EAPIL blog

The latest issue of the RabelsZ (Rabels Zeitschrift für ausländisches und internationales Privatrecht) has been published.

It contains a number of insightful articles and case comments, whose abstracts are provided below.

Johannes Ungerer, Nudging in Private International Law: The Design of Connecting Factors in Light of Behavioural Economics

Amending the traditional economic analysis of law and its assumption of rationality, this paper suggests that behavioural economics can inform a more realistic understanding of private international law, which has been missing to date. Acknowledging the psychological biases which private parties are facing when dealing with complex cross-border cases, the paper introduces a new perspective on the design of connecting factors in EU private international law which are to be conceived as nudges that steer the applicable law and international jurisdiction to counteract bounded rationality. Objective connecting factors can be perceived as default rules, whereas the framework for exercising party autonomy can be construed as choice architecture of subjective connecting factors. Revealing the underlying libertarian paternalism of connecting factors requires addressing existing concerns about nudging, which is insightful for establishing the requirements of a transparent and choice-preserving design. Behavioural economics prove to be particularly suitable for explaining the restriction of choice and other connecting factor modifications for consumer protection in private international law.

Johanna Croon-Gestefeld, Der Einfluss der Unionsbürgerschaft auf das Internationale Familienrecht (The Influence of EU Citizenship on International Family Law)

European Union citizenship is a multifaceted concept. It vests a formal status in the citizens of member states and grants them individual rights. In addition, it symbolically affirms the ideal of integration. The different facets of EU citizenship are mirrored in the various ways in which the concept influences international family law. First, the rights connected to the status of EU citizenship shape the outcome of international family law cases. Second, art. 21 para. 2 TFEU bestows a competence on EU legislators to harmonize international family law. Third, EU citizenship is invoked to support the ideal of mobile citizens roaming freely within the EU, an ideal which for its part legitimizes habitual residence as a central connecting factor in EU international family law regulations.

Jochen Hoffmann and Simon Horn, Die Neuordnung des internationalen Personengesellschaftsrechts (Reshaping Germany’s Private International Law on Partnerships)

The recent German act on the modernization of partnership law (MoPeG) reforms not only the substantive law but also the determination of connecting factors for conflict-of-law purposes. A newly created provision introducing a “registered seat” in § 706 of the German Civil Code (BGB) is relevant to conflict-of-law considerations as it abandons the “real seat” as a connecting factor for registered partnerships. Since the law applicable to a partnership now depends on the partnership’s place of registration, substantive provisions such as the prohibition of voluntary deregistration (§ 707a BGB para. 4) will now have a considerable impact on questions of private international law. Conversely, those interpreting the substantive law must take conflict-of-law issues into account, especially to avoid unintentionally changing the law to which an entity will be subject. Moreover, the eligibility of the registered partnership (eGbR) for domestic conversions, mergers, and divisions considerably expands the range of possibilities for cross-border transactions of that kind.

Francesco Giglio, Roman dominium and the Common-Law Concept of Ownership

On the basis of a comparison between common law and Roman law, it is argued in this paper that, despite the common-law focus on title, the common-law and civil-law concepts of ownership are not as far apart as often thought. Title and ownership right are not logically incompatible, and the common law has room for both: ownership is a substantive right; title is an operative, procedural tool that supplies the essential dynamism to the static right of ownership. Nor are relative and absolute ownership systemically incompatible in the civil law, as evidenced by Roman law. A study of the works of Blackstone, Austin and Honoré – three influential authors with expertise in Roman law – suggests that Roman law provides helpful elements for a comparison with the common law, but only if it is used to understand the common law, as opposed to forcing inadequate structures upon it. Austin’s and Honoré’s attempts to read common-law ownership through the lenses of Roman law offer two instances of the risks linked to such an approach.

Jing Zhang, Functional Reform of the Chinese Law of Secured Transactions in Movables from a Comparative Perspective

The Chinese law of secured transactions concerning movables was reformed through a partial implementation of a functional approach. But by mixing formalism and functionalism, this functional reform, carried out first by the legislature through a codification and then by the Supreme People’s Court through a judicial interpretation, leads to a modular system with links between the various modules. Different modules are linked in the sense that the rules concerning property rights of security are extended to title-based security devices through the making of several “connection points”. After introducing the old law, this article focuses on issues of publicity, priority and enforcement under the new law. The functional reform establishes a unified notice-filing register for movables, which is accompanied by several specialist registers. Moreover, it provides a set of predictable priority rules that dispense with the factor of good faith in most circumstances. It also provides a flexible but complicated and somewhat uncertain system of enforcement and remedies for reservations of ownership and financial leases. In general, the new law is more modern and internationally oriented than the old law, but it still lacks systematic completeness and coherence and needs to be improved.

Lena Salaymeh and Ralf Michaels, Decolonial Comparative Law: A Conceptual Beginning

This article introduces the intellectual motivations behind the establishment of the Decolonial Comparative Law research project. Beginning with an overview of the discipline of comparative law, we identify several methodological impasses that have not been resolved by previous critical approaches. We then introduce decolonial theory, generally, and decolonial legal studies, specifically, and argue for a decolonial approach to comparative law. We explain that decoloniality’s emphasis on delinking from coloniality and on recognizing pluriversality can improve on some problematic and embedded assumptions in mainstream comparative law. We also provide an outline of a conceptual beginning for decolonial approaches to comparative law.

Emile Zitzke, Decolonial Comparative Law: Thoughts from South Africa

In this article, I problematise a popular approach to comparative law in South Africa that invariably seeks answers to legal problems in European law. This approach could potentially have neo-colonial effects. I propose that one version of a decolonial approach to comparative law could involve comparing South Africa’s European legal tradition (today called the South African common law) and its African legal tradition (today called the South African customary law). Utilising postcolonial, decolonial, and legal-pluralism theory, coupled with recent developments in the South African law of delict (torts), I suggest that the common/customary law interface ought to involve acts of both resistance and activism. There ought to be a resistance to the paradigms of “separatism”, “mimicry”, and “universality”. Simultaneously, there ought to be an embrace of “actively subversive hybridity”, “pluri-versality” and “delinking”. I contend that it is in this matrix of resistance and activism where at least one version of decolonial comparative law might be found.

Roger Merino, Constitution-Making in the Andes – A Decolonial Approach to Comparative Constitutional Change

How might the field of comparative constitutional change account for constitution- making processes and outcomes forged by historically subordinated and racialized social movements? Inspired by critical comparative approaches to constitutional change and engaging decolonial theory, this article explores how in the Andes of South America the “colonial question” shaped constitution-making struggles and was the rationale behind the enactment of the new plurinational constitutions of Bolivia (2009) and Ecuador (2008). This study focuses on the political aspirations of subaltern actors that have promoted constitutional changes in these settings and localizes their struggles and the historical and social context of continuous colonial grievances. Thus, the article provides a deeper understanding of the process of constitution-making in the Andes and reveals the colonial patterns that persist in current frameworks, such as the constitutional provisions that legitimate and perpetuate extractivism.

The table of contents of the issue is available here.

La Ley – Unión Europea is a Spanish journal published monthly by Wolters Kluwer under the editorship of Professor Fernández Rozas (University Complutense, Madrid). It comprises several sections; contributions are classified depending on their length and nature – whether analytical or descriptive. Although not exclusively devoted to private international law, every issue contains at least an in-depth comment to a decision of the Court of Justice related to judicial cooperation on civil and commercial matters. An English abstract is attached to all of them.

A personal selection of five (random number) articles published in 2021, in chronological order:

Rafael Arenas García (University Autónoma of Barcelona), Jurisdiction over rights in rem in immovable property and jurisdiction in contractual matters in the case law of the Court of Luxembourg, La Ley-Unión Europea February 2021 – commenting C-433/19, Ellmes Property service Limited.

The judgment of November 11, 2020 interprets both the exclusive ground of jurisdiction in proceedings which have as their object rights in rem in immovable property and the ground of jurisdiction in matter relating to a contract of art. 7.1 of Regulation 1215/2012. Regarding the first of these forums, the Court considers that an action must be regarded as constituting an action «which has as its object rights in rem in immovable property, provided that the action may be relied erga omnes. With regard to the contractual forum, it is especially significant that the Court determines directly the place of fulfilment of the obligation without considering the governing law of the obligation according with the conflict rules of the court seised.

Ángel Espiniella Menéndez (University of Oviedo), Cross-Border Payments by Subrogation after the Insolvency, La Ley – Unión Europea September 2021, commenting (very critically) on C- 73/20, ZM.

The Judgment analyses the case of a cross-border payment made by the debtor by subrogation
and after the opening of the insolvency proceeding. The Court considers that this payment shall be governed by the law of the contract and not by the law of the insolvency proceeding. A very doubtful conclusion which is contrary to the equal treatment of creditors.

Santiago Álvarez González (University of Santiago de Compostela), A new, provisional and debatable delimitation of international jurisdiction over violations of personality rights, La Ley – Unión Europea September 2021, commenting (again, very critically) on C-800/19, Mittelbayerischer Verlag.

On 17 June 2021 the Court of Justice of the EU pronounced a judgment in case C-800/19,
Mittelbayerischer Verlag KG v. SM. The ECJ held that «Article 7(2) of Regulation (EU) n.o 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that the courts of the place in which the centre of interests of a person claiming that his or her personality rights have been infringed by content published online on a website is situated have jurisdiction to hear, in respect of the entirety of the alleged damage, an action for damages brought by that person only if that content contains objective and verifiable elements which make it possible to identify, directly or indirectly, that person as an individual».The author does not consider that the new ECJ judgement is justified by the predictability of the rules of jurisdiction laid down by Regulation no 1215/2012, the legal certainty which that regulation seeks to guarantee, or the sound administration of justice as the ECJ does. Furthermore, he thinks that all these objectives should lead down to an entire reconsideration of the ECJ doctrine on «centre of interests» and the «mosaic approach» in the framework of art. 7.2 Regulation no. 1215/2012.

(Follow up: a note by Pedro de Miguel on C-251/20, Gtflix tv is expected in La Ley, in January 2022)

Pilar Jiménez Blanco (University of Oviedo), The procedural risks of changing the consumer’s domicile: do the Brussels I bis Regulation and the Lugano convention need a reform?, La Ley-Unión Europea November 2021, on C-296/20, Commerzbank.

The Commerzbank Judgment shows the risks derived from the change of domicile of the consumer
after the conclusion of the contract in the cases of passive consumer of art. 17.1.c) of the Brussels I bis
Regulation [art. 15.1.c) of the Lugano Convention]. Such risks must be assumed when the consumer is the defendant, considering only the domicile at the time of filing the claim. However, these risks break with the predictability of the competence when the consumer is the plaintiff and the professional has not pursued or directed his commercial or professional activities to the State of the new domicile. Here is a reflection on the opportunity to adapt the Brussels Ia Regulation and the Lugano Convention to this situation.

Francisco Manuel Mariño Pardo (Notary), European Certificate of Succession. Temporary effectiveness of authentic copies and effectiveness with respect to the persons designated therein, La Ley-Unión Europea December 2021, on C-301/20, UE, HC y Vorarlberger Landes-und Hypothekenbank, with the added value of the author’s reflections on the impact on the Spanish notarial practice.

On its judgment of 1st. July 2021, the ECJ held that article 70(3) of Regulation (EU) n.o 650/2012
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; and that article 65(1) of the same Regulation, read in conjunction with its Article 69(3), 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.This paper analyzes the ECJ judgment and add some thoughts on its effects on the Spanish notary activity.

At the beginning of December 2021 the European Commission launched a new initiative aiming to digitalise cross-border judicial cooperation – the Proposal for a Regulation on Digitalisation of Judicial Cooperation and Access to Justice in Cross-Border Civil, Commercial and Criminal Matters, and Amending Certain Acts in the Field of Judicial Cooperation.

The proposed regulation does not establish new European procedures, but focuses on electronic communication in the context of cross-border judicial cooperation procedures and access to justice in civil, commercial and criminal matters in the EU. With the adoption of this regulation the European legislator seeks to create the necessary legal framework to facilitate electronic communication in the context of the cross-border judicial cooperation procedures in civil, commercial and criminal matters.

The present text follows a proposal from December 2020 for a Regulation on a Computerised System for Communication in Cross-Border Civil and Criminal Proceedings (mentioned earlier in other blogs available here, here, and here) – and two recast regulations from November 2020 – the Service of Documents Regulation and the Taking of Evidence Regulation (see earlier blogposts here and here). The Service of Documents and Taking of Evidence Regulations establish a first comprehensive legal framework for electronic communication between competent authorities in cross-border judicial procedure, and will rely – as the present proposal – on the e-CODEX decentralized IT system to exchange standardized forms, documents, and certifications (more on the e-CODEX decentralized system pilots can be read here, here, and here).

The proposal is based on Articles 81(1) and 82 TFEU and follows an identical approach to the solutions chosen in the recasts of the Service of Documents and Taking of Evidence Regulations for the use of electronic communication means. However, the text of the present proposal will not become applicable in relation to the aforementioned regulations.

The EU Regulations covered by this initiative are listed in two annexes: one concerning legal acts in civil and commercial matters and the other the legal acts in criminal matters (available here).

The present development comes after a number of instruments have been adopted over the years to enhance judicial cooperation and access to justice in cross-border civil, commercial and criminal cases. These instruments had been developed with a paper-based format in mind, an approach followed by most national procedures within the EU. This characteristic of the European instruments and the lack of interconnection of the national electronic systems (where available for judiciaries) meant that national authorities and individuals have not been able to rely extensively on the developments of digital communication or security mechanism offered by electronic documents, signatures and seals in cross-border proceedings. Given this situation, during the COVID-19 pandemic many technical solutions were developed in an ad-hoc manner to limit disruption of justice services and judicial cooperation. However, such solutions may not always satisfy the highest level of security and guarantee of fundamental rights.

For this reason further steps were considered necessary by the European legislator. Rules on digitalisation are becoming desirable to improve access to justice as well as the efficiency and resilience of the communication flows inherent to the cooperation between judiciaries and other competent authorities in EU cross-border cases. The pandemic increased consideration for creating a framework that is able to secures access to justice and facilitate communication of authorities in charge of delivering justice services during long lasting disruptive events.

The Explanatory Memorandum of the proposal emphasizes the importance to achieve the following goals: efficient cross-border cooperation, resilience in force majeure circumstances, and contributing to securing access to justice within ‘a reasonable time’ as crucial element for the right to a fair trial.

The proposed regulation aims to ‘ensure an adequate and holistic infrastructure for electronic communication between individuals, legal entities or competent authorities with the authorities of another Member State’. This common approach should:

• Ensure the availability and broad use of electronic means of communication in cross-border cases between Member States’ competent authorities including the Justice and Home Affairs and EU bodies;
• Enable the use of electronic means of communication in cross-border cases between individuals and legal entities, and courts and competent authorities (except for situations covered by the Service Regulation);
• Facilitate the participation of parties in oral hearings through videoconference or other distance communication technology in cross-border civil and criminal proceedings for reasons other than the taking of evidence (taking of evidence by videoconference or other distance communication technology fall under the Evidence Regulation);
• Ensure that documents are not refused or denied legal effect solely on the grounds of their electronic form (this is not to touch upon courts’ powers to decide on the validity, admissibility and probative value as evidence under national law); and
• Ensure the validity and acceptance of electronic signatures and seals in electronic communication in cross-border judicial cooperation and access to justice.

When adopted the text is set to coordinate Member States’ efforts in digitalising judicial services and establish a coherent framework for the existing EU rules, leading to simplification and speeding up of communication between Member States authorities and individuals and legal entities.

The e-CODEX system will secure the interoperability of national and EU access points, while the European e-Justice Portal is expected to undergo some modifications to support the interaction between natural and legal persons and courts and competent authorities in cross-border proceedings.

The first articles (Articles 1-2) establish the scope of the act, the limitations to its application and defines the concepts used within its provisions. Article 3 is dedicated to the rules concerning the decentralised system consenting electronic communication between courts and competent authorities. The use of the system is to be compulsory, except in case of disruption of the system or in other specific circumstances. Article 4 establishes the European electronic access point. The European electronic access point is to be part of the e-CODEX decentralised IT system and may be used by natural and legal persons for electronic communication with the courts and competent authorities in civil and commercial matters having cross-border implications. This is to be located on the European e-Justice Portal. Article 5 sets a duty on the EU Member States’ courts and competent authorities to accept electronic communication from natural and legal persons in judicial procedures, but leaves the choice of the electronic means of communication at the discretion of the natural and legal persons (e.g. European electronic access point, national IT portals were available for participation in judicial procedures). Article 6 recognises an electronic submission to be equivalent to a paper one and requires national authorities to accept such communications from natural and legal persons. Article 7 provides the legal basis and sets out the conditions for using videoconferencing or other distance communication technology in cross-border civil and commercial proceedings under the legal acts listed in Annex I and in civil and commercial matter where one of parties is present in another Member State. Additionally, special rules are set by this article for hearing children. Article 8 addressing the same aspect for criminal matters, including special rules for hearing a suspect person, an accused, convicted person or children. Article 9 focuses on using trust services (i.e. electronic signatures and seals) in electronic communication. Article 10 requires that electronic documents are not denied legal effects solely on the ground that they are in electronic form. This provision is similar to provisions on the matter included in the Recast Service of Documents and Tacking of Evidence Regulations as well as the eIDAS Regulation. Article 11 provides the legal basis for electronic payment of fees, including through the European e-Justice Portal. This point is of high significance in cross-border procedures as it proved to be a problematic aspects in the application of the European uniform procedures in several Member States (e.g. the European Order for Payment, the European Small Claims Procedure). Article 12 lays the framework for the Commission to adopt the necessary implementing acts, while Articles 13-14 mandate the Commission to create, maintain, and develop the reference implementation software and deal with the matter of cost bearing for various IT developments. Article 15 addresses the aspects related to the protection of personal data exchanged through the digital means. Articles 16-18 set the rules for collecting data and evaluation of the effectiveness of the proposed Regulation. This is followed by a number of articles focusing on the amendment of several regulations in civil, commercial and criminal matters. Articles 19-22 introduce a number of amendments to Regulations in civil and commercial matters included in Annex I, while Article 23 seeks to amend criminal matters side related to the Regulation on mutual recognition of freezing orders and confiscation orders.

The European uniform procedures regulations – European Order for Payment, European Small Claims Procedure and the European Account Preservation Order – will be amended by the present proposal. The rules seek to create the legislative format to: (1) recognise the submission of the applications or other forms of the procedures by electronic communication means provided by the present proposal or any other means of communication, included electronic, accepted by the Member State of origin or available to the court of origin, (2) secure the recognition of electronic signatures, (3) make available means of electronic payment of court fees (i.e. for the European Small Claims Procedure), (4) secure the communication by electronic means of communication between the authorities and the parties involved.

Another regulation to be amended is the Insolvency Regulation. The proposal introduces provisions related to the cooperation and communication between courts for secondary insolvency proceedings in the sense that these should be carried out via the decentralised electronic means referred to by the present proposal – e-CODEX. Additionally, any foreign creditor should be able to lodge claims in insolvency proceedings by any means of communications accepted by the State of opening of the proceedings or by the electronic means provided by Article 5 of the proposal.

In criminal matters, the Regulation on the mutual recognition of freezing orders and confiscation orders will also be amended when the proposed regulation will be adopted. The e-CODEX decentralized system consenting electronic communication between courts and competent authorities will have to be used for a number of actions, namely: (1) by the issuing authority to transmit the freezing order to the executing authority, or central authority; (2) for the executing authority to report on the execution of the freezing order; (3) to inform the issuing authority on any decision to recognise and execute or not to recognise and execute an issued freezing order; (4) for the executing authority to report the postponement of the execution to the issuing authority and subsequent measures taken for its execution; and (5) for the execution authority to make a reason request to the issuing authority to limit the period for which the property is to be frozen. The same applies for similar provisions related to confiscation orders.

When adopted this regulation will achieve one of the goals set out in last year’s Communication on the Digitalisation of Justice: making ‘digital communication channels the default channel in cross-border judicial cases’. If properly applied this will address two main problems of cross-border judicial cooperation: inefficiencies affecting this cooperation and barriers to access to justice in cross-border civil, commercial and criminal cases.

Now, it remains to be seen how the adopted text of the regulation will look like and how long it will take for achieving its full deployment in cross-border civil, commercial and criminal cases.

This post was written by Amy Held and Matthias Lehmann.

Prima facie, it does not seem that anyone need be overly concerned about the post-Brexit relationship between the Rome II Regulation and English law.  However, such complacency overlooks the continued relevance of the Rome II Regulation, as part of UK domestic law, in the English courts by virtue of s 3(1) of the European Union Withdrawal Act 2018, as amended by reg 11 of the The Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc.) (EU Exit) Regulations 2019. These points were recently highlighted by the High Court of England and Wales in Fetch.AI Ltd v Persons Unknown [2021] EWHC 2254 (Comm).

The First Applicant was an English-registered company which alleged that Persons Unknown had, without authorisation, accessed its account with the Binance Exchange and effected a series of transactions at an undervalue, thereby causing it loss in excess of USD 2.6 million.  Accordingly, the First Applicant sought several court orders in claims for, inter alia, breach of confidence. As the Respondents were without the English jurisdiction or were otherwise in an unknown location, the First Applicant also required permission to serve proceedings out of the jurisdiction under CPR rr 3.6 and 3.7.

As summarised in Altimo Holdings and Investment Ltd v Kyrgyz Mobile Tel Ltd [2011] UKPC 7; [2012] 1 W.L.R. 1804, applications to serve out are subject to a three-limb test.  Of these, limb two requires the applicant to show that there is a “good arguable case” against the foreign defendant that falls within the classes of case for which leave to serve out may be given, as set out in PD 6.B para 3.1.  In the present case, HHJ Pelling QC (‘the Judge’) was satisfied that there was a good arguable case for breach of confidence, and that the other limbs of the test were made out.  Permission was therefore granted.

In this post, we examine from an EU perspective the basis upon which the Judge concluded that, applying Rome II, that English law governed the claim. Our fuller analysis, encompassing an analysis of English substantive law, may be found in Amy Held & Matthias Lehmann, ‘Hacked crypto-accounts, the English tort of breach of confidence and localising financial loss under Rome II’ (2021) 10 JIBFL 708.

The Judge referred to the Rome II Regulation (sometimes mistakenly as the “Rome Convention”), given its continued application in the UK pursuant to the EU Withdrawal Act 2018; and considered the bases upon which the English cause of action of breach confidence may properly fall within its scope.

The Judge first (correctly, it is submitted) rejected Article 6 Rome II, distinguishing Shenzhen Senior Technology Material Company Limited v Celgard LLC [2020] EWCA Civ 1293 on the basis that this earlier case concerned a claim for breach of confidence arising from an act of unfair competition within the scope of the Trade Secrets (Enforcement, etc) Regulations 2018.  The present case, however, did not concern unfair competition and, in the Judge’s view, Shenzhen Senior Technology Material Company did not form authority for the general proposition under English law and characterisation that all breach of confidence claims fall within Article 6.

The Judge then considered the general rule for tort/delict in Article 4, and found it encompassed a common law claim of breach of confidence.  In doing so, the Judge applied the English characterisation of breach of confidence as a common law tort, rather than the civilian characterisation as a privacy or personality rights falling within the exclusion in Article 1(2)(g) Rome II. 

Having thus concluded that Article 4 of Rome II applied, the Judge considered the main issue to be identifying “the law of the country in which the damage occurs.”  In this respect, the Judge considered the decisive issue to be localising the relevant property, i.e., the cryptocurrency.  Citing Ion Science v Person Unknown (Unreported, 21 December 2020) (commentary in A Held, ‘Does situs actually matter when ownership to bitcoin is in dispute?’ (2021) 4 JIBFL 269), the Judge held that the cryptocurrencies were situate at the place where its owner is domiciled.  Given that the First Applicant was domiciled in England, the Judge concluded that the relevant property was situate in England. In his opinion, English law therefore governed the proposed claim. 

There are at least two issues with this decision from the perspective of Rome II.

First, the approach taken by the Judge in localising loss by reference to the domicile of the owner is inherently circular: identifying the place of damage with the domicile of the owner of crypto assets begs the question of which law determines ownership over crypto assets. This question cannot be answered by referring (again) to the domicile of the owner without entering a vicious circle.

Second, the decision fails to consider the long-standing line of CJEU caselaw that deals specifically with the question of localising financial and/or pure economic damage under the Brussels Ibis Regulation and its predecessors which, pursuant to Recital 7 of Rome II, is to be followed when Rome II applies. As the CJEU ruled in Kronhofer, the ‘place where the damage occurred’ does not “refer to the place where the claimant is domiciled or where ‘his assets are concentrated’ by reason only of the fact that he has suffered financial damage there.” Although the CJEU has given some scope to consider the place of domicile of the injured party (e.g. in Kolassa and Löber), localising pure economic loss nevertheless entails a multifactorial approach taking into account all the facts of the case.

Fetch.AI demonstrates the potential trend for divergence between the CJEU and the English courts as to the application of EU instruments of private international law. As the decision shows, insufficient attention is given even to pre-Brexit decisions of the CJEU, notwithstanding that they are presently binding “retained case law” pursuant to s 6(3) of the European Union Withdrawal Act 2018 on courts in the UK, except the UK Supreme Court, the High Court of Justiciary in certain circumstances, and where Regulations otherwise provide (s 6(4) European Union Withdrawal Act 2018). Accordingly, greater attention should be paid by UK courts to both the express terms of EU instruments of private international law, and the case law of the CJEU on their interpretation.

To conclude its current research project on the national rules on jurisdiction in civil and commercial matters over non-EU defendants, the Young Research Network of the EAPIL will host a conference in Dubrovnik on 14 and 15 May 2021 (currently planned as an in-person event).

The conference will highlight the findings of the research project and link them to the wider question of whether or not the Regulation should be extended to non-EU defendants. To this end, the panelists will include participants in the research project, other members of the Young Research Network as well as representatives of stakeholders such as the European Commission and the Hague Conference on Private International Law.

Attendance of the conference will be free of charge. Further information will soon be made available on this blog.

The 4th German-speaking Conference for Young Scholars in Private International Law will take place on 23 and 24 February 2023 at the Sigmund Freud University in Vienna.

The theme of the conference will be Deference to the foreign – Empty phrase or guiding principle of private international law?

Here’s the concept:

As part of the legal system, rules of private international law are bound by the principles of their national jurisdiction, but they also open up the national system to foreign rules. Is the claim of deference to the foreign merely an empty phrase or, at best, a working hypothesis, or can it serve as a meaningful guiding principle of private international law? Are there tendencies within or across specific areas of private international law to move away from deference to, and towards a general suspicion against, the foreign? To what extent does (mutual) trust become the basis of deference to the foreign in the process of internationalisation and Europeanisation? What, if any, is the relationship between deference to the foreign and the methods of private international law?

The organisers of the conference (Andreas Engel, Florian Heindler, Katharina Kaesling, Ben Köhler, Martina Melcher, Bettina Rentsch, Susanna Roßbach and Johannes Ungerer) are inviting contributions from all areas of private international law, including but not limited to contract and tort law, company law, family and succession law as well as international procedural law, international arbitration and uniform law.

The written contributions will be published in an edited conference volume. The conference will be held in German, but English presentations are also welcome. The call for papers will be released in spring 2022. Abstracts may be submitted until late Summer 2022.

Further information on the conference is available here.

The author of this post is Marco Buzzoni, Research Fellow at the Max Planck Institute Luxembourg.

On 21 December 2021, the Grand Chamber of the Court of Justice of the European Union (“CJEU”) handed out its much-anticipated judgment in Case C-251/20, Gtflix Tv v DR (“Gtflix Tv”), a case dealing with the interpretation of Article 7(2) of the Brussels I bis Regulation in the context of torts committed through an online publication. In this decision, the Court confirmed that the so-called ‘mosaic approach’ to jurisdiction first established in Shevill applies to an action seeking compensation for the harm allegedly caused by the placement of disparaging comments on the internet. Departing from the Opinion of AG Hogan issued on 16 September 2021 (on the Opinion, see more here), the CJEU held that the courts of each Member State in which those comments are or were accessible have jurisdiction to hear the case, provided that the compensation sought is limited to the damage suffered within the Member State of the court seised.

Far from putting an end to doubts concerning the allocation of jurisdiction under Article 7(2) Brussels I bis, however, the CJEU’s decision in Gtflix Tv will most likely revive the debates on the need to update the current jurisdictional framework applicable to online torts.

Gtflix Tv — a company established in the Czech Republic and specialised in the production and distribution of adult audiovisual content — brought an action for interim measures (référé) against DR — a director, producer and distributor of similar content domiciled in Hungary — before the President of the tribunal de grande instance de Lyon (Regional Court, Lyon, France).

Before that court, the plaintiff sought the rectification and removal of disparaging comments allegedly made by DR on several websites and forums, and asked for a symbolic compensation for the economic and non-material damage caused to its reputation. The court of first instance dismissed the action for lack of jurisdiction, and the plaintiff appealed this decision before the cour d’appel de Lyon (Court of Appeal, Lyon). On appeal, the plaintiff increased to EUR 10,000 the provisional sum claimed as compensation for the damage suffered in France. On 24 July 2018, however, the Court of Appeal confirmed the dismissal for lack of jurisdiction. The plaintiff subsequently filed an application against the judgment with the French Cour de cassation (Court of Cassation, France), contending that French courts had jurisdiction based on Article 7(2) Brussels I bis.

By a decision dated 13 May 2020 (on this decision, see more here), the Court of Cassation held that the French courts lacked jurisdiction to hear claims seeking the removal and the rectification of the allegedly disparaging statements published on the internet, in light of the CJEU’s judgment in Bolagsupplysningen and Ilsjan. As to the remaining claim for compensation, however, the French court wondered whether the same solution should apply, given the “necessary link of dependence” between this action and the request for rectification and withdrawal. Hence, the Court of Cassation decided to stay the proceedings and referred the following question to the CJEU:

“Must Article 7(2) [Brussels I bis] be interpreted as meaning that a person who, considering that his or her rights have been infringed by the dissemination of disparaging comments on the internet, brings proceedings not only for the rectification of data and the removal of content but also for compensation for the resulting non-material and economic damage, may claim, before the courts of each Member State in the territory of which content published online is or was accessible, compensation for the damage caused in the territory of that Member State, in accordance with the judgment of 25 October 2011, eDate Advertising and Others (C‑509/09 and C‑161/10, EU:C:2011:685, paras 51 and 52), or whether, pursuant to the judgment of 17 October 2017, Bolagsupplysningen and Ilsjan (C‑194/16, EU:C:2017:766, para 48), that person must make that application for compensation before the court with jurisdiction to order rectification of the information and removal of the disparaging comments?”

After a relatively lengthy summary of the general canons of interpretation that, according to the Grand Chamber, should guide the jurisdictional rules applicable to extra-contractual liability (paras 20-26), the Court began its decision by recalling the traditional solution according to which Article 7(2) grants jurisdiction to both the courts of the place “where the damage occurred and the place of the event giving rise to it” (para 27). The Court then underscored that the case at hand only required an assessment of whether the alleged damage occurred in France (para 28), and stated that, under existing precedent, parties who wish to vindicate violations of privacy and other personality rights through the internet (including defamation and harm to their commercial reputation) may either:

1. bring an action before the courts of each Member State in which content placed online is or has been accessible and seek compensation only in respect of the damage caused in the Member State of the court seised (Shevill);
2. seek compensation for all the damage allegedly suffered before the courts of the Member State in which the publisher of that content is established or before the courts of the Member State in which the plaintiff’s centre of interests is based (eDate Advertising); or
3. apply for the rectification of incorrect information and the removal of disparaging comments affecting their reputation, but only before the courts competent to rule on the entirety of the damage (Bolagsupplysningen and Ilsjan).

Having thus set the stage for its decision (paras 29-33), the CJEU went on to reject the idea that the “necessary link of dependence” between these claims weighed in favour of the exclusive jurisdiction of the courts competent to rule on the entire damage (paras 34-40). In this respect, the Court held, first of all, that while applications for rectification of information and removal of content are single and indivisible in nature and may therefore warrant the concentration of jurisdiction upon a limited number of courts, no such justification exists for claims of compensation (para 35). Secondly, the Court dismissed the argument that a “necessary link of dependence” exists between applications for injunctive relief and actions for damages, as “their purpose, their cause and their divisibility are different, and there is therefore no legal necessity that they be examined jointly by a single court” (para 36). Thirdly, the Court considered that a concentration of jurisdiction would not always serve the interests of the sound administration of justice (paras 37-40).

Finally, the Grand Chamber concluded its decision by rejecting the argument formulated by AG Hogan according to which, should the Court uphold the mosaic approach to jurisdiction inaugurated in Shevill, the reference to the place where the damage occurred should only be interpreted to cover the Member States where the publication in question is concretely “directed”. Citing its decisions in Pinckney and Hejduk, the Court held, however, the wording of Article 7(2) does not impose any additional condition regarding the determination of the competent court, and that such a restrictive approach could in some cases lead to the de facto exclusion of the option to bring proceedings before the courts of the place where the damage occurred.

Contrary to what a first reading of the judgment may suggest, the CJEU’s decision in Gtflix Tv does not simply uphold well-established solutions contained in the conspicuous body of case-law concerning the protection of privacy and personality rights. Indeed, a closer look at the Court’s reasoning reveals that the solution reached by the Grand Chamber was everything but a foregone conclusion.

Firstly, the CJEU’s reliance on its precedents largely ignores AG Hogan’s observation that “[u]nder French law, disparagement does not fall within the scope of infringement of rights relating to the personality” (para 96 of the AG’s Opinion) and that, therefore, the place where the damage occurred should have been determined having regard to the CJEU’s case-law issued in the area of infringement of economic rights. Rather than a mere reiteration of the mosaic approach to jurisdiction, the Grand Chamber’s decision in Gtflix Tv may therefore be regarded as an extension of it to an area of the law where this solution did not obviously apply and to a context, that of internet jurisdiction, that the Court in Shevill had not specifically addressed.

Secondly, the Grand Chamber’s emphasis on the plaintiff’s option to bring an action before the courts of any place where the damage occurred (see paras 39 and 42) stands in stark contrast with some of the CJEU’s most recent decisions under Article 7(2) (on this point, see in particular cases Case C‑800/19, Mittelbayerischer Verlag KG, and C‑709/19, Vereniging van Effectenbezitters, both stressing the need to ensure the predictability of the jurisdictional rule applicable to extra-contractual liability). In this respect, it is rather telling that the Grand Chamber’s summary of the relevant canons of interpretation applicable to Article 7(2) Brussels I bis conveniently omits the oft-cited principle according to which derogations from the general rule set out in Article 4 Brussels I bis should be interpreted restrictively. Undoubtedly, this factor would have nudged against the confirmation of the mosaic approach ultimately upheld by the CJUE.

Finally, the reasons put forward by the Grand Chamber to reject a narrower interpretation of the term “accessibility” favoured by the AG are rather unpersuasive. On the one hand, in fact, the Court’s comparison between the wording of Article 7(2) and Article 17(1)(c) Brussels I bis is quite unconvincing, given the overwhelming weight played by judge-made rules in the law of extra-contractual jurisdiction. On the other hand, the extension of the solution adopted in Pinckney and Hejduk seems especially ill-suited to disputes where, by contrast to cases involving of the protection of copyright, the principle of territoriality does not appear to be particularly pregnant.

All in all, the CJEU’s judgment in Gtflix Tv highlights the need to revisit the jurisdictional provision set out in Article 7(2) Brussels I bis, specifically — but by no means exclusively — with regards to disputes sitting at the intersection of internet jurisdiction and personality rights. Admittedly, legislative reform represents a more palatable solution than the piecemeal approach based on case-law when it comes to the specific challenges posed by the impact of new technologies in this area of the law. In this respect, it will therefore be interesting to see how the Grand Chamber’s decision will be received in the context of the recent initiative promoted by the EU Commission to protect journalists and civil society against SLAPPs, as well as within the broader framework of the upcoming recast of Brussels I bis Regulation.

David Walker, Rapporteur of the 24th International Union of Judicial Officers (UIHJ) Congress, has edited the proceedings of the event. The book, published by Bruylant, is titled Cyberjustice, new Opportunities for the Judicial Officer and includes various contributions  (in English and French) dealing with Cyberjustice in line with the expectations of judicial officers. Many articles are dealing with international justice and enforcement (e.g. e-Codex, Hague Convention on Judgments, Service of documents Regulation…) under a digital perspective.

As explained in the foreword by Marc Schmitz, President of the UIHJ, the world is digitising and the current pandemic of COVID-19 even accelerates this process. The judicial officer must consider the digital evolution of justice not only as a challenge but as an opportunity. In particular digital enforcement and digital asset seizure will become common practice in the near future. In this context, there is a need to introduce rules on digital enforcement and seizure of digital assets. These rules need to be harmonised globally. Solutions at national level alone will not be sufficient. The digital world is cross-border. The UIHJ can be one of the pioneers and play a leading role in drafting position papers and making recommendations in the field of digitalisation of enforcement, such as a proposal for a World Code of Digital Enforcement.

The table of contents reads as follows:

Introduction by the President of UIHJ
Word of His Excellency Director General of Dubai Courts
Introduction by the General Reporter

Part I – Excellence and Innovation

Part II – New Technologies – Delivering Efficient Justice

Part III – New technologies and enforcement

Contributors include : Françoise Andrieux, Amna Al Owais, Massimiliano Blasone, Jackson Chen, Gary A. Crowe, Malone da Silva Cunha, Karolien Dockers, Sylvian Dorol, Robert W. Emerson, Luc Ferrand, Natalie Fricero, Patrick Gielen, Alex Irvine, Aída Kemelmajer de Carlucci, Martin Leyshon, Jorge Martinez Moya, Paula Meira Lourenço, Tereza Lungova, Orazio Melita, Yacob Mohamed Ahmed Abdullah, Jérôme Gérard Okemba Ngabondo, Luis Ortega, Guillaume Payan, Iva Peni, Neemias Ramos Freire, Teresa Rodríguez de las Heras Ballell, Dovilė Satkauskienė, Marc Schmitz, Risto Sepp, Rui Simao, Adrian Stoica, François Taillefer, Dimitrios Tsikrikas, Aranya Tongnumtago, Jos Uitdehaag, Sjef van Erp, Jona Van Leeuwen, Pimonrat Vattanahathai, Anna Veneziano, Elin Vilippus, David Walker, Vladimir Yarkov, Ning Zhao.

Full table of contents here and more information here.

The post below was written by Matthias Lehmann, who is Professor of Private International Law at the University of Vienna. It is the fourth contribution to the EAPIL on-line symposium on the ruling of the Court of Justice in the case Hrvatske Sume d.o.o. Zagreb v BP Europa SE. The previous posts were authored by Peter Mankowski, Adrian Briggs and Bernard Haftel. 

Readers are encouraged to share their views by making comments to the posts. Those wishing to submit longer contributions for publication are invited to get in touch with the managing editor of the blog, Pietro Franzina, at pietro.franzina@unicatt.it.

The CJEU decision already reviewed in this blog-post is more than doubtful from a comparative law viewpoint. It ignores the fact that in some legal systems a claim for unjust enrichment may be based on a tort. This is the case, for instance, in German law, where the unlawful interference with another’s rights may lead to a so-called Eingriffskondition (unjust enrichment based on intervention) under sec. 812(1) of the German Civil Code (BGB). It is also true in Swiss law, English law and in the law of most U.S. states, which equally allow restitutionary claims in cases of torts. Even though these are not EU Member States, their laws may apply to claims brought under the Brussels Ibis Regulation. These legal systems illustrate that the gamut of unjust enrichment may cover facts that also sound in tort. Comparative law is infinitely richer than the CJEU accepts. To say that a claim for restitution is never based on a harmful event reminds of the attitude of Palmström in Christian Morgenstern’s poem “The Impossible Fact“: “that which must not be, cannot be”.

A natural reading of the term “quasi-delict” in Art 7(2) Brussels Ibis suggests that it would cover claims for restitution in case of wrongs. The CJEU has chosen a different path by excluding these claims from the scope of the provision altogether.  This follows from a purist understanding of the term “unjust enrichment” which, according to the CJEU, should not overlap with any other legal category. This is remarkable given that the term “unjust enrichment” does not even feature in the Regulation. It is also astounding that the CJEU adopts quite a different approach with regard to Art 7(1) Brussels Ibis: The Court expressly recognises that this head of jurisdiction, which does not even provide an open-ended term like “quasi-contractual”, covers an unjust enrichment claim that “is closely linked to a pre-existing contractual relationship between the parties” (para 51). In effect, while being very open-minded with regard to Art 7(1), the Luxembourg judges are particularly narrow-minded with regard to 7(2). It is the old Kalfelis mistake again: giving priority to contract over tort in matters of jurisdiction.

The CJEU’s grammatical argument for this narrow-mindedness is the mention of “harm” – via the expression “harmful event” – in Art 7(2) Brussels Ibis. From the  provision’s use of this term, the Court concludes that unjust enrichment is excluded because it is not based on the harm of the victim, but on the enrichment of the other party. Yet this ignores that Art 7(2) Brussels Ibis uses the expression “harmful event” not as a definitional element for tort/delict or quasi-delict, but as part of the connecting factor to determine the competent court for those claims. The difference is important because even in case of unjust enrichment a harm may exist. This is illustrated by unjust enrichment based on intervention (Eingriffskondiktion): German law expressly provides that the unjust enrichment in these cases must be “at the cost” (auf Kosten) of the victim. This is merely another way of saying that the victim must suffer a loss, or “harm”.

Thus, the existence of a claim for unjust enrichment does not mean that a place where the harmful event occurred cannot be identified. Retaining the place of harm as the decisive criterion for determining the competent court over claims of Eingriffskondiktion and similar restitutionary claims for torts also makes sense: It offers the victim the benefit of having the same court deciding on the tort and related claims, which is exactly what Art 7(2) Brussels Ibis aims at by mentioning “quasi-delicts”. Using the place of the harmful event as the connecting factor in these cases also does not violate the legal nature of unjust enrichment claims, but merely illustrates the different focus of procedural and substantive law.

One could, however, save the reasoning of the CJEU by creative interpretation. A case could be made for contending that the CJEU did not want to exclude claims such as those mentioned under German, English, Swiss or U.S. state law from the scope of Art. 7(2) Brussels Ibis because it did not rule on them, but on a different type of claims under Croatian law. Arguably, the CJEU adopted an autonomous understanding of “unjust enrichment” independent of national or comparative law, which does not cover cases that require harm as a condition for a restitutionary claim. If in the future the Court would be faced with such a claim, it could allege that this situation was not the same as that of the Hvratske Šume ruling because the latter only concerned “unjust enrichment” in an autonomous European sense. This would then pave the way for qualifying the particular cases of Eingriffskondiktion and similar claims as being “quasi-delicts”.

Even if this creative-restrictive reading of the CJEU’s ruling were rejected, one must not overestimate its impact. The result of excluding cases involving unjust enrichment from Art 7(2) Brussels Ibis do not seem disastrous: The claimant will have to use the base rule of Art 4 Brussels Ibis and sue the defendant at the place of its domicile. This will in most cases coincide with the place where the defendant has acted, and thus with part of the Art 7(2) jurisdiction. And even if not, the place of domicile of the defendant will often be the place where the enrichment has taken place. The domicile of the enriched party could thus function as a kind of “default head of jurisdiction” for unjust enrichment claims.

The damage done by the CJEU is thus rather small in practical terms. It will mainly concern cases in which the party having borne the loss from an unjust enrichment is not the claimant, but the defendant. A case in point is a claim for a negative declaration that no unjust enrichment claim exists. Following the CJEU approach in Folien Fischer, such a claim could be brought at the domicile of the party that is alleging or likely to allege the unjust enrichment, i.e., at the domicile of the party that has suffered rather than benefitted from such enrichment. But this awkward result is the product of the CJEU allowing claims for negative declarations under the Brussels Ibis regime rather than a problem specific to unjust enrichment.

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

The post below was written by Bernard Haftel, who is Professor of Private International Law at the University of Sorbonne Paris Nord.

This is the third contribution to the EAPIL online symposium on the ruling of the Court of Justice in the case Hrvatske Sume d.o.o. Zagreb v BP Europa SE. The previous posts were authored by Peter Mankowski and Adrian Briggs. 

Readers are encouraged to share their views by making comments to the posts. Those wishing to submit longer contributions for publication are invited to get in touch with the managing editor of the blog, Pietro Franzina, at pietro.franzina@unicatt.it.

It is not my habit to say good things about the decisions of the Court of Justice, but for this New Year, let’s say that this will count as a good resolution.

So let’s be clear : the decision in Hrvatske Sume d.o.o. Zagreb v BP Europa SE on 9 December 2020 seems to be not only a good decision on the very issue at hand, but also indicative of a return to some general orthodoxy, or so we hope (but perhaps this is again the optimism of the beginning of the year speaking).

The solution – which consists in treating claims based on unjust enrichment as being, in principle, neither contractual nor tortious, and therefore subject only to the forum of the defendant’s domicile – seems to us to be in line with the concepts of contractual and tortious matters provided for by the Regulation, with the aims pursued by its rules and with the general logic of the Brussels “system”.

On a conceptual level, the question was whether the claim for unjust enrichment corresponded to the central concepts of “matters relating to a contract” or “matters relating to tort, delict or quasi-delict”. In accordance with the Kalfélis case law[1], the Court of Justice recalls that matters relating to tort, delict or quasi-delict are subsidiary, covering “any claim which seeks to establish the liability of a defendant and which is not related to contractual matters”. The result was that it was necessary to consider the contractual characterisation beforehand. Does unjust enrichment imply a ‘legal obligation freely entered into by one person in relation to another and on which the claimant’s action is based’? (ECJ 20 janv. 2005, Engler, Case C-27/02, ECJ 14 mai 2009, Ilsinger, Case C-180/06) The Court answers in the negative. More precisely, the Court answers that this is not in principle the case. Unjust enrichment does not in principle imply a contractual basis. In the case under review, the unjust enrichment resulted from the execution of a court decision that was subsequently declared invalid. However, the Court rightly adds, quoting Advocate General Saugmandsgaard Oe, that in some cases enrichment may well have a strong link with a contract. The idea of unjust enrichment is indeed broad and can cover unjust enrichment in the strict sense, but also what french law calls répétition de l’indu (restitution of undue payment) or restitutions following the annulment of a contract. However, it is clear that when unjust enrichment is closely linked to a contract, and typically when it is the consequence of an annulment, the action is contractual in nature (The judgment cites the Profit Investment SIM judgment of 20 April 2016 (Case C 366/13) on pt. 40 in this regard).

The fact remains that unjust enrichment is not, as a matter of principle, contractual in nature outside these cases.

Does this mean that it is a tort, delict or quasi-delict ? This is to question the second criterion laid down by the Kalfélis judgment: for a non-contractual action to fall within the scope of delictual or quasidelictual matters, it must still be an action for liability. In the French version, the term “responsabilité” is used. Coming from the Latin “respondere”, it implies that a person is called upon to answer for the harmful consequences of his actions, whether intentional (delict) or unintentional (quasi-delict). The English word “liability”, coming from the French “lier”, ie bind, goes in the same direction. It involves establishing that a person is bound by his or her actions and must repair the harmful consequences. All the language versions point in the same direction: matters relating to tort, delict or quasi-delict presuppose an act that has caused damage, which the purpose of the liability action is to repair.

The Court rightly points out that none of these elements are present in the case of an action for unjust enrichment. It is almost the opposite.The act which gives rise to unjust enrichment is generally not an act of the defendant, but of the plaintiff.  In principle, it is not the defendant who is at the origin of the unjust enrichment, but the plaintiff who has enriched him. This fact, then, has not caused damage but, on the contrary, an advantage to the defendant who is then sued for unjust enrichment. Finally, and logically as a consequence of the above, the object of the action is not to call the defendant to account for his actions but to invite him to return the advantage he has received without cause.

Conceptually, and regardless of the language version, unjust enrichment is therefore logically not part of the concept of “tort, delict or quasi-delict”.

As we know, it is often less conceptual rigour than functional appropriateness that guides the Court of Justice, especially when it is called upon to clarify its qualifications.

The uniform interpretation praised by the Court of Justice is based not so much on conceptual rigour – which in any case would have no real basis in the absence of a sufficiently developed uniform substantive law – as on the aims and objectives of the regulation whose interpretation is at issue.

From this point of view, the solution adopted also appears satisfactory, in two respects.

Firstly, because the criterion applied to torts, delicts and quasi-delicts is simply not applicable to unjust enrichment. Under the terms of Article 5§3, now 7§2, the criterion of jurisdiction is the place where the harmful event occurred. In a case of unjust enrichment, there is no harmful event. There is no event causing damage, but only an event causing enrichment, which will usually be the act of the plaintiff. There is no damage either, but an enrichment, which is not only conceptually the opposite of damage but, moreover, is not materially locatable. Since the criterion is thus inapplicable, the corresponding qualification is for this reason alone manifestly inadequate.

Secondly, the solution here is at odds with that adopted in matters of conflict of laws. In this area, unjust enrichment, like quasi-contracts in general, is a matter for extra-contractual matters and the Rome II Regulation. The idea of consistent interpretation set out in point 7 of the preamble to the Rome I and Rome II Regulations could thus have led to unjust enrichment being placed in the field of Article 7§2. However, on the one hand, the terminology is different, the Rome II Regulation speaking of “non-contractual obligations” while the Brussels Regulations speak of “tort, delict or quasi-delict”. On the other hand, and above all, the consequences of the qualification are not the same. In matters of conflict of laws, the Rome II Regulation provides for specifically appropriate criteria (or at least specifically designed for such cases), which is not the case in matters of jurisdiction. Above all, in matters of jurisdiction, as the judgment under review illustrates, it is quite possible not to qualify at all, because of the general ground of jurisdiction constituted by the defendant’s domicile. Obviously, nothing similar is possible in matters of conflict of laws.

Finally, the solution also appears satisfactory on a more general level. Not only does the solution highlight the autonomy of the qualifications adopted in the field of conflict of laws and jurisdiction (CJEU 16 Jan. 2014, Kainz, Case C-45/13, CJEU, 28 July 2016, Case C-191/15, VKI c/ Amazon EU), which is an excellent point, but, above all, it restores to its rightful place the principle ground of jurisdiction : the defendant’s domicile.

The Court of Justice systematically repeats that the forum of the defendant’s domicile is the principle, to which the other grounds of jurisdiction, in particular those of Article 7, are only exceptions, which are by nature subject to strict interpretation. This is what led the Court, initially at least, to leave the actio Pauliana unqualified (ECJ, 26 march 1992, Case C-261/90, Reichert II. In a contractual context, the Court now decides that the actio Pauliana falls within the scope af article 7§1, see CJEU, 4 oct. 2018, Feniks, Case C-337/17). However, in recent years, although it has continued to repeat like a mantra that the alternative grounds of jurisdiction in Article 7 are merely derogations from the principle of the forum of the defendant’s domicile, implying a particularly close link, the Court of Justice has tended to extend the scope of these derogations, in particular to matters relating to tort, delict or quasi-delict. For instance, it has ruled that an action seeking to deny liability falls within the scope of Article 7§2 (CJEU, 25 oct. 2012, Case C-133/11, Fischer), as does an action for an injunction in which a consumer protection association sought to prohibit a trader’s use of unfair terms in contracts with consumers (ECJ, 1st oct. 2002, Case C-167/00, Henkel). However, strictly speaking, none of these actions “sought to bring into play the liability of the defendant”.

It is therefore a return to a certain orthodoxy that the judgment under review implies. A return to the idea that the defendant’s forum is a principle; a principle from which the alternative grounds of jurisdiction in Article 7 derogate only if there is a sufficiently close link between the alternative forum and the dispute, which is clearly not the case in matters of unjust enrichment. On a systemic level, the solution appears equally justified.

So how did we get a decision of the CJEU satisfactory in all respects? In Luxembourg, Santa Claus was obviously two weeks early.

[1] ECJ 27 Sept. 1988, Case 189/87, Kalfélis, ECR 1988, p. 5565, the decision already seemed to find that unjust enrichment was excluded from Article 5§3. The principle is regularly recalled, see recently, e.g., CJEU, 28 Jan. 2015, Kolassa, Case C-375/13, CJEU, 24 Nov. 2020, Wikingerhof, C 59/19.

The post below was written by Adrian Briggs QC, who is Professor of Private International Law Emeritus at the University of Oxford. It is the second contribution to the EAPIL online symposium, announced by an earlier post, regarding the ruling of the Court of Justice in the case of Hrvatske Šume. The previous post of Peter Mankowski can be found here. 

The arrival of the decision in C-242/20 Hrvatske Šume in December 2021 was as predictable as it was depressing. So was the omicron variant of covid-19: early December 2021 will not go down as the high point of anyone’s year. Those who have already contributed to this commentary have highlighted the technical shortcomings in the apology for a judgment, and there is no need to repeat their criticisms which are, in my view and in any rational world, unanswerable. Their careful work allows others to paint a more impressionistic picture.

The claimant in the case sustained damage: any consequence arising out of … unjust enrichment, as this is explained in the Rome II Regulation. The reason why the claim was not within Article 7(2) of the Brussels I Regulation will therefore have been that there was no harmful event when the defendant refused to repay a sum which it had no legal basis to retain. Although English is only one of twenty-odd languages, each of which is equally authentic, in what sense is that refusal, assuming it is unjustified in law, not a harmful event ? Consider the child who, sent on a shopping errand, refuses to hand over to her mother the change from the original £10 which the shopkeeper had given her. This refusal is, it seems, not to be understood as a harmful event. That will come as news to many. If while out walking I find a wallet which someone has evidently dropped, and decide to pick it up and keep it, does the claim later brought against me by the owner fall within Article 7(2) ? One would think so; and it makes no difference whether the claim is for the leather folder or the banknotes which it contains. Or take the case in which I attempt to make an electronic transfer of funds to my favourite nephew’s bank account but which, as a result of my incompetent typing, I manage to transfer to a complete stranger (it happens; don’t ask). When I discover my mistake, and the bank, in the modern way of banks, refuses point blank to do anything to help, I am left to sue the intransigent recipient for repayment. Does the claim fall within Article 7(2) ? The answer should be yes, and the proposition that the refusal to repay that which one should not have received and certainly should never have kept is not a harmful event rejected as the nonsense which it certainly is.

In what sense is the refusal to pay over not a harmful event ? The only illumination has to come from bare and conclusory paragraph 55 of the judgment, which says that ‘a claim for restitution based on unjust enrichment is based on an obligation which does not originate in a harmful event. That obligation arises irrespective of the defendant’s conduct, with the result that there is no causal link that can be established between the damage and any unlawful act or omission committed by the defendant’. The proposition that there is no causal link between the damage (which seems to be admitted) and anything the defendant did or didn’t do is apparent only to those who value belief above observation. The damage of which the claimant now complains would not have occurred if the defendant had behaved otherwise: how is that relationship not a causal one ? The Court may say that it depends on the meaning of ‘causal’, which it may do. That, however, is not elaborated by the judgment. So we must try to do it ourselves.

One possible explanation might be that the recipient does me no harm; that I harmed myself and everything which follows is an immaterial consequence of that self-harm. If that is so, it would reflect developments within the judicial exegesis of ‘damage occurring’ as this relates to Article 7(2). Maybe so, but it makes cases of transfer or property as a result of fraud or misrepresentation hard to deal with. If it is suggested that the delayed-refusal to deliver or redeliver is not a harmful event, what of the case in which the person to whom I have lent my bicycle (gratuitously, not for reward) refuses to return it to me ? He did no wrong when I handed it over and he borrowed it, but it would make one rub one’s eyes in disbelief if it were said that his refusal to return it on my demand hand it over was not a wrongful act because I had self-harmed by voluntarily parting with it in the first place.

And so one could continue unto length of days. Not everyone will see the lines as needing to be drawn in the same place as I would locate them, which is, no doubt, exactly as it should be. One should instead ask why the Court has decided to turn its back on Kalfelis and thirty-odd years of general (granted, not universal) assumption that ‘all actions which seek to establish the liability’ of a defendant does not mean what it said, in favour of some abstract and doctrinaire distinction-drawing, which serves no useful purpose at all. It will now require a judge at first instance, perhaps in the remoter regions of the Union where theories of unjust enrichment and waiver of tort are not part of daily discourse, to figure out whether a non-contractual obligation giving rise to a pleaded claim is – as a matter of general European law, rather than within his or her own legal system, as paragraph 40 makes perfectly clear – based on a harmful event. What on earth was the sense of that ?

This is the first contribution to the on-line symposium regarding the ruling of the Court of Justice in the case of Hrvatske Šume. The author is Peter Mankowski, who is Professor of Private International Law at the University of Hamburg. It is based on the author’s case note in German, forthcoming in Recht der Internationalen Wirtschaft. The publication of this version is permitted by courtesy of Deutscher Fachverlag, Frankfurt/Main. 

Article 7 of the Brussels I bis Regulation provides for special jurisdiction for contractual claims (point 1) and for tort claims (point 2).

On the other hand, it does not mention any claims for unjust enrichment (alternatively called: restitution). Does this mean that there is no special jurisdiction for claims or unjust enrichment under Article 7 of the Brussels I bis Regulation if point 5 does not apply)?

However, even if the answer was ‘yes’, this would not amount to a denial of justice for creditors in unjust enrichment since they could always avail temselves of the general jurisdiction in the State where the defendant is domiciled under Article 4 (1) of the Brussels I bis Regulation as kind of ‘residual jurisdiction’ (A-G Saugmandsgaard Øe, Opinion of 9 September 2021 in Case C-242/20, para. 80). Actor sequitur forum rei might save the last remains of the day for claimants, thus. It is ‘only’ about additional options for the claimant through special jurisdictional grounds.

The CJEU has so far avoided rendering a fundamental opinion where to place unjust enrichment (in particular in Case C-102/15, Gazdasági Versenyhivatal v Siemens AG Österreich; see, as contrast to A-G Wahl, Opinion of 7 April 2016 in Case C-102/15, paras. 54 to 75) and only occasionally decided on bits pieces (CJEU Case C-611/45, Land Berlin v Ellen Mirjam Sapir, paras. 35 et seq.; CJEU Case C-366/13, Profit Investment SIM SpA v Stefano Ossi, para. 55; CJEU Case C-185/15, Marjan Kostanjevec v F&S Leasing GmbH, paras. 34-40).

However, in Hrvatske Šume (Case C-242/20) the CJEU can no longer avoid a more principled approach. A-G Saugmandsgaard Øe had categorically denied, on detailed grounds, that an action for recovery of the property gave rise to liability for damage and therefore ruled out the possibility that it could constitute a tort for the purposes of Article 7(2) of the Brussels I bis Regulation (A-G Saugmandsgaard Øe, Opinion of 9 September 2021 in Case C-242/20, paras. 56-79). In other words, the CJEU accepts this as key argument (paras. 53-59). That is, however, taking things way to litteral. It does not fit with the concept of ‘damage’ in Article 2(1) of the Rome II Regulation, which is very broad and, in particular, must be broad enough to also cover ‘damage’ in the case of other non-contractual obligations beyond the actual law of tort (see only Mankowski, in: Ulrich Magnus v Mankowski, Rome II Regulation [2019] Article 2 Rome II Regulation note 8), further to the fact that claims for injunctive relief under tort law fall within point 2, too. Oh, and on top of it, it tends to disregard purposive interpretation and hails litteral interpretation instead (Layton, Cuniberti, EAPIL Blog 9 December 2021; Cuniberti [Comment], EAPIL Blog 9 December 2021).

In any event, actions for the recovery of ineffective contractual relationships must be characterised differently (to the same avail van Calster, gavclaw.com 9 December 2021). In their case, the assessment of Article 12(1)(d) of the Rome I Regulation is correct. They must be characterised as contractual, and special jurisdiction at the place of performance of Article 7(1) of the Brussels I bis Regulation is therefore open to them (Court of Justice, 20 April 2016, Case C-366/13, para. 55 — Profit Investment SIM SpA v Stefano Ossi; A-G Saugmandsgaard Øe, Opinion of 9 September 2021 in Case C-242/20,  points 48-52; Mankowski, RIW 2017, 322, 324-326; Grušić, [2019] 68 ICLQ 837, 854-859). The CJEU does not hesitate to confirm this (paras. 47-50). Profit Investement is still good law on this point. In so far as the void or ineffective contract is a consumer, insurance or individual employment contract, what is at issue would be the grounds of jurisdiction under the relevant protective regime (A-G Kokott, Opinion of 2 June 2016 in Case C-195/15, points 54 et seq.; OLG Dresden IPRspr. 2007 No 140, p. 394; LG Darmstadt ZIP 2004, 1924, 1925), in accordance with the generalisable principle underpinning Articles 12(1)(e) of the Rome I Regulation and 10(1) of the Rome II Regulation. Moreover, the rules on jurisdiction for other kinds of actions where the recovery of sums paid, i.e. the way back, should be the same as the ones governing the way forward, e.g. those of the Maintenance Regulation in the event of recovery of maintenance overpaid (Mankowski, RIW 2017, 322, 326).

The CJEU had to rule on another specific issue: Do actions for recovery based on unjust enrichment in respect of something obtained in enforcement fall within the scope of (now) Article 24(5) of the Brussels I bis Regulation and fall within exclusive jurisdiction at the place of enforcement? It could be argued that this would result in a substantive revision of enforcement and therefore a sort of extraordinary remedy exists. On the other hand, these are not formally attacks or even appeals against individual enforcement measures. Its success does not create the foreclosure measure as such, but merely revises its economic result. This is rightly not sufficient for the Court of Justice (paras. 31-36). Irrespective of the legal basis used, it is not sufficient if this unjust enrichment (para. 36), a general offence or a specific offence such as § 717(2) of the German ZPO (in more detail Mankowski, in: Rauscher, EuZPR/EuIPR, vol. 1 [5th ed. 2021] Article 24 Brussels I bis Regulation notes 220-223; Philip Schwarz, Enforcement shopping in the European judicial area [2019] pp. 227-245; see also OLG Saarbrücken EuZW 2017, 347 paras. 18-23).

The Rome II Regulation recognises unjust enrichment as a separate non-contractual obligation besides and on equal footing with tort; it consequently allocates an own and separate conflict-of-law rule to unjust enrichment in Article 10 of the Rome II Regulation. The Brussels I bis Regulation, on the other hand, makes no mention of unjust enrichment. This leads to a discrepancy (Mankowski, RIW 2017, 322 [322]; van Calster, gavclaw.com 14 September 2021). It can be inferred from the 2007 Rome II Regulation that unjust enrichment is not a tort for its purposes. It is precisely for that reason that it sets up its own system of unjust enrichment, almost in return for compensation. The more recent Brussels I bis Regulation of 2012 does not reflect this either in positive or negative terms, but requires a characterisation for every claim based on unjust enrichment, whether it can be characterised — more or less badly — as contractual or delicate for the purposes of the Brussels I bis Regulation. Its grid has therefore remained rougher and less sophisticated than that of the Rome II Regulation. ‘Non contractual’ does not automatically equate to the narrower ‘tort, delict, or quasi-delict’ of Article 7 point 2 of the Brussels I bis Regulation (A-G Saugmandsgaard Øe, Opinion of 9 September 2021 in Case C-242/20, paras. 76-79; Briggs, EAPIL Blog 10 December 2021; Pacula, conflictoflaws.net, 17 December 2021). In that regard, unjust enrichment continues to be an unfamiliar concept for the law of jurisdiction, as it has ever been since the days of the original 1968 Brussels Convention. However, this is no longer fully in line with the state of play since the Rome II Regulation at the latest. Unfortunately, the CJEU does not correct this judicially. The CJEU in effect treats creditors in unjust enrichment (beyond ineffective contracts) less favourably than creditors in tort by denying them the benefit of a special head of jurisdiction which would be encroachable on them.

The CJEU is focused on the premissae maiores, i.e. on the individual grounds of jurisdiction, the limits of which the CJEU feels bound to examine. Unfortunately, the premissa minor does not get like attention. In particular, it is not possible to see any recourse to the assistance which the doctrine on condictiones would offer (see Mankowski, RIW 2017, 322, 323 et seq.), which in turn already has its roots in Roman law — and thus in a central source of European and Community law. The term ‘interference’ or ‘infringement’, Eingriffskondiktion, or a functional equivalent, does not appear anywhere in the CJEU. In that regard, already the A-G’s Opinion scored less than possible. The A-G and, following, the CJEU celebrate a ‘chracterisation festival’, a Qualifikationsfest (van Calster, gavclaw.com 14 September 2021), without employing the full array of methodological tools. The contention that unjust enrichment could never be attributable to an event harmful in the broad sense and to the conduct of the person liable for the condiction (para. 55), is wrong for it disregards the cases of interference and infringement of another’s rights. Hence, other cases in the future might prompt more distinguishing answers (cf. Miguel de Asensio, pedromiguelasensio.blogspot.com, 13 December 2021). While not all claims in unjust enrichment automatically qualify for Article 7 point (2) of the Brussel I bis Regulation, there might be some instances that do individually (cf. Cuniberti, EAPIL Blog 9 December 2021; Miguel de Asensio, pedromiguelasensio.blogspot.com, 13 December 2021). One future day, a notion of ‘restitution in wrong’ should prevail, properly re-transferring interference and infringement into the realm of Article 7 point 2 of the Brussels I bis Regulation even de regulatione lata (Mankowski, in: Ulrich Magnus/Mankowski, Brussels Ibis Regulation [2nd ed. 2022] Article 7 Brussels Ibis Regulation note 245). Predictability would not be overly impinged by that (to calm the concerns raised by (cf. Sisák, EAPIL Blog 10 December 2021).

However, neither the unconvincing reasoning nor the conclusion raising severe doubts for cases of interference or infringement (see Mankowski, RIW 2017, 322, 326 et seq.) can erase the fact that the CJEU establishes a seemingly clear orientation mark for practical purposes (to the same avail Miguel de Asensio, pedromiguelasensio.blogspot.com 13 December 2021). It would be ill-advised to implement any specific restriction on actions for recovery in natura. This is because such recovery is the primary legal consequence of any claim for enrichment, and a subsidiary shift to compensation for value must not have the effect of changing the jurisdiction of the court, as the primary legal consequence is also the ground for the subsidiary one. Hrvatske Šume conveys the practical message, for the time being: Beyond the realm of ineffective contracts, claims in unjust enrichment can avail them only of general jurisdiction and the special grounds of jurisdiction derived from Article 7 point 5; 8 points 1 and 3 of the Brussels I bis Regulation, but not of the special grounds of jurisdiction derived from Article 7 points 1 and 2 Brussels I bis Regulation. The Kalfelis formula (Athanassios Kalfelis v Bankhaus Schröder Münchmeyer Hengst & Cie) has always been deceptive, and there have always been tertia to contract and tort even in liability cases. Liability is not a binary world. Any perceived suggestion that Article 7 (2) Brussels I bis Regulation, or previously Article 5 point 3 Brussels Convention or Brussels I Regulation, was a residual rule within the realm of special jurisdiction (cf. Cuniberti, EAPIL Blog 9 December 2021; Okoli, EAPIL Blog 9 December 2021) has always been wrong. Sloppy and inaccurate drafting must prompt such important consequences.

Choice of court agreements pursuant to Article 25 of the Brussels I bis Regulation remain possible, ex ante as well as post eventum (Mankowski, RIW 2017, 322, 330). However, ex ante choice of court agreements (also) on claims for enrichment are unlikely to exist outside a contractual environment; they score their highest probality in framework agreements covering all legal relationships between the respective parties.

The reform agenda of the European legislature for a future Brussels Ib Regulation ought to reflect whether unjust enrichment should be blessed with a separate rule on special jurisdiction (Grušić, [2019] 68 ICLQ 837, 854-859; Mankowski, in: Ulrich Magnus/Mankowski, Brussels Ibis Regulation [2nd ed. 2022] Article 7 Brussels Ibis Regulation note 63a). The same applies to claims in negotiorum gestio (see in detail Dornis, in: Mankowski [ed.], Research Handbook on the Brussels Ibis Regulation [2020], p. 64). If these categories of non contractual obligations, well within the realm of the Rome II Regulation, were expressly addressed this would placate the principal questions.

On 9 December 2021, the CJEU ruled in HRVATSKE ŠUME d.o.o., Zagreb v. BP EUROPA SE (Case C-242/20) that the distinction between contracts and torts under Article 7 of the Brussels I bis Regulation is not exclusive, and that claims for unjust enrichment need not be characterised either as contractual or tortious (see the comments by Geert van Calster here and Krzysztof Pacula here).

The Court had established until this case a clear bright line rule. Cases which did not fall within the jurisdictional rule for contracts (Article 7(1)) fell within the jurisdictional rule for torts (Article 7(2)). The ‘tort’ category was thus a residual category which included all liability actions which were not contractual in nature.

Hrvatske Sume changes this, and may have far reaching consequences.

First, as Article 7(2) only applies to ‘torts’ as such, it will now be necessary to positively define the concept of tort in the meaning of that provision. Will it include strict liability rules? Will it include torts which do not require the existence of a damage? Will it include torts which do not strictly require causation between the act of the defendant and the damage suffered by the victim?

Secondly, it will be necessary to identify those concepts which must be distinguished from torts and contracts. One of them is unjust enrichment. What are the others? Other quasi-contracts such as negotiorum gestio? Certain statutory rights? Certain other remedies?

Starting from tomorrow morning, the EAPIL blog will host an online symposium to discuss the above issues. Peter Mankowski will kick off the discussion. More contributions are scheduled for publication later on Monday and on Tuesday.

Readers are encouraged to contribute to the discussion by commenting on the posts. Those wishing to submit longer analyses are invited to do so by writing an e-mail to Pietro Franzina (pietro.franzina@unicatt.it).

Daria Levina (European University Institute) posted on SSRN a paper titled The Law Governing Enforceability of Forum Selection Agreements. The paper was completed to fulfill the requirements for a master of laws degree at Harvard Law School and received the 2018 Addison Brown Prize in conflict of laws.

The abstract reads as follows:

The paper examines approaches to determining the law governing forum selection agreements (“FSA”) in the US, the EU, Germany, and on international level (on example of the 2005 Hague Convention on Choice of Court Agreements). It analyses the historical treatment of FSA, as well as its legal features, and shows how they influenced the approaches adopted by the above jurisdictions. It looks at all potentially applicable laws (lex fori, lex causae, lex fori prorogati) and discusses the arguments in favor and against each of them, testing them against the principles of predictability, procedural economy, legal certainty, and regulatory interests of states. The paper adopts comparative approach in order to familiarize with the solutions adopted by different legal systems draw conclusions which might benefit them.

On 17 November 2021, the French Supreme Court for private and criminal matters (Cour de cassation) issued an interesting decision in the field of family law (Cass. Civ. 1re, 17 November 2021, n°20-19.420). The Court held that a bigamous marriage is not automatically void under French law when the spouses are foreign nationals. Indeed, the French choice of law rule on the validity of marriage provides for the application of the law of the spouses’ common nationality (article 202-1 of the Civil Code). Therefore, the lower court is required to designate on its own motion the applicable law to the marriage to assess its validity.

A couple, both Libyan nationals, married in 2000 in Libya. On November 2017, the wife filed a petition for divorce before French court. The lower court ruled that the request for divorce was inadmissible, because the husband was already married in Libya before this marriage. French law prohibits bigamy pursuant to article 147 of the Civil Code. As a result, the lower court had held that the second marriage “has no legal existence” and thus cannot be dissolved by a French court.

The wife appealed to the French Supreme Court based on a traditional conflict-of-law reasoning. She argued that the lower court should have checked whether the personal law of the spouses (as applicable law to marriage pursuant to article 202-1, op. cit.) did authorise bigamy. If so, the second marriage, celebrated abroad, could produce effects in France and thus be dissolved by a French court.

Under French domestic family law, article 147 of the French Civil Code lays down the principle of monogamy. French criminal law punishes a spouse guilty of bigamy (article 433-20 of the Penal Code). At the same time, comparative law reveals that some foreign legal systems allow polygamy. Even if this institution is in sharp contrasts to Western socio-cultural values, the global mobility of persons requires to pay attention to a possible acceptance of such marriages in the French forum.

Remarkably, the French legal system has traditionally adopted a nuanced position, depending on the proximity that the situation of bigamy or polygamy has with the forum. In France, no bigamous or, a fortiori, polygamous marriage can be validly celebrated, even if the second marriage is concluded between the same persons, already married abroad (Civ. 1re, 3 February 2004, n°00-19.838). The situation is different when the bigamy is not “created” in France, but was legally established abroad. The second marriage may then, in certain circumstances, be recognised in France and produce certain effects (e.g. in the field of social security rights or succession). In these latter circumstances, two hypotheses must be distinguished.

Either the national law of one of the spouses (pursuant to article 202-1 of the Civil Code) does not allow bigamy. French law will consider this prohibition as constituting an absolute impediment to marriage prevailing over the more liberal content of the national law of the other spouse. French authorities will therefore refuse to give effect to this marriage in France. For instance, a second marriage, validly celebrated abroad, of a foreign spouse whose personal status admits polygamy, with a French woman, cannot be recognised in France (Civ. 1re, 28 January 2002, n°00-15789).

Or the personal status of the spouses, i.e. their common or own national law, authorises polygamy. The French court may, to a certain extent, recognise the second marriage (and make it produce effects) by attenuating the “eviction” impact of the French fundamental values (effet atténué de l’ordre public). This has been held by the French Supreme Court on several occasions (Civ. 1re, 28 January 1958, Chemouni and more recently Civ. 2e, 14 February 2007, n°05-21.816).

In the present case, the lower court ruled on a domestic law basis. The case, however, was international and required a conflict-of-law analysis since the parties may not dispose of their rights. It is worth recalling that French PIL does not provide for a systematic mandatory application of choice of law rules. But French courts are required to apply conflict-of-law rules in non-patrimonial matters, such as personal status issues, since the parties may not dispose of their rights. They even have to determine the applicable law ex officio (comp. recently on the context of EU PIL, Civ. 1re, 26 May 2021, n°19-15.102, commented on the blog here and here).

In the absence of French written rules of PIL, the French Supreme Court has traditionally based this solution on article 3 of the French Civil Code. It was the only “international” provision in the Code Napoleon at the time of the judicial development of PIL rules in the French legal system. Unfortunately, it may be confusing for the reader, since article 3 makes no mention whatsoever of the court’s role in conflict-of-law matters. This is a strong point in favour of a (forthcoming?) French PIL codification.

This is the ground on which the French Supreme Court annulled the judgment of the Court of appeal in this case: in the field of marriage, conflict-of-law rules are mandatory. The lower court should have verified, in accordance with the personal law of the spouses pursuant to article 202-1 of the Civil Code, whether the foreign bigamous marriage was valid (so that, in the affirmative, it could be dissolved). At that stage of the reasonning, the French prohibition of bigamy pursuant to article 147 of the Civil Code did not matter.

We could maybe regret that the Supreme Court does not provide for the full PIL reasoning in order to be more informative. It will be indeed for the lower court to proceed to the second step of the choice of law analysis. The validity of the foreign marriage could be denied, despite its validity under the applicable law, on the basis of public policy. If the content of  foreign law infringes the fundamental values of French society, a French court may displace it and apply French law instead.

There is, however, a limit mentioned above: in order to protect rights acquired abroad and the permanence of the status of individuals across borders, the effect of public policy may be limited (effet atténué de l’ordre public). This has traditionally been the case in the field of polygamy when it is allowed under the personal status of the spouses (see above). The lower court should thus exclude the eviction of the foreign law despite its sharp cultural difference with French substantive family law and consider the foreign marriage as valid.

In this case, the bigamous marriage should be recognised so that the second wife is allowed to divorce. In other words, as a matter of policy, the private interests of the second wife should prevail. Whether this view would be shared by all Member States in the implementation of the EU PIL instruments on family matters is another matter.

The fifth edition of the treatise of Horatia Muir Watt (Sciences Po Law School) and Dominique Bureau (Paris II University) on French private international law has recently been published.

The treatise, which is one of the leading texts on private international law in France, is divided into two volumes (over 800 p. each). The first volume focuses on the general theory of private international law, and distinguishes between conflits de juridictions (jurisdiction and judgments), conflits de lois (choice of law) and conflits d’autorités (international regime of the action of non judicial authorities and recognition of the acts that they issue).

The second volume is concerned with special rules applicable in the different fields of private law (persons, property, family, obligations, businesses). It ends with a long conclusion which discusses two innovative topics. The first is an attempt to build a general theory of special European law on jurisdiction, judgments and choice of law. The second is an enquiry into whether new forces will lead to a complete reorganisation of the field: environment, digitalisation and the impact of new forms of organisation of business on traditional conceptual categories.

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published.

It contains a number of insightful articles and case comments, whose abstracts are provided below.

E.-M. Kieninger, Climate Change Litigation and Private International Law

The recent Shell ruling by the District Court of The Hague raises the question whether Carbon Majors could also be sued outside the state of their corporate home and which law would be applicable to claims for damages or injunctive relief. In particular, the article discusses possible restrictions of the right to choose between the law of the state in which the damage occurred and the law of the state in which the event giving rise to the damage took place (Art. 7 No. 2 Brussels Ia Regulation and Art. 7 Rome II Regulation). It also considers the effects of plant permits and the role that emissions trading should play under Art. 17 Rome II Regulation.

S. Arnold, Artificial intelligence and party autonomy – legal capacity and capacity for choice of law in private international law

Artificial intelligence is already fundamentally shaping our lives. It also presents challenges for private international law. This essay aims to advance the debate about these challenges. The regulative advantages of party autonomy, i.e. efficiency, legal certainty and conflict of laws justice, can be productive in choice of law contracts involving artificial intelligence. In the case of merely automated systems, problems are relatively limited: the declarations of such systems can simply be attributed to their users. Existence, validity or voidability of choice of law clauses are determined by the chosen law in accordance with Art. 3(5), 10(1) Rome I Regulation. If, however, the choice of law is the result of an artificial “black box” decision, tricky problems arise: The attribution to the persons behind the machines might reach its limit, for such artificial decisions can neither be predicted nor explained causally in retrospect. This problem can be solved in different ways by the substantive law. Clearly, national contract laws will differ substantially in their solutions. Thus, it becomes a vital task for private international law to determine the law that is decisive for the question of attribution. According to one thesis of this article, two sub-questions arise: First, the question of legal capacity for artificial intelligence and second, its capacity for choice of law. The article discusses possible connecting factors for both sub-questions de lege lata and de lege ferenda. Furthermore, it considers the role of ordre public in the context of artificial choice of law decisions. The article argues that the ordre public is not necessarily violated if the applicable law answers the essential sub-questions (legal capacity and capacity for choice of law) differently than German law.

M. Sonnentag and J. Haselbeck, Divorce without the involvement of a court in Member States of the EU and the Brussels IIbis- and the Rome III-Regulation

In recent years some Member States of the European Union such as Italy, Spain, France, and Greece introduced the possibility of a divorce without the involvement of a court. The following article discusses the questions whether such divorces can be recognised according to Art. 21 Regulation No 2201/2003 (Brussels-IIbis), Art. 30 Regulation No 2019/1111 (Brussels-IIbis recast) and if they fall within the scope of the Regulation No 1259/2010 (Rome III).

W. Hau, Personal involvement as a prerequisite for European tort jurisdiction at the centre of the plaintiff’s interests

The case Mittelbayerischer Verlag KG v. SM gave the ECJ the opportunity to further develop its case law on the European forum delicti under Art. 7 No. 2 Brussels Ibis Regulation for actions for alleged infringements of personality rights on the internet. The starting point was the publication of an article on the homepage of a Bavarian newspaper, which misleadingly referred to “Polish extermination camps” (instead of “German extermination camps in occupied Poland”). Strangely enough, Polish law entitles every Polish citizen in such a case to invoke the “good reputation of Poland” as if it were his or her personal right. The ECJ draws a line here by requiring, as a precondition of Art. 7 No. 2, that the publication contains objective and verifiable elements which make it possible to individually identify, directly or indirectly, the person who wants to bring proceedings at the place of his or her centre of interest. While this approach allows for an appropriate solution to the case at hand, it leaves several follow-up questions open.

A. Hemler, Which point in time is relevant regarding the selection of a foreign forum by non-merchants according to § 38(2) German Code of Civil Procedure (ZPO)?

38(2) German Code of Civil Procedure (ZPO) permits the selection of a foreign forum only if at least one party does not have a place of general jurisdiction in Germany. In the case discussed, the defendant had general jurisdiction in Germany only when the claim was filed. However, there was no general jurisdiction in Germany when the choice of forum clause was agreed upon. The Landgericht (district court) Frankfurt a.M. therefore had to decide on the relevant point in time regarding § 38(2) ZPO. Given the systematic structure of § 38 ZPO and the law’s purpose of advancing international legal relations, the court argued in favour of the point in time in which the choice of forum clause was agreed upon. The author of the paper rejects the court’s view: He argues that the systematic concerns are less stringent on closer inspection. More important, however, is the fact that the law also calls for the protection of non-merchants. This can only be sufficiently achieved if the point in time in which the claim was filed is regarded as the crucial one.

D. Henrich, News on private divorces in and outside the EU

In two decisions the German Federal Court of Justice (“BGH”) had to deal with the recognition of private divorces (divorces without involvement of a state authority). In the first case (XII ZB 158/18) a couple of both Syrian and German nationality had been divorced in Syria by repudiation. While recognition of foreign public divorces (divorces by a state court or other state authority) is a question of procedure, private divorces are recognized if they are effective according to the applicable law, here the Rules of the Rome III Regulation (Article 17(1) Introductory Act to the Civil Code). Because the couple had no common ordinary residence, the Court applied Article 8 lit. c Rome III Regulation. German Law dominating, the Court denied recognition.

In the second case (XII ZB 187/20) the BGH made a reference for a preliminary ruling of the European Court of Justice regarding the recognition of a divorce in Italy in the register office in front of the registrar. The BGH follows the opinion that in such cases it is the consent of the parties that dissolves the marriage, the divorce being a private one. The BGH questions whether in spite of that the divorce could be recognized according to Sec. 21 Council Regulation (EC) No. 2201/2003 or, if not, according to Sec. 46 of the Council Regulation.

C. Budzikiewicz, On the classification of dowry agreements

Agreements on the payment of a bride’s dowry are a recurring topic in German courts. It usually becomes the subject of a legal dispute in connection with or after a divorce. This was also the case in the decision to be discussed here, in which the applicant demands that her divorced husband pay for the costs of a pilgrimage to Mecca. Since the case has an international connection due to the husband’s Libyan nationality, the Federal Supreme Court first addresses the controversial question of the characterization of dowry. However, since all connection options lead to German law in the present case, the Court ultimately refrains from deciding the question of characterization. It explains that the agreement on the payment of dowry is to be classified under German law as a sui generis family law contract, which requires notarization in order to be effective. The article critically examines the decision. In doing so, it addresses both the question of characterization of dowry and the need for form of agreements on the payment of dowry under German law.

E. Jayme and G. Liberati Buccianti, Private Divorces under Italian Law: Conflict of Laws

Divorce, under German law, is only permitted by a decision of a judge, even in cases where a foreign law is applicable which would allow a private divorce based on the agreement of the spouses. Italy, however, has introduced, in 2014, a divorce by private agreement in two procedures: the agreement of the spouses can be submitted to the public prosecutor who, in case he agrees, will send it to the civil registrar, or, secondly, by a direct application of the spouses to the civil registrar of the place where the marriage had been registered.

The article discusses the problems of private international law and international civil procedure, particularly in cases where Italian spouses living in Germany intend to reach a private divorce in Italy. The discussion includes same-sex-marriages of Italian spouses concluded in Germany which are permitted under German law, but not under Italian law, according to which only a “civil union” is possible. The Italian legislator has enacted (2017) a statute according to which the same-sex-marriage concluded by Italian citizens abroad will have the effects of a civil union under Italian law. The question arises of whether the Italian rules on terminating a civil union will have an effect on the spouses marriage concluded in Germany.

The article also discusses the validity of private divorces obtained in Third States which are not members of the European Union, particularly with regard to religious divorces by talaq expressed by the husband, and the problem whether such divorces are compatible with the principles of public policy. The authors mention also the specific problems of Italian law with regard to religious (catholic) marriages concluded and registered in Italy, where a divorce by Italian law is possible which, however, may be in conflict with a nullity judgment of the catholic church.

G. Mäsch and C. Wittebol, None of Our Concern? – A Group of Companies‘ Cross-border Environmental Liability Before Dutch Courts

The issue of cross-border corporate responsibility has been in the limelight of legal debate for some time. In its decision of 29 January 2021, the Court of Appeal of The Hague (partially) granted a liability claim against the parent company Royal Dutch Shell plc with central administration in The Hague for environmental damages caused by its Nigerian subsidiary. In particular, the Dutch court had to address the much-discussed question to what extent domestic parent companies are liable before domestic courts for environmental damage committed by their subsidiaries abroad, and whether domestic courts have international jurisdiction over the subsidiary. With this precedent, the number of cross-border human rights and environmental claims is likely to rise in the near future.

H. Jacobs, Article 4(2) and (3) Rome II Regulation in a case involving multiple potential tortfeasors

In Owen v Galgey, the High Court of England and Wales engaged in a choice of law analysis in a case involving multiple potential tortfeasors. The claimant, a British citizen habitually resident in England, was injured in France when he fell into an empty swimming pool. In the proceedings before the High Court, he claimed damages from, inter alia, the owner of the holiday home and his wife, both British citizens habitually resident in England, and from a French contractor who was carrying out renovation works on the swimming pool at the material time. The judgment is concerned with the applicability of Article 4(2) Rome II Regulation in multi-party tort cases and the operation of the escape clause in Article 4(3) Rome II Regulation. While the High Court’s view that Article 4(2) requires a separate consideration of each pair of claimants and defendants is convincing, it is submitted that the court should have given greater weight to the parties’ common habitual residence when applying Article 4(3).

The table of contents of the issue is available here.

Antonio Leandro (University of Bari) has posted Asset Tracing and Recovery in European Cross-border Insolvency Proceedings on SSRN.

Tracing and recovering assets amount to crucial means to preserve the estate in insolvency proceedings. The proceedings’ outcome may depend on a successful liquidation, which, in turn, can succeed insofar as the concerned assets are traced and recovered smoothly. Besides, insolvency-related disputes, such as the avoidance disputes, may benefit from instruments that help find debtor’ assets or recover payments.

Cross-border insolvency proceedings exhibit peculiar features in this respect because of the debtor’s assets and affairs being in touch with different States. Multiple laws and jurisdictions, with differing or even divergent underlying legal traditions, may in fact be concerned with tracing and recovery.

Moreover, tracing and recovery may affect individuals (e.g., debtors, directors, shareholders, secured creditors, third parties) whose interests clash with those of insolvency proceedings, especially that of satisfying creditors through the proceeds of liquidated assets. If such persons have connections (e.g., citizenship, seat, habitual residence, domicile, as well as affairs, rights, obligations, etc.) with different States, including other States than that in which the assets are located, the cross-border context gets wider.

Against this backdrop, intermingled problems of private international law arise, including assessing the courts having jurisdiction to issue tracing or recovering measures, the authorities that may apply and take action, the law governing the measures and the enforcement thereof, the recognition of foreign tools aimed at detecting and recovering the assets. All these problems lie on a terrain where issues of characterization, state sovereignty and cooperation between foreign authorities are interwoven.
The paper intends to explain how to melt this skein within the EU civil judicial space.

After the Christmas break the Court of Justice takes up again its public activity. Regarding judicial cooperation on civil matters, the first event in January 2022 is the hearing in case C-18/21, Uniqa Versicherungen, scheduled for Wednesday 19.

The request for a preliminary ruling comes from the Oberster Gerichtshof (Austria). It focuses on the impact of COVID-19 on procedural periods in civil proceedings in the context of Regulation (EC) No 1896/2006 creating a European order for payment procedure (here the consolidated text).

In the case at hand, the District Court for Commercial Matters of Vienna had issued a European order for payment on 6 March 2020, which was served on the defendant, a resident in the Federal Republic of Germany, on 4 April 2020. The latter lodged a statement of opposition thereto in a written submission posted on 18 May 2020. The court of first instance rejected the opposition on the ground that the objection had not been filed within the 30-day period foreseen in Article 16(2) of Regulation (EC) No 1896/2006.

The Commercial Court of Vienna, ruling on the appeal on the merits, set that order aside holding that the period for lodging a statement of opposition under Article 16(2) had been interrupted pursuant to the Federal Law on accompanying measures for COVID-19 in the administration of justice. According to that law, all procedural periods in judicial proceedings that had started to run on 22 March 2020 or thereafter, up until the end of 30 April 2020, are to be interrupted and are to begin to run anew on 1 May 2020. The applicant’s appeal on a point of law is directed against that decision, and seeks to have the order of the court of first instance restored.

The Austrian Supreme Court has referred the following question to the Court of justice:

Are Articles 20 and 26 of Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure to be interpreted as meaning that those provisions preclude an interruption of the 30-day period for lodging a statement of opposition to a European order for payment, as provided for in Article 16(2) of that regulation, by Paragraph 1(1) of the Austrian Bundesgesetz betreffend Begleitmaßnahmen zu COVID-19 in der Justiz (Federal Law on accompanying measures for COVID-19 in the administration of justice), pursuant to which all procedural periods in proceedings in civil cases for which the event triggering the period occurs after 21 March 2020 or which have not yet expired by that date are to be interrupted until the end of 30 April 2020 and are to begin to run anew from 1 May 2020?

K. Jürimäe is the reporting judge in a chamber composed, in addition, by N. Jääskinen, M. Safjan, N. Piçarra and M. Gavalec. Advocate General A. Collins will announce the date of his opinion after the hearing. For the record: the Court has interpreted Articles 16, 20 and 26 of the Regulation already several times, see case C-324/12, joined cases C‑119/13 and C‑120/13, C-94/14, C-245/14, C-21/17.

Advocate General Szpunar‘s Opinion in case C-617/20, T.N. and N.N., will be published the next day (that is, on Thursday 20). The questions have been referred by the Hanseatisches Oberlandesgericht in Bremen (Germany), in the context of an intestate succession, and relate to the interpretation of Articles 13 and 28 of the EU Succession Regulation:

(1) Does a declaration concerning the waiver of succession by an heir before the court of a Member State that has jurisdiction for the place of his or her habitual residence, which complies with the formal requirements applicable there, replace the declaration concerning the waiver of succession to be made before the court of another Member State that has jurisdiction to rule on the succession, in such a way that when that declaration is made, it is deemed to have been validly made (substitution)?

(2) If Question 1 is to be answered in the negative:

In addition to making a declaration before the court that has jurisdiction for the place of habitual residence of the party waiving succession which complies with all formal requirements, is it necessary, in order for the declaration concerning the waiver of succession to be valid, that the latter inform the court that has jurisdiction to rule on the succession that the declaration concerning the waiver of succession has been made?

(3) If Question 1 is to be answered in the negative and Question 2 in the affirmative:

a. Is it necessary that the court that has jurisdiction to rule on the succession be addressed in the official language of the location of that court in order for the declaration concerning the waiver of succession to be valid and, in particular, in order to comply with the time limits applicable for making such declarations before that court?

b. Is it necessary that the court that has jurisdiction to rule on the succession receive the original documents drawn up in relation to the waiver by the court that has jurisdiction for the place of habitual residence of the party waiving succession and a translation thereof in order for the declaration concerning the waiver of succession to be valid and, in particular, in order to comply with the time limits applicable for making such declarations before the court that has jurisdiction to rule on the succession?

The judgment will be handed down by judges E. Regan, I. Jarukaitis, M. Ilešič (reporting), D. Gratsias, and Z. Csehi.

Finally, another hearing of interest will be taking place at the very end of the month, on Monday 31. C-700/20, London Steam-Ship Owners’ Mutual Insurance Association, is a Grand Chamber case (K. Lenaerts, L. Bay Larsen, K. Jürimäe, C. Lycourgos, E. Regan, I. Jarukaitis, N. Jääskinen, M. Ilešič, J.C. Bonichot, A. Kumin, L. Arastey Sahún, M. Gavalec, Z. Csehi, O. Spineau-Matei, and M. Safjan as reporting judge), to be decided with the benefit of Advocate General A. Collin’s opinion. The request, from the High Court – Business and Property Courts of England and Wales Commercial Court, was lodged on 22 December 2020. The questions referred arose in the context of an appeal by The London Steam-Ship Owners’ Mutual Insurance Association Limited (the “Club”), pursuant to Article 43 of Regulation (EC) No 44/2001, against a registration order made by the Queen’s Bench Division of the High Court of Justice of England and Wales pursuant to Article 33 of the same regulation. The registered judgment that is the subject of the registration order is an auto de ejecución (execution order) of the Provincial Court of La Coruña, Spain, delivered following the proceedings related to the sinking of the Prestige (the “Vessel”) at the coast of Spain in November 2002. The Vessel was carrying 70,000 MT of fuel oil at the time she sank causing significant pollution damage to the Spanish and French coastlines. The execution order declares the Club liable in respect of 265 claimants, including the Kingdom of Spain in the sum of € 2.355 billion. Spain applied to register the Spanish judgment against the Club in England. The Club was the Protection & Indemnity (“P&I”) insurer of the Vessel and its owners (the “Owners”) at the time the Vessel sank, pursuant to a contract of insurance where an arbitration clause was included.

The background of the dispute can be summarized as follows:

In late 2002, criminal proceedings relating to the loss of the Vessel were commenced in Spain; civil claims were brought in those proceeding. On 13 November 2013, the Provincial Court of La Coruña handed down a judgment which was confirmed after first and second appeals. On 15 November 2017, the Provincial Court delivered a judgment on quantum concluding that the Club (and others) was liable to over 200 separate parties, including the Kingdom of Spain, in sums in excess of € 1.6 billion as a result of the casualty, subject in the case of the Club to the global US$ 1 billion limit of liability. On 1 March 2019, the Provincial Court issued an execution order (the Spanish judgment referred to above) setting out the amounts that each of the claimants were entitled to enforce against the respective defendants.

In January 2012, the Club had commenced London arbitration proceedings seeking declarations that, pursuant to the arbitration agreement in the contract of insurance, Spain was bound to pursue its claims under Article 117 of the Spanish Penal Code in London arbitration. The arbitral tribunal found that, as a matter of English law, although Spain was not a contractual party to the arbitration agreement in the Contract of Insurance, according to English equitable principles Spain could not be a “beneficiary” of the Owners’ contractual rights without respecting the “burden” of the arbitration agreement. The award declared as well that the Club was not liable to Spain.

In March 2013, the Club applied to the Commercial Court of the High Court of Justice of England and Wales for “leave” (permission) to enforce the Award in the jurisdiction. The application was granted on October 2013.

On 25 March 2019, Spain applied to the High Court of Justice in England and Wales for the registration of the Spanish judgment as a judgment of the High Court pursuant to Article 33 of Regulation Brussels I. The application was successful. One month later the Club lodged an appeal under Article 43 of Regulation No. 44/2001 against the Registration Order based on Article 34(3) and Article 34(4) of the same instrument.

In this context, the High Court is referring the following questions to the Court of Justice:

(1) Given the nature of the issues which the national court is required to determine in deciding whether to enter judgment in the terms of an award under Section 66 of the Arbitration Act 1996, is a judgment granted pursuant to that provision capable of constituting a relevant “judgment” of the Member State in which recognition is sought for the purposes of Article 34(3) of EC Regulation No 44/2001?

(2) Given that a judgment entered in the terms of an award, such as a judgment under Section 66 of the Arbitration Act 1996, is a judgment falling outside the material scope of Regulation No 44/2001 by reason of the Article l(2)(d) arbitration exception, is such a judgment capable of constituting a relevant “judgment” of the Member State in which recognition is sought for the purposes of Article 34(3) of the Regulation?

(3) On the hypothesis that Article 34(3) of Regulation No 44/2001 does not apply, if recognition and enforcement of a judgment of another Member State would be contrary to domestic public policy on the grounds that it would violate the principle of res judicata by reason of a prior domestic arbitration award or a prior judgment entered in the terms of the award granted by the court of the Member State in which recognition is sought, is it permissible to rely on Article 34(1) of Regulation No 44/2001 as a ground of refusing recognition or enforcement or do Articles 34(3) and (4) of the Regulation provide the exhaustive grounds by which res judicata and/or irreconcilability can prevent recognition and enforcement of a Regulation judgment?

It’s been another busy year for the EAPIL blog. The 310 posts we have published in 2021 have attracted about 180.000 visits and some 190 comments.

Interactions on social media have been on the rise, too. We witnessed an increase in the number of followers on LinkedIn (they are more than 900 now), and in the intensity of their reactions. Meanwhile, the number of those following our Twitter account (@eapilorg) has reached 400: we are glad to see that our tweets are often retweeted and quote tweeted. Thank you!

Unsurprisingly, the impact of Brexit on existing instruments in the field of private international law ranked among the key topics of the year. Actually, one post of out ten, among those published in 2021 on the EAPIL blog, referred to Brexit in one way or another.

The case law of the Court of Justice relating to judicial cooperation in civil matters also attracted a consistent flow of visits, and so did Marta Requejo’s monthly posts on the upcoming Court’s judgments and the scheduled conclusions of the AGs.

The developments in domestic case law also proved to be of particular interest to our readers. Gilles Cuniberti’s post on a ruling of the French Supreme Court redefining territoriality of enforcement was the single most commented post of the year, with Gilles’ later post on the judgment of the UK Supreme Court in FS Cairo v Brownlie, on tort jurisdiction, ranking second in terms of comments.

Here are the blog’s five posts of the year, based on the number of visits received:

1. Brexit and the Brussels Convention: It’s All Over Now, Baby Blue? by Matthias Lehmann, published on 12 February 2021, part of an on-line symposium on the Fate of the 1968 Brussels Convention which attracted contributions from a number of scholars, including guest posts by Andrew Dickinson, Serena Forlati and Alex Layton
2. French Parliament Adopts Mandatory Law to Enforce Reserved Share in Succession Matters, a guest post by Christelle Chalas, published on 17 August 2021
3. Swiss Court Refuses Post-Brexit Application of the Lugano Convention – Even Good Cases Can Make Bad (Case) Law, a guest post by Rodrigo Rodriguez, published on 10 March 2021
4. Is the 2005 Hague Choice-of-Court Convention Really a Threat to Justice and Fair Play? A Reply to Gary Born, a guest post by Trevor Hartley, published on 30 June 2021
5. The Principle of Mutual Trust in EU law in the Face of a Crisis of Values, a guest post by Cecilia Rizcallah, published on 22 February 2021

The above ranking tells one thing the editors are well aware of: guest posts represent a crucial contribution to this blog.

So, here’s a message to both old and new guest bloggers out there: your submissions are welcome in 2022 as they have been in the past year. So don’t hesitate to get in touch with us: we are eager to read you!

With this post, the EAPIL blog takes a short Winter break. Blogging will resume on 3 January 2022.

All the best for the new year!