Agrégateur de flux

The first instance court of Gelderland held in X v Lufthansa that the latter’s limitation to objecting to territorial jurisdiction within The Netherlands, rather than to jurisdiction of the Dutch courts as such, amounts to submission under A26 BIa, leaving the Dutch courts to decide on territorial jurisdiction with reference to internal Dutch civil procedure rules (CPR).

The remainder of the judgment then agrees with Lufthansa on the basis of Dutch CPR identifying the defendant’s office or branch as the territorially relevant factor, leaving Gelderland without jurisdiction. The court seemingly rejected itself as forum contractus, holding that CJEU C-204/08 Rehder v Air Baltic does not apply due to the flight in current case not being intra-EU (final destination being Baku). I would have expected the court to consider C-20/21 LOT Polish Airlines, where the final destination equally was outside the EU.

I do not know what claimant argued (forum contractus one assumes, perhaps locus damni per A7(2) BIA?), at any rate it is wrong to hold that a limitation of jurisdictional objection to internal distribution, implies submission per A26 BIa, for those heads of jurisdiction which assign jurisdiction territorially, not just nationally. That includes A7 forum contractus and forum delicti.

Geert.

 

I should really keep this for exam purposes
First instance Gelderland holds opposition to court's territorial jurisdiction, not to NL jurisdiction as a whole, does not obstruct A26 Brussels Ia submission
Ahum…

X v Lufthansa ECLI:NL:RBGEL:2023:900https://t.co/QS53WEXmSp

— Geert Van Calster (@GAVClaw) March 4, 2023

On 8 February 2023, the European Commission presented two proposals, the purpose of which is to pave the way to the negotiation (and conclusion) of bilateral agreeements between France and Algeria in the field of private international law.

One proposal is for a decision of the Council of the Union and the European Parliament that would authorise France to negotiate a bilateral agreement on matters related to judicial cooperation in civil and commercial matters (COM/2023/65 final). The other is for a Council decision authorising France to negotiate a bilateral agreement with Algeria on matters related to judicial cooperation concerning family law matters (COM/2023/64 final).

The future agreements are meant to replace bilateral agreements concluded in 1962, 1964 and 1980, and to align cooperation with Algeria with EU standards in this area.

The subject matter of the new agreements falls, to a large extent, within the exclusive external competence of the Union. In these circumstances the negotiation of bilateral agreements of Member States with third countries is generally limited to the possibilities offered by the special mechanism provided by Regulation No 662/2009 (on particular matters concerning the law governing contractual and non-contractual obligations) and Regulation No 664/2009 (regarding jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, matters of parental responsibility and matters relating to maintenance obligations, as well as regarding the law applicable to matters relating to maintenance obligations).

Also relevant, in principle, is Article 351 TFEU. This begins by establishing that the rights and obligations arising from agreements pre-dating the launch of the European integration process between one or more Member States on the one hand, and one or more third countries on the other, are not affected by EU law. However, the provision goes on to state that, to the extent that such agreements are not compatible with the Treaties (and EU legislation), “the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established”.

When the prospect of one or more bilateral agreements between the two States emerged, in 2016, the Commission, while recognizing the exceptional economic, cultural, historical, social and political ties between France and Algeria, remarked that, in its judicial cooperation with third States, the Union broadly relies on the existing multilateral framework, such as the one created by the Hague Conference on Private International Law, rather than bilateral agreements. The Commission observed that  authorising a Member State to negotiate and conclude bilateral agreements with third countries in the area of civil justice falling outside the scope of Regulations No 662/2009 and No 664/2009 would not be in line with the EU policy in this field.

The position of the Commission was later reviewed in light of further developments and additional information, including the fact that an accession of Algeria to key Hague Conventions was (and still is) unlikely to happen in the foreseeable future (Algeria is not a member of the Hague Conference and has not acceded, so far, to any convention elaborated under the auspices of the Conference), and the fact that an EU-Algeria agreement related to judicial cooperation in civil matters is not planned by the Commission.

The Commission observed that the EU policy in the field of private international law is based on multilateralism, and that bilateral agreements between the EU and a third country, even where the third country consistently refuses to accede to Hague Conventions, could be contemplated only where a sufficiently strong Union interest can be identified based on the substantial relevance of judicial cooperation with this country across Member States and not only for an individual Member State. In the opinion of the Commission, this is not the case of the relations with Algeria.

The Commission further contended that neither the possibility offered by Article 351 TFEU nor an authorisation under Regulations 662 and 664/2009 are applicable in the present case.

Article 351, the Commission explained, is of no avail because it applies, for a founding Member (like France), only to agreements concluded prior to 1958, whereas the existing bilateral agreements between France and Algeria date from 1962, 1964 and 1980 (the Commission does not seem to give weight to the fact that, back in 1985, the European integration process simply did not include judicial cooperation: the latter became a concern for the European Community, as it was then, only with the entry into force of the Amsterdam Treaty, in 1999).

The Regulations of 2009, for their part, are of limited help, according to the Commission, because their scope is very narrow and they do not cover the range of matters dealt with in the France-Algeria draft agreements. Besides, the Commission stressed, the two Regulations are of exceptional nature and should be interpreted in a restrictive manner.

Therefore, the Commission concluded that an ad hoc authorization under Article 2(1) TFEU to France could be considered (according to Article 2(1), where the Treaties confer on the Union “exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts”, but clarifies that the Member States are permitted to do so themselves, inter alia, “if so empowered by the Union”).

The decisions that the Commission has proposed to adopt would authorise France to negotiate (and at a later stage conclude) bilateral agreements with Algeria in matters falling within the EU exclusive external competence, having considered the exceptional ties which link these two countries, provided that this would not constitute an obstacle to the development and the implementation of the Union’s policies.

In the memorandum that accompanies the two proposals, the Commission reiterated that “multilateralism remains a cornerstone of the EU policy towards third countries in the field of judicial cooperation in civil and commercial matters”, and clarified that the authorisation to negotiate, if granted, should be “considered exceptional” and by no means serve as a precedent. The mere refusal of a third State to accede to the relevant Hague Conventions, the Commission added, “should not be regarded as a the only pre-requisite to grant an authorisation under Article 2(1) TFEU, but evidence of the exceptional situation of the relationship of a Member State with a given third country should be duly demonstrated”.

The call for papers is open for the IX International Conference on Private International Law of the Carlos III University of Madrid, which will take place on 4 and 5 May 2023.

This year’s conference will focus on the 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, presented by the European Commission on 7 December 2022.

The proposed papers will be selected by the Scientific Committee of the Conference, composed of Alfonso-Luis Calvo Caravaca, Heinz-Peter Mansel, Javier Carrascosa Gonzalez, Ilaria Pretelli and Fabrizio Marongiu Buonaiuti. Papers may subsequently be published in the online journal Cuadernos de derecho transnacional.

All those interested are invited to send the title of the paper they intend to propose and an abstract of a maximum length of 800 words by 17 April 2023 to the email congresodipr@uc3m.es.

For all further info, see here.

Comme il se doit dans chaque chronique d’actualité des mois de janvier-février, il faudra commencer par faire écho au discours annuel du Président de la Cour européenne des droits de l’homme qui, pour la première fois, est une Présidente. Sur le plan strictement jurisprudentiel, la Cour de Strasbourg, au cours des deux premiers mois de 2023, se sera surtout signalée à l’attention en refusant la mention du sexe neutre sur l’acte de naissance ; en élargissant la protection des lanceurs d’alerte et celle des victimes secondaires ; en stigmatisant l’absence de toute reconnaissance juridique des couples homosexuels ou l’avertissement du caractère dangereux pour les enfants d’un livre de contes mettant en scène des personnages LGBTI ; en conciliant le respect effectif de la Convention avec les exigences de la lutte contre le terrorisme. Elle se sera aussi intéressée à des questions qui retiennent plus rarement son attention comme les particules nobiliaires ou les variantes d’une langue nationale …

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

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Par un arrêt du 16 février 2023, la Cour de justice précise certaines dispositions du règlement (CE) n° 805/2004 du 21 avril 2004 portant création d’un titre exécutoire européen.

Sur la boutique Dalloz Droit et pratique des voies d’exécution 2022/23 Voir la boutique Dalloz

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May today’s milestone (reported here) be also an ode to late professors Alegría Borrás and Julio González Campos for their absolute tireless efforts regarding the Spanish language at the Hague Conference on Private International Law (HCCH) and their infatuation with the Spanish language.

Let us remember that we are standing on the shoulders of giants.

 

Take a last look at this image from the website of the HCCH; it will likely change soon. The HCCH has adopted Spanish as an official language from 1 July 2024. . . Here is the official announcement from The Hague Conference (the link provides also the Spanish version): During the annual meeting of the Council on General Affairs and Policy (CGAP), the Members of the Hague Conference on Private International Law (HCCH) expressed their unanimous support for the introduction of Spanish as an official language. From 1 July 2024, Spanish will join English and French as one of the three official languages of the Organisation. This development represents an important further step contributing to universality and inclusiveness at the HCCH, reflecting the importance of multilingualism and multilateralism as core pillars of its work. The adoption of Spanish as an official language will facilitate the proper and effective implementation and operation of the HCCH’s Conventions and instruments in Spanish-speaking States and will therefore have a decisive positive impact on the lives of the hundreds of millions of native Spanish-speakers around the world. The adoption of Spanish will also simplify the lives of the countless other individuals who interact with Spanish-speaking States – be it through commerce, travel, personal relations, or other. The decision to adopt Spanish as an official language of the HCCH will be reflected in CGAP’s Conclusions and Decisions, to be published in the coming days. . . And here is a first blog entry from Claudia Martínez, appropriately in Spanish. . . Notably, a Spanish version of the HCCH website has existed since the launch in 2009. Then, it was the only language version other than the English and French ones. Today, (more or less) full versions exist also in German and Portuguese;  other language sites provide translations of Hague Conventions.

Alexander DJ Critchley has added an enriching installment to Hart’s renowned Studies in Private International Law Series entitled “The Application of Foreign Law in the British and German Courts”.

The author has extensive experience as solicitor in Scots law with a specialisation in family law. His book is the publication of a doctoral thesis completed with distinction at the university of Tübingen (Germany). The blurb reads as follows:

This book explores the application of foreign law in civil proceedings in the British and German courts. It focuses on how domestic procedural law impacts on the application of choice of law rules in domestic courts. It engages with questions involved in the investigation and determination of foreign law as they affect the law of England and Wales, Scotland, and Germany. Although the relevant jurisdictions are the focus, the comparative analysis extends to explore examples from other jurisdictions, including relevant international and European conventions. Ambitious in scope, it expertly tracks the development of the law and looks at possible future reforms.

Please check out Hart’s banner at the top of this page for special discounts for CoL readers.

 

Royal Antwerp Football Club
Libre circulation des personnes
Football : selon l’avocat général Szpunar, les règles de l’UEFA relatives aux joueurs formés localement sont partiellement incompatibles avec le droit de l’Union

Les Mousquetaires et ITM Entreprises / Commission
Concurrence
La Cour annule, partiellement, les arrêts du Tribunal et, en conséquence, les décisions de la Commission ordonnant des inspections dans les locaux de plusieurs entreprises françaises du secteur de la distribution en raison des soupçons de pratiques anticoncurrentielles

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

I reported here on the French judgment which questioned the Court of Justice of the European Union (ECJ) on res judicata. Two months later, in a Recamier case, the French Court of cassation referred again to the ECJ on res judicata as reported by François Mailhé here.

AG Pikamäe delivered his opinion on 16 February 2023 in the first case C-567/21, BNP Paribas. As a reminder, the case relates to an action for payment of various sums, brought in France against a French company by one of its former employees in connection with his dismissal. Previously, he had initiated proceedings in London, his last place of work, and had obtained a judgment ordering the company to pay him compensation for unfair dismissal. In the first instance, a French labour court declared the claims relating to his dismissal inadmissible, because of the res judicata effect of the English judgment. On appeal, the judgment was overturned: the Court of Appeal considered that the various claims for compensation had not been examined by the English court.

The first question referred to the ECJ concerns the obligation to concentrate claims provided for by both legal system at stake.  The second and third questions are related to the notions of cause and subject-matter of the action. In this case, the question is whether an action for unfair dismissal in the United Kingdom has the same cause of action and the same subject-matter as an action for dismissal without real and serious cause in French law or an action for payment of bonuses or premiums provided for in the employment contract, as these actions are based on the same contractual relationship between the parties.  The answers depend on the respective role of Union law and national laws to determine res judicata. Res judicata is not mentioned in the Brussels I Regulation. So the Advocate General first looks at the relationship between res judicata and recognition. Not surprisingly, he states that res judicata is one of the facets of recognition.

AG Pikamäe focuses on two issues, that of the scope of res judicata and that of the consequences for the court of another Member State hearing a related case.

Res Judicata

In a first step, regarding the scope of res judicata and the impact of an national rule of concentration of claims, AG Pikamäe refers to the Jenard Report and the Hoffman judgment (145/86) to justify appliying the doctrine of “extension of effects”, leaving it to the law of the Member State of origin to determine the effects of the judgment invoked in a second Member State (para 46). Therefore, no independent interpretation of the res judicata is given. The Gothaer judgment that might have led to the opposite conclusion. is here irrelevant. It is specific and only apply to jurisdictional decisions.

Thus the law of the United Kingdom must be “taken into account” (applied would have been more precise) for the purpose of determining the authority and effectiveness of the judgment given by the British court (para 52).

But the obligation to concentrate claims does not affect the authority and effectiveness of the judgment (para 53). For AG Pikamäe the rule of “abuse of process”, which is the source of this obligation is not related to res judicata: it is only a means to sanction abuses (para 55). Here it seems that in a somewhat confusing way AG Pikamäe is not interpreting EU law but English law. He refers also to the scheme of Regulation 44/2001 and considers that taking into account, at the stage of the recognition of a decision, a national rule on the concentration of claims could jeopardise the subsequent implementation of the specific rules on jurisdiction in matters relating to individual contracts of employment and of the provisions governing lis pendens and related actions (para 60).  The reasoning does not really convince even in matters of employment contracts where the rules of jurisdiction ensure the protection of the worker. Indeed, one could consider that the protective effect is exhausted with the first proceeding initiated by the worker against his employer. In other words, the employee only has the option of choosing between the place of work and the employer’s home once.

AG Pikamäe goes very far in questioning procedural autonomy when he states that the application of the provisions of Regulation 44/2001 cannot depend on the content of the procedural rules of a Member State (para 62). It does not matter, he adds, that the two Member States concerned have the same rule (para 63). He concludes that a domestic procedural rule on concentration of claims is not an effective criterion for determining the authority attached to a decision given in a Member State. In short, the concentration of claims rule has no consequences for the recognition of decisions. This statement may be surprising. It is up to the law of the country from which the decision originates to specify the extent of res judicata, but the rule on the concentration of claims that it contains is not applied. Thus, while new claims could not have been made in the State of origin, they can be made in another State. Such an attitude is likely to fuel forum shopping and sharpen procedural strategies. In any case the aim of procedural economy is clearly not a priority.

Cause and Subject Matter of Action

In a second step, the opinion focuses on the concepts of cause and subject-matter. The French Cour de cassation had asked the Court of Justice whether a claim for unfair dismissal in the UK has the same cause of action and the same subject-matter as a claim for dismissal without real and serious cause under French law. It also wondered whether a claim for unfair dismissal in the UK has the same cause of action and the same subject-matter as claim for payment of bonuses or premiums provided for in the employment contract, since these actions are based on the same contractual relationship.

The answer to these questions presupposes a precise comparison of the provisions of English labour law with those of French labour law, which is beyond the role of the Court (para 71) but
AG Pikamäe suggests that the Court reformulates the questions referred to it in this way : for the purposes of Articles 33 and 36 of Regulation No 44/2001, do actions based on the same employment contract and relating to obligations arising out of the performance of that contract and to obligations arising out of its termination have the same cause of action and the same subject-matter?

As expected, a parallel between the conditions of lis pendens and those of res judicata is made. AG Pikamäe notes that “the rules on lis pendens and recognition have the common purpose of contributing to the full authority of the judgment given in the Member State of origin, which must not be called into question by a judgment given by a court in another Member State” (para 80). Consequently, he suggests transposing the criterion of identity of parties, cause and subject-matter applicable to lis pendens to res judicata (para 90). As for lis pendens, the terms cause and subject-matter must be regarded as independent.

Building on Gubisch Maschinenfabrik (144/86), Tatry (C‑406/92), and Merck (C‑231/16), AG Pikamäe considers that the claims brought before the Employment Tribunal and those brought before the French Courts, based on the same contractual relationship, are based on the same cause of action.

As regards the ‘subject matter’, the case is more complicated. The Court has stated on different occasions that this means the end the action has in view, that the concept is to be interpreted broadly and cannot be restricted so as to mean two claims which are formally identical and that account must be taken in that regard of the applicants’ respective claims in each of the sets of proceedings. AG Pikamäe distinguishes then between claims relating to the termination of the employment contract and its financial consequences and those relating to the performance of the employment contract (claims for payment of sums due for the performance of work). They have not the same subject-matter (para 106). Nevertheless, the “second” court hearing claims for payment of remuneration in respect of the performance of an employment contract should take into account the possible implications of the original decision. An example is given, the case of the determination, in accordance with the law of the State of origin, by the initial decision of the date of termination of the employment contract, which would be likely to have an impact on the end of the period during which remuneration is due.

AG Pikamäe focuses on the distinction between issues relating to the end of the contract and those relating to the performance of the contract. He considers then that a claim for unfair dismissal in the UK has not the same subject-matter that a claim for payment of sums due for the performance of work. In doing so, it leaves part of the question unanswered. Has a claim for unfair dismissal in the UK the same subject-matter as a claim for dismissal without real and serious cause under French law? A positive answer is only suggested. It is to be hoped that the ECJ will be clearer. The worker is sometimes encouraged to pick and choose among the different laws that may be applied to the employment relationship. The effect would be multiplied if he were also allowed to multiply the proceedings in different countries.

L’arrêt de la Cour de justice du 16 février 2023 porte sur le régime applicable aux décisions de retour prononcées en matière d’enlèvement international d’enfants et concerne plus particulièrement des dispositions du droit polonais concernant la suspension de l’exécution de ces décisions.

Sur la boutique Dalloz Droit de la famille 2023/24 Voir la boutique Dalloz

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The first view of the second issue of ICLQ  for 2023 contains a private international law article that was published online just recently:

 

S Matos, Arbitration Agreements and the Winding-Up Process: Reconciling Competing Values

Courts in a number of jurisdictions have attempted to resolve the relationship between winding-up proceedings and arbitration clauses, but a unified approach is yet to appear. A fundamental disagreement exists between courts which believe that the approach of insolvency law should be applied, and those which prefer to prioritise arbitration law. This article argues that a more principled solution emerges if the problem is understood as one of competing values in which the process of characterisation can offer guidance. This would allow both a more principled approach in individual cases, and a more coherent dialogue between courts which take different approaches to the issue.

Prigozhina / Conseil
Relations extérieures
Le Tribunal annule les mesures restrictives appliquées à Mme Violetta Prigozhina, mère de M. Yevgeniy Prigozhin, dans le cadre de la guerre menée par la Russie contre l’Ukraine

The first issue of the Journal du droit international for 2023 was released. It contains one article and several case notes relating to private international law issues.

In her article, Valérie Pironon (University of Nantes) discusses the issue of international competence in private litigation in the field of anti-competitive practices (L’adaptation des règles de compétence juridictionnelle issues du règlement Bruxelles I bis aux actions en réparation des préjudices causés par une pratique anticoncurrentielle).

The English abstract reads:

Private litigation in the field of anti-competitive practices often has a cross-border dimension justifying the application of private international law mechanisms. Where the dispute is integrated into the European Union, the rules of jurisdiction are those of Brussels I bis Regulation. The implementation of this general regulation in such a specific field of law is often problematic. It seems that the interpretation given by the Court of justice when asked is aimed at encouraging the development of these actions. However, this motivation does not result clearly from the judgments. After considering the hypothesis of a hidden adaptation of the rules of jurisdiction to the material competition stakes at issue, the article questions the prospect of a more transparent adaptation. 

The table of contents of the issue can be accessed here.

This week the Hague Conference on Private International Law (HCCH) published the Practical Guide – Access to Justice for International Tourists and Visitors. The HCCH news item is available here.

As indicated in the Guide, this document “is intended to assist international tourists and visitors to foreign countries seeking access to justice for disputes arising from their tourism experience by providing information on online dispute resolution mechanisms that may be available and HCCH legal instruments that may be relevant in a given case.”

There are a few aspects of the Guide that are worthy of note:

First, the definitions of a visitor and a tourist are interesting.

A “visitor” is considered to mean “a traveller taking a trip to a main destination outside their usual environment, for less than a year, for any main purpose (business, leisure, or other personal purpose) other than to be employed by a resident entity in the country or place visited.”

A “tourist”: “A visitor (domestic, inbound, or outbound) is classified as a “tourist” if their trip includes an overnight stay.”

These definitions are taken from the United Nations World Tourism Organization (UNWTO).

Secondly, Part I of this Guide provides a list of online dispute resolution platforms, although some are not specific to international tourists and visitors. Among the governmental initiatives are: EU Online Dispute Resolution Platform (European Commission), Concilianet de PROFECO (Mexico) and Consumidor.gov.br (Brazil). Among the private initiatives are: Airbnb Online Resolution Centre and Endispute.

Thirdly, Part II of this Guide sets out examples of common claims made by tourists and visitors such as lost baggage, cruise cancelled due to weather, and damage to property at hotel. These examples are merely indicative and of course do not constitute legal advice.

All in all it makes an interesting read and its layout is more easily readable on different devices. Nevertheless, it does make me wonder how much this document would actually help tourists and visitors in times of trouble.

 

 

On 8 March 2023, the latest edition of the cycle of seminars – entirely in English – on cross-border civil and commercial litigation will begin, as part of the European project Jean Monnet Module on Multilevel, Multiparty and Multisector Cross-Border Litigation in Europe, organized by the Department of Italian and Supranational Public Law of the University of Milan.

This year’s edition will focus on the following three topics:

– Binding effects and res iudicata in a multilevel dimension (seminars on 8-9-15-16-17-22-23 March 2023);

– Collective redress and group litigation (seminars on 29 March-12-13-19-20-26-27-28 April 2023);

– Main procedural issues of climate litigation (seminars on 3-4-10-11-17-18 May 2023).

The seminars (currently being accredited by the Milan Bar Council) can be followed both face-to-face and remotely, on the MS Teams platform.

All information on the program and how to register may be found here.

Marco Biasi (Università degli Studi di Milano) has published Decent Work and the Virtual Dimension: Reflections about the Regulation of Work in the Metaverse in Lavoro Diritti Europa 2023/1. The article (written in Italian) deals with conflict-of-laws and substantive law issues of working in the virtual world.
What is the Metaverse?

The metaverse is more than the eponymous project of Facebook, which has recently rebranded itself as “Meta”. The term was first mentioned in 1992 in the novel “Snow Crash” by Neal Stephenson, and describes a virtual space in which participants are fully immersed and can interact with each other almost as in real life. In essence, the metaverse is thus a special type of computer programme which allows people to interact in digital space. To do so, they need equipment, in particular a virtual reality headset and controllers, which are readily available today at a relatively affordable price. Nowadays, a multitude of projects exist aiming to create such a metaverse. Well-known projects in this field are Decentraland and The Sandbox, and of course the ”Metaverse” developed by Meta.

What Kind of Disputes Could Arise?

In the metaverse, various forms of activity can be performed, such as office work, reunions, sales meetings, education – under an employment agreement. As such, disputes between employers and employees will soon emerge, and with them, the question which law applies to work performed. The problem of connecting a metaverse to the labour law of a particular nation state is as obvious as it is baffling.

Where is Work in the Metaverse Habitually Carried Out?

In the European Union, according to Article 8 Rome I Regulation, the country from which or in which the work is habitually performed is of particular importance for determining the law applicable to a contract of employment, irrespective of whether there is a choice of law. Although Article 8(1) Rome I Regulation follows the principle of party autonomy by allowing the parties to choose the applicable law, this choice is limited by the mandatory rules of the country in or from which the work is habitually carried out.
At first sight, both connecting factors seem to lead nowhere given that the work is performed in the virtual space. But Marco Biasi rightly distinguishes the situation of metaverse workers from that of posted workers and pulls us down to a more realistic view point: an employee who sits in their home in country X with a headset and a controller in fact performs their work in this country, and nowhere else.

Labour Law as Overriding Mandatory Rules

This seems to settle the question, yet it would provide very strong incentives for metaverse employers to pick and choose employees living in countries with the lowest labour law standards possible. One way of avoiding this problem could be to assume a closer connection between the contract and the country of establishment of the employer under Art 8(4) Rome I. Marco Biasi suggests, however, another solution: if the employees themselves were to bring a claim in the country of domicile or seat of the employer, the courts there could apply the provisions of their national labour law as overriding mandatory rules (Art 9 Rome I Regulation).

The (possibly) too lenient rules of the place of habitual residence of the worker could thus be overcome and fairness between employer and employee could be re-established. In this way, a nucleus of essential workers protections could be preserved, e.g. the maximum working hours, the minimum wage, and health and safety rules.

There are, however, two problems with this suggestion: First, the employee would have to make the effort of bringing a suit in the country of the employer, which will often be fraught with difficulties such as distance, language, and costs. Second, the suggestion presupposes that mandatory labour law rules could be applied via Article 9 Rome I, even though Article 8 Rome I seems to conclusively determine their application. While many authors indeed are of this view, it is in no way the subject of consensus.

Going Further

Marco Biasi assumes that, in any event, the protection of the employee will be incomplete and differ from country to country. Therefore, he suggests introducing international rules (such as a convention) on the rights of metaverse employees. Some problems will be hard to solve, though; trade negotiations on behalf of a class of workers scattered around the planet will be particularly challenging. There remain, therefore, enough problems to think about even after this first in-depth study of labour law in the metaverse.

Conventions & Instruments

On 1 February 2023, the 1980 Child Abduction Convention entered into force for Botswana. The Convention currently has 103 Contracting Parties. More information is available here.

On 17 February 2023, Azerbaijan deposited its instrument of accession to the 1965 Service and 2007 Child Support Conventions. The 1965 Service Convention, which now has 80 Contracting Parties, will enter into force for Azerbaijan on 1 September 2023, subject to the Article 28 procedure. As for the 2007 Child Support Convention, with the accession of Azerbaijan 46 States and the European Union are now bound by it. It will enter into force for Azerbaijan on 28 February 2024. More information is available here.

Meetings & Events

On 7 and 8 February 2023, the Permanent Bureau of the HCCH co-organised the Regional Conference “The HCCH and the relevance of its work for Southern Africa”, together with Finland and South Africa, with the participation of Namibia and Tanzania, as well as other Southern African Development Community States, and hosted by the University of Pretoria (South Africa). More information is available here.

From 13 to 15 February 2023, the International Transfer of Maintenance Funds Experts’ Group met for the fourth time. Pursuant to its mandate, the Experts’ Group continued its work discussing good practices in relation to the cross-border transfer of maintenance payments, with a view to identifying solutions that are cost-effective, transparent, prompt, efficient and accessible. More information is available here.

From 13 to 17 February 2023, the Working Group on Matters Related to Jurisdiction in Transnational Civil or Commercial Litigation met for the fourth time. Pursuant to its mandate, the Working Group made further progress on the development of draft provisions for a possible future instrument on parallel litigation in civil or commercial matters. More information is available here.

Upcoming Events

Registrations are open for the conference “The HCCH 2019 Judgments Convention: Cornerstones – Prospects – Outlook”, which will be held in person on 9-10 June 2023 at the University of Bonn in Germany. More information is available here.

Vacancies

Applications are now open for three- to six-month legal internships for the period from July to December 2023. The deadline for the submission of applications is 31 March 2023 (18:00 CEST). More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

 

Thank you Gilles Cuniberti for flagging and discussing the French Supreme Court’s judgment in JE and B v Barclay Pharmaceuticals [cross-referral to the English judgment makes this Barclay Pharmaceuticals v Mekni]. Much of this post is already included in prof Cuniberti’s posts.

The core of the case concerns the enforcement of an English judgment [Barclay Pharmaceuticals Ltd v Antoine Mekni and others, [2018] 6 WLUK 461] which, in assisting Barclay Pharmaceuticals with enforcement of an earlier established £8.7 million debt (since accrued with costs etc to about £12 million), had declaratorily held that a large number of bank accounts and other entities which for the most part purport to belong to parties other than Mr Mekni, are in truth owned by him. Mr Mekni did not appear in the English declaratory relief proceedings hence did not there object to jurisdiction.

The relevant issue in the French proceedings for the purposes of the blog, is first of all Article 24(3) Brussels Ia’s exclusive jurisdiction for ‘proceedings which have as their object the validity of entries in public registers’. As Gilles had earlier discussed, here the Supreme Court [5-6] held that an English judgment determining ownership in shares held in public registers, does not engage ‘the validity of entries in public registers’, for said exclusive jurisdiction, it holds, only extends to the formal validity of such entry, not to the ownership of the assets related to the entry.

As Gilles notes, it was possible for the SC succinctly to deal with the A24(3) argument for under the applicable French law relating to the type of corporation involved, whose shares were the object of the proceedings, the only impact of the (non-obligatory) registration was to create limited third party effect; registration has no bearing on the existence, validity and ownership of the shares. Professor Cuniberti justifiably signals that a distinction between substantive and formal validity may not always be easily made.

The second issue of note to the blog, is the issue of service. A43(1) BIa prescribes that

Where enforcement is sought of a judgment given in another Member State, the certificate issued pursuant to Article 53 shall be served on the person against whom the enforcement is sought prior to the first enforcement measure. The certificate shall be accompanied by the judgment, if not already served on that person.

Recital 32 adds

In order to inform the person against whom enforcement is sought of the enforcement of a judgment given in another Member State, the certificate established under this Regulation, if necessary accompanied by the judgment, should be served on that person in reasonable time before the first enforcement measure. In this context, the first enforcement measure should mean the first enforcement measure after such service

In the case at issue, service happened at 2:55 PM and enforcement at 3 PM. Does that leave a ‘reasonable time’? I share Gilles’ frustration that the SC [3] merely replied that French CPR does not require the SC to engage with grounds of appeal that are manifestly unarguable

En application de l’article 1014, alinéa 2, du code de procédure civile, il n’y a pas lieu de statuer par une décision spécialement motivée sur ces griefs qui ne sont manifestement pas de nature à entraîner la cassation.

The take-away from this is that the SC in the circumstances did not see a clear infringement of A43 juncto A53 BIa. That does of course leave a lot of speculation as to when the timing of service might lead to enforcement issues – crucial too, I would suggest, in case of provisional measures.

Geert.