European Account Preservation Order in a single court in the country. Questions nevertheless remain: when complexity and technicality call for centralisation, where do we draw the line? When are general courts sufficient, and where do we need specialisation? Here, further (EU) coordination would be helpful.

The Centre for Socio-Legal Studies at the University of Oxford will host a webinar on 27 July 2021 (12.00-14.00 British Summer Time (GMT+1)) dedicated to Commercial Courts in a Global Context.

The event is co-sponsored by the University of Oxford (China, Law & Development), Faisalabad Industrial Estate Development & Management Company, Ease of Doing Business in Pakistan, Pakistan-China Joint Chamber of Commerce & Industry, and Center for International Investment and Commercial Arbitration.

This webinar and research is related to developments in recent years. A number of States and municipalities have established new commercial courts which are perceived by some to be the building blocks of economic development and global commerce. These new commercial courts include those that are designed primarily for domestic disputes and others geared toward international disputes. The new international courts share a common aspiration: to provide forums for the resolution of commercial conflicts that are cheap, quick, and whose judgments are enforceable.

As part of its Ease of Doing Business Reforms Agenda, Pakistan has recently established commercial courts at the district level. The new commercial courts dovetail with a number of macro-economic and geostrategic trends, including the rise of Asia, and China in particular, as a supplier of both outbound capital and dispute resolution, and the increasing diversification of forums across the world.

This webinar will provide an in-depth discussion of the new domestic and international commercial courts with a focus on topics including jurisdiction and legislative basis, regulatory framework, relationship to the domestic court system, staffing and personnel issues, the courts-arbitration nexus, and cross-border disputes and associated enforcement issues.

The speakers, including judges and lawyers from Pakistan, the UK, Singapore, and China, will share insights with the launch and evolution of these new courts in the context of both dynamic domestic and global legal transformations.

More information about the webinar and the ERC Research project are available here. See here for registering for the event.

On 16 July 2021, the EU Commission has issued a Proposal for a Council Decision on the accession by the European Union to the Hague Convention of 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters.

Under the Proposal, the EU would make two declarations.

External Competence

The European Union declares, in accordance with Article 27(1) of the Convention, that it exercises competence over all the matters governed by this Convention. Its Member States will not sign, ratify, accept or approve the Convention, but shall be bound by the Convention by virtue of its conclusion by the European Union. 

For the purpose of this declaration, the term “European Union” does not include the Kingdom of Denmark by virtue of Articles 1 and 2 of the Protocol (No 22) on the position of Denmark annexed to the Treaty on the Functioning of the European Union.

Commercial Tenancies

The European Union hereby declares under Article 18 of the Convention that it will not apply the Convention to commercial leases (tenancies) of immovable property situated in the European Union.

The declaration is explained as follows:

a declaration is needed in order to ensure that the achievement of the policy objectives of the Brussels Ia Regulation is not affected by the accession to the Convention. More specifically, in cases involving commercial tenancies, the Brussels Ia Regulation affords exclusive jurisdiction to courts in a Member State where the immovable property is located. The Judgments Convention does not include such exclusive jurisdictional rules for commercial tenancies. Therefore, under the Convention, Member States would be obliged to recognise and enforce third-country judgments on commercial leases of immovable property that is situated on their territory. This would be in contradiction to the policy objective behind the Brussels Ia Regulation to attribute exclusive jurisdiction to courts in the EU for disputes related to immovable property situated in the EU.

No Declaration Pursuant to Articles 18 and 19

The Commission will not make declarations pursuant to Articles 18 and 19 of the Convention.

On the possibility to make declarations, Member States opposed a declaration based on Article 19 of the Convention and did not express clear views on declarations under Article 18. Only a small number of stakeholders favoured accession with a declaration under Article 19 while there was no clear tendency detected for Article 18 declarations.

Summer has come! The blog will remain open, but blogging will be lighter in the coming weeks.

We will resume our usual 5-post-a-week pace at the end of August.

We wish our readers and all EAPIL Members all the best for their holidays.

Stay safe, and enjoy the break!

According to Frank Woud (e-CODEX Community and External Relations Manager, Ministry of Justice and Security, The Netherlands):

The full potential of the European e-commerce market has not yet been reached. While consumers feel safer buying from online stores within the borders of their own country rather than from other European countries, European traders experience a range of challenges of their own, such as the lack of a level playing field and the overwhelming complexity of the legal and judicial system. Justice is the sine qua non for trade, and e-commerce will only be able to reach its full potential in Europe when justice permeates the digital realm. e-CODEX, the digital platform for cross-border legal data exchange within the European Union (EU), plays an important role in this regard. The mission of e-CODEX is to make cross-border justice accessible for all citizens and businesses within the EU.

To further this pursuit, e-CODEX hosted on 25 November 2020 an online roundtable discussion about e-justice as an enabler for cross-border e-commerce in Europe. The webcast of the roundtable discussion can be viewed here.

The e-Commerce Meets Justice White Paper is a representation of the facts and opinions expressed by the panel members. The panel was composed of Margarita Touch (Information Officer at DG JUST), Luca Cassetti (Secretary General of Ecommerce Europe), Marco Velicogna (Researcher at Institute of Legal Informatics and Judicial Systems of the National Research Council of Italy), and Hans van Grieken (Senior Technology Researcher at Capgemini, Gartner and Deloitte).

Their contributions to the White Paper discuss: e-commerce and developments triggered by the pandemic, the SMEs heavy reliance on platforms for cross-border e-commerce, the legal aspects of inter-European e-commerce, alternative dispute resolution means, and the role of e-justice in supporting cross-border e-commerce and building consumers’ trust.

More information on e-CODEX can be found here.

Membership in the European Association of Private International Law entails the payment of a (small) annual fee. Fees are due on 31 January every year.

For more information (and practical details on how to pay), please visit this page.

Most of the 336 current members have already paid their fees for 2021. Those who haven’t are invited to do so as soon as practical. Thank you!

For any queries concerning the fees, please write an e-mail to the EAPIL Treasures, Apostolos Anthimos, at treasurer@eapil.org.

Matthias Lehmann (University of Vienna) has posted National Blockchain Laws as a Threat to Capital Markets Integration on SSRN. The paper, which appeared in the European Banking Institute Working Paper Series 2021, analyses the legislation adopted by a number of countries in Europe and the US for dealing with crypto assets and distributed ledger technology for investment purposes, the risks of fragmentation and divergent rules, and regional solutions towards a harmonised approach.

The abstract reads as follows:

Various states have started providing private law frameworks for blockchain transfers and crypto assets. The first acts have been adopted by France and Liechtenstein, while a commission of the British government sees no difficulties in extending property protection under the Common law to crypto assets. In the US, an amendment to the Uniform Commercial Code has been suggested, which has not stopped some States going their own, different way. The aim in all cases is to promote the use of modern distributed ledger technology and enhance investor protection. While these initiatives will increase legal certainty, they differ significantly. This has an important downside: there is a strong risk that the blockchain will be made subject to diverging legal rules. Similar to the world of intermediated securities, various national laws will need to be consulted to determine the rights and privileges of investors. This may increase transaction costs, thwart interoperability and produce thorny conflict-of-laws problems. Markets risk being fragmented into national segments, with an inevitable diminution of their depth and liquidity. As a remedy, this article suggests developing uniform rules for the blockchain. Before national legislators and judges once again divide the world through idiosyncratic rules, the private law of crypto assets should be harmonised to the highest degree possible. Uniform rules should ideally be forged at the global level, by fora like the International Institute for the Unification of Private Law (UNIDROIT), the United Nations Commission on International Trade Law (UNCITRAL), and the Hague Conference on Private International Law. In the absence of world-wide rules, uniformisation of private law should take place at the regional level, for instance by the European Union. The article makes specific suggestions as to how this can be achieved and what the content of those rules should be.

On 20 July 2021, the University of Milan will host the (on-line) Annual Conference of the EU-funded project Jean Monnet Module on Multilevel, Multiparty and Multisector Cross-Border Litigation in Europe.

This year’s topic, Incentives and Challenges to Transnational Access to Justice, will be discussed in the framework of two roundtables concerning, respectively, Third-party Funding in International Dispute Resolution and E-Justice in International Dispute Resolution.

The complete programme is available here. Registrations are open until 15 July 2021, through this form.

Strategic Lawsuits Against Public Participation (SLAPP) can be defined as lawsuits intended to intimidate and silence critics by burdening them with the cost of a legal defense, until they abandon their criticism or opposition.

Some jurisdictions have already passed anti-SLAPP laws. In its Action plan for democracy, of 2020, the Commission had already announced its intention to present an initiative to protect journalists and civil society against SLAPPs in 2021. An Expert group was created in December 2020.

The topic is of course not new. It has gained momentum again – possibly following the assassination of Daphne Caruana Galizia in October 2017- also at the Council of Europe, and within the civil society (see, for instance on the need for a EU legislative proposal to protect public watchdogs from legal harassment  here and here.)

On 5 July 2020, a study commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the JURI Committee on SLAPP and PIL instruments was published, authored by J. Borg-Barthet (who is one of the members of the Expert Group mentioned above), Benedetta Lobina and Magdalena Zabrocka.

The document analyses legal definitions of Strategic Lawsuits Against Public Participation (SLAPP), assesses the compatibility of anti-SLAPP legislation with EU law, and recommends that an anti-SLAPP Directive be adopted.

Of special interest for PIL is that it also recommends that the Brussels I bis Regulation and Rome II Regulation be recast to limit the incidence of SLAPPs. The final conclusion in this regard reads as follows:

In addition to the adoption of an anti-SLAPP Directive, it is recommended that the Brussels Ia Regulation be recast with a view to adopting a bespoke rule concerning defamation claims and thereby to distinguish jurisdiction in defamation cases from ordinary torts. To this end, it is recommended that jurisdiction should be grounded in the forum of the defendant’s domicile unless the parties agree otherwise. This would enable public interest speakers to foresee where they will be expected to defend themselves, and would be in keeping with the core values of the Brussels Ia Regulation, namely predictability and the limitation of forum shopping.
Greater predictability as to the outcomes of choice of law processes is also needed to dissuade meritless litigation intended to suppress public participation. Accordingly, it is recommended that a new rule be included in the Rome II Regulation which would harmonise national choice of law rules in defamation cases. It is recommended that this rule should focus on the closest connection with the publication and its audience, namely the law of the place to which the publication is directed.

I  expect comments – here or elsewhere- to both proposals and their underlying rationale.

The first impression is a little bit disappointing. The proposal regarding the applicable law is a general one for defamation cases, i.e., it is not SLAPP-specific. On jurisdiction, I would be cautious to spouse the assertion on page 39:

(…), the Court of Justice has developed a body of case law whose net effect is to afford further opportunities for forum shopping and vexatious litigation strategies in defamation cases, particularly where the claimed defamatory content is posted online.

Moreover  a solution which entails giving up eDate and Martinez looks unrealistic to me (in this regard, though, C-800/19 is worth considering; the Opinion was available in February 2021). Vexatious claims have always existed. The lis pendens and related actions rules provide a solution at the jurisdictional level for a plurality of claims within the EU: a word on why they would (or not) be fit in an anti-SLAPP scenario is missing. In addition, and more important, the Brussels regime does not prevent reacting against vexatious claims with the procedural tools available at the national level, such as abuse of process. That is why I am not convinced either by the following sentence, on page 42:

‘In particular, judgments concerning the deployment of antisuit injunctions reveal a Court that is reluctant to replace the ex ante general analysis deployed by the legislator with its, or a national court’s, judgement of the merits of jurisdictional justice in individual cases‘

Even if the bottom line was correct, antisuit injunctions would not have provided the pertinent example.

Beyond the EU borders, with the exception of Articles 33 and 34 of the Brussels I bis Regulation, which have no parallel in the Lugano Convention, the situation is left to the Member States; simultaneous proceedings before the courts of the UK and the USA is simply a situation that cannot be solved by the European lawmaker.

There is indeed a need to balance the interests of the claimants and of the defendant (the target of the strategic lawsuit) also in relation to international jurisdiction and to the conflict of law rule.

In my opinion, achieving the goal requires a more grounded examination; also, and mainly, to acknowledge that the problem is to be addressed at a different level – something that the Study does in its 5th part devoted to an anti-SLAPP directive.

But, just like the authors say, the adoption and implementation of such a directive may take too long. The time to react is now, and it is not imperative (not even for reasons of distribution of competences) to wait for Brussels to take the lead.

(Photo: The use of SLAPPs © Image used under the license of Adobe Stock)

This post was contributed by Alexia Pato, who is Postdoc Research Fellow at the University of McGill (Montreal, Canada).

The present post provides an overview of the legal initiatives on artificial intelligence (AI) recently launched at the EU level and the questions they generate from a private international law (PIL) perspective.

The analysis starts with the 2021 Proposal for a Regulation on harmonised rules on AI and continues with the EU Parliament’s detailed recommendations for drawing up a Regulation on liability for the operation of AI systems.

Overview of the Proposed AI Regulation

On 21 April 2021, the EU Commission published its much-awaited Proposal for a Regulation laying down harmonised rules on AI, following explicit requests from the Council and the Parliament (see, in particular, the AI-related resolutions of the Parliament of October 2020 on ethics, civil liability and intellectual property). The proposed Regulation’s goal is to promote the free movement of AI-related goods and services, while ensuring the protection of fundamental rights.

If enacted, the Regulation would create a horizontal regulatory framework for the development, placement on the market and use of AI systems in the Union, depending on the risks that those systems generate for people’s health and safety or fundamental rights. In particular, Article 5 forbids AI practices which create an unacceptable risk (some exceptions may nevertheless apply). The prohibition extends to AI systems deploying subliminal techniques beyond a person’s consciousness to induce a particular behaviour and to those exploiting the vulnerabilities of a group of people (e.g., a doll integrated with a voice assistant that encourages children to play dangerous games in order to maximise their fun).

Real-time remote biometric identification (e.g., facial recognition) and social scoring are deemed to create an unacceptable risk as well. As regards high-risk AI systems (Title III), they must undergo an ex ante conformity assessment in order to be placed on the EU market (Articles 19 and Title III, Chapter 5).

The proposed Regulation imposes a series of requirements in relation to data, documentation and recording keeping, transparency and information to users, human oversight, robustness, accuracy and security (Articles 8 to 15). Examples of high-risk AI systems include medical assistants (e.g., IBM’s Watson assistant), chatbots and automated recruitment applications. Lastly, AI systems which create a low or minimal risk are permitted.

For a general assessment of the Proposal, see the CEPS Think Thank with Lucilla Sioli (DG CONNECT) available here, as well as the Ars Boni podcast available here.

The Extraterritorial Reach of EU law

As Article 2 of the proposed AI Regulation would confer the Regulation an extraterritorial reach, PIL questions emerge. In particular, the EU rules on AI are meant to apply to (1) providers placing AI systems on the EU market or putting them into service there, irrespective of their place of establishment; (2) users located in the EU; (3) providers and users located in a third state, when the output produced by the AI system is used – but not marketed – in the EU.

Remarkably, Article 2 bypasses the traditional choice of law methodology and unilaterally delineates the Regulation’s territorial scope of application.

This legislative technique has been used on other occasions: the most recent example is perhaps Article 3 of the General Data Protection Regulation (GDPR). Literature on the latter provision shows that the extraterritorial application of laws creates a fertile ground for overlaps and high compliance costs. The same observation could apply to AI if other states chose to exercise their (legislative) jurisdiction extraterritorially. How private (or public) international law will tackle that concern remains to be seen.

Moreover, interpretative issues are likely to arise, as the wording of Article 2 is vague. In particular, when is a user “located” in the EU – does the temporary presence on the territory trigger the application of the Regulation? What is the “output” of an AI system? And finally, when is an AI system “placed on the EU market” or “put into service” there?

The Law Applicable to Civil Liability

It is acknowledged that the misuse of AI systems may be harmful, despite the great potential of technologies to significantly improve our lives in many sectors. Traffic accidents involving either autonomous – i.e. driverless – or driver-assist vehicles are a telling example in that regard.

Currently, the law applicable to civil liability in such a scenario essentially depends on the actors involved – the driver, the manufacturer of the car, the designer of the software, etc. Several PIL systems applying different connecting factors might come into play, namely the Rome II Regulation, the 1971 Hague Convention on the Law Applicable to Traffic Accidents and the 1973 Hague Convention on the Law Applicable to Products Liability. Considering the fact that national civil liability regimes vary (sometimes significantly) from one state to another, the outcome of a case might be different depending on the court seized.

For a thorough PIL analysis, see T. Kadner Graziano, “Cross-Border Traffic Accidents in the EU – The Potential Impact of Driverless Cars” (Study for the JURI Committee, 2016), available here.

The EU Commission announced that a new piece of legislation addressing civil liability should soon complement the proposed AI Regulation, following the EU Parliament’s detailed recommendations for drawing up a regulation on liability for the operation of AI systems. If followed by the Commission and adopted, the text would partially harmonise national laws on civil liability in the EU. These shall however not be replaced; only adjustments would be provided.

The object of the future Regulation is to hold the operators of high-risk AI systems strictly liable, while operators of other AI systems would be subject to a fault-based liability regime. Finally, the drafting of the future Regulation should go hand in hand with the necessary review of the Product Liability Directive in order to build up a consistent liability framework in the EU.

According to Article 2 of the Parliament’s Draft Proposal, the liability rules enacted at the EU level would apply “on the territory of the Union where a physical or virtual activity, device or process driven by an AI system has caused harm or damage to the life, health, physical integrity of a natural person, to the property of a natural or legal person or has caused significant immaterial harm resulting in a verifiable economic loss”.

I find the wording of this provision unclear: shall the future Regulation apply where a court of a Member State is seized with a dispute involving damages caused by AI systems (as the terms “on the territory of the Union” suggests) or must the damage, the operator, the activity or the victim additionally be located in the EU?

Additionally, even though the future Regulation bypasses the Rome II Regulation according to Article 27 of the latter, traditional choice of law rules would still be needed to designate the law applicable to questions falling out of the future Regulation’s scope (such as the law applicable to multiple liability where non-operators are involved, just to mention one example). Fragmentation would therefore not be completely avoided.

For an analysis of the Draft Proposal from a PIL perspective, see J. von Hein, “Liability for Artificial Intelligence in Private International Law” (online presentation, 25 June 2020), available here.

Conclusion

The interaction of AI with the PIL field brings interesting research questions on the table for legal scholars. As things currently stand, however, the EU’s legislative initiatives do not overcome the sempiternal difficulties experienced in PIL, namely the fragmented application of laws, and the difficulty to manage interactions between multiple legal texts because of their overlapping and extraterritorial effect.

Earlier this year, Charlotte Guillard defended her dissertation at the University of Paris II Panthéon-Assas on Conflict justice and material justice : pertinence and sustainability of the distinction. Study in private international family law (Justice matérielle et justice conflictuelle : pertinence et pérennité de la distinction en droit international privé).

The author has provided the following  summary in English:

The distinction between conflict of laws justice and substantive justice has its origin in an academic attempt to foster an idea that has proved crucial to the general theory of private international law. This idea builds on the intuition that private international relations need to be processed specifically by the law, which implies in turn a customized conception of justice, namely conflict of laws justice. In this perspective, conflict of laws justice aims at fulfilling the diverse interests at stake in a private international relation: the interests of the different parties involved and the interests of the domestic legal systems. In the context of conflict of laws, conflictual justice manifests itself methodologically through the classical (“savignian”) conflict of laws rule, a rule that purports to accommodate those interests, without taking into account the substantive aspects of the situation. As an exception, conflictual justice may give way to substantive considerations. In that case, another conception of justice, one that is substantive, takes precedence.

The methodological manifestations of substantive justice are varied. It is usually associated with tools that seek to defend or promote imperative values within each State’s legal order, such as the exception of public policy of the forum (“exception d’ordre public international”).

This articulation of the different conceptions of justice is usually presented as following a principle/exception organization, thus providing a framework for private international law. The borderland between the two conceptions of justice muddled, however, as a result of an evolution in the field of private international law.

The change in the field that is most striking lies with its materialization. Overriding mandatory rules, fundamental rights, as well as the development of conflict of laws rules that achieve substantive aims are obvious examples.

Increasingly, the diverse methods of regulation specific to this legal field have been seen to borrow routinely from both conceptions of justice, shaking the classical distinction.

This research explores the remaining pertinence of the framework provided by the distinction between conflict of laws justice and substantive justice, and the appropriateness of its conservation in the field of contemporary private international law.

The study was conducted within the scope of private international law relating to family and personal matters. It is indeed within this restricted field that the questions raised are most sensitive, owing to continuing legal particularisms and national specificities, a natural breeding ground for the materialization of PIL.

As an outcome, this study shows the many weaknesses in the classical representation of the distinction between the two conceptions of justice. The actual meaning of each conception remains elusive and their mutual articulation according to a principle/exception organization is no longer reflected in positive law. Further, this study purports to offer an articulation of the two conceptions of justice that would better serve current PIL.

In this perspective, it appeared necessary to shed two commonly accepted ideas which have unnecessarily confined PIL until now. The first one relates to the conception of conflictual justice as being neutral. The second one seeks to limit substantive justice to the internal conceptions of each legal order.

This study purports to redefine the distinction between the two conception of justice while still conceptualizing their articulation according to a principle/exception organization, in which the conflictual conception of justice features as principle. This private international law conception of justice should ideally result in the conciliation of the diverse interests at stake, in order to achieve international legal harmony (of solutions) with regards to private international relations.

Whenever such an outcome appears unachievable (or merely irrelevant), substantive justice shall step in to ensure that one interest prevails over the others, without any predetermined preference. There is something to gain in such a reconfiguration. Namely, it would allow for a more satisfying distribution of PIL methods between the two conceptions of justice. This would be particularly beneficial regarding fundamental rights, whose role remains a thorny methodological issue in PIL. The proposed reconfiguration could create an opportunity to see them not merely as an expression of substantive justice (in keeping with the majority view) but also in relation to the private international law conception of justice.

Through this reconceptualization, the distinction between the two conceptions of justice may aspire to be more than abstract academic construction. It indeed appears as a useful tool in the organization of the methodological pluralism in private international law. This can prove critical to help authorities dealing with PIL questions to better handle their task in choosing the right method and reaching the right solution.

Dr. Guillard presented her study in a conference in Paris in March 2021 which can be watched here (in French).

The author of this post is Burcu Yüksel Ripley, who is a Lecturer in law and the Director of the Centre for Commercial Law at the University of Aberdeen.

In the legal proceedings that European Union (EU) brought before the Belgian courts against AstraZeneca in April 2021 and May 2021, one of the key questions is the law applicable to the Advance Purchase Agreement (“APA”) for the production, purchase and supply of a Covid-19 Vaccine in the European Union signed between the European Commission (with a business address in Belgium) and AstraZeneca (incorporated in Sweden with a business address therein) on 27 August 2020.

Since the publication of the APA, which is governed by the laws of Belgium as per its Section 18.4, there have been discussions around whether the United Nations Convention on Contracts for the International Sale of Goods (known as the CISG or the Vienna Sales Convention 1980) applies to this agreement (see eg Global sales law in a global pandemic: The CISG as the applicable law to the EU-AstraZeneca Advance Purchase Agreement? written by Dr Ben Köhler and EU-AstraZeneca contract – applicability of the CISG? written by Till Maier-Lohmann and cited in Dr Köhler’s blog).

But the fact that this question relates to the law applicable to the APA, and accordingly the application of the Rome I Regulation on the law applicable to contractual obligations, seems to have been overlooked so far apart from a couple of publications (see eg Sixto A. Sánchez Lorenzo, “El advance purchase agreement (APA) entre AstraZeneca y la comisión europea visto desde el Derecho privado”, La Ley: Unión Europea, No 90 March 2021, for which a useful summary in English was provided in Professor Matthias Lehmann’s post in this blog entitled Suing AstraZeneca: Who, Where, and under Which Law?).

Upon the first decision of the Belgian court on 18 June 2021 which states at paragraph 29 at p.39 that “Les conventions doivent être interpretées au regard de l’intention commune des parties, conformément à l’article 1156 de l’ancien Code Civil” (“The agreements must be interpreted with regard to the common intention of the parties, in accordance with Article 1156 of the former Civil Code”), further questions have been raised in relation to the applicable law: “Has the court held that Article 3(1) of Rome I Regulation excludes the application of the CISG?; Did the Court apply its domestic conflict rules?; Does the choice of Belgian law by the parties preclude the application of the CISG?”(see Some questions about the first decision of the Belgian court in the dispute between AstraZeneca and the European Commission – CISG-Portugal.org by César Pires).

The relationship between the Rome I Regulation and the CISG is at the heart of this discussion. Which instrument should be the starting point of the applicable law analysis for the EU-AstraZeneca APA and does this matter in practice?

Relationship between Rome I and the CISG for EU Member States Party to the CISG

The Rome I Regulation is an EU private international law instrument concerning the law applicable to contractual obligations. Under Article 1(1), it applies in the EU, in situations involving a conflict of laws, to contractual obligations in civil and commercial matters that fall into its scope. Being in the form of a regulation, Rome I has general application, is binding in its entirety and directly applicable in all EU Member States (with the exception of Denmark) pursuant to Article 288 of the Treaty on the Functioning of the EU.

On the other hand, the CISG is an international convention which provides primarily uniform substantive law rules relating to international sale of goods contracts that fall into its scope. Under Article 1(1), it applies to contracts between parties whose places of business are in different States if either (a) both of those States are Contracting States or (b) the rules of private international law lead to the law of a Contracting State (unless a state reservation exists regarding the 1(1)(b) situation as per Article 95 or parties have excluded the application of the CISG as per Article 6). The CISG has been adopted by the majority of EU Member States, including Belgium and Sweden, and is in force as part of their national law.

It has been argued on different grounds that if the forum is located in an EU Member State party to the CISG, the CISG takes precedence over Rome I or is capable of applying directly (or autonomously) without recourse to Rome I. This seems to be the prevailing view, notably in Germany, and has been recently endorsed in the UNCITRAL, HCCH and Unidroit Legal Guide to Uniform Instruments in the Area of International Commercial Contracts, with a Focus on Sales. However, it is questionable to what extent this approach is consistent with EU law:

1.  It has been argued that for courts in the CISG Contracting States, the CISG (as uniform substantive law) eliminates under its Article 1(1)(a) the need to recourse to conflict of laws analysis to determine whether it applies (see eg Peter Winship, ‘Private International Law and the U.N. Sales Convention’, (1988) 21 Cornell International Law Journal 487, p.520). According to this view, courts in the EU Member States which are also the CISG Contracting States do not first have to resort to their private international law because, where the CISG is applicable, there is no ‘situation involving a conflict of laws’ within the meaning of Article 1(1) of Rome I (see eg Thomas Kadner Graziano, ‘The CISG Before the Courts of Non-Contracting States? Take Foreign Sales Law as You Find it’ (2012) 13 Yearbook of Private International Law 165, p.166). However, from a different perspective, the fact that there is uniform substantive law to apply to a case does not mean that there is no situation involving a conflict of laws in the given case. It rather means that the conflict of laws is resolved in the given case partially or fully by the application of that uniform substantive law. The question of ‘as part of which law that uniform substantive law applies to the given case’ would still first require a conflict of laws process (for a similar alternative interpretation of Article 1(1)(a) of the CISG, see Arthur Taylor von Mehren, Explanatory Report on the Convention on the Law Applicable to Contracts for the International Sale of Goods, Proceedings of the Extraordinary Session of October 1985, para. 192). This is to be the approach to follow unless the forum’s private international law provides otherwise and gives precedence to uniform substantive law rules over conflict of laws rules (for such a provision, see eg the Turkish Private International Law and International Civil Procedure Act (numbered 5718 and dated 2007) which gives, in its Article 1(2), precedence to the provisions of international agreements to which Turkey is a party over the Act).

2. It has been argued that the CISG’s provisions on its sphere of application take precedence over the conflict of law rules in Rome I according to Article 25(1) regulating the Rome I’s relationship with existing international conventions. However, an existing international convention to which one or more EU Member States are parties at the time when Rome I is adopted can only take precedence over the rules of Rome I under Article 25 if the convention in question lays down conflict of law rules relating to contractual obligations. The CISG does not lay down conflict of law rules relating to contractual obligations and accordingly it is not listed as per Article 26 of Rome I among conventions that are referred to under Article 25(1). To assist with comparison, one example of such an international convention in the context of sale of goods which could prevail over the rules of Rome I under Article 25 of Rome I is the 1955 Hague Convention on the Law Applicable to International Sale of Goods as this convention does lay down conflict of law rules relating to contractual obligations.

3. It has been argued that uniform substantive law is more specific than private international law and therefore the former should prevail over the latter pursuant to the principle of lex specialis derogat legi generali. However, this principle should come into play where there is more than one law/provision dealing with the same matter (eg the CISG and national substantive sales laws in relation to matters of sale of goods contracts). This is not the case regarding the CISG and Rome I as these instruments deal with different matters.

Furthermore, from the perspective of EU law, it is questionable whether the argument that the CISG takes precedence over Rome I is consistent with the supremacy of EU law and the direct effect of EU regulations given that the CISG is not a convention to which the EU is a party and therefore not internalised in the EU system. EU law, in principle, cannot be overridden by an extraneous source unless that extraneous source is internalised.

In terms of the relationship between Rome I and the CISG for EU Member States party to the CISG, an alternative view here to the prevailing view suggests a two-step approach. The first step is that, if the forum is located in an EU Member State, a state law is determined as the applicable law in a given case under the rules of Rome I. The second step is that if that law includes the CISG, then the applicability of the CISG (as part of that law) to the given case is determined under the rules of the CISG. The CISG may become applicable as part of that law through its Article 1(1)(a) if the places of business of both parties are in Contracting States or through its Article 1(1)(b) even if only one or none of these places is in Contracting States (on how the CISG interacts with state law, see also Benjamin Hayward, Bruno Zeller and Camilla Baasch Andersen, ‘The CISG and the United Kingdom- Exploring Coherency and Private International Law’ (2018) 67 International and Comparative Law Quarterly 607).

One question that arises in this context is whether it matters in practice if a court starts the analysis with Rome I or the CISG. In cases where the applicable law is to be determined according to objective choice of law rules under Article 4 of Rome I, the outcome might differ depending on the approach that the court takes if the applicable law is a law of a non-Contracting State (see generally Peter Winship, cited above, p.519 and see, specifically on Rome I and the CISG, Sir Richard Plender, QC & Michael Wilderspin, The European Private International Law of Obligations, 5th edn, Sweet & Maxwell, 2019, paras 1-047 and 1-048).

For example, if the sales contact is between parties with places of business in the CISG Contracting States (eg Belgium and Sweden), and if the court in the EU starts the analysis with the CISG, the court will find that the CISG applies to the contract as per Article 1(1)(a) of the CISG. In the same example, if the court starts the analysis with Rome I and determines that the objectively applicable law is a law of a non-Contracting State, eg law of England and Wales, which would be something rare but possible via the operation of the escape clause in Article 4(3) of Rome I, the court will find that the UK’s Sale of Goods Act 1979 will apply to the contract (not the CISG). If the outcome might differ depending on a court’s approach, this would potentially also give scope for forum shopping.

The First Step: Application of Rome I to the EU-AstraZeneca APA

In the light of the above analysis, as the first step, the law applicable to the APA is to be determined under the Rome I Regulation.

The APA is not one of the types of contracts for which Rome I provides special choice of law rules between Articles 5 and 8, and therefore the applicable law of the APA will be determined according to the general choice of law rules under Article 3 (on freedom of choice) and Article 4 (on the applicable law in the absence of choice) of Rome I.

Under Article 3 of Rome I, a contract is governed by the law chosen by the parties and this choice can be express or clearly demonstrated by the terms of the contract or the circumstances of the case. The APA includes an express choice of law agreement in Section 18.4 according to which it is governed by the laws of Belgium. Provided that this choice of law agreement is valid in its form and substance under Articles 10 and 11 of Rome I and raises no issues of legal capacity (to which Rome I does not apply as per Article 1(2)(f)), Belgian law is the law applicable to the APA and governs the matters that fall into the scope of the applicable law set out under Article 12. Since renvoi is excluded under Article 20 of Rome I, this means that substantive law rules of Belgian law will be applied to the APA.

Belgium is a party to the CISG, and therefore the application of the laws of Belgium (as agreed by the parties in the choice of law agreement in Section 18.4 of the APA) includes the rules of the CISG.

The Second Step: Applicability of the CISG to the EU-AstraZeneca APA

It follows that the CISG is applicable to the extent that a given dispute, which may arise under or in connection with the APA or the legal relationships established by the APA, falls into the scope of the CISG. In such cases, the CISG itself will not be strictly speaking the applicable (or governing) law of the APA, but it will apply as part of the applicable (or governing) law of the APA which is Belgian law.

The extent of the CISG’s applicability in this context would further require a substantive law analysis as to (i) whether the APA is a type of sales contract that falls into the scope of the CISG (see eg Application of the CISG to International Government Procurement of Goods by Cesar Pereira), (ii) whether a given dispute will fall into the scope of the CISG (as the CISG does not deal with all types of disputes that a sales contract may give rise to), (iii) whether any relevant state reservations exist, and (iv) whether the APA provides otherwise (which would mean under Article 6 of the CISG that the parties have derogated from or varied the effect of CISG’s provisions).

As a concluding remark, it is also worth noting that the CISG in essence is a safety net for sales for which contractual parties have not utilised freedom of contract and party autonomy. For other sales, the CISG’s utility and also scope of application is much more limited in practice and, in some cases, even excluded by the parties as allowed under Article 6 of the CISG.

This is the fourth post of an online symposium on the recent judgment of the CJEU in Vereniging van Effectenbezitters v. BP after the posts of Matthias Lehmann, Laura van Bochove and Matthias Haentjens and Geert van Calster.

The author of this post is Enrique Vallines, who is Professor of Procedural Law at the Complutense University of Madrid and a Senior Research Fellow at the Max Planck Institute Luxembourg.

Just a few days after Vereniging van Effectenbezitters v BP (C-709/19) was made public, I had the opportunity to express my views on the decision on an EU Law Live Op-Ed. After the three stimulating EAPIL blogposts referred above, Prof. Gilles Cuniberti has kindly invited me to expand a bit on my critique to the reasoning of the judgment, probably because I seem to be a bit of an outlier here. My sincere gratitude to him and to all the board of Editors of the EAPIL Blog.

On the Judgment Itself

Effectenbezitters is about establishing jurisdiction under Article 7(2) of the Brussels I bis Regulation on the basis of the determination of the place where the harm occurred (the so-called, in German, Erfolgsort) in a case of purely financial damage, i.e. any loss of money with no connection with a tangible object (VKI v Volkswagen, C‑343/19, paras 32-35).

In previous judgments, the CJEU had used the fiction that financial damage occurs where the (bank or investment) account reflecting the damage is held. However, the Court added that the said fiction is not enough to establish jurisdiction under Article 7(2); in addition, looking at Recitals 15 and 16, the Court requires that ‘other specific circumstances’ confirm that the case is sufficiently connected to the place in question (principle of proximity) and that the forum in question was foreseeable for the defendant (principle of predictability).

In my opinion, Effectenbezitters is no exception to this jurisprudence. Firstly, in para 32, the CJEU clearly suggests that the courts in the Netherlands might have jurisdiction under Article 7(2), ‘on the basis of the place where the damage occurred’, because jurisdiction may be allocated to the courts where the bank (or investment institution) holding that account is established. This is reflected in the operative part of the judgment, where the Court acknowledges that the case concerned the ‘direct occurrence in an investment account of purely financial loss resulting from investment decisions’.

Secondly, in paragraphs 33-35 of Effectenbezitters, the Court moves on to consider the other specific circumstances, beginning with those relating to the predictability of the forum. At this point – the assessment of the predictability of the forum -, I believe that – contrary to what Prof. Lehman, Prof. van Bochove and Prof. Haentjens seem to indicate in their EAPIL blogposts – the Court does not put the direct focus on the place where BP shares were listed or admitted to trading; nor did the Court even consider the place where the shares had been acquired or sold (an approach that, by the way, would have been similar to the approach in VKI v Volkswagen, where jurisdiction under Article 7(2) was attributed to the courts where the diesel vehicles had been purchased). Instead, the direct focus of the Court when assessing the predictability of the forum was the place where BP had reporting obligations, ie, the place where BP was subject to the obligation to disclose the information whose lack or inaccuracy was at the basis of the cause of action of the plaintiff. This conclusion is also confirmed by the operative part of the judgment, where only the ‘statutory reporting obligations’ are mentioned, without any reference to the place of listing, trading, acquisition or sale.

Against this background, to my mind, the reasoning of the Court may be summarized as follows: (i) since the claim is based on the lack or the inaccuracy of specific information that BP was obliged to provide in the UK and in Germany, BP could have reasonably foreseen lawsuits related to the said information in the UK or in Germany, but not in the Netherlands nor in any other EU forum; and (ii), for this reason, despite accepting the fiction that the purely financial damage inflicted to the Dutch investors occurred in the Netherlands, finally, the Dutch courts were not predictable for the defendant and, hence, they do not qualify as a competent court under Article 7(2) and Recitals 15 and 16.

On the Precedents Used

To support this reasoning, the CJEU turns to Kolassa (C-375/13, paras 54-57, to be interpreted as indicated in Universal, C-12/15, para 37, and the Opinion of AG Szpunar in this latter case, para 45) and Löber (C‑304/17, paras 26-36).

In both cases, similarly to the case of Effectenbezitters, an investor had also claimed compensation for purely financial damages based on the inaccuracy of financial information – the information contained in a prospectus required for securities to be admitted to trading in a specific State. In these two cases, the Court argued (i) that the place where the investors held their accounts might indeed qualify as the place where the harm occurred for the purposes of establishing jurisdiction under Article 7(2); and (ii) that the forum for that place was predictable because the information whose inaccuracy was at the basis of the cause of action had been specifically distributed at that place as a result of the legal obligation to submit a prospectus. Thus, in Kolassa and Löber, the Court took the fact that reporting obligations were due in a specific Member State as an indication of the predictability of the jurisdiction of the courts of that Member State. Shortly put, the equation of the Court was: reporting obligations = predictability.

In Effectenbezitters, the Court tried to apply the same logic, but the other way around. It certainly looked at the place of reporting obligations and, since it found none in the Netherlands, it concluded that the Dutch courts were not a predictable forum. Thus, it took the fact that BP had no reporting obligations in the Netherlands as an indication that the Netherlandish courts were not a predictable forum. In short, the equation of the Court was, now, the following: no reporting obligations = no predictability.

On my Critique

My main criticism of Effectenbezitters is that this second equation (no reporting obligations = no predictability) is not at all convincing in the current EU regulatory context. In my opinion, the logic applied in Kolassa and Löber does not work the other way around within the EU. I find it acceptable to conclude that the fact that there exist reporting obligations in a Member State may be taken as an indication that this Member State is a predictable forum for any litigation relating to such obligations. Yet, I challenge the argument whereby the lack of reporting obligations in a Member State necessarily entails that that Member State is not a predictable forum. The way I see things, a person may have to report information in a specific Member State and, nevertheless, it may still predict litigation related to that information in another Member State so long as the citizens and companies of the other Member State were also legal addressees of the information in question.

This is exactly what, in my view, happened in Effectenbezitters. BP was subject to reporting obligations in the UK and Germany only, but the legal addressees of the information were all the investors in all the EU Member States. Within the regulatory context under the Transparency Directive 2004/109 and the Market Abuse Directive 2003/6 (today, replaced by the Market Abuse Regulation 596/2014), BP had to make available periodical information (eg, annual financial reports), as well as any particular piece of information that was likely to have a significant effect on the prices of its shares. Even though the information had to be published via a ‘mechanism’ which had been ‘officially appointed’ by the British and the German authorities, the truth is that this mechanism had to ensure that the information was made available in a manner that guaranteed the ‘effective dissemination to the public throughout the Community’. See, in this regard, Article 21(1) Directive 2004/109, in relation to Article 2(1)(k) of the said Directive and Articles 1(1) and 6 of the Market Abuse Directive 2003/6 (today, Articles 7 and 17 of the Market Abuse Regulation 596/2014); also, in the same vein, the current wording of Article 22 of Directive 2004/109 emphasizes that the information must be accessible ‘at Union level’.

Thus, when BP provided – or failed to provide – information in the UK and in Germany under the EU rules on transparency and market abuse, the company knew that the information due had to reach all EU investors – ‘all the public throughout the Community’, as Article 21(1) of Directive 2004/109 puts it. Consequently, BP could have perfectly foreseen that any of the legal addressees of the information could have made investment decisions from their home Member States on the basis of that information. And this, in my view, entails that BP could have also perfectly predicted that information-related litigation could have taken place in any of the EU Member States from where those investment decisions were made.

To sum up, contrary to Court’s reasoning in Effectenbezitters, I find that, within the EU, it is inaccurate to say that an issuer of securities cannot predict the forum where it does not have reporting obligations in that forum. Such an issuer is aware – or, at least, must be aware –  of the fact that EU law requires that the reported information reaches all the citizens and companies across all Member States, irrespective of where and how the information is provided. As a result, the issuer must count on the possibility that the information is used in any Member State, as well as on the possibility of damages – and subsequent lawsuits – arising out of such a use in any Member State.

Looking Ahead

That said, I should add that I understand the concerns about the need to limit jurisdiction under Article 7(2) and to avoid an EU-wide jurisdiction to hear cases relating to purely financial damage at the place where the plaintiff holds her bank account. But I believe that a flawed argument – such as the one used in Effectenbezitters – should not be the means to achieve such a goal. Instead, other avenues could be explored, preferably by the EU law-maker, with a view to an amendment of Brussels I-bis that may provide more certainty on the rule of special jurisdiction applying to matters relating to tort, delict or quasi-delict.

July is a short month at the Court of Justice, but a busy one.

Already on 1 July 2021 the judgment on C-301/20, Succession de VJ, was published. The questions, on the European certificate  of succession and copies of it, had been referred by the Austrian Supreme Court:

(1) Is Article 70(3) of Regulation No 650/2012 to be interpreted as meaning that a copy of the certificate issued, in disregard of that provision, without indicating an expiry date, for an unlimited period,
–        is valid and effective indefinitely, or
–        is valid only for a period of six months from the date of issue of the certified copy, or
–        is valid only for a period of six months from another date, or
–        is invalid and unsuitable for use within the meaning of Article 63 of Regulation No 650/2012?

(2) Is Article 65(1) read in conjunction with Article 69(3) of that regulation to be interpreted as meaning that the certificate produces effects in favour of all persons who are mentioned on the certificate by name as heirs, legatees, executors of wills or administrators of the estate, with the result that even those who have not applied for the issue of the certificate themselves can use that certificate pursuant to Article 63 of regulation No 650/2012?

(3) Must Article 69 read in conjunction with Article 70(3) of that regulation be interpreted as meaning that the legitimising effect of the certified copy of a certificate of succession must be recognised if it was still valid when it was first submitted but expired before the requested decision of the authority, or does that provision not preclude national law if the latter requires the certificate to be valid even at the time of the decision?’

AG Campos Sánchez-Bordona’s opinion, focused on the third question, had been released on 29 April 2021. The Court (6th Chamber: L Bay Larsen, N. Jääskinen and C. Toader as reporting judge) has ruled as follows:

(1) Article 70(3) of Regulation (EU) No 650/2012 [on] matters of succession … must be interpreted as meaning that a certified copy of the European Certificate of Succession, bearing the words ‘unlimited duration’, is valid for a period of six months from the date of issue and produces its effects, within the meaning of Article 69 of that regulation, if it was valid when it was presented to the competent authority;

(2) Article 65(1) of Regulation No 650/2012, read in conjunction with Article 69(3) of that regulation, must be interpreted as meaning that the effects of the European Certificate of Succession are produced with respect to all persons who are named therein, even if they have not themselves requested that it be issued.

AG Richard de la Tour’s opinion on C-277/20, UM (contrat translatif de propriété mortis causa), a request from the same court (i.e., the Austrian Supreme Court), was published as well on 1 July 2021. The main  question concerns a donation mortis causa and whether it falls under the scope of the Regulation:

(1) Is Article 3(1)(b) of Regulation (EU) No 650/2012 [on] matters of succession … to be interpreted as meaning that a contract of donation mortis causa entered into between two German nationals habitually resident in Germany in respect of real estate located in Austria, granting the donee a right having the character of an obligation against the estate to registration of his title after the donor’s death pursuant to that contract and the donor’s death certificate, that is without the intervention of the probate court, is an agreement as to succession within the meaning of that provision?

(2) If the answer to the above question is in the affirmative: Is Article 83(2) of Regulation No 650/2012 to be interpreted as meaning that it also regulates the effect of a choice of applicable law made before 17 August 2015 for a contract of donation mortis causa that is to be qualified as an agreement as to succession within the meaning of Article 3(1)(b) of Regulation No 650/2012?

According to Richard de la Tour, it does (the translation is mine):

Article 3(1)(b) of Regulation (EU) No 650/2012 … must be interpreted as meaning that the concept of “pact of succession” includes deeds of inter vivos gift in by virtue of which the transfer, in favor of the donee, of the ownership of a good or of goods which even partially constitute the inheritance of the donor takes place only on his death.

Two opinions of direct PIL interest are scheduled for 8 July 2021, starting with AG Campos Sánchez-Bordonas’ in case C-289/20, IB. The question was referred from the Cour d’appel de Paris. It reads as follows:

Where, as in the present case, it is apparent from the factual circumstances that one of the spouses divides his time between two Member States, is it permissible to conclude, in accordance with and for the purposes of the application of Article 3 of Regulation (EC) No 2201/2003, that he or she is habitually resident in two Member States, such that, if the conditions listed in that article are met in two Member States, the courts of those two States have equal jurisdiction to rule on the divorce?

The decision will be taken by a chamber of five judges: S. Prechal, N. Wahl, F. Biltgen, J. Passer, and L.S. Rossi as reporting judge.

The same day AG M. Szpunar will present his opinion on C-422/20, RK, on the successions regulation. The requests comes from the Oberlandesgericht Köln (Germany) :

Is it necessary, for a declaration of lack of jurisdiction by the court previously seised, as provided for in Article 7(a) of Regulation No 650/2012, that that court should expressly decline jurisdiction, or may even a non-express declaration suffice if it supports the inference, through interpretation, that that court has declined jurisdiction?

Is the court of the Member State whose jurisdiction is intended to follow from a declaration of lack of jurisdiction by the court previously seised in the other Member State competent to examine whether the conditions governing a decision by the court previously seised, as provided for in Articles 6(a) and 7(a) of Regulation No 650/2012, were met? To what extent is the decision of the court previously seised binding? In particular: (a) Is the court of the Member State whose jurisdiction is intended to follow from a declaration of lack of jurisdiction by the court previously seised in the other Member State competent to examine whether the deceased validly chose the law of the Member State in accordance with Article 22 of Regulation No 650/2012? (b) Is the court of the Member State whose jurisdiction is intended to follow from a declaration of lack of jurisdiction by the court first seised in the other Member State competent to examine whether a request for a declaration of lack of jurisdiction, as provided for in Article 6(a) of Regulation No 650/2012, has been brought by one of the parties to the proceedings before the court previously seised? (c) Is the court of the Member State whose jurisdiction is intended to follow from a declaration of lack of jurisdiction by the court first seised in the other Member State competent to examine whether the court previously seised rightly assumed that the courts of the Member State of the chosen law are better placed to rule on the succession?

Are Articles 6(a) and 7(a) of Regulation No 650/2012, which presuppose a choice of law ‘pursuant to Article 22’, applicable even where the deceased has made no express or implied choice of law in a testamentary disposition made before 17 August 2015, but the law applicable to the succession is capable of being inferred only from Article 83(4) of Regulation No 650/2012?

Judges Bay Larsen, Toader and Jääskinen will be in charge, with C. Toader acting as reporting judge.

A hearing will take place the same day on C-421/20, Acacia, from the Oberlandesgericht Düsseldorf (Germany). The case has been allocated to judges E. Regan, K. Lenaerts, M. Ilešič, I. Jarukaitis and C. Lycourgos (reporting judge):

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 Community Designs Regulation 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?

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, regarding the determination of the law applicable to subsequent claims under Article 8(2) of Regulation (EC) No 864/2007 … on the law applicable to non-contractual obligations (‘Rome II’) 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 Community Designs Regulation, 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?

AG P. Pikamäe’s opinion on C-262/21 PPU, A, is expected on 14 July 2021. The case, from the Korkein oikeus (Finland), requires the interpretation of Regulation 2201/2003 in relation to the Dublin III Regulation. The 1980 Hague Convention is also at stake:

Must Article 2(11) of Regulation (EC) No 2201/2003 [on] matrimonial matters and the matters of parental responsibility … (‘the Brussels II bis Regulation’), relating to the wrongful removal of a child, be interpreted as meaning that a situation in which one of the parents, without the other parent’s consent, removes the child from his or her place of residence to another Member State, which is the Member State responsible under a transfer decision taken by an authority in application of Regulation (EU) No 604/2013 of the European Parliament and of the Council (‘the Dublin III Regulation’), must be classified as wrongful removal?

If the answer to the first question is in the negative, must Article 2(11) of the Brussels II bis Regulation, relating to wrongful retention, be interpreted as meaning that a situation in which a court of the child’s State of residence has annulled the decision taken by an authority to transfer examination of the file, but in which the child whose return is ordered no longer has a currently valid residence document in his or her State of residence, or the right to enter or to remain in the State in question, must be classified as wrongful retention?

If, in the light of the answer to the first or the second question, the Brussels II bis Regulation must be interpreted as meaning that there is a wrongful removal or retention of the child, and that he or she should therefore be returned to his or her State of residence, must Article 13(b) of the 1980 Hague Convention be interpreted as precluding the child’s return, either (i) on the ground that there is grave risk, within the meaning of that provision, that the return of an unaccompanied infant whose mother has personally taken care of him or her would expose that child to physical or psychological harm or otherwise place the child in an intolerable situation; or (ii) on the ground that the child, in his or her State of residence, would be taken into care and placed in a hostel either alone or with his or her mother, which would indicate that there is a grave risk, within the meaning of that provision, that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation: or (iii) on the ground that, without a currently valid residence document, the child would be placed in an intolerable situation within the meaning of that provision?

If, in the light of the answer to the third question, it is possible to interpret the grounds of refusal in Article 13(b) of the 1980 Hague Convention as meaning that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation, must Article 11(4) of the Brussels II bis Regulation, in conjunction with the concept of the child’s best interests, referred to in Article 24 of the Charter of Fundamental Rights of the European Union and in that regulation, be interpreted as meaning that, in a situation in which neither the child nor the mother has a currently valid residence document in the child’s State of residence, and in which therefore have neither the right to enter nor the right to remain in that State, the child’s State of residence must make adequate arrangements to secure that the child and his or her mother can lawfully remain in the Member State in question? If the child’s State of residence has such an obligation, must the principle of mutual trust between Member States be interpreted as meaning that the State which returns the child may, in accordance with that principle, presume that the child’s State of residence will fulfil those obligations, or do the child’s interests make it necessary to obtain from the authorities of the State of residence details of the specific measures that have been or will be taken for the child’s protection, so that the Member State which surrenders the child may assess, in particular, the adequacy of those measures in the light of the child’s interests?

If the child’s State of residence does not have the obligation, referred to above in the fourth question, to take adequate measures, is it necessary, in the light of Article 24 of the Charter of Fundamental Rights, to interpret Article 20 of the 1980 Hague Convention, in the situations referred to in the third question, points (i) to (iii), as meaning that that provision precludes the return of the child because the return of the child might be considered to be contrary, within the meaning of that provision, to the fundamental principles relating to the protection of human rights and fundamental freedoms?

Judges J.C. Bonichot (as reporting judge), L. Bay Larsen, C. Toader, M. Safjan and N. Jääskinen have been appointed to this preliminary ruling.

The judgement on C-30/20, Volvo, a request from the Juzgado de lo Mercantil nº 2 de Madrid (Spain) will be published the following day:

Should Article 7(2) of Regulation (EU) No 1215/2012 … on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, which establishes that a person domiciled in a Member State may be sued in another Member State: ‘… in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur’, be interpreted as establishing only the international jurisdiction of the courts of the Member State for the aforesaid place, meaning that the national court with territorial jurisdiction within that State is to be determined by reference to domestic rules of procedure, or should it be interpreted as a combined rule which, therefore, directly determines both international jurisdiction and national territorial jurisdiction, without any need to refer to domestic regulation?

AG Richard de la Tour’s opinion  was delivered on 22 April 2021. The chamber is composed by judges J.C. Bonichot, L. Bay Larsen, C. Toader, M. Safjan (as reporting judge) and N. Jääskinen.

The decision of the same chamber on joined cases C-152/20 SC Gruber Logistics – C-218/20 Sindicatul Lucrătorilor din Transporturi, both from the Tribunalul Mureș (Romania), will be published on the same day. The questions referred are quite similar.

The questions in C-152/20 were phrased as follows:

Is Article 8 of Regulation (EC) No 593/2008 [on the law applicable to contractual obligations, ‘Rome I’] to be interpreted as meaning that the choice of law applicable to an individual employment contract excludes the application of the law of the country in which the employee has habitually carried out his or her work or as meaning that the fact that a choice of law has been made excludes the application of the second sentence of Article 8(1) of that regulation?

Is Article 8 of [the Rome I Regulation] to be interpreted as meaning that the minimum wage applicable in the country in which the employee has habitually carried out his or her work is a right that falls within the scope of ‘provisions that cannot be derogated from by agreement under the law that, in the absence of choice, would have been applicable’, within the meaning of the second sentence of Article 8(1) of the regulation?

Is Article 3 of [the Rome I Regulation] to be interpreted as meaning that the specification, in an individual employment contract, of the provisions of the Romanian Labour Code does not equate to a choice of Romanian law, in so far as, in Romania, it is well-known that there is a legal obligation to include such a choice-of-law clause in individual employment contracts? In other words, is Article 3 of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 to be interpreted as precluding national rules and practices pursuant to which a clause specifying the choice of Romanian law must necessarily be included in individual employment contracts?

And here are the questions raised in C-218/20:

Interpretation of Article 8 of [the Rome I Regulation]: does the choice of law applicable to an individual employment contract exclude the application of the law of the country in which the employee has habitually carried out his or her work or does the fact that a choice of law has been made exclude the application of the second sentence of Article 8(1) of that regulation?

Interpretation of Article 8 of [the Rome I Regulation]: is the minimum wage applicable in the country in which the employee has habitually carried out his or her work a right that falls within the scope of ‘provisions that cannot be derogated from by agreement under the law that, in the absence of choice, would have been applicable’, within the meaning of the second sentence of Article 8(1) of the regulation?

Interpretation of Article 3 of [the Rome I Regulation]: does the specification, in an individual employment contract, of the provisions of the Romanian Labour Code equate to a choice of Romanian law, in so far as, in Romania, it is well-known that the employer predetermines the content of the individual employment contract?

AG Campos Sánchez-Bordona’s opinion, of 22 April 2021, is not available in English yet.

The same day, a hearing is foreseen on case C-581/20, TOTO, on provisional measures under Regulation 1215/2012, among other:

Is Article 1 of Regulation (EU) No 1215/12 … to be interpreted as meaning that a case such as that described in this order for reference must be regarded in whole or in part as a civil or commercial matter within the meaning of Article 1(1) of that regulation?

After the right to make an application for provisional/protective measures has been exercised and the court having jurisdiction as to the substance of the matter has already ruled on that application, is the court seised of an application for interim relief on the same basis and under Article 35 of Regulation (EU) No 1215/12 … to be regarded as not having jurisdiction from the point at which evidence is produced that the court having jurisdiction as to the substance of the matter has given a ruling on that application?

If it follows from the answers to the first two questions referred that the court seised of an application under Article 35 of Regulation (EU) No 1215/12 … has jurisdiction, must the conditions for the ordering of protective measures under Article 35 of Regulation (EU) No 1215/12 of the European Parliament and of the Council be interpreted independently? Should a provision which does not allow a protective measure to be ordered against a public body in a case such as the present one be disapplied?

Once again, judges J.C. Bonichot, L. Bay Larsen, M. Safjan, N. Jääskinen and C. Toader have been appointed, this time with C. Toader acting as reporting judged.

Summer holiday starts on 16 July 2021.

(NoA: worth reading as well is AG M. Szpunar’s opinion on the cassation appeal C-638/19 P, regarding investment arbitration and state aid, published on 1 July 2021; a press release in French is available here).

The new issue of the Revue Critique de Droit International Privé (2/2021) is out.

It contains eight articles and numerous case notes.

The editorial by Horatia Muir Watt (Sciences Po), Dominique Bureau (University of Paris II) and Sabine Corneloup (University of Paris II) will soon be available in English on the Dalloz website (Devoir de réserve ?), as well as the first four articles which all deal with the reserved share in successions (réserve héréditaire) from an international perspective*.

*This subject is highly topical at this moment in France since a draft bill on the compliance with the Republican principles (projet de loi confortant le respect des principes de la République) is being debating by members of the National Assembly as well as senators. It contains a provision (see article 13) aiming at protecting French heirs regarding assets located in France, against any foreign law applicable to the succession which would not provide for a reserved shared for children (see article 912 of the French Civil Code). During its first reading in April the Senate deleted the provision (see here and here). A new reading has started in July before the National Assembly. To be continued!

The articles in the special issue are as follows:

• Une ultime (?) bataille de la réserve héréditaire, by Paul Lagarde
• Quelques observations relatives à la réserve héréditaire dans le projet de loi confortant le respect des principes de la République, by Cécile Pérès
• Contre le retour du droit de prélèvement en droit français : une vue de la pratique du droit international, by Diane Le Grand de Belleroche
• Le prélèvement compensatoire du projet d’article 913 du code civil à l’épreuve des exigences européennes et constitutionnelles, by Suzel Ramaciotti
• Droit de prélèvement, réserve héréditaire, protection des héritiers contre les discriminations, quelle méthode ?, by Natalie Joubert

The last three articles are dealing with various PIL issues.

In the first article, Christelle Chalas and Horatia Muir Watt discusse the corporate environmental responsibility from the perspective of international jurisdiction (Vers un régime de compétence adapté à la responsabilité environnementale des entreprises multinationales ? Point d’étape post-Brexit – Affaires Municipio de Mariana v. BHP plc & BHP group Ltd ; Okpabi and others v Royal Dutch Shell Plc and another).

The second article written by Vincent Richard presents the Recast Service Regulation (La refonte du règlement sur la notification des actes judiciaires et extrajudiciaires).

Regulation (EU) no 2020/1784, adopted on 25 november 2020, recasts Regulation (EC) no 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters. Under the recast, transmitting agencies shall transfer documents to receiving agencies through a decentralised IT system such as e-CODEX. The recast also encourages electronic service to the addressee where the latter agrees. The reform creates new responsibilities for receiving agencies without correcting some of the Regulation’s shortcomings.

Finally, in the third article, Christine Budzikiewicz introduces the reform of international adoption law in Germany (La réforme du droit de l’adoption internationale en Allemagne).

The full table of contents is available here.

This post was drafted by Paul Lorenz Eichmüller, Vienna.

This year’s third issue of the German journal “Praxis des Internationalen Privat- und Verfahrensrechts” (IPRax) contains two articles and several other case discussions of interest for European private international law. 

In the first article, Andrew Dickinson (University of Oxford) discusses the applicable national and international rules of private international law that have been in force in the UK since the end of the transition period on 1 January 2021. He focuses primarily on jurisdiction matters and the recognition of foreign judgements, as well as choice of law for contract and tort claims. 

The abstract reads: 

At 11pm (GMT) on 31 December 2020, the United Kingdom moved out of its orbit of the European Union’s legal system, with the end of the transition period in its Withdrawal Agreement and the conclusion of the new Trade and Cooperation Agreement. This article examines the impact of this realignment on private international law, for civil and commercial matters, within the legal systems of the UK, the EU and third countries with whom the UK and the EU had established relationships before their separation. It approaches that subject from three perspectives. First, in describing the rules that will now be applied by UK courts to situations connected to the remaining EU Member States. Secondly, by examining more briefly the significance for the EU and its Member States of the change in the UK’s status from Member State to third country. Thirdly, by considering the impact on the UK’s and the EU’s relationships with third countries, with particular reference to the 2007 Lugano Convention and Hague Choice of Court Convention. The principal focus will be on questions of jurisdiction, the recognition and enforcement of judgments and choice of law for contract and tort.  

The second article by Susanne Zwirlein-Forschner (Ludwig-Maximilians-Universität Munich) concerns itself with the issue of foreign road charge claims brought in front of German courts. Particular emphasis is placed on questions of private international law.  

The abstract reads (translated from German): 

Tolling of public roads has experienced a renaissance in Europe for reasons of equivalence and climate protection. In some Member States, the modern toll systems are designed in such a way that the recovery of unpaid fees is carried out before civil courts. If such an action for payment of a foreign toll is brought before a German court, complex problems of PIL and international civil procedure arise, which will be examined in this article. 

Among the case discussions, two judgments by the CJEU shall be pointed out: firstly, the contribution by Wiebke Voß (Max Planck Institute Luxembourg for Procedural Law) on the decision C-215/18, Primera Air Scandinavia, which dealt with the delineation of contract and tort claims; and secondly, the case note by Chris Thomale (University of Vienna) on the decision C-433/19, Ellmes Property Services, which has already been discussed on this blog. 

A full table of contents can be found here. 

Jens M. Scherpe and Elena Bargelli are the editors of a collection of essays titled The Interaction between Family Law, Succession Law and Private International Law, recently published by Intersentia.

The blurb reads:

There can be no doubt that both substantive family and succession law engage in significant interaction with private international law, and, in particular, the European Union instruments in the field. While it is to be expected that substantive law heavily influences private international law instruments, it is increasingly evident that this influence can also be exerted in the reverse direction. Given that the European Union has no legislative competence in the fields of family and succession law beyond cross-border issues, this influence is indirect and, as a consequence of this indirect nature, difficult to trace.

This book brings together a range of views on the reciprocal influences of substantive and private international law in the fields of family and succession law. It outlines some key elements of this interplay in selected jurisdictions and provides a basis for discussion and future work on the reciprocal influences of domestic and European law. It is essential that the choices for and within certain European instruments are made consciously and knowingly. This book therefore aims to raise awareness that these reciprocal influences exist, to stimulate academic debate and to facilitate a more open debate between European institutions and national stakeholders.

The authors of the contributions are Elena Bargelli (Univ. Pisa), Anne Barlow (Univ. Exeter), Elena D’Alessandro (Univ. Turin), Elise Goossens (KU Leuven), Nigel Lowe (Cardiff Univ.), Robert Magnus (Univ. Bayreuth), Maire Ni Shuilleabhain (Univ. College Dublin), Walter Pintens (KU Leuven), Pablo Quinza Redondo (Univ. Valencia), Lukas Rass-Masson (Univ. Toulouse), Anne Sanders (Univ. Bielefeld), Jens M. Scherpe (Univ. Cambridge), Wendy Schrama (Utrecht Univ.) and Denise Wiedemann (MPI Hamburg).

Further information, including the table of contents can be found here.

On 25 June 2021, the Supreme Court of the United Kingdom issued a ruling in General Dynamics United Kingdom Ltd (Respondent) v State of Libya (Appellant) [2021] UKSC 22 on the right of the claimant to dispense service to a foreign State, by invoking exceptional circumstances. The court ruled that in proceedings to enforce an arbitration award against a foreign State under the 1996 Arbitration Act, the State Immunity Act (SIA) requires the arbitration claim form or the enforcement order to be served through the Foreign, Commonwealth (and Development) Office (“FCO”) to the State’s Ministry of Foreign Affairs, thus excluding the application of pertinent CPR rules.

Background

General Dynamics United Kingdom Ltd (“GD”) is part of the General Dynamics group, a global defense conglomerate. Libya is a sovereign state which, at the time of these proceedings, had two competing governments. A dispute arose between the parties over a contract for the supply of communications systems. In January 2016, an arbitral tribunal in Geneva made an award of approximately £16 million (plus interest and costs) in favor of GD. The Award remains unsatisfied, but GD wishes, and has attempted, to enforce it in England and Wales. In July 2018, the High Court made an order which, amongst other things, allowed GD to enforce the Award, dispense with the requirement on it to serve a claim form or any associated documents on Libya and provided for Libya to be notified of the order (as the initial hearing had been held without notice).

Subsequently, Libya applied to the High Court to set aside those parts of the initial order dispensing with service. It referred to section 12(1) of the SIA, which requires service of ‘any writ or other document required to be served for instituting proceedings against a State’ to be transmitted to that state’s Ministry of Foreign Affairs by the FCO. It asserted that, as no service in this manner either of the arbitration claim form or of the High Court’s order giving permission to enforce the Award had occurred, the order had to be set aside and the Award could not be enforced. Accordingly, it argued, any assets of Libya in the jurisdiction could not be used to satisfy the Award. The High Court’s initial order was therefore overturned. However, the Court of Appeal restored the High Court’s initial order finding that it was not mandatory for the arbitration claim form or order permitting enforcement to be served through the FCO ([2019] EWCA Civ 1110). The State of Libya appealed.

Ruling

The Supreme Court was called to address the following issues:

Issue 1: In proceedings to enforce an arbitration award against a foreign State under section 101 of the 1996 Act, does section 12(1) of the SIA require the arbitration claim form or the enforcement order to be served through the FCDO to the State’s Ministry of Foreign Affairs?

Issue 2: Even if section 12(1) applies, in exceptional circumstances, can the court dispense with service of the enforcement order under rules 6.16 and/or 6.28 of the CPR?

Issue 3: Must section 12(1) be construed as allowing the court to make alternative directions as to service in exceptional circumstances where the claimant’s right of access to the court would otherwise be infringed?

The court summarised the judgment as follows.

Issue 1

The majority of the Court allowed Libya’s appeal on the first issue. They considered that a broad reading of section 12(1) of the SIA is appropriate, on account of the considerations of international law and comity which are in play. The words “other document required to be served for instituting proceedings against a State” in section 12(1) are wide enough to apply to all documents by which notice of proceedings in this jurisdiction is given to a defendant State. In the particular context of enforcement of arbitration awards against a State, the relevant document will be the arbitration claim form where the court requires one to be served, or otherwise will be the order granting permission to enforce the award. In cases to which section 12(1) applies, the procedure which it establishes for service on a defendant State through the FCO is mandatory and exclusive, subject only to the possibility of service in accordance with section 12(6) in a manner agreed by the defendant State.

The minority would have dismissed Libya’s appeal on the first issue. They considered that that Parliament intended the applicability of section 12(1) of the SIA to depend on what was required by the relevant court rules. If, as in this case, the operation of the relevant rules does not require service of the document instituting proceedings, then that document will fall outside section 12(1) of the SIA. Documents which do not institute proceedings, such as the enforcement order, fall outside the scope of section 12(1) of the SIA entirely. Where section 12(1) of the SIA does not apply, the status quo of State immunity provided for in section 1 of the SIA must prevail.

Issue 2

The majority’s answer to this question is “No”. Lord Lloyd-Jones explained that section 12(1) of the SIA does not require the court to refer to the CPR to determine whether a document is one which is required to be served. Rule 6.1(a) of the CPR also makes clear that in this instance the CPR do not purport to oust the requirements of section 12(1) of the SIA. The CPR cannot give the court a discretion to dispense with a statutory requirement in any event.

The minority’s answer to this question is “Yes”. Lord Stephens considered that, if the court exercises a discretion to dispense with service in exceptional circumstances, then the relevant document is no longer a document that is “required to be served” for the purposes of section 12(1) of the SIA. In his view, this interpretation gives effect to the underlying purpose of the legislation because it facilitates the restrictive doctrine of State immunity.

Issue 3

General Dynamics argued that the service requirements in section 12(1) of the SIA may prevent a claimant from pursuing its claim, which would infringe article 6 of the European Convention on Human Rights (“ECHR”) as well as the constitutional right of access to the court. It therefore contended that section 12(1) should be construed, pursuant to section 3 of the Human Rights Act 1998 (“HRA”) and/or common law principles, as allowing the court to make alternative directions as to service in exceptional circumstances.

The majority of the Court rejected this argument. They held that the procedure prescribed by section 12(1) of the SIA is a proportionate means of pursuing the legitimate objective of providing a workable means of service which conforms with the requirements of international law and comity, in circumstances of considerable international sensitivity. The procedure cannot therefore be considered to infringe article 6 of the ECHR, or to engage the common law principle of legality. The court cannot therefore interpret section 12 of the SIA as (for example) permitting substituted service, given that a fundamental feature of the provisions is their mandatory and exclusive nature.

The minority would interpret section 12(1) of the SIA as allowing the court to make alternative directions as to service if the claimant’s right of access to the court would otherwise be infringed. They considered that denying access to a court in circumstances where diplomatic service is impossible or unduly difficult would not be proportionate to the legitimate aim of complying with international law to promote comity and good relations between States.

Assessment

The case concerns the application of internal rules of the UK. We will therefore refrain from any comment on the domestic landscape, and approach the issue from a broader perspective.

Some clarifications first:

1. The case falls outside the scope of the EU Service Regulation: Service of process was supposed to take place outside the boundaries of the European Union.
2. The case falls outside the scope of the 1965 Hague Service Convention: The State of Libya is not a signatory of the convention aforementioned.
3. There is no bilateral convention between the UK and the State of Libya in the field of judicial cooperation in civil matters.

Efforts to notify the defendant

As evidenced from the text of the Court of Appeal judgment, the Claimant had permission to dispense with service of the Arbitration Claim Form dated 21 June 2018, any Order made by the Court and other associated documents, pursuant to Civil Procedure Rules 6.16 and 6.28. The Claimant was allowed to courier the Arbitration Claim Form, the Order and the associated documents to the following addresses:

1. Interim General Committee for Defence, Ghaser Bin Gashour, Tripoli, Libya;
2. The Ministry of Foreign Affairs, Ash Shatt St, Tripoli, Libya; and
3. Sefrioui Law Firm, 72 Boulevard de Courcelles, 75017 Paris, France.

All three addresses were associated with the Government of National Accord, the recognised government of Libya. The Defendant could, within two months of the date of this order, apply to set aside this Order and the Award could not be enforced until after the expiration of that period, or, if the Defendant applied to set aside this order within two months of the date of this Order, until after the application has been finally disposed of.

The proceedings did come to the attention of Libya which has applied (within the specified two-month period) to set aside paragraphs 4 and 5 of the order and to vary paragraphs 6 and 7 so that the period for any application to set aside paragraphs 1 to 3 will run from the date of service of the order pursuant to section 12 of the State Immunity Act.

Hence, the question was not whether the State of Libya was aware of the proceedings; it was rather whether the notification met with the requirements of UK law, i.e. with section 12 of the State Immunity Act.

European and global good practices

In the EU context, we could refer to Article 19(1)b of the Service Regulation, which reads as follows:

1. Where a writ of summons or an equivalent document has had to be transmitted to another Member State for the purpose of service under the provisions of this Regulation and the defendant has not appeared, judgment shall not be given until it is established that:

 b the document was actually delivered to the defendant or to his residence by another method provided for by this Regulation;

and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend.

The same rule applies in the field of the 1965 Hague Service Convention. Article 15(1)b states that,

Where a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and the defendant has not appeared, judgment shall not be given until it is established that –

1. b)  the document was actually delivered to the defendant or to his residence by another method provided for by this Convention,

and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend.

Violation of the defendant’s procedural rights?

In light of the factual situation, it is substantially improbable that the procedural breach has caused an essential injury to the appellant’s defense rights. The State of Libya filed timely an application to set aside the arbitral award, apparently because it received the courier in one of the addresses aforementioned.

Formal service prevails over actual knowledge of the proceedings?

As a conclusion, we wish to underline that the State of Libya was not deprived of its rights to challenge the award. Admittedly, GD could have attempted to serve the documents pursuant to the SIA, before opting for notification by courier. It did so, because it was given the right by the High Court order. In addition, GD attempted subsequently to serve the documents, by following the requirements of section 12 of the SIA, however to no avail.

And now what?

GD is obliged to follow the conditions stipulated in Section 12 SIA. According to the most favorable estimates, evidenced in the judgment of the Court of Appeal, service will be effected no sooner than a year following transmission. Of course, it may not be excluded that service will not take place at all. This will be the moment when article 6 of the European Convention on Human Rights comes into play.