Agrégateur de flux

Par un arrêt du 30 novembre 2022, la Cour de cassation se prononce sur la détermination de la résidence habituelle, au sens du règlement Bruxelles II bis, d’un couple de ressortissants belges souhaitant divorcer et ayant des biens et des intérêts à la fois en Belgique et en France.

Sur la boutique Dalloz Code du divorce et de la liquidation 2023, annoté et commenté Voir la boutique Dalloz

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The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published on 1 November 2022. The table of contents is available here. The following abstracts have been kindly provided to us by the editor of the journal.

U. Janzen and R. Wagner, The German implementing rules for the Brussels II ter Regulation

When the original version of the Brussels II Regulation was adopted in 2000, it was not certain whether this regulation would be such a success. In the meantime, the regulation has become one of the most important legal instruments for judicial cooperation in civil matters. The regulation has recently been revised for the second time. The following article presents the German implementing rules for this recast.

R. Magnus, A new Private International Law and new Procedural Rules for Adoptions in Germany

As a result of two recent reforms the German private international and procedural laws applicable to adoptions have changed quite substantively. Article 22 (1) sentence 1 of the Introductory Act to the German Civil Code (EG-BGB) now refers to the lex fori as the law applicable for all domestic procedures, and section 1 (2) of the Adoption effects Act (AdWirkG) introduces an obligatory recognition procedure for many foreign adoptions. The effects of these and other innovations are examined and evaluated in detail in this article.

H.-P. Mansel, Liberalization of the Private International Law of Marriage and Registered Civil Partnership: Remarks on the Place of Marriage and Registration as Connecting Factors

According to the new proposal of the German Council for Private International Law, the law of the “place of marriage” is to govern the establishment of a marriage or registered civil partnership. The article deals with this proposal and explores the question of how this place is to be determined in the case of an online marriage. It argues for the application of the law of the state where the register is kept.

B. Laukemann, Protecting procedural confidence against the insolvency estate?

According to Union law, the effects of insolvency proceedings on a pending lawsuit are governed by the lex fori – and thus not by the law of the opening Member State (s. Art. 18 European Insolvency Regulation [EIR], Art. 292 Directive 2009/138, Art. 32 Directive 2001/24). At first glance, the distinction between the lex fori and the lex concursus raised here does not cause any major problems of interpretation. But can the lex fori and its regulatory purpose, which is to guarantee protection of confidence and legal certainty in civil proceedings, also be brought into position against the liability regime of foreign insolvency proceedings? A look at Art. 7(2)(c) EIR, which, in turn, allocates procedural powers of a debtor and insolvency practitioner to the lex fori concursus, reveals the difficulties of a clear-cut demarcation between the law of the forum and the law governing insolvency proceedings. The present contribution seeks to pursue this classification problem, equally relevant in legal and practical terms, for the relevant pieces of secondary EU legislation. Recently, this legal question was submitted to the CJEU – due to the liquidation of an insurance company within the scope of the Solvency II Directive. The decision gives rise to critically examine the delimitation approach of the CJEU and to ask in general how the protection of procedural confidence, on the one hand, and insolvency-related liability interests of the creditors, on the other, can be brought into an appropriate balance.

J. Kondring, International Service by WhatsApp: Reflections on the Hague Service Convention and the 1928 Anglo-German Convention in Judgement and Recognition Proceedings

In times of electronic communication, the question arises whether cross-border service by means of electronic communication is possible. The Higher Regional Court (OLG) of Frankfurt a.M. had to decide this question in recognition proceedings for a Canadian-German service by WhatsApp. Neither the Hague Service Convention nor bilateral agreements such as the Anglo-German Convention of 1928 allow service by WhatsApp. In this respect, the article also ex-amines the interaction of section 189 German Code of Civil Procedure (ZPO) and Art. 15 of the Hague Service Convention in both judgment and recognition proceedings, including the relationship to the parallel Anglo-German Convention of 1928. In certain cases, Art. 15 of the Hague Service Convention moves aside and “neutralises” section 189 German Code of Civil Procedure and its legal consequences. For the recognition proceedings, Art. 15 of the Hague Service Convention will also have to be taken into account in the context of the examination of the regularity of service of the document instituting the proceedings.

S. Arnold, Applicability of Article 15(1)(c) Lugano II in cases of subsequent relocation of consumers

In its judgment (C-296/20), the ECJ follows the consumer-friendly course already taken in the mBank decision. It interpreted Article 15(1)(c) Lugano II (and by doing so also the corresponding Article 17(1)(c) Brussels Ibis Regulation). The court clarified that the provision governs the jurisdiction of a court also in such cases where a consumer who has contracted with a professional counterparty subsequently relocates to another contracting State. Thus, it is not necessary for the cross-border activities of the professional party to have already existed at the time the contract was concluded. Rather, the subsequent move of the consumer also constitutes the “pursuit” of the professional or commercial activity in the consumer’s member state. Consequently, the court strengthens the position of consumers. Even in the event of a subsequent move, they can rely on the (passive) forum of protection of Article 16(2) Lugano II and the (active) forum of Article 16(1) Lugano II at their place of residence. The burden that this decision places on the professional counterparty – the risk of foreign litigation even if the matter was purely domestic at the time the contract was concluded – seems reasonable, as choice of forum agreements (Art. 17 No. 3 Lugano II) remain possible as a means of protection.

A. Staudinger and F. Scharnetzki, The applicable law for the internal settlement between two liability insurances of a tractor-trailer combination – Karlsruhe locuta, causa non finita

If in a tractor-trailer combination the owners of the tractor unit and the trailer are not the same person and two different liability insurers cover the respective operating risk, the question arises as to the internal settlement between the two liability insurances. Here, first the conflict-of-law issue to be dealt with is the source of law that is to be used to determine the relevant statute for recourse. In its decision of 3 March 2021, the Federal Court of Justice endorsed an alternative approach based on Article 19 of the Rome II Regulation and Article 7 para. 4 lit. b) of the Rome I Regulation in conjunction with Article 46d para. 2 of the Introductory Act to the German Civil Code (EGBGB) for a situation in which a German liability insurer of the tractor seeks half compensation from a Czech trailer insurer. In the opinion of the authors, the IV. Civil Senate had, in light of the European Court of Justice’s decision of 21 January 2016 in the joined cases C-359/14 and C-475/14, an obligation to refer to the Court in Luxembourg under Article 267 para. 1 lit. b), para. 3 TFEU. So, the solution via Art. 19 Rome II Regulation seems hardly convincing, at most a special rule on conflict of laws like Art. 7 para. 4 lit. b) Rome I Regulation. Whether and to what extent Article 7 para. 4 lit. b) Rome I Regulation can be instrumentalized to enforce § 78 para. 2 VVG old version via Article 46d para. 2 EGBGB, however, should have been finally clarified by the European Court of Justice. In particular, it seems doubtful whether Article 46d para. 2 EGBGB as a national rule, which goes back to Art. 7 para. 4 lit. b) Rome I Regulation, allows a provision such as § 78 para. 2 VVG old version to be applied as a mere recourse rule between two insurers. This applies all the more since no special public interests or interests of injured parties worthy of protection are affected here.

C. Mayer, Relevance of the place of marriage for determining the applicable law in relation to the formal requirements of proxy marriage and online marriage

The decisions of the Federal Court of Justice and the Düsseldorf Administrative Court concern a double proxy marriage in Mexico and an online marriage via live video conference with an official from the US state of Utah. In both cases, the spouses were themselves in Germany. Both decisions focus on the conflict of law determination of the applicable law in relation to the formal requirements of marriage. Due to the German conflict of law rules in Art. 11 and Art. 13 Para. 4 EGBGB, the place of marriage is decisive. The Federal Court of Justice concludes that the double proxy marriage took place in Mexico, which is why the marriage was formally valid under the applicable local law. The Dusseldorf Administrative Court rules that the online marriage was concluded in Germany, so that only German law is applicable and the marriage is therefore formally invalid due to the lack of participation of a registrar. Both cases reveal inconsistencies in German conflict of laws.

S. Deuring, The Purchase of Trees Growing in Brazil: Not a Contract Relating to a Right in rem in Immovable Property or a Tenancy of Immovable Property

ShareWood, a company established in Switzerland, and a consumer resident in Austria had entered into a framework agreement and four purchase contracts for the acquisition of teak and balsa trees in Brazil. When the consumer demanded the termination of the purchase contracts, the question arose of whether this demand could be based on Austrian law, even though the parties had agreed that Swiss law should apply. Siding with the consumer, the ECJ ruled that contractual arrangements such as the present one cannot be considered contracts relating to a right in rem in immovable property or tenancy of immovable property pursuant to Art. 6(4)(c) of the Rome I Regulation. The non-applicability of this provision entails the applicability of Art. 6(2) cl. 2 of the Rome I Regulation. According to the latter, a choice of law may not have the result of depriving consumers of the protection afforded to them by provisions that cannot be derogated from by agreement by virtue of the law of the country where the consumer has his habitual residence. In consequence, the consumer could, in fact, base his action on Austrian law.

C. Benicke and N. Suchocki, Judicial approval for disclaimer of interests given by parents for their minor children – Polish cases of succession at German courts and the role of the special escape clause in Art. 15 (2) CPC 1996

Polish probate courts demand for judicial approval of any disclaimer of interest given by parents for their minor children, even if such an approval is not required under the law applicable according to Art. 17 of the Child Protection Convention 1996. If German law is applicable due to Art. 17 CPC 1996, in most cases a judicial approval for the disclaimer of interest is not required according to § 1643 (2) p. 2 BGB. As a consequence, German family courts having jurisdiction to issue a judicial approval according to Art. 5 (1) CPC 1996 cannot do so, because under German law, applicable according to Art. 15 (1) CPC 1996 no judicial approval can be issued if not required by the substantive law applicable according to Art. 17 CPC 1996. This leads to the situation that no valid disclaimer of interest can be made, even though both jurisdictions would allow it in a purely domestic case. Therefore, the question arises as to whether in such cases a German family court may issue a judicial approval due to Art. 15 (2) CPC 1996, which exceptionally allows to apply or take into consideration the law of another State with which the situation has a substantial connection. One of the various regulatory purposes of the special escape clause in Art. 15 (2) CPC 1996 consists in allowing the court to adjust the lex fori in order to solve an adaptation problem as it is in this case. The Higher Regional Court Hamm issued such a judicial approval in taking into consideration that the Polish law requires a judicial approval for the disclaimer of interest. We agree with the OLG Hamm in the result, but not in the justification. As Art. 15 (2) CPC 1996 refers only to Art. 15 (1) CPC 1996 the taking into consideration of Polish law cannot overrule that the law applicable according to Art. 17 CPC 1996 does not require a judicial approval. To solve the adaptation problem, it suffices that German law applicable according to Art. 15 (1) CPC 1996 is modified in so far that it allows the formal issuance of a judicial approval even though such an approval is not required by the substantive law applicable according to Art. 17 CPC 1996.

R. Hüßtege, German procedural law for obtaining a decision that the removal or retention of a child was wrongful – present and future

Art. 15 of the Hague Convention on the civil aspects of international child abduction requests that the applicant should obtain from the authorities of the State of the habitual residence of the child a decision that the removal or retention was wrongful within the meaning of Article 3 of the Convention. The procedure for obtaining the decision is regulated incomplete in the German implementation law. Most of the problems raised will, however, be remedied by the reform of the German implementing act.

P. Schlosser, Recognition even if service of the document initiating the proceedings had not taken place?

The author is submitting that Art. 22 of the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance provides only one alternative for refusing recognition to a maintenance Judgment (“may be refused”) and that, therefore, more liberal provisions in national Law are upheld. The German code of civil procedure, § 328, seems not to be more liberal, but must be seen in the light of the overwhelming principle of safeguarding the right to be heard in court. Yet, this principle is well safeguarded, if the proposed victim in the subsequent proceedings of exequatur gets a chance to assert what he would have asserted in the original litigation but, thereby, he had no chance to achieve a different result. Under these circumstances the contrary solution would amount to a refusal of justice to the other party.

B. Heiderhoff, Refugees and the Hague Child Abduction Convention

The ECJ held that the removal of a child cannot be wrong ful in the sense of Article 2(11) of Regulation No 2201/2003 (now Article 2 sec 2(11) of Regulation No 2019/1111), if the parent has complied with a decision to transfer under Regulation (EU) No 604/2013 by leaving the country. This decision makes a valid point, but seems too general and reaches too far. The contribution shows that the integration of family law and migration law is insufficient and urges better coordination between the actors to achieve better protection of the child.

T. Frantzen, Norwegian International Law of Inheritance

Norway adopted a new act on inheritance and the administration of estates in 2019. The act came into force on 1 January 2021. The new act is based on the principles of the act on inheritance from 1972 and the act on administration of estates from 1930. This means that descendants may claim a forced share of 2/3 of the estate, however with a limitation of approximately 150,000 Euro. With the new act the amount has been increased, and it is regulated each year. A surviving spouse may, as before, claim a legal share. The spouse may alternatively choose to take over the so-called undivided estate. This means that the division of the estate is postponed.
Until the new succession act was adopted, Norwegian choice of law rules on succession were based on customary law. The general principle was that succession was governed by the law of the State in which the deceased had her/his last domicile, and that there was no, or a very limited space, for party autonomy.
The new act decides that the administration of estates may take place in Norway if the deceased had her/his last habitual residence in Norway. When it comes to succession, the main rule is that succession is governed by the law of the State where the deceased had her/his last habitual residence. Party autonomy is introduced in the new act, as a person may choose that succession shall be governed by the law of a State of which he or she was a national. The decision on the choice of law is however not valid if the person was a Norwegian citizen by the time of death. The few provisions on choice of law are based on the EuErbVO.

C. Jessel-Holst, Private international law reform in North Macedonia

In 2020, North Macedonia adopted a new Private International Law Act which replaces the 2007 Act of the same name and applies from 18.2.2021. The new Act amounts to a fundamental reform which is mainly inspired by the Acquis communautaire. It also refers to a number of Hague Conventions. The Act contains conflict-of-law rules as well as rules on procedure. Many issues are regulated for the first time. The concept of renvoi is maintained but the scope of application has been significantly reduced. As a requirement for the recognition of foreign judgments the Act introduces the mirror principle. As was previously the case, reciprocity does not constitute a prerequisite for recognition and enforcement.

Caisse nationale d’assurance pension
Libre circulation des personnes
Travailleurs frontaliers : pas d’obligation de faire inscrire au Luxembourg un PACS conclu dans un autre État membre 

Orde van Vlaamse Balies e.a.
Lutte contre la planification fiscale agressive : l’obligation imposée à l’avocat d’informer les autres intermédiaires impliqués n’est pas nécessaire et viole le droit au respect des communications avec son client

Orde van Vlaamse Balies e.a.
Lutte contre la planification fiscale agressive : l’obligation imposée à l’avocat d’informer les autres intermédiaires impliqués n’est pas nécessaire et viole le droit au respect des communications avec son client

Orde van Vlaamse Balies e.a.
Lutte contre la planification fiscale agressive : l’obligation imposée à l’avocat d’informer les autres intermédiaires impliqués n’est pas nécessaire et viole le droit au respect des communications avec son client

Google (Déréférencement d’un contenu prétendument inexact)
Droit à l’effacement (« droit à l’oubli ») : l’exploitant du moteur de recherche doit déréférencer des informations figurant dans le contenu référencé lorsque le demandeur prouve qu’elles sont manifestement inexactes

Google (Déréférencement d’un contenu prétendument inexact)
Droit à l’effacement (« droit à l’oubli ») : l’exploitant du moteur de recherche doit déréférencer des informations figurant dans le contenu référencé lorsque le demandeur prouve qu’elles sont manifestement inexactes

As announced in an earlier post, the International Law Association will celebrate its 150 anniversary next year through a number of events.

The celebration will start with an inaugural conference which will take place on line on 12 January 2023 and will discuss the role of parliaments in the creation of International Law so that to increase its legitimacy.

Throughout 2023, webinars will be organised on a variety of topics, including Democracy, Governance, Digital challenges, Civil Status, Anthropocene, Taxation and many others. Each of these webinars is prepared by a White Paper, which will be the focus of the webinar. Members of the public are invited to review the White Papers and comment on them until 31 December 2022 or 31 January 2023.

The organisation has already issued 10 Newsletters, which can be found here.

The programme of the webinars is available here. The White Papers can be accessed here. Registration for these events can be made here.

The European Commission has released today its Proposal for a Council Regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood. However, it is not currently available in the official languages of the European Union, only in English at https://ec.europa.eu/info/sites/default/files/com_2022_695_1_en_act_part1.pdf

WhatsApp Ireland / Comité européen de la protection des données
Droit institutionnel
Le Tribunal rejette comme irrecevable le recours de WhatsApp contre une décision du Comité européen de la protection des données (CEPD)

We are sad to announce that one of Germany’s preeminent scholars of private international law and European private law, Axel Flessner, passed away on 26 November 2022 at the age of 86.

Axel Flessner was a Professor of German, European and International Private Law and Comparative Law at Humboldt-University in Berlin. He contributed to the development of private international law and European private law through countless publications, including several monographs (e.g. “Interessenjurisprudenz im Internationalen Privatrecht”), as well as through his participation in various international committees. As one of the editors of the “Zeitschrift für Europäisches Privatrecht” (Journal of European Private Law) and as the spokesperson for the graduate college “European Private and Economic Law” at Humboldt-University, he left a lasting mark in European private (international) law.

Axel Flessner was held in extremely high esteem both by his colleagues and by his students. With his death, the European private (international) law community loses an outstanding scholar, a great colleague and a convinced European citizen.

Our thoughts are with his family.

On 7 December 2022, as announced through the Commission Press Corner, the European Commission adopted a proposal for a Regulation aimed at harmonising at EU level the rules of private international law relating to parenthood.

The proposal is focused on the best interests and the rights of the child. It will provide legal clarity for all types of families, who find themselves in a cross-border situation within the EU, be it because they move from one Member State to another to travel or reside, or because they have family members or property in another Member State. One of the key aspects of the proposal is that the parenthood established in a Member State of the EU should be recognised in all the other Member States, without any special procedure.

Union law as interpreted by the European Court of Justice, notably on free movement, already provides that parenthood established in a Member State should be recognised in all the other Member States for some purposes: access to the territory, right of residence, non-discrimination with the nationals. However, this is not the case for the rights derived from national law.

Today’s proposal allows children in cross border situations to benefit from the rights derived from parenthood under national law, in matters such as succession, maintenance, custody or the right of parents to act as legal representative of the child (for schooling or health matters).

Background

Commission President von der Leyen said in her 2020 State of the Union speech that “If you are parent in one country, you are parent in every country”. With this statement, the President referred to the need to ensure that the parenthood established in a Member State is recognised in all other Member States for all purposes.

EU citizens can live and work in different EU countries. They travel, move for work, buy houses, start families. At the moment, Member States have varying national laws on the recognition of parenthood, so when a family finds itself in a cross-border situation, it might lose the rights derived from parenthood under national law.  The non-recognition of parenthood puts at risk the fundamental rights of children, including their right to an identity, to non-discrimination and to a private and family life.

The proposal was identified as a key action in the EU Strategy on the rights of the child and the EU LGBTIQ Equality Strategy. The European Parliament welcomed the Commission’s initiative in its Resolution on the protection of the rights of the child in civil, administrative and family law proceedings and in its Resolution on LGBTIQ rights in the EU. The Council conclusions on the EU Strategy on the rights of the child underline that children’s rights are universal, that every child enjoys the same rights without discrimination of any kind and that the best interests of the child must be a primary consideration in all actions relating to children, whether taken by public authorities or by private institutions.

Protecting Children Rights

The proposal aims at protecting the fundamental rights of children, providing legal certainty for the families, and reducing the legal costs and burden for the families and the Member States’ administrative and judicial systems.

The main elements of the proposal include: (a) designation of the jurisdiction: the proposal determines the courts of the Member States that have jurisdiction in matters related to parenthood, ensuring the best interest of the child; (b) designation of the applicable law:as a rule, the law applicable to the establishment of parenthood should be the law of the State of the habitual residence of the person giving birth. Where that rule results in the establishment of parenthood as regards only one parent, alternative options ensure that parenthood can be established as regards both parents; (c) rules for recognition of parenthood: the proposal provides for the recognition of court decisions and authentic instruments establishing or providing evidence of the establishment of parenthood. As a rule, parenthood established in a Member State, should be recognised in all the other Member States, without any special procedure; (d) creation of a European Certificate of Parenthood: children (or their legal representatives) can request it from the Member State which established parenthood, and choose to use it to prove their parenthood in all the other Member States. The Commission proposes a harmonised template, common to the whole EU. The use of the Certificate would be optional for families, but they have the right to request it and to have it accepted all over the EU.

The proposal will complement other EU private international law rules, on matters such as succession. It does not harmonise substantive family law, which remains the competence of the Member States.

Next Steps

The Commission’s proposal has to be adopted unanimously by the Council, after consulting the European Parliament. Five years after the Regulation becomes applicable, the Commission will evaluate its application by Member States and may propose amendments.

LIST OF PUBLICATIONS ON SOUTH AFRICAN PRIVATE INTERNATIONAL LAW AS FROM 2020

Adams “Choice of Islamic law in the context of the wider lex mercatoria: an express choice of non-State law in contract” 2021 Journal of South African Law 59.

Adams “The UCP as a choice of non-State law in international commercial contracts” 2022 Potchefstroom Electronic Law Journal 1.

Adams and Kruger “Private international law and choice of law clauses” in Hutchison and Myburgh (eds) International Commercial Contracts: Autonomy and Regulation in a Dynamic System of Lex Mercatoria (Edward Elgar, 2020) 110.

Bouwers Tacit Choice of Law in International Commercial Contracts – A Global Comparative Study (Schulthess, 2021) 68-75.

Coleman “Assessing the efficacy of forum selection agreements in Commonwealth Africa” 2020 Journal of Comparative Law in Africa 1.

Coleman “Reflecting on the role and impact of the constitutional value of ubuntu on the concept of contractual freedom and autonomy in South Africa” 2021 Potchefstroom Electronic Law Journal 1.

Coleman “Contractual freedom and autonomy under the CISG and the UNIDROIT Principles as legislative and judicial guidance in Commonwealth Africa” 2021 South African Mercantile Law Journal 319.

Fredericks “Contractual capacity in African private international law” in Omlor (ed) Weltbürgerliches Recht. Festschrift für Michael Martinek zum 70. Geburtstag (CH Beck, 2020) 199.

Neels “The African Principles on the Law Applicable to International Commercial Contracts – a first drafting experiment” 2020 Uniform Law Review 426.

Neels “An experiment in the systematization of South African conflicts rules” in Omlor (ed) Weltbürgerliches Recht. Festschrift für Michael Martinek zum 70. Geburtstag (CH Beck, 2020) 529.

Neels “Characterisation and liberative prescription (the limitation of actions) in private international law – Canadian doctrine in the Eswatini courts (the phenomenon of dual cumulation)” 2021 Journal of Private International Law 361.

Neels “South African perspectives on the Hague Principles” in Girsberger, Kadner Graziano and Neels (gen eds) Choice of Law in International Commercial Contracts. Global Perspectives on the Hague Principles (OUP, 2021) 350.

Neels “International commercial law emerging in Africa” 2022 Potchefstroom Electronic Law Journal Special Edition Festschrift Charl Hugo http://dx.doi.org/10.17159/1727-3781/2022/v25i0a14381.

Neels and Fredericks “The African Principles of Commercial Private International Law and the Hague Principles” in Girsberger, Kadner Graziano and Neels (gen eds) Choice of Law in International Commercial Contracts. Global Perspectives on the Hague Principles (OUP, 2021) 239.

Neels and Fredericks “Recognition and enforcement of Slovenian judgments in South Africa – contractual claims and supranational or international jurisdiction” in Fourie and Škerl (eds) Universality of the Rule of Law. Slovenian and South African Perspectives (Sun Press, 2021) 193.

Neels and Fredericks “Covid-19 regulations as overriding mandatory provisions in private international law – a comparison of regional, supranational and international instruments with the proposed African Principles on the Law Applicable to International Commercial Contracts” in Watney (ed) The Impact of COVID-19 on the Future of Law and Related Disciplines (UJ Press, 2022) 1.

Obiri-Korang “Party autonomy: promoting legal certainty and predictability in international commercial contracts through choice of law (applicable rules of law)” 2022 Journal of South African Law 106.

Obiri-Korang “Primary connecting factors considered by South African courts to determine applicable law of international contracts on the sale of goods” 2022 Lex Portus 7.

Okorley “The possible impact of the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial matters on private international law in Ghana” 2022 UCC Law Journal 85.

Schoeman “South Africa: time for reform” in Keyes (ed) Optional Choice of Court Agreements in Private International Law (Springer, 2020) 347.

Wethmar-Lemmer “Recognition and enforcement of foreign arbitral awards under the International Arbitration Act 17 of 2017” 2019 SA Merc LJ 378 (appeared in 2020).

Wethmar-Lemmer “The new South African international arbitration landscape – advances and remaining conflict of laws challenges” in Omlor (ed) Weltbürgerliches Recht. Festschrift für Michael Martinek zum 70 Geburtstag (CH Beck, 2020) 867.

Wethmar-Lemmer “International commercial arbitration in South Africa and the CISG” 2022 Uniform Commercial Code Law Journal 311.

 

Dooley & Ors v Castle Trust & Management Services Ltd [2022] EWCA Civ 1569  is the successful appeal against Russen HHJ’s first instance judgment which I discussed here – readers best consult that post for context, before reading on. For reasons I explain in that post, judicial relations between the UK and Gibraltar pre-Brexit engaged the Brussels 1968  Convention.

Carr LJ wrote the reasons for overruling the judgment, and the Court of Appeal does find there is jurisdiction in E&W. [35] she reminds us of the evidentiary burden at the jurisdictional stage

For the purpose of the evidential analysis, the standard lies between proof on the balance of probabilities and the mere raising of an issue. On contentious factual issues, the court takes a view on the material available if it can reliably do so; if a reliable assessment is not possible, there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it. The test is context-specific and flexible, and if there is an issue of fact the court must use judicial common sense and pragmatism, making due allowance for the limitations of the material available at an early point in the proceedings.

[41] ff the judge is held to have wrongly treated the relationship between Article 5 (mostly known for forum contractus and forum delicti reasons but also including a trust forum: A5(6) concerning trust-related claims in the courts of the trust’s domicile) and Article 13 (the forum consumptoris). [43] Articles 13 to 15 make up an entirely separate and self-contained section and there is no need or indeed allowance to first check whether Article 5’s conditions apply (including on the conditions for a ‘contract’ to exist), subsequently to check whether A13 ff (including the conditions for a ‘consumer contract’ to exist) apply with a consequence of disapplying A5. Both Opinion AG and judgment in CJEU C-96/00 Gabriel are called upon in solid support.

[48] Jurisdiction under Article 13 is thus a self-standing lex specialis and derogation from the general rule in Article 2. If jurisdiction is not established under Article 13, it may nevertheless arise under Article 5(1). But it is not necessary to establish jurisdiction under Article 5(1) in order to make it out under Article 13.

[49] The Judge’s error on this issue was material, in the light of his conclusion that any claim against Castle would fall within Article 5(6) (and so could not fall within Article 5(1)).

Continuing then on A13, the contentious issue is whether the Judge was wrong to conclude that the pensioners did not have the better of the argument for the purpose of A13:  i) that the proceedings were “proceedings concerning” contracts between the pensioners and Castle for the supply of services; and, if so, ii) that in England and Wales the conclusion of the contracts was preceded by specific invitations addressed to the pensioners.

Re i), [55] the Judge appears to have concluded that there was no contract, by reference to the lack of clarity as to the services to be provided by Castle beyond the contents of the Welcome Letter. On appeal Castle concede that a contract for services did exist between each pensioner and Castle, however that the services to be provided by Castle under each contract were limited to the technical execution of the relevant Deed of Adherence in each case and that therefore the proceedings, which made no complaint about the technical execution of the Deeds, were not “proceedings concerning a contract”.

Carr LJ [57ff] insists that the existence of a trustee-beneficiary relationship does not preclude the co-existence of a contract between the same parties, and, referring to language with strong ‘contract’ echo in the marketing, holds that there was indeed a contract between each of the pensioners and Castle, a relationship that went beyond mere technical execution of the deeds.

[61] ff then deals with ii), with the Court holding there is a good arguable case that each pensioner received (in the State of their domicile) a specific invitation addressed to them, such invitation crystallising at the moment that Management Services sent or handed them an application form. Carr LJ suggest that such an invitation might be sufficient for A13(3) purposes without more: A13 does not contain any express requirement for a connection between the invitation and the trader; the focus is on the existence of a sufficiently strong connection between the contract and the country of domicile of the consumer. However the claimants concede that there was a further requirement, namely that the invitation had to be made on behalf of the trader, here Castle. Arguendo, [66] Carr LJ holds 

there is a plausible evidential basis for the proposition that there was some sufficient connection between MS and Castle, including the possibility that MS was acting for Castle as a “middleman” of the type envisaged in the Schlosser Report (by cross-reference to the Giuliano/Lagarde Report). It is, for example, not in dispute that MS obtained Castle’s application forms and provided them to the pensioners. It appears that MS procured or facilitated production of all the complex documentation and declarations as required by Castle from the pensioners in the build-up to the application forms and transfers themselves.

[68] ff are the proceedings then “proceedings concerning” the contracts in question? The Court holds they are, at a general level for the proceedings are not about mismanagement of the trusts once established, but rather that the pensioners should never have entered the Schemes in the first place, and at a more specific level for the claims to relate to specific issues in the services agreement.

The claims can now proceed to trial where, as I noted before, applicable law will be one of the contested issues.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.9.2.1 and 2.2.9.2.2.

 

Successful appeal on jurisdiction (jurisdiction now established) under Brussels Convention (that's right: the 1968 Convention)
For the 1st instance judgment see https://t.co/JE8yVUJkO3

Dooley eos v Castle Trust & Management Services [2022] EWCA Civ 1569https://t.co/8uUVpYv0DU

— Geert Van Calster (@GAVClaw) November 30, 2022

Shahla F. Ali, Filip Balcerzak, Adam Mickiewicz, Giorgio Fabio Colombo, and Joshua Karton have edited a collection of essays titled Diversity in International Arbitration – Why it Matters and How to Sustain It, which has recently been published by Edward Elgar.

After decades of focus on harmonization, which for too many represents no more than Western legal dominance and a largely homogeneous arbitration practitioner community, this ground-breaking book explores the increasing attention being paid to the need for greater diversity in the international arbitration ecosystem. It examines diversity in all its forms, investigating how best to develop an international arbitral order that is not just tolerant of diversity, but that sustains and promotes diversity in concert with harmonized practices.

Offering a wide range of viewpoints from a diverse and inclusive group of authors, Diversity in International Arbitration is a comprehensive and insightful resource on a controversial, fast-moving subject. Chapters present arguments from practitioner, academic, institutional and governmental perspectives that identify the underlying issues and address the various ways in which the goal of diversity, whether demographic, legal, cultural, professional, linguistic, or philosophical, can be reached.

This book’s analysis of the contemporary state of diversity in international arbitration will be a crucial read for researchers in the field. Practitioners and policy makers will also find its discussion of best practices and innovative initiatives for enhancing diversity to be invaluable.

More information available here.

Dans une décision attendue des organisations d’auteurs, le Conseil d’État annule l’ordonnance de transposition de la directive DAMUN en ce qu’elle n’impose pas une rémunération appropriée (et non uniquement proportionnelle) des auteurs.

Sur la boutique Dalloz Code de la propriété intellectuelle 2022, Annoté et commenté Voir la boutique Dalloz

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This post was written by Felix M. Wilke, University of Bayreuth.

The new EU Sale of Goods Directive 2019/771 and its sibling, the Supply of Digital Content and Digital Services Directive 2019/770, understandably have attracted a lot of attention in the field of substantive private law. By contrast, to my knowledge, their (negative) private international law dimension has not been featured in any prominent way yet. In this post, I want to highlight and contextualize this aspect. Any input, e.g. regarding directives I might have missed or explanations different from the ones I offer, is very much welcome.

The Wonderful World of Conflict of Laws in EU Directives

When faced with the term “EU Conflict of Laws”, most people will nowadays immediately think of the different regulations in this area: Rome I to III, the Succession Regulation etc. But this is not the whole story. Some of the Union’s provisions with a direct impact on private international law can be found in directives. Beginning with Article 6(2) of the Unfair Terms Directive 93/13/EEC, many of such instruments on the protection of consumers required the Member States to take “the necessary measures to ensure that the consumer does not lose the protection granted [by the respective legal instrument] by virtue of the choice of the law of a non-Member country as the law applicable to the contract if the latter has a close connection with the territory of the Member States”. Other examples are Article 12(2) of the Distance Marketing of Consumer Financial Services Directive 2002/65/EC and Article 22(4) of the Consumer Credit Agreements Directive2008/48/EC.

Moreover, Article 12(2) of the Time Sharing Directive 2008/122/EC sets forth that, under certain conditions, “consumers shall not be deprived of the protection granted by this Directive, as implemented in the Member State of the forum” where the law of a third country is applicable. (While Articles 17–19 of the new Package Travel Directive 2015/2302 have an obvious connection to conflict of laws, they operate differently.)

All these provisions are still in force. National law of the Member States must contain respective rules – and these rules clearly must be conflict-of-law rules, as they have to affect situations in which the law of a third country would otherwise be applicable (mostly because of a choice by the parties).

A Change of Heart between 2008 and 2011?

Things are different for the new Sale of Goods Directive. While Article 7(2) of the old Sale of Goods Directive1999/44/EC was drafted along the lines of the examples just mentioned, any such provision is now missing from the directive repealing it. (The Supply of Digital Content and Digital Services Directive does not introduce a conflict-of-law provision, either.) The same fate befell Article 12(2) of the Distance Contracts Directive 97/7/EC when the Consumer Rights Directive 2011/83/EU repealed it. From this perspective, EU private international law has actually lost two provisions in the last decade or so.

As the EU legislator seems to have changed its stance on this issue between 2008 and 2011, two possible reasons from this period suggest themselves. The first concerns the new approach to harmonisation of substantive private law by directives, the second the emergence of EU regulations on conflict of laws.

Full Harmonisation

The Distance Contracts Directive and the old Sale of Goods Directive were minimum harmonisation directives. The Member States could maintain or introduce provisions if they ensured a higher level of consumer protection. By contrast, both the Consumer Rights Directive and the new Sale of Goods Directive are full harmonisation directives. Unless otherwise provided, Member States may not maintain or introduce divergent provisions, whether less or more stringent.

Yet no clear link of this changed approach to harmonisation with the present conflict-of-law issue is apparent. True, it is now more or less irrelevant which national law of an EU Member State is applicable to a sale of goods to a consumer. The key rules will be the same across the board (also see Recital 10 Sale of Goods Directive). But this is not with what the respective old provisions and the remaining provisions in other directives were and are concerned. They were and are about protecting the consumer from the application of the (disadvantageous) law of a third country.

Rome I and Choice of Law (in Consumer Contracts)

For anyone interested in EU private international law, the years between 2007 and 2009 have, of course, special significance. In this time frame, the first EU regulations on conflict of laws were passed and became applicable. In particular, Rome I was passed in 2008 and has been applicable to contracts concluded as from 17 December 2009. So, are the rules found in Rome I on consumer contracts and choice of law in general the reason for the lack of conflict-of-law provisions in more recent directives?

As a matter of law, the answer must be negative. This is because the scope of application of Articles 6(2) and 3(4) of the Rome I Regulation on the one hand and of the conflict-of-law rules in the directives on the other hand do not perfectly overlap: The provisions in the directives have not entirely become redundant once Rome I entered into force. For one, Article 6(4) of Rome I excludes certain contracts. For another, even the relatively broad requirement of “directing activities” in Article 6(1)(b) of Rome I only pertains to the Member State in which the consumer is habitually resident. A consumer concluding a contract in another Member State may not be protected even where Article 6 Rome I would encompass a consumer habitually resident in that country. Finally, Article 3(4) Rome I is too narrow to catch all cases subject to the conflict-of-law provisions in directives.

As a matter of policy, however, one can assume that Rome I was a big factor. The Commission’s Proposal for the new Sale of Goods Directive does refer to the protection of consumers under Rome I, although only in the context of compatibility of the draft with EU private international law. (See also Recital 65 Sale of Goods Directive.) When the Commission states that the legislative proposal “does not require any changes to the current framework of EU private international law”, it is not clear whether it took the actual change it proposed to make to EU private international law – eliminating a conflict-of-law provision – into account.

Is there Reason to Mourn?

Life is easier without conflict-of-law provisions in directives, to be sure. Nothing to transpose for national legislators, and no reason for courts to even think about special national conflict-of-law rules favouring consumers. Does this offset the detriments to consumers? One can certainly think so. While the exclusion of some consumers from the protection offered by Article 6 Rome I can lead to some strange results, they only affect a very small number of situations. The practical impact of the conflict-of-law provisions in directives does not seem to have been very big, anyway. As far as I can tell, the Court of Justice only had to deal with any of these provisions once: Case C-70/03 (Commission v. Spain) concerns Spain’s too restrictive transposition of Article 6(2) of the Unfair Terms Directive into its national law.

In any case, the death of conflict-of-law provisions in directives should not be silent. Unlike during the legislative process leading to the Consumer Rights Directive and the new Sale of Goods Directive, the EU legislator should openly communicate that – and preferably also why – it considers such provisions unnecessary. And this not only from a scholarly perspective: In the highly complex realm that is EU (substantive) consumer law, a national legislator might simply miss that a conflict-of-law provision transposing one of the old directives has now lost its base.

1952-2022 : Forum des magistrats extraordinaire à l’occasion du 70e anniversaire de la Cour de justice de l’Union européenne
1952-2022 : Forum des magistrats extraordinaire à l’occasion du 70e anniversaire de la Cour de justice de l’Union européenne

December is a relatively short month at the Court of Justice. Very little is happening in PIL (much more on other topics such as the independence of judges or data protection). On 8 December 2022, a hearing will take place in relation to case C-638/22 PPU Rzecznik Praw Dziecka e.a., on the suspension of a Hague return decision – and that will be it.

The Sąd Apelacyjny w Warszawie (Poland) has referred to the Court of Justice a question on Regulations 2201/2003 and 2019/1111:

Does Article 11(3) of Council Regulation (EC) No 2201/2003 [the Brussels II bis Regulation], and Article 22, Article 24, Article 27(6) and Article 28(1) and (2) of Council Regulation (EU) No 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility [Brussels II ter], read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, preclude the application of a provision of national law under which, in cases involving the removal of a person subject to parental responsibility or custody conducted under the Convention on the Civil Aspects of International Child Abduction adopted in The Hague on 25 October 1980, the enforcement of an order for the removal of a person subject to parental responsibility or custody is suspended by operation of law where the Prokurator Generalny (Public Prosecutor General), Rzecznik Praw Dziecka (Commissioner for Children’s Rights) or Rzecznik Praw Obywatelskich (Ombudsman) submits a request to that effect to the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw) within a period not exceeding two weeks from the day on which the order becomes final?

In case at hand, the father (applicant) and the mother (defendant) are Polish nationals who have resided and worked for more than ten years in Ireland. Their two children, aged 5 and 11 have both Polish and Irish nationality.

In the summer of 2021, the defendant went on vacation to Poland with her children with the applicant’s consent. In September 2021, she informed him that she had decided to stay with them in Poland permanently. Two month later, the applicant brought before the Polish courts an application under the 1980 Hague Convention for the return of the children. The court of first instance agreed to the request; a subsequent appeal by the defendant was dismissed. However, she failed to comply with the order for the return of the children within the time limit of 7 days. Therefore, on September 29, 2022, the applicant submitted a request to have an enforcement form appended to the return order, with a view to initiating enforcement proceedings. On 30 September 2022, the Rzecznik Praw Dziecka (Children’s Rights Ombudsman) submitted an application for a stay of execution of the return order, based on a provision of the Polish civil procedure code whereby “In cases involving the removal of a person subject to parental responsibility or custody brought under [the 1980 Hague Convention], at the request of the entity referred to in Article 5191(2)2 notified to the court referred to in Article 5182(1) within a period not exceeding two weeks from the date on which the order for the removal of the person subject to parental responsibility or custody becomes final, the enforcement of such order shall be suspended by operation of law”. On October 5, 2022, a similar request was made by the Prokurator Generalny (Attorney General).

The referring court’s application for the urgent procedure was granted. The case will be decided by the third chamber (judge K. Jürimäe reporting; M. Safjan, N. Piçarra, N. Jääskinen, M. Gavalec), supported by AG N. Emiliou.