Agrégateur de flux

Les directives européennes fixant les normes de qualité de l’air n’ont pas pour objet de conférer des droits individuels susceptibles d’ouvrir un droit à réparation aux particuliers à l’égard d’un État membre.

Sur la boutique Dalloz Code de l’environnement 2022, annoté & commenté Voir la boutique Dalloz

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Les affaires préjudicielles anonymisées introduites à partir du 1er janvier 2023 se verront attribuer un nom fictif

The University of Coimbra will host, on 27 and 28 January 2023, a conference in English on the Brussels II ter Regulation.

The speakers include Antonio Fialho, Cristina González Beilfuss, Dário Moura Vicente, Geraldo Rocha, João Gomes de Almeida, Maria dos Prazeres Beleza, Paula Távora Vitor, Philippe Lortie, Pietro Franzina, Rosa Lima Teixeira, and Samuel Fulli-Lemaire.

Chandra Gracias, Dulce Lopes, Helena Mota, Rui Dias and Rui Moura Ramos will serve as discussants.

For further information, including the full programme, see here.

The monthly program of the Court of Justice of the European Union regarding private international law, as of today, is as follows.

On 12 January 2023, Advocate General  Emiliou will deliver his opinion in case C-638/22 PPU, Rzecznik Praw Dziecka e.a., on the suspension of a Hague return decision. A hearing had taken place last December. The related entry in the blog offers a summary of the facts and reproduces the questions before the Court of Justice.

Two hearings are scheduled for the same day. The first one, in case C-87/22, IT, concerns child abduction. The Regional Court of Korneuburg (Austria), asks the Court the following

1. Must Article 15 of [the Brussels II bis Regulation] be interpreted as meaning that the courts of a Member State having jurisdiction as to the substance of the matter, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, may request such a court to assume jurisdiction even in the case where that other Member State has become the place of habitual residence of the child following wrongful removal?
2. If Question 1 is answered in the affirmative: Must Article 15 of [the Brussels II bis Regulation] be interpreted as meaning that the criteria for the transfer of jurisdiction that are set out in that article are regulated exhaustively, without the need to consider further criteria in the light of proceedings initiated under Article 8(f) of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction?

The children V and M were born in Slovakia; like their parents, they have Slovakian nationality. Under Slovak law, the two parents have joint custody of the two children. Both parents work in Bratislava. After the children were born, the family initially lived in Slovakia and moved to Austria in spring 2014. Since 2017, the kids have been attending school in Bratislava. They speak only a few words of German. Their mother tongue is Slovak and they communicate with their parents and grandparents in that language.

The parents separated in January 2020. Since July 2020, the children have been living with their mother in Bratislava.

At the same time as an application for return under Article 8(f) of the 1980 Hague Convention, which had been brought before the Okresný súd Bratislava I (District Court Bratislava I), the father applied to the District Court, Bruck an der Leitha (Austria), for the transfer of custody of both children to him alone. In the alternative, he asked for the granting to him of primary care of the children with joint custody being retained, as well as for the transfer of temporary custody to him alone until the custody proceedings have been concluded, claiming in essence that the mother had endangered the welfare of the children by unlawfully removing them from Austria to Slovakia. He submits that she had pulled the children out of their social integration.

The mother opposed the father’s applications for custody and raised the plea of lack of international jurisdiction on the ground that the children had been habitually resident in the Slovak Republic throughout the period in question. They attended school, had their medical appointments and engaged in their recreational activities in that country, and it was only for meals and overnight stays that the children stayed in the house in Hainburg an der Donau, where they had not been socially integrated.

By order of 4 January 2021, the District Court, Bruck an der Leitha, refused the father’s application on the ground of lack of international jurisdiction. By order of the Regional Court, Korneuburg, sitting as the court ruling on appeals on the merits, of 23 February 2021, the appeal brought by the father against the order of 4 January 2021 was upheld and the contested order was amended to the effect that the mother’s plea of lack of international jurisdiction was rejected. That decision of that court was confirmed by order of the Oberster Gerichtshof (Austrian Supreme Court) of 23 June 2021.

On 23 September 2021, the mother applied to the District Court, Bruck an der Leitha, for it to request a court in the Slovak Republic, to assume jurisdiction in accordance with Article 15(5) of Regulation 2201/2003, or, in the alternative, to fulfil the request of its own motion in accordance with Article 15(1)(b) and 15(2)(b) of that regulation, on the grounds that, in addition to the return proceedings under the 1980 Hague Convention before the District Court Bratislava I, and before the District Court Bratislava V, several sets of proceedings were pending before courts of the Slovak Republic, which had been instituted by both the father and the mother, and those courts had already taken extensive evidence and the courts of the Slovak Republic were for that reason better placed to rule on the parental responsibility for the two children. The father opposed the mother’s application.

By the order now being contested, the District Court, Bruck an der Leitha, requested the District Court Bratislava V, in accordance with Article 15(1)(b) of the Brussels II bis Regulation to assume jurisdiction in the proceedings concerning the custody of the two children and the father’s right of access to his children. The father has appealed against that order. The mother requests that the appeal be dismissed. Moreover, she requests that the matter be brought before the Court of Justice for an interpretation of Article 15 of the Regulation.

The second hearing corresponds to case C-832/21, Beverage City Polska, a request from the Oberlandesgericht Düsseldorf (Germany) on the interpretation of Article 122 of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark, in conjunction with Article 8(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the enforcement of judgments in civil and commercial matters (Brussels I bis). In the litigation on the merits,  the applicant has taken the view that there is an infringement of its EU trade marks and brought an action against four defendants before the Landgericht Düsseldorf (Regional Court, Düsseldorf), for injunctive relief throughout the European Union and – later limited to acts in Germany – for information, the disclosure of accounts and a declaration of liability for damages. The third and fourth defendants argued, inter alia, that there is a lack of international jurisdiction over the action brought against them. The court refers the following question to the Court of Justice:

Are claims ‘so closely connected’ that it is expedient to hear and determine them together to prevent irreconcilable judgments, within the meaning of Article 8(1) of the [Brussels I bis Regulation], where, in infringement proceedings for infringement of an EU trade mark, the connection consists in the fact that the defendant domiciled in a Member State (here, Poland) supplied the goods which infringe an EU trade mark to a defendant domiciled in another Member State (here, Germany) whose legal representative, against whom infringement proceedings have also been brought, is the anchor defendant, if the parties are connected to each other only through the mere supply relationship beyond which there is no legal or factual connection?

None of the cases has been assigned to the Grand Chamber, therefore the hearings will not be broadcast.

Le caractère préjudiciel de l’action en contestation de paternité par rapport à l’action en recherche de paternité est compatible avec l’article 8 de la Convention européenne des droits de l’homme qui garantit le respect de la vie privée et familiale.

Sur la boutique Dalloz Code civil 2023, annoté Voir la boutique Dalloz

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Colleagues at the University of Heidelberg are organising this conference on 20 Januari 2023 at the

Auditorium of the Neue Universität at Heidelberg University, Universitätsplatz 1, 69117 Heidelberg.

Simultaneous interpretation will be provided in German, English and French.

Background:

The European Succession Regulation (Reg. 650/12) is due for evaluation ten years after its entry into force in August 2015 (Art. 82 Reg. 650/12).

The European Commission must submit its report on the application of the European Succession Regulation by 18 August 2025.

The upcoming evaluation gives an opportunity to reflect on various questions in light of the practical experience gained so far. Although the European Succession Regulation has proven successful in practice, there are many open questions which the ever-growing body of European Court of Justice case-law has not yet answered. These questions fuel a lively debate, both internationally and within the Member States. Hence, the outcome of the evaluation process is not predictable and the German view is only one of many that will contribute to the political decision-making process. Contrasting national views must be reconciled.

The first findings of a pan-European study on the experiences and expectations of legal practice with regard to Reg. 650/12 are now available. The study (MAPE Successions) is carried out by the Council of the Notariats of the European Union (C.N.U.E.) with the cooperation of the German Federal Chamber of Notaries (Bundesnotarkammer).

This study is an opportunity to map out the future objectives of the discussion on the evaluation of Reg. 650/12 from the perspective of academia and legal practice. At the same time, the conference provides a broad circle of legal practitioners with the opportunity to feed their experiences and insights into the reform process and discuss with renowned stakeholders.

Participation is free, but registration is required by 5 January 2023: notareg@igr.uni-heidelberg.de

 

Programme:

1 p.m. Welcome reception with lunchtime snack

2.15 p.m. Welcoming address and introduction

Prof. Dr. Christian Baldus, Heidelberg

 

2.30 p.m. The European Succession Regulation in the System of European Private International and Procedural Law: More “Brussels-Rome 0” after the Revision?

Prof. Dr. Martin Gebauer, Tübingen, Judge at the Higher Regional Court of Stuttgart

 

3.15 p.m. Presentation of the MAPE Successions study: What do practitioners expect from the revision of the European Succession Regulation?

Notary Christian Schall, LL.M. (Edinburgh), Marktheidenfeld

 

4 p.m. Questions and discussion

4.15 p.m. Coffee break

 

4.45 p.m. The European Succession Regulation in German judicial practice

Dr. Carl-Friedrich Nordmeier, Judge at the Regional Court of Frankfurt

5.30 p.m. Panel discussion followed by questions from the audience: European experiences with the application of the European Succession Regulation

Presenter: Notary Dr. Thomas Raff, Ludwigshafen

France, Maître de conférences HDR Paul Klötgen, Nancy

Luxembourg, Notary Anja Holtz, Esch-sur-Alzette

Poland, Notary Tomasz Kot, Krakow, Vice President of the Polish Chamber of Notaries (Krajowa Rada Notarialna)

Portugal, Notary Prof. Sofia Henriques, Lisbon

Sweden, Attorney Ulf Bergquist, Stockholm

Spain, Notary Dr. Isidoro Calvo Vidal, A Coruña

7 p.m.Closing remarks

Notary Dr. Andrea Stutz, Konstanz, Vice President of the Chamber of Notaries of Baden-Württemberg

7.15 p.m. End of conference

In a judgment of 7 September 2022, the French supreme court for private and criminal matters (Cour de cassation) addressed several issues arising out of applications to declare enforceable judgments wrongfully filed under the Brussels I Regulation.

While the Brussels I bis Regulation does not provide for a declaration of enforceability of judgments anymore, the Succession and Matrimonial Property Regulations still do.

Background

In 1997, the European Commission granted € 132,000 to an agency for local democracy in Croatia to offer training to local officials. With the grant came various reporting obligations to the Commission within 18 months. The individual who received the grant did not comply with them. The European Commission sued him in Croatian courts and obtained in April 2012 a judgement from a Croatian court ordering restitution of the monies.

As the debtor had relocated in France, the Commission sought to enforce the Croatian judgment in France under the Brussels I Regulation. It obtained a certificate from the Croatian court in 2014, and, in 2015, a declaration of enforceability of the judgment from an officer of a French court.

The debtor appealed to the court of appeal of Colmar (France), which declared the application for a declaration of enforceability inadmissible, on the ground that it fell outside of the scope of the Brussels I Regulation.

Temporal Scope of Brussels I Regulation

It is not always easy to navigate the rules on the scope of EU regulations, including, it seems, for the European Commission itself…

Croatia acceded to the European Union and to the Brussels I Regulation in 2013. In this case, therefore, not only had the proceedings been initiated before Croatia acceded, but the judgment had also been rendered the year before.

The transitional provisions in the Brussels I Regulation (Article 66) provide that, for the rules on recognition and enforcement of judgments to apply, the judgment should, at the very least, have been made after the entry into force of the Regulation, depending, in particular, on whether the Lugano Convention applied before the entry into force of the Regulation (Article 66(2)).

Power of the Court of Appeal

An interesting question was that of the powers of the French Court of Appeal. The first instance French authority had declared the Croatian judgment enforceable on the basis of the Brussels I Regulation. The power of the Court of Appeal was defined by Article 45(1) of the Regulation, which provides:

The court with which an appeal is lodged under Article 43 or Article 44 shall refuse or revoke a declaration of enforceability only on one of the grounds specified in Articles 34 and 35. (…)

As most readers will know, the grounds in arts 34 and 35 do not include that the judgment did not fall within the scope of the Regulation. Indeed, the Cour de cassation recalled that the CJEU ruled in Case C-139/10 (Prism Investments BV) that a declaration of enforceability could only be revoked on the grounds in Articles 34 and 35.

Interpreted literally, this would mean that a court of appeal could not review the first instance decision in so far as it would have found wrongly that the regulation applied.  As Adrian Briggs wrote in his treatise on Civil Jurisdiction and Judgments, Article 45(1) should “not be taken completely seriously”.

The Cour de cassation rules that Article 45 should be interpreted as limiting the power of the court of appeal to the verification of the existence of a ground in Articles 34 and 35 and the applicability of the regulation (the court suggests that this also flows from the case law of the CJEU).

While it seems clear that the court of appeal should have the power to review the applicability of the Regulation, it is unclear whether this should be considered as mandated by Article 45. If the Regulation does not apply, Article 45 should not either. The remedy should thus be, rather, that the action seeking a declaration of inadmissibility under the Regulation should be declared as inadmissible, for the Regulation would not apply.

Res Judicata?

After the European Commission was reminded about the date Croatia acceded to the EU, it logically decided that it would thus seek to enforce the Croatian judgment under the French common law of judgments.

The debtor, however, argued that the judgment of the Court of appeal dismissing the first action under the Brussels I Regulation was res judicata, and that the European Commission could not relitigate the case under a different regime.

Under French law, res judicata extends to all arguments which could have been raised in the first proceedings. This, in effect, means parties to French proceedings are under an obligation to raise immediately all possible arguments in support of their claim. In this case, the European Commission would only be given one chance to demonstrate its mastery of the law of foreign judgments.

The Cour de cassation, however, rules that, in the context of an appeal under Article 43 of the Regulation, the European Commission could not have made any argument under the French common law of judgments. As a result, the judgment of the court of appeal should not prevent the Commission from making these arguments in a new action.

By: Naimeh Masumy (Swiss International School) naimehmasoomy@gmail.com

 

Following the decision of the English Court of Appeal in Lenkor Energy Trading DMCC v Puri[ 2021] EWCA Civ 770, in which the Court of Appeal upheld the enforcement of the Dubai court’s judgment concerning a dishonored cheque, the Ministry of Justice Issued a letter, urging the Dubai courts to enforce judgments of the English courts under the principle of reciprocity.

Background: The evolving nature of enforcing a foreign judgment in the UAE

Whether a foreign judgment can be enforced in the UAE depends on the jurisdiction that the judgment was issued and the nature of the respective judgment.  Generally, the enforcement of foreign judgments in the UAE is governed by statutory regimes.  Under UAE Law, the enforcement of foreign judgments is governed by Cabinet Decision No. 57/2018 on the Regulations of Federal Law No. 11/1992 on the Civil Procedure Code (as amended).

Article 85(2) of the Cabinet Resolution sets out a few requirements for the enforcement of foreign judgments.  In particular, Article 85(2) of the Cabinet Resolution provides, amongst other things, the following conditions:

• Finality: The Article explicitly mentions that the judgments need to be final and conclusive, as well as consistency with the law of that foreign state;
• Inconsistency of judgments with domestic judgments: The second requirement is that the enforced judgment and/or order does not conflict with a judgment previously issued by the UAE Courts;
• No violation of public policy or morality: Additional common requirement stipulated under Article 85 (2) is that the foreign judgment should not involve anything that potentially violates public order or morality.

Additionally, the UAE is a party to a number of treaties facilitating the reciprocal enforcement of judgments.  The most relevant are the GCC Convention for the Execution of Judgments, Delegations and Judicial Notifications 1996 ( GCC Convention). The UAE has also entered into bilateral treaties for the reciprocal recognition and enforcement of foreign judgments, including treaties with India, China, and France.  However, in the absence of a treaty between the UAE and England for the mutual recognition of civil judgments, the Dubai Courts of Cassations demonstrated proclivities so far to decline to enforce a civil judgment from English Courts.  A cogent example is the Ruling of No. 269 of 2006, wherein the UAE Court of Cassation refused to enforce a civil judgment from English Courts.  Similarly, the English Courts were reluctant to enforce UAE Court Judgments.

However, there has been a discernable shift in the existing legal framework of the UAE, particularly in relation to the foreign judgments issued in the common law jurisdictions.  As discussed, the enforcement of foreign judgments in the UAE are only governed by the statutory regime and the bilateral agreement; thus the common law principles such as reciprocity did not historically play a vital role in the enforcement of foreign judgment.  However, the recent decision of the English High Court propelled a shift in the legal approaches adopted by the UAE domestic courts.  The decision of the Lenkor Energy Trading DMCC v Puri [ 2021] EWCA Civ 770 reinforced the UAE Ministry of Justice to issue a Directive, confirming that in the absence of a treaty for mutual recognition of judgments, the Lenkor decision has established the principle of reciprocity required for enforcement of an English Court judgment in the UAE.

Implications of the Directive

This directive can be regarded as a welcome development in the enforcement of English Court judgments in the UAE.  Further, the Directive will potentially enhance the confidence of parties that seek to resolve their disputes in an English Court where the counterparty might be located in the UAE or has some tangible asset in the UAE.  Finally, the Directive facilitates the enforcement of arbitration awards rendered by foreign jurisdictions in the UAE.

Par un arrêt du 6 décembre 2022, la Cour européenne des droits de l’homme limite fortement l’exercice des droits civiques pour les détenus dangereux condamnés à de lourdes peines privatives de liberté.

Sur la boutique Dalloz Droit de l’exécution des peines 2023/2024 Voir la boutique Dalloz

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Cornwall Renewable Developments Ltd v Wright, Johnston & Mackenzie LLP [2022] EWHC 3259 (Ch) is the appeal against [2022] EWHC 441 (Ch) which I flagged here. The jurisdictional challenge concerns the allocation of jurisdiction within the UK. However by statutory instruction in the Civil Jurisdiction and Judgments Act 1982 (CJJA), account must be taken of the Brussels Regime and CJEU authority on same.

The question is essentially what the ‘place of performance of the obligation in question’ is for legal advice, in this case provided by a Scottish law firm with no place of business yet near-inevitably some dual qualified Scots-E&W lawyers, introduced by an intermediary to an England (Cornwall in fact)-based client viz a development in Cornwall. I have before flagged the difficulty of the ‘obligation in question’ part of the question in light of the unclear, if any, remaining authority of CJEU De Bloos (an issue which unfortunately will not be entertained soon by the CJEU now that the Sao Paolo Panels case has been withdrawn).

Of note (as the judge also does [75] is that the CJJA does not in relevant section have the benefit of the additional clarification in Brussels Ia’s Article 7(1)b: ) ‘for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be:…in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided;’, although in the case of legal services essentially submitted by phone and e-mail, this might have created its own discussion as the judge’s discussion here also shows.

The result is exactly the kind of rigmarole which forum contractus often leads to, with the principles listed by Smith R [45] ff. The judge confirms [63] after consideration that the first judge was not wrong (this is an appeal, not a de novo assessment) to conclude that the principal “obligation in question” was to provide advice and agreements to the Claimant for negotiation and execution by parties in England, with the intention that they would satisfy Cornwall Council’s planning rules so that planning permission would be granted, and the development could proceed; and that the place where this obligation was to be performed, despite research etc being done from Scotland, was indeed England.

The judgment is (probably too, for a jurisdictional issue) lengthy and I am sure one can find fault with some of the applications of the authorities yet all of this emphasises the urgent need for law firms to include choice of court in their standard retainer agreements.

Best wishes for 2023!

Geert.

Forum contractus ('courts for place of performance of the obligation in question') for intra-UK conflicts, inspired by Brussels regime
What is that place for legal advice?

Cornwall Renewable Developments v Wright Johnston & Mackenzie [2022] EWHC 3259 (Ch)https://t.co/etoIhjqmgg https://t.co/bIx8L143pb

— Geert Van Calster (@GAVClaw) January 3, 2023

Dans l’objectif de faire progresser l’union des marchés de capitaux (UMC) de l’Union européenne, une nouvelle proposition de directive relative à l’insolvabilité des entreprises vient d’être dévoilée. Elle vise à harmoniser certains aspects du droit de l’insolvabilité des États membres et à instaurer des normes minimales communes.

Sur la boutique Dalloz Droit et pratique des procédures collectives 2023/2024 Voir la boutique Dalloz

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On Tuesday, January 10, 2022, the Hamburg Max Planck Institute will host its 29th monthly virtual workshop Current Research in Private International Law at 11:00 a.m. – 12:30 p.m. (CET). Guangjian Tu (University of Macau) will speak, in English, about the topic

China’s Ambition to Build up the Highland for International Commercial Litigation: Some Recent Attempts.

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

The Young Property Lawyers’ Forum (YPLF) invites junior researchers to submit proposals for presentations given at its 12th annual meeting, to take place at the European Legal Studies Institute, University of Osnabrück, Germany, on 1 and 2 June 2023.

The theme of this year’s conference is Property Law and Its Boundaries and it can be dealt with from a wide range of perspectives, including but not limited to, doctrinal, theoretical, and comparative. Topics can cover, e.g., core areas of property law doctrine, intellectual property, or property law’s intersections with environmental law, family law, criminal law, administrative law, etc.

Junior researchers (graduate level up to 5 years after conferral of doctoral degree) are invited to submit abstracts of presentations to be given at the conference. Abstracts can be of completed (but unpublished) drafts and, in keeping with the YPLF’s mission as an informal network to exchange ideas, abstracts on works in progress are encouraged.

Abstracts should be sent via email to yplf@yplf.net by 1 February 2023.

The call for papers can be found here. For more information on the conference, see here.

Written by NIE Yuxin and LIU Chang, Wuhan University Institute of International Law

1. Background

The present Civil Procedure Law of China (hereinafter “CPL”) was enacted in 1990 and has been amended four times. All amendments made no substantive adjustments to the foreign-related civil procedure proceedings. In contrast with legislative indifference, foreign-related cases in the Chinese judicial system have been growing rapidly and call for modernization of the foreign-related civil procedure law. On 30 December 2022, China’s Standing Committee of the National People’s Congress issued the “Civil Procedure Law of the People’s Republic of China (amendment draft)”. Amendments are proposed for 29 articles, 17 of which relate to special provisions on foreign-related civil procedures, including rules on the jurisdiction, service abroad, taking of evidence abroad and recognition and enforcement of judgements.

 

2. Jurisdiction

Special jurisdiction: Present special jurisdiction rules apply to “disputes concerning contract or other property rights or interests”. The literal interpretation may suggest non-contractual or non-propertary disputes are excluded. The amendment draft extends special jurisdiction rules to cover “disputes relating to property right or interest, and right or interest other than property” (Art. 276, para. 1). The amendment draft provides proceedings may be brought before the courts “where the contract is signed or performed, the subject matter of the action is located, the defendant has any distrainable property, the tort or harmful event occurred, or the defendant has any representative office” (Art. 276, para. 1). Furthermore, “the Chinese court may have jurisdiction over the action if the dispute is of other proper connections with China” (Art. 276, para. 2).

 

Choice of court agreement: A special provision on the choice of court agreement is inserted in the foreign-related procedure session (Art. 277), which states: “If the place actually connected to dispute is not within the territory of China, and the parties have agreed in written that courts of China are to have jurisdiction, Chinese courts may exercise jurisdiction. The competent court shall be specified according to provisions on hierarchical jurisdiction and exclusive jurisdiction of this law and other laws of China.” In contrast to Art. 35 on choice of court agreement in purely domestic cases, Art. 277 partly partially abolished the constraint prescribed in Art. 35, which requires the chosen forum to have practical connection to the dispute. When the party chose Chinese court to exercise jurisdiction, there will be no requirement for actually connection between the dispute and chosen place. But it does not state whether Chinese court should stay jurisdiction if a foreign court is chosen, and whether the chosen foreign court must have practical connections to the dispute. This is an obvious weakness and uncertainty.

 

Submission to jurisdiction: Art. 278 inserted a new provision on submission to jurisdiction: “Where the defendant raises no objection to the jurisdiction of the courts of China and responds to the action by submitting a written statement of defence or brings a counterclaim, the court of China accepting the action shall be deemed to have jurisdiction.”

 

Exclusive jurisdiction: The draft article expands the categories of disputes covered by exclusive jurisdiction (Art. 279), including disputes arising from: “(1) the performance of contracts for Chinese-foreign equity joint ventures, Chinese-foreign contractual joint ventures or Chinese-foreign cooperative exploration and exploitation of natural resources in China; (2) the formation, dissolution, liquidation and effect of decisions of legal persons and other organizations established within the territory of China; (3) examining the validity of intellectual property rights which conferred within the territory of China.” Not only matters relating to Chinese-foreign contractual cooperation, but the operation of legal persons and other organizations and the territoriality of intellectual property rights are deemed key issues in China.

 

Jurisdiction over consumer contracts: The proposal inserts protective jurisdiction rule for consumer contracts (Art. 280). paragraph 1 of this article provides “(w)hen the domicile of consumer is within the territory of China but the domicile of operator or its establishment is not”, which permits a Chinese consumer to sue foreign business in China. Paragraph 2 restricts the effect of standard terms on jurisdiction. It imposed the operator the “obligation to inform or explicate reasonably” the choice of court clause, otherwise the consumer may claim the terms are not part of the contract. Furthermore, even if consumers are properly informed of the existence of a choice of court clause, if it is “obviously inconvenient for the consumer” to bring proceedings in the chosen court, the consumer may claim the terms are invalid. In other words, the proposal pays attention to the fairness of a choice of court clause in consumer contracts both in procedure and in substance.

 

Jurisdiction over cyber torts: With regard to cyber torts, Art. 281 of the draft states: action for cyber torts may be instituted in the Chinese court if: (1) “computer or other information device locates in the territory of China”; (2) “the harmful event occurs in the territory of China”; (3) “the victim domiciles in the territory of China”.

 

3. Conflict of Jurisdiction, Lis pendens and Forum Non Conveniens

Parallel litigation and exclusive jurisdiction agreements: Art. 282 states: “If one party sues before a foreign court and the other party sues before the Chinese court, or if one party sues before a foreign court as well as the Chinese court, for the same dispute, the Chinese court having jurisdiction under this law may exercise jurisdiction. If the parties have agreed in writing on choosing a foreign court to exercise jurisdiction exclusively, and that choice does not violate the provisions on exclusive jurisdiction of this law or involve the sovereignty, security or social public interests of China, the Chinese court may dismiss the action.” The first part of this article deals with parallel litigation. It allows the Chinese court to exercise jurisdiction over the same dispute pending in a foreign court. The second part of this article provides exception to exclusive jurisdiction agreements. Although Chinese courts are not obliged to stay jurisdiction in parallel proceedings, they should stay jurisdiction in favour of a chosen foreign court in an exclusive jurisdiction clause, subject to normal public policy defence.

 

First-seized court approach: If the same action is already pending before a foreign court, conflict of jurisdiction will happen. First-seized court approach encourages the latter seized court to give up jurisdiction. The draft implements this approach in China. Art. 283 states: “Where a foreign court has accepted action and the judgment of the foreign court may be recognized by Chinese court, the Chinese court may suspend the action with the party’s written application, unless: (1) there is choice of court agreement indicating to Chinese court between the parties, or the dispute is covered by exclusive jurisdiction; (2) it is obviously more convenient for the Chinese court to hear the case. Where foreign court fails to take necessary measures to hear the case, or is unable to conclude within due time, the Chinese court may remove the suspension with the party’s written application.” This provision is the first time that introduces the first-in-time or lis pendens rule in China. But the doctrine is adopted with many limitations. Firstly, the foreign judgment may be recognised in China. Secondly, Chinese court is not the chosen court. Thirdly, Chinese court is not the natural forum. The lis pendens rule is thus fundamentally different from the strict lis pendens rule adopted in the EU jurisdiction regime, especially it incorporates the consideration of forum conveniens. Furthermore, it is also necessary to reconcile the first-in-time provision with the article on parallel proceedings, which states Chinese courts, in principle, can exercise jurisdiction even if the dispute is pending in the foreign court.

 

Res judicata: Paragraph 3 of Art. 283 state: “Once the foreign judgment has been fully or partially recognized by Chinese court, and the parties institute an action over issues of the recognized content of the judgement, Chinese court shall not accept the action. If the action has been accepted, Chinese court shall dismiss the action.”

 

Forum non conveniens: Even if the conflict of jurisdiction has not actually arisen, the Chinese court may decline jurisdiction in favour of the more appropriate court of another country. The defendant should plead forum non conveniens or challenge jurisdiction. Applying forum non conveniens should meet four prerequisites. (1) “Since major facts of disputes in a case do not occur within the territory of China, Chinese court has difficulties hearing the case and it is obviously inconvenient for the parties to participate in the proceedings”. (2) “The parties do not have any agreement for choosing Chinese court to exercise jurisdiction”. (3) “The case does not involve the sovereignty, security or social public interests of China”. (4) “It is more convenient for foreign courts to hear the case” (Art. 284, para. 1). This article also provides remedy for the parties if the proceedings on foreign court do not work well. “Where foreign court declined to exercise jurisdiction over the dispute, failed to take necessary measures to hear the case, or is unable to conclude within due time after Chinese court’s dismissal, the Chinese court shall accept the action which the party instituted again.” (Art. 284, para. 2).

 

4. Judicial Assistance

Service of process on foreign defendants: One of the amendment draft’s main focuses is to improve the effectiveness of foreign-related legal proceedings. In order to achieve this goal, the amendment draft introduces multiple mechanisms to serve process abroad.

Before the draft, the CPL has provided the following multiple service methods: (1) process is served in the manners specified in the international treaty concluded or acceded to by the home country of the person to be served and China; (2) service through diplomatic channels; (3) if the person to be served is a Chinese citizen, service of process may be entrusted to Chinese embassy or consulate stationed in the country where the person to be served resides; (4) process is served on a litigation representative authorized by the person to be served to receive service of process; (5) process is served on the representative office or a branch office or business agent authorized to receive service of process established by the person to be served within the territory of China; (6) service by post; (7) service by electronic means, including fax, email or any other means capable of confirming receipt by the person to be served; (8) if service of process by the above means is not possible, process shall be served by public notice, and process shall be deemed served three months after the date of public notice.[1]

Article 285 of the draft outlines two new methods to serve a foreign natural person not domiciled in China. First, if the person has a cohabiting adult family member in China, the cohabiting adult family member shall be served (Art. 285, para. 1(g)). Second, if the person acts as legal representative, director, supervisor and senior management of his enterprise established in the territory of China, that enterprise shall be served (Art. 285, para. 1(f)). Similarly, a foreign legal person or any other organization may be served on the legal representative or the primary person in charge of the organization if they are located in China (Art. 285, para. 1(h)). It is clear that by penetrating the veil of legal persons, the amendment draft increases the circumstances of alternative service between relevant natural persons and legal persons.

Amongst the amendments to the CPL, there are points relating to service by electronic means that are worthy of note. Compared to traditional ways of service, service by electronic means is usually more convenient and more efficient. The position in respect of service by electronic means, both before and after the amendment to the CPL, is that such service is permitted. A major innovation introduced by the amendment draft is that the service can now be conducted via instant messaging tools and specific electronic systems, if such means are legitimate service methods recognized in the state of destination (Art. 285, para. 1(k)). It meets the urgent demand of both sides in lawsuits by improving the delivery efficiency.

Party autonomy in service abroad is also accepted. The validity of service by other means agreed to by the person served is recognized, provided that it is permitted by the state of the person served (Art. 285, para. 1(l)).

If the above methods fail, the defendant may be served by public notice. The notice should be publicized for 60 days and the defendant is deemed served at the end of the period. Upon the written application of the party, the above methods and the way of service by public notice may be made at the same time provided that the service by public notice is not less than 60 days and the litigation rights of the defendant are not affected (Art. 285, para. 2).

 

Investigation and collection of evidence:

Prior to the draft, the CPL stipulated that Chinese and foreign courts can each request the other to provide judicial assistance in acquiring evidence located in the territory of the other country, in accordance with treaty obligations and the principle of reciprocity. Chinese courts can take evidence abroad generally via two channels. First, evidence overseas can be acquired according to treaty provisions. In the absence of treaties, foreign evidence can only be obtained through diplomatic channels based on the principle of reciprocity.[2]

Article 286 of the draft provides more varied methods to collect foreign evidence. Firstly, foreign evidence can be acquired according to the methods specified in the international treaties concluded or acceded to by both the country where the evidence is located and China. Secondly, the evidence can also be obtained through diplomatic channels. Thirdly, for a witness with Chinese nationality, the Chinese embassy or consulate in the country of the witness will be entrusted to take the evidence on behalf of the witness. Fourthly, via instant messenger tools or other means. Access to electronic evidence stored abroad faces the dilemma of inefficient bilateral judicial assistance, controversial unilateral evidence collection and inadequate functioning of multilateral conventions.[3] The application of modern information technology, such as video conferencing and teleconferencing, can overcome the inconvenience of distance, saving time and costs. It is the mainstream of international cooperation to apply modern technology in the field of extraterritorial evidence-taking. For example, in 2020, the EU Parliament and Council revised the EU Evidence Regulation. The most important highlight of the EU Evidence Regulation is the emphasis on the digitalization of evidence-taking and the use of modern information technology in the process of evidence-taking.[4] On this basis, the amendment draft proposes that the court may, with the consent of the parties, obtain evidence through instant messenger tools or other means, unless prohibited by the law of the country where the evidence is collected (Art. 286).

 

5. Recognition and enforcement of foreign judgments and arbitral awards

Grounds for non-recognition and non-enforcement of foreign judgments: Recognition and enforcement shall not be granted if (1) the foreign court has no jurisdiction over the case in accordance with the provisions of Article 303; (2) the respondent has not been legitimately summoned or has not been given a reasonable opportunity to be heard or to argue, or the party who is incapable of litigation has not been properly represented; (3) the judgment or ruling has been obtained by fraud; (4) the court of China has issued a judgment or ruling on the same dispute, or has recognized and enforced a judgment or ruling issued by a court of a third country on the same dispute; (5) it violates the Chinese general principles of the law or sovereignty, national security or public interests of China (Art. 302).

After several amendments and official promulgation, the CPL has not significantly changed the requirements for the recognition and enforcement of foreign judgments. In China, reciprocity as a prerequisite for recognition of foreign judgments continues to play a dominating role in China. The difficulty of enforcing foreign judgments is one of the major concerns in the current Chinese conflicts system when applying the principle of reciprocity, impeding the development of international cooperation in trade and commerce. The local judicial review process may become more transparent thanks to this new draft. However, the key concern, the reciprocity principle, is still left unaltered in this draft.

In addition, if the foreign judgment for which recognition and enforcement are sought involves the same dispute as that being heard by a Chinese court, the proceedings conducted by the Chinese court may be stayed. If the dispute is more closely related to China, or if the foreign judgment does not meet the conditions for recognition, the application shall be refused (Art. 304).

 

Lack of jurisdiction of the foreign court: One of the grounds for non-recognition and non-enforcement of foreign judgments is that the foreign court lacks jurisdiction (See Art. 302). Article 303 provides that the foreign courts shall be found to have no jurisdiction over the case in the following circumstances: (1) The foreign court has no jurisdiction over the case pursuant to its laws; (2) Violation of the provisions of this Law on exclusive jurisdiction; (3) Violation of the agreement on exclusive choice of court for jurisdiction; or (4) The existence of a valid arbitration agreement between the parties (Art. 303).

 

Recognition and enforcement of foreign arbitral awards: If the person sought to be enforced is not domiciled in China, an application for recognition and enforcement may be made to the Chinese intermediate court of the place of domicile of the applicant or of the place with which the dispute has an appropriate connection (Art. 306). The inclusion of the applicant’s domicile and the court with the appropriate connection to the dispute as the court for judicial review of the arbitration significantly facilitates the enforcement of foreign awards. A major uncertainty, however, is how “appropriate connection” is defined. The amendment draft remains silent on the criterion.

 

6. Conclusion

The amendment draft presents efforts to actively correspond to the trends in the internationalization of the civil process along with the massive ambition to build a fair, efficient, and convenient civil and commercial litigation system. It offers more comprehensive and detailed rules that apply to all proceedings involving foreign parties. The amendment draft is significant both in terms of its impact on foreign-related civil procedures and the continuing open-door policy. It demonstrates that China is growing increasingly law-oriented to provide more efficient and convenient legal services to foreign litigants and to safeguard the country’s sovereignty, security and development interests. On the other hand, the proposal also includes discrepancy and uncertainty, especially whether the practical connection for choice of foreign court is still required, what is the relationship between the first-in-time rule and the rule permitting parallel proceedings, whether reciprocity should be reserved for recognition and enforcement of foreign judgments. It is also noted that although anti-suit injunction is used in Chinese judicial practice, the proposal does not include a provision on this matter. Hopefully, these issues may be addressed in the final version.

 

[1] The CPL, Art. 274.

[2] The CPL, Art. 284.

[3] Liu Guiqiang, ‘China’s Judicial Practice on the Taking of Evidence Abroad in Civil and Commercial Matters: Current Situation, Problems and Solutions’ (2021) 1 Wuhan University International Law Review, 92, 97.

[4] Regulation (EU) 2020/1783 on cooperation between the courts of the Member States in the taking of evidence in civil and commercial matters (Taking of Evidence Recast). Official Journal of the European Union [online], L 405, 2 December 2020.

Le Conseil d’État intègre dans le champ d’application de la directive « Services » du 12 décembre 2006 les conventions d’occupation du domaine public, imposant ainsi des obligations de publicité et de mise en concurrence pour leur conclusion.

Sur la boutique Dalloz Droit administratif des biens Voir la boutique Dalloz

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Une clause attributive de juridiction est valablement conclue lorsqu’elle est contenue dans des conditions générales auxquelles il est renvoyé par la mention du lien hypertexte d’un site internet, sans que la partie considérée ait été formellement invitée à les accepter en cochant une case sur ce site.

Sur la boutique Dalloz Droit et pratique de la procédure civile 2021/2022 Voir la boutique Dalloz

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La Cour de justice de l’Union européenne invalide le dispositif selon lequel les informations sur les bénéficiaires effectifs des sociétés et autres entités juridiques constituées sur leur territoire devaient être accessibles dans tous les cas à tout membre du grand public.

Sur la boutique Dalloz Code des sociétés 2023, annoté et commenté Voir la boutique Dalloz

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Written by Madeleine Petersen Weiner/Marc-Philippe Weller

In this article, we critically assess the question of where to locate the “event giving rise to the damage” under Art. 7 Rome II in CO2 reduction claims. This controversial – but often overlooked – question has recently been given new grounds for discussion in the much discussed “Milieudefensie et al. v. Shell” case before the Dutch district court in The Hague. In this judgment, the court had to determine the law applicable to an NGO’s climate reduction claim against Royal Dutch Shell. The court ruled that Dutch law was applicable as the law of the place where the damage occurred under Art. 4 (1) Rome II and the law of the event giving rise to the damage under Art. 7 Rome II as the place where the business decision was made, i.e., at the Dutch headquarters. Since according to the district court both options – the place of the event where the damage occurred and the event giving rise to the damage – pointed to Dutch law, this question was ultimately not decisive.

However, we argue that it is worth taking a closer look at the question of where to locate the event giving rise to the damage for two reasons: First, in doing so, the court has departed from the practice of interpreting the event giving rise to the damage under Art. 7 Rome II in jurisprudence and scholarship to date. Second, we propose another approach that we deem to be more appropriate regarding the general principles of proximity and legal certainty in choice of law.

1. Shell – the judgment that set the ball rolling (again)

The Dutch environmental NGO Milieudefensie and others, which had standing under Dutch law before national courts for the protection of environmental damage claims, made a claim against the Shell group’s parent company based in the Netherlands with the aim of obliging Shell to reduce its CO2 emissions. According to the plaintiffs, Shell’s CO2 emissions constituted an unlawful act. The Dutch district court agreed with this line of reasoning, assuming tortious responsibility of Shell for having breached its duty of care. The court construed the duty of care as an overall assessment of Shell’sobligations by, among other things, international standards like the UN Guiding Principles of Human Rights Responsibilities of Businesses, the right to respect for the private and family life under Art. 8 ECHR of the residents of the Wadden region, Shell’s control over the group’s CO2 emissions, and the state’s and society’s climate responsibility etc. This led the district court to ruling in favor of the plaintiffs and ordering Shell to reduce its greenhouse gas emissions by 45% compared to 2019.

In terms of the applicable law, the court ruled that Dutch law was applicable to the claim. The court based its choice of law analysis on Art. 7 Rome II as the relevant provision. Under Art. 7 Rome II, the plaintiff can choose to apply the law of the event giving rise to the damage rather than the law of the place where the damage occurred as per the general rule in Art. 4 (1) Rome II. The court started its analysis by stating that “climate change, whether dangerous or otherwise, due to CO2 emissions constitutes environmental damage in the sense of Article 7 Rome II”, thus accepting without further contemplation the substantive scope of application of Art. 7 Rome II.

The court went on to find that the adoption of the business policy, as asserted by the plaintiffs, was in fact “an independent cause of the damage, which may contribute to environmental damage and imminent environmental damage with respect to Dutch residents and the inhabitants of the Wadden region”. The court thereby declined Shell’s argument that Milieudefensie’s choice pointed to the law of the place where the actual CO2 emissions occurred, which would lead to a myriad of legal systems due to the many different locations of emitting plants operated by Shell.

2. The enigma that is “the event giving rise to the damage” to date

This line of reasoning marks a shift in the way “the event giving rise to the damage” in the sense of Art. 7 Rome II has been interpreted thus far. To date, there have been four main approaches: A broad approach, a narrower one, one that locates the event giving rise to the damage at the focal point of several places, and one that allows the plaintiff to choose between several laws of events which gave rise to the damage.

(1.) The Dutch district court’s location of the event giving rise to the damage fits into the broad approach. Under this broad approach, the place where the business decision is made to adopt a policy can qualify as a relevant event giving rise to the damage. As a result, this place will usually be that of the effective headquarters of the group. On the one hand, this may lead to a high standard of environmental protection as prescribed by recital 25 of the Rome II Regulation, as was the case before the Dutch district court, which applied the general tort clause Art. 6:162 BW. On the other hand, this may go against the practice of identifying a physical action which directly leads to the damage in question, rather than a purely internal process, such as the adoption of a business policy.

(2.) Pursuant to a narrower approach, the place where the direct cause of the violation of the legal interest was set shall be the event giving rise to the damage. In the case of CO2 reduction claims, like Milieudefensie et al. v. Shell, that place would be located (only) at the location of the emitting plants. This approach – while dogmatically stringent – may make it harder to determine responsibility in climate actions as it cannot necessarily be determined which plant led to the environmental damage, but rather the emission as a whole results in air pollution.

(3.) Therefore, some scholars are in favor of a focal point approach, according to which the event giving rise to the damage would be located at the place which led to the damage in the most predominant way by choosing one focal point out of several events that may have given rise to the damage. This approach is in line with the prevailing opinion regarding jurisdiction in international environmental damage claims under Art. 7 Nr. 2 Brussels I-bis Regulation. In practice, however, it may sometimes prove difficult to identify one focal point out of several locations of emitting plants.

(4.) Lastly, one could permit the victim to choose between the laws of several places where the events giving rise to the damage took place. However, if the victim were given the option of choosing a law, for example, of a place that was only loosely connected to the emissions and resulting damages, Art. 7 Rome II may lead to significantly less predictability.

3. Four-step-test: A possible way forward?

Bearing in mind these legal considerations, we propose the following interpretation of the event giving rise to the damage under Art. 7 Rome II:

First, as a starting point, the laws of the emitting plants which directly lead to the damage should be considered. However, in order to adequately mirror the legal and the factual situations, the laws of the emitting plants should only be given effect insofar as they are responsible for the total damage.

If there are several emitting plants, some of which are more responsible for greenhouse gas emissions than others, these laws should only be invoked under Art. 7 Rome II for the portion of their responsibility regarding the entire claim. This leads to a mosaic approach as adopted by the CJEU in terms of jurisdiction for claims of personality rights. This would give an exact picture of contributions to the environmental damage in question and would be reflected in the applicable law.

Second, in order not to give effect to a myriad of legal systems, this mosaic approach should be slightly moderated in the sense that courts are given the opportunity to make estimations of proportions of liability in order not to impose rigid calculation methods. For example, if a company operates emitting plants all over the world, the court should be able to roughly define the proportions of each plant’s contribution, so as to prevent potentially a hundred legal systems from coming into play to account for a percentile of the total emissions.

Third, as a fall-back mechanism, should the court not be able to accurately determine each plant’s own percentage of responsibility for the total climate output, the court should identify the central place of action in terms of the company’s environmental tort responsibility. This will usually be at the location of the emitting plant which emits the most CO2 for the longest period of time, and which has the most direct impact on the environmental damage resulting from climate change as proclaimed in the statement of claim.

Fourth, only as a last resort, should it not be possible to calculate the contributions to the pollution of each emitting plant, and to identify one central place of action out of several emitting plants, the event giving rise to the damage under Art. 7 Rome II should be located at the place where the business decisions are taken.

This proposal is discussed in further detail in the upcoming Volume 24 of the Yearbook of Private International Law.

How did things go with the EAPIL blog in 2022? The following statistics provide some answers.

About 315 posts have been published over the last twelve months. More than 80 of these consisted of reports of, or comments on, court rulings (we mostly covered rulings by the Court of Justice of the European Union, but we also dealt with rulings given by the European Court of Human Rights and by domestic courts). Some 40 posts were about new or contemplated normative texts. The remaining posts mostly concerned new scholarly works or upcoming academic events.

No less than 40 posts were authored by guests, rather than the blog’s permanent editors. The EAPIL blog aims to foster dialogue among anybody interested in private international law, so new inputs are always welcome! For inquiries and submissions, please write an e-mail to blog@eapil.org or to pietro.franzina@unicatt.it.

The aggregate number of visits and “unique visitors” has increased, compared with last year (+2,8% and +19%, respectively). Interaction with readers remained intense in 2022, as attested by the comments that the blog’s posts attracted (120 in total). The number of subscribers, i.e., those who asked to be notified of new posts, raised to 600, i.e., about 170 more than one year ago.

Our Twitter account and LinkedIn profile also witnessed an increase in interactions.

The three most read posts, among those published in 2022, were Jurisdictional Immunities: Germany v. Italy, Again, on the proceedings instituted by Germany against Italy before the International Court of Justice in April;  Humpty-Dumpty, Arbitration, and the Brussels Regulation: A View from Oxford, by Adrian Briggs, concerning the ruling of the Court of Justice in the case of London Steam-Ship Owners’ Mutual Assistance Association Ltd v Spain; and Marco Buzzoni’s CJEU Adds a New Piece to the ‘Mosaic’ in Gtflix Tv.

The posts that attracted the highest number of written comments were Martina Mantovani’s Notaries and EU PIL: Taking Stock of 5 Years of Case Law, Felix Wilke’s The Silent Death of Conflict-of-Law Provisions in EU Directives?, and Erik Sinander’s Danish Supreme Court: No Tort Liability under Danish Law for Green Desert Operation in Iraq.

Many thanks to all readers, guests and commenters for feeding the exchanges.

2023 will be a year of innovations regarding the blog – and, generally, the website – of the European Association of Private International Law (various improvements are currently being studied, and will be announced in due course). The support of the blog’s community will be more important than ever!

With all best wishes for the New Year from the editors!

Ronán Feehily authored International Commercial Mediation – Law and Regulation in Comparative Context, recently published by Cambridge University Press.

In this comprehensive comparative study, Ronán Feehily analyses the legal and regulatory issues surrounding international commercial mediation and discusses their implications in a range of settings. While existing literature tends to cover mediation in general, Feehily places the commercial mediation process in its legal and regulatory context, offering an original contribution to the field. The book identifies the controversies that arise from the mediation process across numerous jurisdictions and discusses them in detail. Comparing the mediation process in Europe, North America and Australia, as well as other common, civil and ‘mixed’ jurisdictions, Feehily demonstrates where systemic differences are transcended and where they are significant. Organised systematically and written in an accessible style, Feehily offers an international, holistic guide to the commercial mediation process.

More information available here.