EAPIL blog

The new issue of Rivista di diritto internazionale privato e processuale (Volume 57, Issue 1/2021) is out.

It features three articles, two in Italian, the other in English, whose abstracts are provided below.

Fausto Pocar, Riflessioni sulla recente convenzione dell’Aja sul riconoscimento e l’esecuzione delle sentenze straniere (Reflections on the Recent HCCH Convention on the Recognition and Enforcement of Foreign Judgments)

The Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, concluded on 2 July 2019 in the framework of the Hague Conference on Private International Law, signifies a further, albeit partial, step in the context of the more ambitious project, initiated over twenty-five years ago, aimed at achieving a so-called “double” convention on jurisdiction and recognition and enforcement of foreign judgments in civil or commercial matters. Through the careful consideration of the salient features of the Convention – some of which appear to be innovative in character, whereas others evoke more solutions – as well as of the interactions that the Convention’s adoption (and possible entry into force) entails in the existing multilateral treaty landscape, including the 2005 HCCH Convention on Choice of Court Agreements, the Author offers a dynamic and contextualized reading of the new instrument, emphasizing its lights and shadows, and illustrating the underlying interests surrounding the Convention’s possible ratification by the European Union.

Federica Favuzza, Riflessioni in margine all’entrata in vigore del c.d. SOFA dell’Unione Europea (Reflections on the Entry into Force of the EU SOFA)

On 1 April 2019, the 2003 Status of Forces Agreement between the EU Member States finally entered into force. This international agreement applies within the territory of the EU and aims to define the legal status of individuals and entities involved in the preparation and execution of the tasks referred to in Art. 42 TEU, i.e. in the context of the Common Security and Defence Policy (CSDP). After examining its scope of application, the Author provides an overview of some of the main legal issues that the Agreement raises in respect of the exercise of criminal and civil jurisdiction. The analysis highlights the drafters’ deference to the approach and wording of the NATO SOFA. This choice is understandable, especially considering that individuals and entities involved in the CSDP are often also deployed in NATO context. However, in the Author’s view, it risks reproducing in the context of the EU some known difficulties and critical issues arisen in nearly 70 years of practice in the interpretation and application of the NATO SOFA.

Caterina Benini, Remarks on the Commission’s Proposal on the Law Applicable to the Third-Party Effects of Assignment of Claims [in English]

The paper provides an overview of the European Commission’s proposal on the law applicable to the third-party effects of the assignment of claims. The Proposal, based on a sensitive balance between the interests of the factoring and the securitisation industries, fosters the foreseeability of the applicable law and the harmony of solutions. The combination of the law of the assignor as general rule with the law of the assigned claim as exception is consistent with the solution adopted at the international level and fits the property interests underlying the assignment of claims. Normative consistency with the Insolvency Regulation is depicted as one of the main goals of the Proposal. However, due to the mismatches between the connecting factors adopted in the two instruments, such goal risks to remain only on paper. To avoid this, the present article suggests localising the assignor’s habitual residence at the company’s registered office under the COMI notion adopted under the Insolvency Regulation.

The issue also contains a review, by Francesca Clara Villata, of Felix M. Wilke’s A Conceptual Analysis of European Private International Law. The General Issues in the EU and its Member States.

The table of contents of the issue is available here.

The author of this post is Estelle Gallant, professor of private law at the University of Toulouse 1 Capitole.

In a judgment of 27 January 2021 the French Supreme Court for civil and criminal matters (Cour de cassation) applied the Hague Convention of 13 January 2000 on the International Protection of Adults (the ‘Adults Convention’) in a case concerned with a mandate in case of incapacity. More specifically, the issue was the content of the distinction between the conditions of validity of the mandate and its manner of exercise.

Currently applicable in 13 States (Austria, Belgium, Cyprus, Czech Republic, Estonia, Finland, France, Latvia, Monaco, Portugal, Switzerland and the United Kingdom), the 2000 Hague Convention takes into consideration a particular mechanism enabling an adult to organise in advance his or her personal or property protection for the time when he or she is no longer able to provide it. This legal form of mandate in case of incapacity, which was well known in North America and not very widespread in Europe at the time the Convention was drafted, is now more common in Europe. It exists in French law in the form of the “future protection mandate” and in Swiss law in the form of the “mandate for incapacity”. The mandate in case of incapacity is governed in the Adults Convention by Articles 15 and 16.

Article 15 refers to “powers of representation granted by an adult, either under an agreement or by a unilateral act, to be exercised when such adult is not in a position to protect his or her interests”. The adult thus entrusts a person or an institution of his or her choice with powers of representation for the future in the event that he or she is unable to protect his or her interests. Such mandate may take the form of an agreement, but also of a unilateral legal act. It may concern the management of property and affairs, but also the protection of the person, his or her care or the decisions to be taken at the end of life, in order to put an end to over-treatment for example. Generally speaking, the legislation establishing this mandate in case of incapacity makes the starting point of the mandate’s effects depend on a judicial and/or medical finding of incapacity.

Article 15(1) of the Convention designates the law of the adult’s habitual residence at the time the instrument is drawn up as applicable to mandates in case of incapacity. Article 15(2) also offers the adult the possibility of choosing the applicable law among three: a) his or her national law, b) the law of a former habitual residence, c) the law of the place where his or her property is located. Irrespective of how it is designated, the applicable law applies to “the existence, extent, modification and extinction of powers of representation” granted by the adult. However, the manner of exercise the powers conferred by the mandate is governed by the law of the State where it is exercised, according to Article 15(3). It follows that whenever the mandate is to be implemented in a State other than the one whose law is applicable, the manner of exercise the mandate will be governed by a different law than the one governing the mandate.

This was the issue raised by the case before the Cour de cassation. A mandate in case of incapacity had been established in Switzerland, where the adult had his habitual residence, before moving to France. As he wished to implement the mandate in France, one of his sons obtained that the mandate be verified formally and “stamped” by an officer of the court (visé par le greffier du Tribunal) in accordance with French procedure. However, another son of the grantor brought proceedings to challenge the implementation of the mandate. He won before the court of appeal of Pau, which annulled the clerk’s stamping on the grounds that it should not have been granted because the mandate did not include any means of controlling the representative of the adult.

The son who had obtained the stamping appealed to the Cour de cassation, which allowed the appeal. The Court held that by requiring that the clerk’s stamping be granted only if the mandate expressly provided any arrangements with respect to the control of the representative, the court of appeal had actually imposed conditions which were not concerned with the implementation of the mandate, but with its validity.

According to the Cour de Cassation, the implementation in France of a Swiss mandate in case of incapacity could not be subject to a condition of validity of French law that was not imposed by Swiss law. The provisions of the Adults Convention are thus perfectly respected: they imply making a distinction between conditions of validity and manner of exercise of mandates in case of incapacity.

The post you are reading is the 500th post of the blog of the European Association of Private International law since the blog was launched in November 2019.

How have things gone for the blog over this time? The statistics below provide some answers.

The number of those who wish to be notified by e-mail of new new posts has steadily grown over the months. They currently exceed 540.

How many people come and visit us? The figure below shows the number of times a unique visitor has viewed the blog or any of its posts. To date, views exceed 170.000 in the aggregate.

Where do our readers come from? The color gradation in the maps below shows the countries where blog visitors are based: the greener the country, the larger its share of the overal blog viewers.  

Top 10 – World Countries
Germany: 10,55%
Italy: 10,22%
Luxembourg: 9,66%
Netherlands: 7,86%
United Kingdom: 7,83%
France: 7,32%
Spain: 6,17%
United States: 4,56%
Belgium: 4,13%
Poland: 2,94%

Posts are grouped, according to their content, into different categories. The five categories with the most posts are, in order, scholarship, case law, normative texts, views and comments and conferences and academic events.

The aim of the EAPIL blog is not just to inform readers but also to foster debate on any issues relating to private international law, consistent with the goals of the Association. Readers’ comments are crucial to that. They are very welcome! So far, blog posts have received more than 230 comments.

The post that has received the most comments is French Supreme Court Redefines Territoriality of Enforcement over Debts, by Gilles Cuniberti, published on 18 March 2021. It discussed two judgments delivered by the French Supreme Court for civil and criminal matters which extended the reach of French attachments to any claims owed to third parties established in France, irrespective of whether the third party had its headquarters in France or abroad, and irrespective of the situs of the debt. It attracted 14 comments.

While most of the posts are written by the blog editors, the blog regularly hosts contributions by academics and practitioners form outside the team. So far, the blog has welcomed posts from specialists based in Australia, Austria, Belgium, Cyprus, France, Germany, Italy, Japan, Lithuania, Luxembourg, Netherlands, Singapore, Slovenia, Spain, Switzerland and United Kingdom. Those willing to submit a guest post, are invited to write an e-mail to blog@eapil.org.

And don’t forget: the blog, and the Association generally, is active on social media too. So, join us also on Twitter (@eapilorg) and LinkedIn!

The Milan Law Review (MLR), run by the Faculty of Law of the State University of Milan, is a multidisciplinary and multilingual law journal, published on a six-monthly basis in open access mode.

The editors of the journal are calling, inter alia, for articles on topics in the field of public and private international law, either in Italian or in English.

Interested authors will find more information here.

Papers intended for the next issue shall be submitted by 31 October 2021.

The following post was written by Paul Eichmüller (Vienna).

Although rules concerning the use of a name of natural persons have been liberalised in the member states of the European Union to a large extent after the CJEU’s famous decisions in C-148/02, Garcia Avello, and C-535/06, Grunkin and Paul, there still remain areas where national name law remains untouched. The Austrian Supreme Court has shown in its latest decision from 20 April 2021 that even for citizens of two member states, the conflict of laws rules for name matters may not generally be affected by CJEU judicature.

The parties of the case in question were the unmarried German mother and the Italian father of a son with German-Italian dual citizenship. After the child had been born in Germany – where he acquired his mother’s surname, as is usual under German law if the parents are unmarried – the boy and his mother moved to Austria. There, the father brought a request in court to change the child’s surname to a compound name consisting of both the mother’s and the father’s surnames. The mother, however, wanted her son to retain his current surname.

The Austrian courts of first and second instance concordantly dismissed the father’s request to change the child’s surname. Under Austrian law, the law applicable to name disputes follows the personal statute, which in turn is determined by a person’s citizenship (§§ 13, 9 IPRG). In cases of dual nationality – neither nationality being Austrian – the “effective nationality” (i.e. the nationality of the state to which the person has the closest link) determines the personal statute (§ 9(1) sentence 3 IPRG).

The courts concluded that the link to Germany had in this case been stronger, as the boy had been born in Germany and lived in a household with his German mother. German law, which accepts the renvoi (Article 10(1) EGBGB), does not provide for a change of the child’s surname against the will of the other parent unless the well-being of the child is affected, so that the request was denied.

The Austrian Supreme Court upheld the lower courts’ decisions. It found no fault in how the previous instances had determined the applicable law. More importantly, it also ruled that this outcome was compatible with the CJEU’s rulings on European name disputes. According to the CJEU in Garcia Avello and Grunkin and Paul, Articles 18 and 20 TFEU merely require that EU citizens that lawfully use a name in one member state are allowed to use this name also in other member states. However, in the present case, the child in the case at hand had precisely not yet acquired a different name in Italy. Additionally, the father even conceded that under Italian law, a child may alternatively bear the surname of one parent or a compound name of both parents’ surnames. Thus, there were no objections from a perspective of European law, as neither freedom of movement was restricted nor was there discrimination on the basis of citizenship, and the request was dismissed.

Without explicitly stating it, the Austrian Supreme Court made one point very clear in its judgment: the EU fundamental freedoms as interpreted by the CJEU in Garcia Avello and Grunkin and Paul do not impose on the member states the duty to determine the law on name disputes in a different way. Only the recognition of legal facts or acts from other member states, but not the identification of the applicable law is affected by the freedoms.

EU primary law requires that a name legally borne or acquired in another member state may also be borne in all other member states. It does, however, not impose a specific conflict-of-laws rule. Therefore, the law that determines whether and under which circumstances the name (even of a dual citizen) can be changed in another member state is not affected.

As the desired name is not legally borne in the other state, it remains merely hypothetical and thus is not subject to the fundamental freedoms. Whether the father could have changed his son’s name without the consent of the mother under Italian law was therefore not even assessed by the Supreme Court, as it deemed it not of importance.

As conflicts issues with regard to the change of name are concerned, each state is thus free to apply its own national rules of private international law. However, as most states offer the possibility to apply for a name change in their home state anyway, this issue will mainly arise in parental disputes. Like in the case at hand, one parent may wish to change the name of a child living in a different country against the will of the other parent and thus might bring an action in the family court at the child’s habitual residence pursuant to Article 8 of the Brussels II bis Regulation. When posed with the question of whether a change of name is possible, this court can then – free from obligations of EU primary law – assess the possibility of the name change according to its very own (private international) law.

The University of Manchester Law School is seeking to recruit a Lecturer in Conflicts of Law.

The new appointment is meant to enhance teaching and research in Conflict of Laws, comparative private law and or commercial litigation at both undergraduate and postgraduate levels. This post will be available from 1 September 2021.

The candidate must fulfill the following requirements:

• have a relevant PhD (or equivalent) and demonstrate the ability to produce high quality publications, meet flexible curricular and teaching needs, and demonstrate capability to contribute organisationally to the wider School community.
• have experience of delivering research-informed teaching at an institution of higher learning or should be able to demonstrate the clear potential to do so.

The deadline for the applications is 17 June 2021.

Enquiries about the vacancy, shortlisting and interviews should be addressed to Professor Yenkong Hodu (yenkong.ngangjohhodu@manchester.ac.uk). Blended working arrangements may be considered.

More information about the vacancy can be found here.

The new issue of International & Comparative Law Quarterly (Volume 70, Issue 2) is out. Some of the articles relate to private international law. Their abstracts are provided below. The whole issue is available here.

P. Giliker, Codification, Consolidation, Restatement? How Best to Systemise the Modern Law of Tort

The law of tort (or extra or non-contractual liability) has been criticised for being imprecise and lacking coherence. Legal systems have sought to systemise its rules in a number of ways. While civil law systems generally place tort law in a civil code, common law systems have favoured case-law development supported by limited statutory intervention consolidating existing legal rules. In both systems, case law plays a significant role in maintaining the flexibility and adaptability of the law. This article will examine, comparatively, different means of systemising the law of tort, contrasting civil law codification (taking the example of recent French proposals to update the tort provisions of the Code civil) with common law statutory consolidation and case-law intervention (using examples taken from English and Australian law). In examining the degree to which these formal means of systemisation are capable of improving the accessibility, intelligibility, clarity and predictability of the law of tort, it will also address the role played by informal sources, be they ambitious restatements of law or other means. It will be argued that given the nature of tort law, at best, any form of systemisation (be it formal or informal) can only seek to minimise any lack of precision and coherence. However, as this comparative study shows, further steps are needed, both in updating outdated codal provisions and rethinking the type of legal scholarship that might best assist the courts.

C. Harris, Incidental Determination In Determinations in Proceedings under Compromissory Clauses

A dispute brought before an international court or tribunal pursuant to a compromissory clause in a specific treaty may involve issues under rules of international law found outside of the treaty in question. In what circumstances can a court or tribunal determine such external issues? At present, there is no clear answer to this question. This article sets out a framework for how courts and tribunals exercising jurisdiction under compromissory clauses could approach external issues.

M. Teo, Narrowing Foreign Affairs Non-Justiciability

The UK Supreme Court’s decision in Belhaj v Straw defined foreign affairs non-justiciability and unearthed its constitutional foundations. However, two decisions since Belhaj—High Commissioner for Pakistan v Prince Muffakham Jah and The Law Debenture Trust Corpn plc v Ukraine—have called Belhaj into doubt, narrowing non-justiciability to give effect to ordinary private law rights. This article analyses these decisions and argues that their general approach of subjecting issues involving transactions between sovereign States to private international law’s framework is desirable, because the constitutional foundations of non-justiciability identified in Belhaj are shaky. Yet, it is suggested that private international law itself may require courts to exercise judicial restraint on these issues, given its goal of upholding the efficient resolution of international disputes in appropriate fora.

The issue also contains review, by M. Chen-Wishart, Y. Wu, of Contract Law in Japan by H. Sono, L. Nottage, A. Pardieck and K. Saigusa, Wolters Kluwer: Alphen aan den Rijn 2018.

Mary Keyes (Griffith University) has posted Women in Private International Law on SSRN.

The abstract reads:

There has been almost no consideration of the position of women in private international law. There is very little published research applying a feminist analysis to, or even considering the position of women in, private international law. This field gives almost no attention to the particular interests, positions and experiences of women as subjects of the law, or the contribution of women as makers of the law. In the common law, private international law was largely developed in the 19th century, by male judges who were strongly influenced by commentary written exclusively by men. This chapter establishes that the apparently gender-neutral nature of private international law conceals profoundly ingrained assumptions about gender, in which the masculine is represented as a rational and sophisticated businessman, and the feminine is represented as a legally incapable wife. It then considers the gendered dimension of private international law in international family law, referring in particular to the regulation of international child abduction, international family property agreements, and international commercial surrogacy. Each of these examples demonstrates the differential impact of the law on women, indicating the need for greater awareness of and attention to gender. It concludes that while there have been some advances recently, particularly in terms of increased representation of women in making and commenting on private international law, there remains a great need for further research into the position of women as legal subjects and law-makers in this field.

This post was drafted by Paul Eichmüller and Matthias Lehmann.

Almost six years after the Volkswagen Dieselgate scandal became public, the issue of international jurisdiction for damage claims arising from the fraud is still creating headaches. In a recent decision from 24 March 2021, the Austrian Supreme Court decided a case that was in many respects similar to the one giving rise to the much discussed ECJ judgment of C-343/19, VKI/VW – yet, there was one important difference: the car was transported to another country after its purchase.

Like in previous cases, the Austrian Supreme Court had to decide on a damage claim resulting from the sale of a car produced by a member of the VW group. The claimant was resident in Austria but had acquired the car directly from the manufacturer in Germany, where the vehicle was also handed over to the buyer. He then paid the price from his Austrian bank account and imported the car to Austria, where he continued to use it. The manufacturer’s representative had been aware of this intention at the time when the contract was concluded. After the discovery of the emission fraud scandal, the buyer brought a claim for damages against the manufacturer in Austrian courts, claiming compensation for the decreased value of the car due to the fraud.

The courts of first and second instance both declined international jurisdiction since the car had been bought and handed over in Germany. They argued that for the sale of movable goods, the place where the damage occurs in the sense of Article 7(2) Brussels I bis Regulation should always be located where a good is handed over, and not in the country of (intended) habitual use.

The Austrian Supreme Court agreed with the legal opinion of the lower courts. It cited the CJEU ruling in C-343/19, VKI/VW, according to which the damage occurs at the place of purchase (see para 37). As in its view the damage had already occurred in the moment of the purchase in Germany, the Austrian Supreme Court concluded that the subsequent transport to Austria – be it with the previous knowledge or even the consent of the seller – could not change the competent court.

Neither did the fact that the payment was effected from an Austrian bank account establish jurisdiction of Austrian courts change the analysis in the eyes of the Austrian Supreme Court. It distinguished the CJEU judgment in C-304/17, Löber, on the ground that the damage materialised in a tangible object and not in a bank account.

The buyer’s final argument was based on the fact that the seller had allegedly directed his activity to Austria and thus, the applicable law to the contract would be Austrian law pursuant to Art 6(1)(b) Rome I Regulation. However, this argument was rejected on purely procedural grounds.

Austrian courts thus lacked jurisdiction and the claim was rejected. The Supreme Court did not deem a request for a preliminary ruling necessary, as it considered it a case of the acte éclairé doctrine.

The judgment by the Austrian Supreme Court is a logical next step from the CJEU ruling in VKI/VW. The latter gave precedence to the place of purchase, citing the interest of legal certainty, the need for the court to determine the market conditions at this place and the competitive relations or collective consumer interests that may be affected there as the main reasons. These considerations force the conclusion that the damage occurs at the place of purchase irrespective of where the car is subsequently used. This new ruling results from the CJEU using a single connecting factor in VKI/VW instead of weighing a number of different factors. Assigning jurisdiction to the courts of Germany may pose a disadvantage for some customers, but they must be aware that a purchase in a foreign country may also have legal side-effects.

Louis Perreau-Saussine and Sophie Lemaire (Université Paris Dauphine) are the editors of a new book on International Mandatory Rules in International Business Law (L’impérativité en droit international des affaires : questions d’actualité).

Contributors include Pierre Mayer, Louis Perreau-Saussine, Sophie Lemaire, Mathias Audit, Patrick Mathet, Hubert de Verdelhan, Stéphanie Francq, Andrea Bonomi, Martine Behar-Touchais, Juliette Morel-Marroger, Tristan Azzi, Etienne Pataut.

The book collects the proceedings of a conference held at the Cour de cassation in Paris on February 2018. Videos of the conference are freely available here.

On 7 June 2021, the Council of the European Union has adopted a political document titled Conclusions on the Protection of Vulnerable Adults across the European Union.

The document sets out the views of the Council in this area with respect to both civil and criminal matters.

As regards civil matters, the document stresses the importance of the Hague Convention of 13 January 2000 on the international Protection of Adults, which is currently in force for ten Member States, and some third countries, such as Switzerland and the UK (albeit only with respect to Scotland).

The Council invites the Member States for which the Hague Convention is already in force to promote greater awareness of the  Convention among courts and practitioners.

Member States that are engaged in procedures procedures to ratify the Convention, are invited to advance such procedures with a view to finalising the ratification as swiftly as possible, in particular in view of the 2022 Special Commission on this Convention organised by the Hague Conference on Private International Law.

Finally, the Council invites all other Member States to commence and/or advance domestic consultations on a possible ratification of the Convention as swiftly as possible.

The document highlights the relevance of the (international) protection of adults, as understood by the Convention, to the implementation of the EU Strategy for the Rights of Persons with Disabilities (2021-2030).

It also notes that both the number and proportion of older people are growing across Europe. According to the Ageing Report 2021 issued by the European Commission on 20 November 2020, the total population of the EU is projected to decline in the long term, and the age structure will change significantly in the coming decades. The EU population is projected to decline from 447 million people in 2019 to 424 million in 2070 and, during this period, Member States’ populations will age dramatically given the dynamics in fertility, life expectancy and migration. The median age is projected to rise by five years over the coming decades.

A significant number of adults – the document observes – face limitations. Eurostat expects a fifth of the EU population to have some form of disability by 2050. Many of these adults are or will become vulnerable and, by virtue of the multiple barriers that are still in place for persons with a serious mental and/or physical disability, are not or will not be in a position to protect their own interests without adequate support.

This situation impacts the legal capacity of vulnerable adults, who face challenges and difficulties in protecting their rights, defending their interests and accessing justice, both in national and in cross-border situations. In cross-border situations, for instance in the case of citizens residing in a State other than that of their nationality, these existing difficulties may be exacerbated by additional obstacles with respect to language, representation or access to the judicial system and to public services in general.

Today, there are no uniform private international law rules applicable in the field of judicial cooperation in civil matters regarding the protection of vulnerable adults in cross-border situations across the EU, and there are disparities between Member States’ laws on jurisdiction, applicable law, and the recognition and enforcement of protection measures.

The Council acknowledges in its Conclusions that diversity of the rules on these issues might impair the exercise of the right of vulnerable adults to move freely and reside in the Member State of their choice, and might also hinder the possibility for these citizens to obtain adequate protection regarding the administration of their property in a cross-border context.

The document further recalls that the right to self-determination is a fundamental right, and powers of representation through which an adult has made arrangements in advance for his or her care and/or representation should be respected within the EU. The Hague Convention, among other things, ensures that such a power of representation has legal force in a Contracting Party.

Finally, the Council takes note that at the ‘High-Level Conference on the protection of vulnerable adults across Europe: the way forward’, held on 30 March 2021, some panelists stressed that, while it is important to build experience and assess the results of implementing the 2000 Hague Convention, the EU should be more ambitious and go further in seeking the approximation of private international law rules to ensure the effective protection of vulnerable adults on the basis of the principle of mutual recognition.

The Conclusions, however, do not include any indication as to whether and when the political institutions of the Union might consider the adoption of such additional measures.

The conference titled Child-friendly procedures in cases of international child abduction will take place online on 24 and 25 June 2021. The conference will present the results of research conducted with the INCLUDE project on what is considered to be ‘good practice’ for professionals in a context of child abduction as seen by children themselves. You can consult the agenda of the conference here, and register for it here.

The INCLUDE project, as explained by its coordinators, aims to enhance the wellbeing of children at all stages of an international child abduction by providing guidelines and good practices to legal and other professionals.

The deliverables of the project (including an International Child Abduction – Legal Framework and Literature Study) are available on the project’s website.

The Council of the European Union will aim at establishing a general approach on the regulation on assignments of claims on 7 June 2021 in Luxembourg.

The text which should be adopted is an amended version of the 2018 proposal of the European Commission for a Regulation on the law applicable to the third-party effects of assignments of claims, which was adopted by the European Parliament  in 2019 with 24 amendments.

The main features of the new text are as follows.

One of the most debated issues was whether the principle should be that third party effects of assignment of claims should be governed by the law of the habitual residence of the assignor or the law of the assigned claim. The Commission had proposed to retain the former, with certain exceptions.

In line with the Commission proposal, the law of the assignor’s habitual residence received more support than the assigned-claim law as it would lead to more predictability for third parties. The law of the assignor’s habitual residence was deemed suitable for bulk assignments subject to different laws and future claims and consistent with Regulation (EU) 2015/848 (Insolvency Regulation).

The list of exceptions, however, has slightly increased. The law of the assigned claim would apply to a longer list of claims in financial markets, but also to credit claims. This last exception will not doubt be criticised. Recital 27(b) clarifies its scope, which seems extensive:

The third-party effects of assignments of claims arising out of agreements whereby credit is granted in the form of a loan should be governed by the law of the assigned claim. This should include credit claims as defined in point (o) of Article 2(1) of Directive 2002/47, often used as financial collateral within the Eurosystem. In order to facilitate the cross-border assignment of claims arising out of syndicated loans and lending-based crowdfunding on secondary financial markets, the third-party effects of the assignment of claims arising out of syndicated loans and lending-based crowdfunding should also be subject to the law of the assigned claim.

It was also thought that the scope of the instrument should be further clarified and restricted. In particular, three matters are excluded from the scope of the future regulation:

– the transfer of financial instruments, including securities and derivatives;
– the transfer of crypto-assets; and
– the assignment of claims where the claims are not in intangible form but incorporated in a certificate or represented by a book entry.

Franco  Ferrari (New York University School of Law) has published his Hague Lectures on Forum Shopping despite Unification of Law in the Collected Courses of The Hague Academy of International Law (volume 413). 

The abstract reads:

It has often been suggested that forum shopping is “evil” and needs to be eradicated. And it is in this context that one must understand statements by commentators to the effect that the unification of substantive law through international conventions constitutes one way to reach this result. These lectures show not only that the qualification of forum shopping as something that is deplorable is outdated, that the negative attitude vis—à—vis forum shopping seems grounded on outdated preconception and prejudice, and disregards, for example, that critical analysis has demonstrated that forum shopping also has beneficial effects, such as the promotion of ethical representation of one’s client, the protection of access to justice, and the provision of a remedy for every injury.

These lectures also show that the drafting of uniform substantive law convention cannot prevent forum shopping, for many reasons, of which these lectures create a taxonomy. The reasons are classified into two main categories, namely convention-extrinsic and convention-intrinsic reasons. The former category comprises those reasons upon which uniform substantive law conventions do not have an impact at all, and which therefore will continue to exist regardless of the coming into force of any such convention. These reasons range from the costs of access to justice to the bias of potential adjudicators to the enforceability of judgments. These and the other convention-extrinsic reasons discussed in these lectures are and will not be influenced by uniform substantive law conventions.

The convention-intrinsic reasons, on the other hand, are reasons that relate to the nature and design of uniform substantive law conventions, and include their limited substantive and international spheres of application as well as their limited scope of application, the need to provide for reservations, etc. And no drafting efforts will be able to do away with these convention-intrinsic reasons, because they touch upon features of these conventions that are ontological in nature.

The lectures also address another forum shopping reason that cannot be overcome, namely the impossibility to ensure uniform applications and interpretations of the various uniform substantive law conventions. As these lectures show, as long as these conventions are interpreted horizontally, diverging interpretations and applications by courts of different jurisdictions of conventions that need to be drafted using vague language cannot be avoided. This is due mostly to a natural tendency by adjudicators to rely on their domestic legal background and notions when having to resolve problems arising in the context of the interpretation and application uniform substantive law conventions.

It is in light of all of the above that the lectures predict that forum shopping is here to stay.

More details, including the table of contents, can be found here.

Sabine Corneloup (Université Paris II Panthéon-Assas) and Jinske Verhellen (Ghent University) have recently posted on SSRN an article titled Providing legal identity for all – A means to empower migrants to exercise their rights, which forms part of the volume SDG 2030 and Private International Law edited by R. Michaels, V. Ruiz Abou-Nigm and H. van Loon to be published by Intersentia. The volume will be an outcome of the project The Private Side of Transforming our World UN Sustainable Development Goals 2030 and the Role of Private International Law. The project, as underlined by its leaders, “aims to raise an awareness of how PIL – with its methods and institutions – is also capable of making a significant contribution in the quest for sustainable development” as defined in UN Sustainable Development Goals 2030. The resulting findings will also be presented in the framework of a conference to be held on 9 to 11 September 2021 at the Max Planck Institute for Comparative and International Private Law in Hamburg.

The abstract of the article reads as follows:

This paper focusses on Target 16.9 of the Sustainable Development Goals (SDGs), which states: “By 2030, provide legal identity for all, including birth registration.” It is a tentative attempt to explore the reciprocal influences between private international law and SDG Target 16.9.

In chapter 1, Target 16.9 will first be presented in itself, before being analyzed in the context of SDG 16 as a whole, as well as in the context of global migration, which also brings other SDGs into the picture and highlights the link to private international law.

The purpose of chapter 2 is twofold: on the one hand, it is to give an overview of existing PIL instruments and methodologies concerning legal identity on a global, regional and national level and, on the other hand, to assess their relevance in a migration context. A survey of the international conventions and EU regulations on private international law will reveal that none of the existing instruments plays a prominent role, if any, in a migration context. Indeed, even though some international conventions and EU regulations contain potentially interesting provisions, none of them has proven relevant, if migration issues such as access to asylum, to a residence permit or to nationality are at stake. At the national level, private international law comes into play in the context of migration, when legal identity is addressed from the perspective of States of destination or States of transit, because then a cross-border element arises.

Chapter 3 takes a different perspective and looks at legal identity issues from the angle of an evolving new global framework according to the SDGs, emphasizing human rights. The question then arises whether this global SDG perspective could improve the situation in the States of origin by promoting and implementing birth registration and consequently impact on legal identity matters in PIL and whether, in its turn, a ‘revitalized’ PIL holds potential to contribute to the further development of the new global framework according to SDG 16.9.

This post was contributed by Fabienne Jault-Seseke, who is Professor at University Paris Saclay (UVSQ), and a member of GEDIP.

On 26 May 2021, the French supreme court for private and criminal matters (Cour de Cassation) issued an important judgment requiring the ex officio application of a European conflict of laws rule. The Court specifically relies on the principles of primacy and effectiveness of EU law to justify the solution, which is different from its traditional doctrine on the application of conflict of laws rules.

The case involves Mienta France and Groupe SEB-Moulinex, a French group, in relation to their activities on the Egyptian market. Groupe SEB-Moulinex granted Intercommerce the exclusive representation and distribution of Moulinex brand products. It also granted Blendex an exclusive licence to use the international Moulinex brands and a licence to manufacture certain products, while lending it moulds and supplying certain components. After these relationships were terminated,  Groupe SEB-Moulinex sued Intercommerce and Blendex for liability for  brutal termination of an established commercial relationship. The group brought also an action for forced intervention against Mienta France. It is alleged that Mienta manufactures, directly or through Blendex, small household appliances which it markets under the Mienta brand on the Egyptian market, in particular through the company Intercommerce. These products are likely to create harmful confusion in the public mind with the Seb group’s own products. It is alleged that these facts constitute unfair competition and parasitism.

The question of the law applicable to the dispute does not appear to have been discussed before the Court of Appeal. The Cour of Cassation therefore decided to set aside the judgment of the lower court for failing to apply ex officio Article 6 of the Rome II Regulation to the issue of unfair competition. It should be noted that the court does not decide here the question of the law applicable to the action for brutal termination of established commercial relations. Article 6 designates the applicable law to unfair competition (law of the country where competitive relations or the collective interests of consumers are affected, or if the act of unfair competition affects exclusively the interests of a specific competitor, the law of the country in which the damage occurs or the law of the country where the person claimed to be liable and the person sustaining damage both have their habitual residence) and specifies also that the law applicable may not be derogated from by an agreement.

The Court refers to two sets of norms to require ex officio application of Article 6. The first is Article 12 of the French Code of Civil Procedure, which states that “the judge shall decide the dispute in accordance with the rules of law applicable to it”. The second are “the principles of primacy and effectiveness of European Union law”. To our knowledge, this combination is used for the first time to justify the authority of a conflict of laws rule. The Cour de Cassation has used it once to ensure the application of the product liability regime established by the 1985 Directive.

More specifically, the Court rules that courts must apply a conflict of laws rule ex officio when it is forbidden to derogate from it. Implicitly, the Court deduces that Article 6 of the Rome II Regulation must be applied because the parties do not have the power to agree on the applicable law. For the first time, it is thus indicated that courts must apply ex officio conflict of laws rule which excludes party autonomy in choice of law.

Placed under the patronage of the principles of primacy and effectiveness of European Union law, the solution is limited to conflict rules of European origin. Nevertheless, one might consider extending it to the whole of French Private international law. First of all, the regime of conflict rules has not been harmonized at European level. Consequently, there is no need to distinguish the European rules from other conflict-of-laws rules. As regards the Rome II Regulation specifically, the foreign law regime ressembles the Arlesian woman, about which one speaks, but that one never sees (see Article 30, 1. I and the lack of any study). Secondly, the proposed solution would be more readable than the one that results today from the criterion of the free availability of rights (libre disponibilité des droits) that the Cour de Cassation usually uses.

The application of Article 6 in the dispute brought by the Seb group is likely to lead to the application of Egyptian law, which will upset those who point out that in matters of unfair competition the law of origin of competitors should prevail over the law of the market (see V. Pironon, Rev. crit DIP 2020. 814). It may be possible to avoid this by establishing that Mienta France has its habitual residence in France and that only the interests of the Seb group are affected. In this case, the judgment of 26 May 2021 will simply have made it possible to refine the regime of the conflict of laws rule. This is already a lot.

In June 2021 the CJEU will rule on in two cases of interest for private international law.

On 3 June 2021, the decision on the request for a preliminary ruling from Bulgaria C-280/20, Generalno konsulstvo na Republika Bulgaria, will be delivered by the 8th Chamber (judges N. Wahl, F. Biltgen, J. Passer, with the latter as reporting judge).

The request concerns the action filed by a person who claims to be a worker against the Bulgarian Embassy in Valencia, Kingdom of Spain, for the payment of financial remuneration in respect of unused paid annual leave to which she claims to be entitled under the labour law of the Republic of Bulgaria. The referring court has doubts as to whether it has been seised of a dispute with a ‘cross-border implication’.

The judgment in C-800/19, Mittelbayerischer Verlag, from the Court of Appeal, Warsaw (Poland), will be published on Thursday 17th by the 1st Chamber, with Judge Silva de Lapuerta acting as reporting judge (J.C. Bonichot, R. Silva de Lapuerta, L. Bay Larsen, M. Safjan, N. Jääskinen).

For the record, here are the questions:

1) Should Article 7(2) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters 1 be interpreted as meaning that jurisdiction based on the centre-of-interests connecting factor is applicable to an action brought by a natural person for the protection of his personality rights in a case where the online publication cited as infringing those rights does n contain information relating directly or indirectly to that particular natural person, but contains, rather, information or statements suggesting reprehensible actions by the community to which the applicant belongs (in the circumstances of the case at hand: his nation), which the applicant regards as amounting to an infringement of his personality rights?

2) In a case concerning the protection of material and non-material personality rights against online infringement, is it necessary, when assessing the grounds of jurisdiction set out in Article 7(2) of Regulation [No 1215/2012], that is to say, when assessing whether a national court is the court for the place where the harmful event occurred or may occur, to take account of circumstances such as:

– the public to whom the website on which the infringement occurred is principally addressed;

– the language of the website and in which the publication in question is written;

– the period during which the online information in question remained accessible to the public;

– the individual circumstances of the applicant, such as the applicant’s wartime experiences and his current social activism, which are invoked in the present case as justification for the applicant’s special right to oppose, by way of judicial proceedings, the dissemination of allegations made against the community to which the applicant belongs?

AG Bobek delivered his Opinion on 23 February 2021. He proposed the Court to answer that :

1)  Article 7(2) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that the establishment of the jurisdiction based on the centre of interests does not require that the allegedly harmful online content names a particular person.

2)   However, in order to establish jurisdiction pursuant to Article 7(2) of that regulation, a national court must verify that there is a close connection between that court and the action at issue, thus ensuring the sound administration of justice. In the particular context of online publications, the national court must ensure that, in view of the nature, content, and the scope of the specific online material, assessed and interpreted in its proper context, there is a reasonable degree of foreseeability of the potential forum in terms of the place where the damage resulting from such material may occur.

No other decisions nor Opinions are expected. As for hearings, the one in C-262/21 PPU, A, from the Supreme Court of Finland on the return of the child in application of the Hague Convention, is scheduled for 28 June. In the case at hand, a request had been made for the return to Sweden of a child who has been taken to Finland. The question that arises is whether the removal or retention of a child may be considered to be wrongful where one of the two parents, without the authorisation of the other, has removed the child from the State in which he was habitually resident to another Member State of the European Union after the immigration authority of the State of residence considered that it was in that other Member State that the applications for asylum concerning the child and the parent in question should be examined. I remember having studied myself the interfaces between the Dublin III Regulation and the Brussels II bis Regulation in 2017, although concentrating on the situation of unaccompanied minors seeking asylum (Cuadernos de Derecho Transnacional, open access). The case has been allocated to the 1st Chamber (J.C.  Bonichot, reporting judge ; C. Toader, M. Safjan, L. Bay Larsen, N. Jääskinen), and to G. Pitruzzella as Advocate General.

NoA: The Grand Chamber decision of 15 June 2021 regarding C-645/19, Facebook Ireland e.a., on the GDPR, will certainly be also of interest, even if not directly related to cooperation in civil and commercial matters in cross-border cases.  The request comes from the Hof van beroep te Brussel (Belgium), L.S. Rossi is the reporting judge, and AG Bobek delivered his Opinion last January.

On 11 May 2021, the Juzgado de lo Mercantil nr. 17 of Madrid has submitted a request for a preliminary ruling to the Court of Justice of the European Union (CJEU) on the interpretation of Articles 101 and 102 TFUE, on the one hand, and of Articles 45, 49, 56 and 63 TFUE, on the other, in the frame of a declaratory claim filed on behalf of European Superleague Company S.L. on 19 April 2021. Readers may recall that inaudita alter parte interim measures were granted the next day.

The Juzgado refers now six questions to the CJEU – maybe a bit over the threshold which separates interpreting EU law and applying it to the case at hand. In a nutshell, the Spanish court is asking whether specific provisions in the bylaws of UEFA and FIFA fall under the prohibition of either Article 101 or Article 102, or both. In case of an affirmative answer regarding the former, the court asks whether the exception in para 3 of Article 101 could nevertheless apply. In case of a positive answer vis à vis Article 102, the equivalent question is whether such a restriction could benefit from an objective justification. In addition, the referring court is asking about the compatibility between the prior authorization FIFA and UEFA require for the establishment of a pan-European club competition, and the free movement of persons, services and capital.

While waiting for the request to be available at the website of the CJEU, I have made the following translation (questions one and two are practically identical in Spanish; I changed a little bit the wording in an attempt to make them more intelligible):

1. Must Article 102 TFEU be interpreted as prohibiting FIFA and UEFA, which have conferred upon themselves an exclusive competence to organize or authorize international club competitions in Europe, an abuse of a dominant position consisting in imposing in their Statutes ( in particular, articles 22 and 71 to 73 of the FIFA Statutes, articles 49 and 51 of the UEFA Statutes, and any similar article contained in the statutes of member associations and national leagues) any third party entity wishing to establish a new pan-European club competition such as the Super League the need to obtain prior authorization, in particular as there is no regulated procedure based on objective, transparent and non-discriminatory criteria, and taking into account the possible conflict of interests that would affect FIFA and UEFA?
2. Must Article 101 TFEU be interpreted as meaning it prohibits FIFA and UEFA, which have granted themselves exclusive competence to organise or authorise international competitions in Europe, to require in their statutes (in particular Articles 22 and 71 to 73 of FIFA’s statutes, Articles 49 and 51 of UEFA’s statutes, and any similar article in the statutes of member associations and national leagues) their prior authorisation for any third party entity to establish a pan-European club competition, such as that at issue in the main proceedings, in particular as there is no regulated procedure thereto based on objective and non-discriminatory criteria, and taking into account the possible conflict of interest that would affect FIFA and UEFA?.
3. Should articles 101 and / or 102 TFEU be interpreted as meaning that they prevent FIFA, UEFA, their member associations and / or national leagues, to threaten with sanctions the clubs participating in the Super League, and / or its players, in light of the deterrence effect such threats can generate? In case sanctions for exclusion from competitions or the prohibition to participate in national team matches are adopted, would they, without being based on objective, transparent and non-discriminatory criteria, constitute a violation of Articles 101 and / or 102 of the TFEU?
4. Are Articles 101 and/or 102 TFEU to be interpreted as incompatible with Articles 67 and 68 of the FIFA Statute, in so far as the latter identify UEFA and its national federations as ‘original holders of all rights arising from competitions… within their respective jurisdiction’, thus depriving participating clubs and any alternative competition organiser of the original ownership of said rights, and assuming the exclusive responsibility for their marketing?
5. If FIFA and UEFA, as entities entrusted with exclusive competence to organise and authorise international football clubs competition in Europe, prohibit or oppose, on the basis of the abovementioned provisions of their statutes, the development of the Super League, must Article 101 TFEU be interpreted as meaning that those restrictions on competition benefit from the exception it provides for, considering that: production is substantially limited, alternative products to those offered by FIFA / UEFA in the market is prevented, and innovation is restricted in that other formats and modalities are prevented, thus potential competition in the market is removed and consumer choices limited? Would such a restriction have an objective justification, so that it could be concluded that there is no abuse of a dominant position within the meaning of Article 102 TFEU?
6. Are Articles 45, 49, 56 and/or 63 TFEU to be interpreted as meaning that a provision such as that contained in the FIFA and UEFA Statutes (in particular under Articles 22 and 71 to 73 of the FIFA statutes, Articles 49 and 51 of the UEFA Statutes and any other similar article contained in the statutes of associations belonging to national leagues) constitutes a restriction of one of the fundamental freedoms enshrined in those provisions, in that it requires prior authorisation of those entities for an economic operator of a Member State to establish a pan-European competition?

The Auto (Order) is available in Spanish here. I would also like to draw attention to the post of 22 April 2021, by Dwayne Bach, in the Kluwer Competition Law Blog, where he makes a first assessment of the situation under EU competition law.

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

The main theme of the 2020 issue is climate change and international law. The issue features ten articles on this topic. It also includes short articles summarizing the doctoral theses recently defended at the University and three more articles on various topics.

Of particular note for private international law scholars is an article written by Eduardo Alvarez-Armas (Brunel Law School) on Climate change litigation and Article 17 Rome II (Le contentieux international privé en matière de changement climatique à l’épreuve de l’article 17 du règlement Rome II : enjeux et perspectives). The author has kindly provided the following abstract:

The article is the first instalment in a series of three pieces of work on the interplay between climate change matters and private international law. It sketches, as a first approximation, the role that the EU’s private international instruments may play in “private international” climate change litigation, which could be roughly defined as litigation: i) amongst private parties; ii) of a private-law (generally, tort-law) nature; iii) conducted on the basis of private-international-law foundations; iii) over damage threatened or caused by climate-change-derived phenomena.

After some general/introductory considerations, the article explores a selection of difficulties that may arise in climate change litigation from the interplay between Article 7 of the Rome II Regulation (the EU’s choice-of-law provision on the law applicable to non-contractual obligations arising from environmental damage) and Article 17 Rome II, a general provision on “Rules of safety and conduct”, which establishes that “[i]n assessing the conduct of the person claimed to be liable, account shall be taken, as a matter of fact and in so far as is appropriate, of the rules of safety and conduct which were in force at the place and time of the event giving rise to the liability”. In order to conduct its assessment, the article uses as an illustration Lliuya v. RWE (a case currently pending before German courts which, irrespective of its ultimate outcome, is prone to become a milestone) and builds a hypothetical model thereon. The model analyses the said Art. 7-Art. 17 interplay in practice, when further confronted with EU rules on international jurisdiction and domestic rules of public law and/or administrative authorizations/permits, depicting a concerning landscape in terms of climate action and environmental protection.

As this is a piece on “enjeux et perspectives”, it presents a first set of conclusions, amongst which, notably, that the “ordinary” use (literal interpretation and mandatory application) of Article 17 of the Rome II Regulation (which seems to be “pro-polluter”) is incompatible with the polluter-pays and favor laesi principles, and needs to be blocked in “private international” climate-change litigation (and possibly in all instances of “private international” environmental litigation).

This “introductory” article will be followed by two further pieces of work. The first one will take a “micro” perspective and provide a further analysis (in English) of the referred Art. 7-Art. 17 interplay. The second one (in English too) is a contribution to the collective research project “The Private Side of Transforming the World – UN Sustainable Development Goals 2030 and the Role of Private International Law”, led by Ralf Michaels, Verónica Ruíz Abou-Nigm, and Hans van Loon. It will explore the overall intersection between private international law and climate change matters from a “macro” perspective, by addressing the contribution that private international law may make to the United Nation’s “Sustainable Development Goal” 13: “Take urgent action to combat climate change and its impacts”.

Ilya Kokorin (PhD Researcher at Leiden University) and Bob Wessels (Professor Emeritus of International Insolvency Law at Leiden University and Expert Advisor on Insolvency and Restructuring Law of the European Commission) have authored together a book on Cross-Border Protocols in Insolvencies of Multinational Enterprise Groups. This much awaited analysis has just been published with Edward Elgar Publishing in the Elgar Corporate and Insolvency Law and Practice series.

The blurb of the book reads as follows:

Cross-border insolvency protocols play a critical role in facilitating the efficient resolution of complex international corporate insolvencies. This book constitutes the first in-depth study of the use of insolvency protocols, enriching existing knowledge about them and serving as a comprehensive introduction to their application in the context of multinational enterprise group insolvency. It traces the rise of insolvency protocols and discusses their legal basis, contents, effects, major characteristics and limitations.

Key features of the work regard:

• the proposition of a Group Insolvency Protocol (GIP) design;
• a comprehensive study of around 50 insolvency protocols from 1992 to 2020;
• the analysis of major international insolvency law instruments, modern trends and developments in the area of insolvency of enterprise groups;
• practical recommendations for drafting an insolvency protocol, addressing problems related to their adoption and offering suggestions for the improvement of group coordination
• the  exploration of the nature of insolvency protocols and pertinent issues including the preservation and realization of material assets, resolution of intercompany claims, information exchange, conflicts of interest, participation rights and group governance in insolvency.

The book structured in 13 chapters aims to be become an indispensable resource for insolvency practitioners, lawyers, judges and policy makers, whilst also being of value to scholars and students concerned with insolvency law and corporate governance.