Agrégateur de flux

Symeon Symeonides (Alex L. Parks Distinguished Professor of Law at Willamette University – College of Law) has made available on SSRN a draft of his paper on An Outsider’s View of the Brussels Ia, Rome I, and Rome II Regulations that is being published on Lex & Forum in 2023.

The abstract of the article reads as follows:

This is an invited essay for a conference on “European Private International and Procedural Law and Third Countries” that was held in Greece on September 29, 2022. It focuses on certain aspects of three European Union “Regulations,” which have “federalized” the Private International Law or Conflict of Laws of the Member-States: (1) the “Brussels Ia” Regulation on Jurisdiction and Recognition and Enforcement of Judgments in Civil and Commercial Matters of 2012; (2) the “Rome I” Regulation on the Law Applicable to Contractual Obligations of 2008; and (3) The “Rome II” Regulation on the Law Applicable to Non Contractual Obligations of 2007.
The first part of the essay criticizes the discriminatory treatment of defendants domiciled outside the EU by Brussels Ia, and its lack of deference toward the exclusive jurisdiction rules of third countries or toward choice-of-court agreements choosing the courts of third countries. It praises the Brussels Ia provisions on lis pendens and its protection of consumers and employees against unfavorable pre-dispute choice-of-court agreements.
The second part praises the protection Rome I provides for consumers and employees against unfavorable choice-of-law agreements, but also explains why the protection provided for passengers and insureds is often ineffective. It criticizes the lack of protection for other weak parties in commercial contracts, such as franchises, and explains how an article of Rome II that allows pre-dispute choice-of-law agreements for non-contractual claims in those contracts exacerbates this problem.
The third part of the essay criticizes the way in which Rome II resolves cross-border torts other than environmental torts, especially cross-border violations of human rights. It proposes a specific amendment to the relevant article of Rome II and argues that this amendment will provide better solutions not only in human rights cases but also in other conflicts arising from cross-border torts.

CWS Powder Coatings / Commission
Rapprochement des législations
Le Tribunal annule le règlement délégué de la Commission de 2019 en ce qu’il concerne la classification et l’étiquetage harmonisés du dioxyde de titane en tant que substance cancérogène par inhalation sous certaines formes de poudre

In the space of two weeks, two doctoral theses on arbitral jurisdiction will be publicly defended at the Stockholm University. First, on 21 November 2022, Fabricio Fortese defended a thesis titled Early Determination of Arbitral Jurisdiction – Balancing efficacy, efficiency, and legitimacy of arbitration. On 2 December 2022, Monica Seifert will defend a thesis on Arbitral Jurisdiction in Multi-Contract Relations ­­– A Comparative Study of Swedish, Swiss and English Law.

Fortese’s thesis examines the timing of judicial determination of jurisdictional disputes under Article 8 (1) of the UNCITRAL Model Law on International Commercial Arbitration and Article II (3) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The thesis argues that Article 8 of the Model Law does not require that national courts undertake either a limited (prima facie) or a full review of an arbitration agreement and objections to an arbitral tribunal’s jurisdiction. Fortese holds, as the main finding of his dissertation, that both approaches are permitted under the Model Law. The application of one or the other is “a matter of judgment (rather than opinion), based on the particularities of the case, and aiming to achieve the fair and efficient resolution of the jurisdictional and substantive dispute” (p. 282). Professor George A. Bermann of Columbia Law School acted as opponent at the public defense. A full abstract of the thesis can be read here.

The research question for Seifert’s thesis is whether an arbitration agreement contained in one contract can be considered to apply to disputes concerning other contracts between the same parties. For the analysis, the thesis focuses on the international arbitration prerequisites of (1) a defined legal relationship, (2) the scope of the arbitration agreement and (3) the identity of the matter in dispute. According to the abstract, “[t]he thesis concludes that the legal systems under analysis, despite their largely different procedural and contractual settings, have proven to be sensitive to the pressures of globalization and to the demand for more generous access to arbitration”. In the conclusions, Seifert stresses the importance of the seat of arbitration as it is the procedural law of this country that ultimately will determine arbitral jurisdiction (p. 285). Professor Giuditta Cordero-Moss of Oslo University will act as opponent at the public defense. A full abstract of the thesis can be read here.

L’entrée en vigueur de la juridiction unifiée du brevet est prévue le 1er avril 2023. Le point sur les derniers préparatifs de cette nouvelle instance européenne, dont les juges viennent d’être nommés.

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

en lire plus

Dec 7, 14:00-17:00

Asser Instituut and Online.

More Information and registration here.

On Tuesday, December 6, 2022, the Hamburg Max Planck Institute will host its 28th monthly virtual workshop Current Research in Private International Law at 11:00 a.m. – 12:30 p.m. (CEST). Prof. Christiane Wendehorst (University of Vienna) will speak, in German, about the topic

Crypto-Assets in Private International Law

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

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

Staatssecretaris van Justitie en Veiligheid (Éloignement - Cannabis thérapeutique)
Espace de liberté, sécurité et justice
Un ressortissant d’un pays tiers qui est atteint d’une maladie grave ne peut pas être éloigné si, en l’absence de traitement approprié dans le pays de destination, il risquerait d’y être exposé à une augmentation rapide, significative et irrémédiable de la douleur liée à cette maladie

Luxembourg Business Registers
Rapprochement des législations
Directive antiblanchiment : la disposition prévoyant que les informations sur les bénéficiaires effectifs des sociétés constituées sur le territoire des États membres soient accessibles dans tous les cas à tout membre du grand public est invalide

Dominique Bureau (University of Paris II Panthéon Assas) and Horatia Muir Watt (Sciences Po Law school) have published earlier this week in La Semaine Juridique (édition générale) a critique of the desirability of codifying private international law at national level in a field dominated by EU and international norms (Codifier à contretemps… À propos d’un projet français de codification du droit international privé).

The English summary of the article reads:

After the failure of various initiatives towards national codification of private international law in France in the course the first part of the 20th century, a new project was commissioned recently by the ministry of justice and is now (very briefly) open to public comment. Curiously, then, the spectre of a national code has resurfaced once again in an entirely new context – that is, at a time when the majority of rules of the conflict of laws, jurisdiction and judgments currently in force in Member States have been unified by the European Union (largely successfully). Quite apart from any quality assessment of the various substantive provisions thus proposed in the draft text, some of which would no doubt be useful interstitially in the spaces still left to the competence of national authorities, and indeed beyond the symbolic signification of an inward-local turn in an area designed emblematically to respond to the transnational, the main flaw in this proposal is the erroneous nature of its own premises. There is a real discrepancy between the draft text and the very objectives it is designed to pursue : it is far from making the state of the law more manageable for the courts, as it claims to do. Indeed, in the epistemological terms of the French legal tradition, the very phenomenon of a national code suggests that it contains a complete set of legal tools for solving issues that arise in transnational litigation. However the proposal itself reminds its users that it is applicable by default, while leaving the frontiers of local law very unclear. Surprisingly, it has generated very little academic opposition, but even as the short parliamentary deadline approaches, it is still not too late to do nothing..

The journal and article can be accessed here.

Ebury Partners Belgium SA/NV v Technical Touch BV & Anor [2022] EWHC 2927 (Comm) discusses ia whether choice of court and law included in general terms and conditions – GTCs, agreed (or not) by inclusion in email and /or e-mailed click-wrapeable hyperlink (this is a factual discussion), justifies an anti-suit injunction against Belgian proceedings.

Pre-Brexit such injunction would not have been possible. It has since of course been granted frequently; my most recent report of one was QBE Europe v Generali. Issuing an anti-suit post Brexit therefore is no longer surprising (commentators continue to suggest the EU should somehow shield EU proceedings from them). The application of the Rome I Regulation under retained EU law however does remain less discussed – and it is poorly executed in current judgment.

Anticipatory proceedings seeking a declaration of non-liability were launched unexpectedly (Belgian CPR requires no prior warning in any circumstance) in Belgium on 4 May 2022. The Belgian court later that month held that Ebury’s jurisdiction challenge  will not be dealt with separately, instead, as is standard, will be reserved for consideration at the same time as the merits.

The English proceedings were launched in July 2022. A critical question is whether Ebury can show, with a high degree of probability, that there is a jurisdiction agreement governing the dispute in question. Was the E&W jurisdiction clause contained in Ebury’s RA standard terms incorporated into the agreement between Ebury and TT? The factual circumstances are not conclusive, for there are suggestions of GTCS with choice of court sent by incorporation in an e-mail and /or by click-wrapeable  hyperlink similarly e-mailed.

The judge is correct to classify Rome I as retained law [83]. However the exclusion of choice of court agreements from that Regulation has somehow entirely escaped him and counsel, it seems.

Rather therefore than considering the issue under English conflict of laws (in EU Member States the issue is now subject to Article 25  Brussels Ia however that is irrelevant here), the judgment ventures into Article 10 Rome I’s putative law /von Munchausen /bootstrap principle, to identify English substantive law as the lex cause for the validity (including the issue of incorporation) of the choice of court. This leads after extensive discussion to a finding of incorporation under English law [102].

[103] ff Belgian law is signalled as a fall-back under Article 3(5) and 10(2) Rome I, however the judge essentially ignores that possibility (although he formally entertains it) by referring to a lack of indication on the facts that the counterparty agreed to the relevant clauses. He uses the ‘man on the Clapham omnibus’ formula to reach that conclusion: counterparty did consult or should have consulted the GTCs and there are no factual indications it disagreed with them. Conflicting Belgian law  expert evidence is not discussed.

Anti-suit was eventually granted.

If their apparent lack of raising the proper analysis (ie: no inclusion of choice of court) of the Rome I issue does not prevent defendants from appealing, they clearly should, to the extent the English conflict of laws approach to validity of choice of court, may lead to a finding of non-incorporation.

Geert.

Anti-suit injunction granted viz Belgian proceedings
E&W jurisdiction clause included in GTCs per click-wrap agreement
Discussion ia of A10 Rome I bootstrap principle

Ebury Partners Belgium SA/NV v Technical Touch BV & Anor [2022] EWHC 2927 (Comm) https://t.co/ss8coWfP2Q

— Geert Van Calster (@GAVClaw) November 18, 2022

Aucun texte de transposition ne prévoit que le représentant soit débiteur de l’indemnisation due par l’assureur étranger et il ne se déduit d’aucun texte le droit pour la victime de diriger l’action judiciaire en indemnisation, même provisionnelle, exclusivement contre le représentant de l’assureur étranger. L’action en référé fondée sur l’article 145 du code de procédure civile devant être dirigée contre la personne à laquelle la mesure d’instruction pourra être opposée dans un litige éventuel au fond, elle doit l’être, en cas d’expertise médicale faisant suite à un accident de la circulation, contre le débiteur de la réparation du dommage corporel, soit, au cas particulier, l’assureur étranger du véhicule impliqué dans l’accident, et non son représentant.

Sur la boutique Dalloz Code des assurances, code de la mutualité 2022, annoté et commenté Code de procédure civile 2023, annoté Voir la boutique Dalloz

en lire plus

La Cour de cassation se prononce sur la détermination de la juridiction actuellement compétente et sur la procédure applicable en matière d’exequatur en présence d’une convention internationale désignant le président du tribunal de grande instance dans le cadre d’un référé en la forme.

Sur la boutique Dalloz Code de procédure civile 2023, annoté Voir la boutique Dalloz

en lire plus

L’encadrement des loyers ne porte pas atteinte au droit de propriété tel que protégé par l’article 1er du Protocole n° 1 à la Convention dès lors que ce plafonnement procède d’une respectueuse mise en balance des intérêts concurrents.

Sur la boutique Dalloz Code des baux 2022, Annoté et commenté (N) Voir la boutique Dalloz

en lire plus

 The third issue of 2022 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features:

Giovanna Adinolfi, Professor at the University Milan, States’ Economic Measures to Counter Cyberattacks: Disentangling Their (Il)Legitimacy under International Law

The present contribution draws the attention on measures adopted by States to tackle actual or potential cross-border cyberattacks and that may have an impact on international commercial transactions. With a look to the more recent practice, the distinction is proposed between response measures (addressed against those held responsible for cyber operations that have caused an injury to the target State) and anticipatory or preventive measures (intended to prevent cyberattacks). Against this backdrop, the issue is addressed as to whether both types of measures represent international unlawful acts which find a justification within the international legal order.

Bruno Barel, Associate Professor at the University of Padua, Le notificazioni nello spazio giuridico europeo dopo il regolamento (UE) 2020/1784 (Service of Documents in the European Judicial Area after Regulation (EU) 2020/1784) [in Italian]

The second recast of the uniform rules on the service of judicial and extrajudicial documents in civil or commercial matters introduced three innovative elements of particular relevance to the original framework, that dates back to the year 2000 (and which had already been subjected to recasting in 2007). Two of these novel provisions relate to the technological evolution of remote communications, and they consist of the institution of a common IT system for the telematic transmission of acts and documents between national authorities and of the – albeit timid and prudent – opening to direct forms of service by electronic means between individuals, thus surpassing the mediation of authorities. The third – and equally careful – novel provision attempts to reinforce the assistance between the authorities of different Member States aimed at identifying the address of the person to be served. Moreover, the most innovative part of the regulation will be fully operational only in 2025, in expectation of the full development of the decentralised IT system.

The following comments are also featured:

Pietro Franzina, Professor at the Catholic University of the Sacred Heart – Milan,  Il ruolo degli Incoterms nella determinazione convenzionale del luogo della consegna: note critiche sulla giurisprudenza della Cassazione (The Role of Incoterms in the Determination by Agreement of the Place of Delivery: Critical Notes on the Case Law of the Italian Court of Cassation) [in Italian]

By a recent ruling (Order No 20633 of 28 June 2022), the Italian Supreme Court addressed the issue of the role played by Incoterms in the determination of the place of delivery of the goods for the purposes of Article 7 No 1(b), of Regulation No 1215/2012 of 20 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. As in previous rulings on the same subject, the Supreme Court was reluctant to regard the incorporation of Incoterms into a contract as signalling the parties’ agreement on the place of delivery. Specifically, the Supreme Court dismissed the claim by the Italian seller that the contract in question had been agreed “EXW” its own premises in Italy: the Court acknowledged that the goods had in fact been picked up by a carrier hired by the buyer at the seller’s premises, but found that the parties had failed to agree “clearly” on the place of delivery, as it could not be established that the parties had unequivocally intended to make the seller’s premises the place of delivery of the goods for the purposes of jurisdiction. The paper contends that the approach of the Italian Supreme Court contradicts the principles laid down by the Court of Justice in Car Trim and Electrosteel. The approach is unpersuasive in two respects. First, the Supreme Court regards the parties’ agreement on the place of delivery as a derogation from the “general rule” whereby delivery must be understood to be due, for jurisdictional purposes, at the place of final destination of the goods (whereas, according to the Court of Justice, the latter is just a residual rule, which applies where the parties have failed to agree on the place of delivery). Secondly, the Supreme Court disregards the rules of interpretation adopted by the International Chamber of Commerce to describe the parties’ obligations under the different Incoterms, and follows, instead, its own understanding of the Incoterms concerned: actually, the Supreme Court asserted in the decision reviewed that, “as a rule”, the Incoterm EXW only relates to the allocation of the costs of transport and the transfer of risk, and has no bearing as such on the determination of jurisdiction.

Michele Grassi, Research Fellow at the University of Milan, Riconoscimento del rapporto di filiazione omogenitoriale e libertà di circolazione all’interno dell’Unione europea (Recognition of Same-Sex Parentage and Freedom of Movement within the European Union) [in Italian]

This paper aims to provide a critical analysis of the judgment rendered by the Court of Justice of the European Union in the Pancharevo case, where the Court was confronted with the sensitive issue of same-sex parenthood and its recognition in the context of free movement rights within the Union. The investigation focuses on the functional approach adopted by the Court of Justice in the application of the mutual recognition principle, and its possible implications on the recognition of same-sex parenthood for wider purposes, not directly linked to the exercise of free movement rights

Finally, this issue features the following book review by Francesca C. Villata, Professor at the University of Milan: Jason Grant ALLEN, Peter HUNN (eds.), Smart Legal Contracts. Computable Law in Theory and Practice, Oxford University Press, Oxford, 2022, pp. XIV-513.

CA Indosuez (Switzerland) SA & Anor v Afriquia Gaz SA & Anor [2022] EWHC 2871 (Comm) is largely a case of statutory construction (here: of the amended Civil Procedure Rules – CPR).

It transpires from current judgment that similar issues were discussed (yet eventually did not need determination) in Naftiran Intertrade Company (Nico) Limited and Anor v G.L. Greenland Limited and Anor [2022] EWHC 896 (Comm) (unpublished).

I do not often copy /paste big chunks of judgment let alone the facts parts of them, however here I feel it is quite necessary: [1] ff, in summary:

Gulf Petroleum FZC, the First Part 20 Defendant (“GP”) had trade finance facilities with CA Indosuez (Switzerland) SA (the Claimant: “CAIS”) and with UBS Switzerland AG (the Second Part 20 Defendant: “UBS”).

Afriquia Gaz SA and Maghreb Gaz SA, the Defendants and Part 20 Claimants (“AG” and “MG”), purchased a cargo of butane from GP.  GP assigned to CAIS the debt represented by the purchase price.  GP issued its invoices to AG and MG on 23 July 2020 and CAIS sent notices of assignment on 27 and 28 July 2020.

However on 19 August 2020 AG and MG paid, by SWIFT, the sums due to GP’s account with UBS. The funds were received into one of GP’s accounts with UBS and then transferred to what appears to have been its loan or overdraft account.

GP instructed UBS to transfer the sums received to CAIS. UBS refused. It claimed to have been entitled to set off those sums against GP’s liabilities to it.

By Rule 20.1 of the Civil Procedure Rules, the purpose of Part 20 of the CPR is “to enable counterclaims and other additional claims to be managed in the most convenient and effective manner”. CAIS commenced this claim against AG and MG for the purchase price, a claim in debt. AG and MG denied liability but added (Part 20) claims against GP and UBS for the sums received, and in unjust enrichment and for liability as constructive trustee. Following the exchange of expert reports on Swiss law, AG and MG have accepted that their claim against UBS based on an alleged constructive trust must fail, and that the claim in unjust enrichment will only arise in certain circumstances.

GP is incorporated in the UAE.  The sale contract with AG and MG contained an exclusive jurisdiction agreement in favour of the High Court in London. The Part 20 Claim Form was issued with the following indorsement:

“[AG and MG] are permitted to serve the [Part 20] Claim on [GP] pursuant to CPR r.6.33(2)(b)(v) and Article 25 of the Judgments Regulation because [GP] is a party to an agreement … conferring exclusive jurisdiction within Article 25 of the Judgments Regulation.  [AG and MG] are permitted to serve the [Part 20] Claim on [UBS] out of the jurisdiction pursuant to CPR r.6.33(1)(b)(i) and Article 6(3) of the Lugano Convention.

The reference to Article 6(3) was a mistake for Article 6(2).

The Part 20 Claim Form against GP and UBS was issued on 30 December 2020, before the end of the Brexit transition period. UBS declined to instruct solicitors to accept service in England. AG and MG meanwhile on 20 January 2021 obtained an order from Cockerill J extending the validity of the Part 20 Claim Form. The Part 20 Claim Form was served or purportedly served on UBS, out of the jurisdiction, on 9 March 2021.

Crucially, the Court’s permission for service out of the jurisdiction on UBS was not sought. Counsel for claimant informed the Court that those representing AG and MG considered at the time that no permission would be needed, on the basis that jurisdiction under the Lugano Convention, which existed at the date of issue of the Claim Form, was preserved. Counsel also contented that even if permission to serve out was required and had been sought, it would inevitably have been granted, as questions of appropriate forum (considered in an application for permission to serve out) were not relevant in the context of the Lugano Convention. 

UBS acknowledged service on 26 March 2021, indicating an intention to contest jurisdiction.  Current judgment focuses on that contestation.

Under the European Union Withdrawal Act 2018, implementing the EU Withdrawal Treaty, an implementation period came to an end at 23:00 GMT on 31 December 2020 (a day after the claim form that initiated current litigation was issued; also known as “IP completion day”). During the implementation period, obligations stemming from international agreements to which the EU was party continued to apply. Until IP completion day therefore the Lugano Convention applied to it by reason of the EU’s membership of the Convention. That clearly is no longer the case.

Essentially, E&W CPR was amended to include transitional provisions in relation to service out of the jurisdiction, which specifically maintain the pre-existing position that permission is not required for a claim form issued prior to withdrawal where jurisdiction is based on Brussels Ia. However, there is no equivalent saving for claim forms where jurisdiction exists under the Lugano Convention.

Knowles J [25] on the issue of permission, reaches the same conclusion as Ms Dias QC in Naftiran (above): namely that the widened A6.33(3) CPR rule applies to include Lugano Convention claims. That rule now reads

“6.33(3) The claimant may serve the claim form on a defendant out of the United Kingdom where each claim made against the defendant to be served and included in the claim form is a claim which the court has power to determine other than under [the Convention on Choice of Court Agreements concluded on 30th June 2005 at the Hague], notwithstanding that (a) the person against whom the claim is made is not within the jurisdiction; or (b) the facts giving rise to the claim did not occur within the jurisdiction.”

Having decided the issue of permission, the judge still had to decide whether Lugano conveys jurisdiction in this case. A 6(2) Lugano provides that a person domiciled in the state bound by the Convention may be sued “as a third party in an action on a warranty or guarantee, or in any other third party proceedings, in the court seised of the original proceedings, unless these were instituted solely with the object of removing him from the jurisdiction of the court which would be competent in his case;”

A core issue in current case is that the main claim is settled [12]; can the third party proceedings still continue in the main claim’s forum? The judge refers to CJEU C-365/88 Kongress Agentur (a Lugano case) and [44] holds that there is sufficiency of connection between the claims for jurisdiction to be established; that there is no authority for defendants’ proposition that only ‘exceptional circumstances’ may justify third-party proceedings to continue when the main claim is settled, and that in essence [41] sufficiency of connection between the third party claims and the main claim suffice for the former to continue in the latter’s jurisdictional home.

There are echoes here of potential for abuse per CJEU CDC, however that route was seemingly not pursued and on the facts would seem challenging to substantiate.

Geert.

Whether amended CPR implementing EU-UK withdrawal agreement requires (held: no) permission for service out in #Lugano Convention scenarios when it still applied
Also considers fate of anchored claim when main claim is settled
CA Indosuez ea v Afriquia Gaz https://t.co/GvNEAklFBv

— Geert Van Calster (@GAVClaw) November 14, 2022

A recent Briefing paper titled Updating the European digital identity framework, authored by Mar Negreiro and Maria Niestadt (from the European Parliamentary Research Services), may be of interest to the readers of this blog.

It deals with the proposal of the European Commission, released in June 2021, to create a “European Digital Identity” (EDI) and a dedicated “Wallet” for citizens and businesses in the European Union (hereafter ‘EDI Regulation proposal’).

General Background of a ‘European Digital Identity’ and its Dedicated ‘Wallet’

The ‘European Digital Identity Wallet’ (EDIW) aims to allow people and companies based in the EU, to store person identification data (e.g. name, address, gender, civil status) and electronic attestations of attributes (e.g. bank account, birth certificate, diploma, company statute) for cross-border use. It should also allow users to authenticate and access online public or private services (Article 6a of the EDI Regulation proposal). According to the European Commission, by means of this digital wallet, proving your identity and sharing electronic official documents across the EU Member States will be possible with ‘one click’ on your smartphone!

This legislative proposal surely is a coherent and necessary continuum of the digitalisation momentum in the Union, both in its economic (i.e. internal market policy) and judicial (i.e. judicial cooperation in civil and criminal) dimension. One of its main political objective is for the Member States and the Union to regain control over the identity of European citizens in the digital ecosystem. Indeed, the dominant tech platforms have been developing private forms of ‘digital ID’, competing with national legal identification schemes. Under the EDI Regulation proposal, the digital wallet should only be issued under the supervision of Member States (i.e. directly by the State or based on a mandate/recognition requirements from the State). The project also aims to support the empowerments of ‘EU digital citizens’ in the same vein as the Declaration on European Digital Rights and Principles recently put forward by the European Commission to ensure a human-centred digital transformation in the Union. Users should be “in full control” of the wallet (Article 6a (7) of the EDI Regulation proposal) based on the key-principles of the GDPR, such as the requirement of data minimisation.

However, the proposal also raises several concerns about, inter alia, the effectivity of data protection, the risk of exclusion of parts of European society, the system’s vulnerability to fraud and data loss. I propose to add to that list uncertainties with regard to private international law rules and their implementation in ‘EDIW context’. The first question that occurs to me is as follows: what will be the legal scope of the cross-border portability of the information contained in this digital wallet?

Legal Outlines of the European Digital Identity Wallet The Acquis based on the eDIAS Regulation

The EDIW proposal builds on the acquis of the eIDAS Regulation on electronic identification and trust services for electronic transactions in the internal market. This latter lays down the conditions for the mutual recognition, between EU Member States, of electronic identification means of natural and legal persons, based on national notified electronic identification schemes (Article 6). By consequence, the identity – unique by essence – of citizens and businesses based in a Member State can be established throughout the Union (or, at least, in the other Member States that have notified such schemes). Concretely, it should for instance allow a person, domiciled in one Member State, to open a bank account in another Member State remotely, via an electronic identification (eID). The bank should be able to verify the age and the legal identity of the client, his/her financial records and the paperwork could be signed online using e-signatures (see here for other ‘promotional’ examples).

For the proper functioning of the mutual recognition principle, the eIDAS Regulation provides for three “assurance levels” applicable to the electronic identification schemes; they characterise “the degree of confidence in electronic identification means in establishing the identity of a person” (see Recital 16 and Article 8). Against this background, mutual recognition of electronic identification means – used for authentication for an online service – is mandatory for the ‘host State’ only when the public body of the ‘home State’ uses the “substantial” or “high” assurance levels for accessing that service online (Article 6).

‘European Digital Identity Wallet’: What Does It Mean?

The EDI Regulation proposal goes further than the current eIDAS Regulation in making mandatory for all Member States to provide electronic identification means and to recognise the notified electronic identification schemes (eDIs) of other Member States. In that respect, it lays down common requirements for the issuing of European Digital Identity Wallets (EDIW) by Member States (Article 6a of the EDI Regulation proposal). These wallets are understood as “electronic identification means […] containing person identification data and which is used for authentication for an online or offline service” (see Article 1, (3) (a) (2) of the proposal, with the understanding that ‘authentication’ enables the electronic identification as well as the origin and integrity of data in electronic form to be confirmed).

By comparison with a more familiar concept, ID cards issued by EU Member States (following the implementation of Regulation 2019/1157 on strengthening the security of identity cards of Union citizens) are also characterised as ‘electronic identification means’ under the eIDAS Regulation and the EDI Regulation proposal. But the future EDIW is much more than a mere digital ID card. It is both “a product and service” that allows the user “to store identity data, credentials and attributes linked to her/his identity, to provide them to relying parties on request and to use them for authentication, online and offline, for a service […] and to create qualified electronic signatures and seals” (Article 1, (3) (i) point 42 of the proposal).

Legal Scope of the European Digital Identity Wallet

The digital wallet should, inter alia, allow the “validation” of person identification data and electronic attestations of attributes by relying parties. More widely, Member States should provide “validation mechanisms” to ensure that the “authenticity and validity” of the digital wallet can be verified. In that respect, the EDIW should meet the “high level of assurance”, by reference to the eIDAS Regulation (see above), in particular with regard to “identity proofing and verification” requirements. The high level of assurance is based on technical specifications, standards and procedures “the purpose of which is to prevent misuse or alteration of the identity” (Article 8, (2), c).

It is also worth mentioning that the EDI Regulation proposal lays down a minimum list of attributes (e.g. address, age, civil status, family composition, financial and company data), the authenticity of which should be verifiable electronically, at the request of the user, by qualified providers of electronic attestations of attributes, against the relevant authentic source at national level (Article 45d and Annex VI).

Eventually, the proposed EDIW framework does not appear very clear about the normative scope of trans-European data flows via the digital wallet, between (presumption of) authenticity and validity.

Some Private International Law Issues Raised by the EDIW The Legal Implication of the Mutual Recognition Technique

Beyond the strengthening of a common ‘technological infrastructure’, the ultimate goal of the ‘European Digital Identity Wallet’ (EDIW) is to ensure the cross-border recognition of Europeans’ legal identity and additional information about them (i.e. attestation of attributes such as certificates of birth or diplomas). This brings us to more familiar territory, starting with the core question of the legal significance of the mutual recognition technique in this specific context.

Mutual recognition should provide for a cross-border portability of the data stored within the digital wallet, such as age, gender, nationality or company data. In that respect, the relevant methodology may be based on the international circulation of foreign public documents that have consolidated a legal situation in a first Member State and whose legal consequences are expected in the host Member State (cf. the inspiring work of Professor Ch. Pamboukis). In the case of ‘non-decisional’ public documents (e.g. a professional qualification or a driving licence, ‘crystallised’ in the digital wallet issued by the State of origin), these documents should produce non-normative procedural effects of an evidentiary nature. The data stored in the digital wallet may also be presumed to be formally valid, which allows them to flow across legal borders: the person concerned may use them in the ‘host State digital jurisdiction’ in the same way as in his/her State of origin.

When the data contained in the digital wallet are no longer related to administrative/public aspects (e.g. diploma or driving licence mentioned above) but to personal status and individuality (e.g. name, domicile, civil status, family composition), the mutual recognition technique could take on a different meaning. Indeed, the public documents in question are no longer limited to ‘establishing’ a situation certified by a public authority but are of a ‘receptive’ type. The public authority issuing the public document has ‘received’ the private will expressed by the parties in order to authenticate it. In this context, it could be argued that the digital circulation of such a public document (e.g. a marriage or a name certificate) carries a presumption of validity of the legal situation (i.e. negotium) contained in it (i.e. instrumentum). This distinction is well-known among private international law experts and the suggested reasoning should be the same whether the information is ‘digitised’ or formalised in a paper document. Indeed, electronic attestation of attributes should have “the equivalent legal effect of lawfully issued attestations in paper form”, pursuant to the EDI Regulation proposal (Recital 27).

Critical Assessment

The future ‘European Digital Identity Wallet’ could have a real impact on the international recognition of personal and family status in the Union. The same could be said for the status of legal persons. For citizens and businesses, intra-European free movement would be strengthened and, in practice, greatly simplified.

The main methodological consequence from the private international law perspective should be the ‘eviction’ of the conflict-of-laws rules and reasoning. This is understandable insofar as, in practice, the presumption of probative value of a foreign public document, on the basis of mutual recognition, implies, in our view, a presumption of validity of the legal situation it contains (cf. here).

In the European context, this statement should be even more accurate, because of the remarkable influence of EU citizenship and fundamental rights (such as the right to privacy which applies to the identity of individuals) on conflict-of-laws. Several examples may be found in the caselaw of the CJEU, such as the recent Pancharevo judgment (commented on the blog) raising exactly this issue. For part of scholars and many Member States, this is however the pitfall to be avoided. But actually, the intra-European digital flow of personal data, via this European digital wallet, should instead reinforce this trend.

The Interplay Between the EDIW and Other Legal Instruments

It is important to note that the EDI Regulation proposal, like the current eIDAS Regulation, gives priority to other rules of EU and national law on specific sectors. In that respect, the proposal lays down that the (future) regulation “does not affect national or Union law related to the conclusion and validity of contracts or other legal or procedural obligations relating to sector specific requirements as regards form with underlying legal effects” (Article 2, §3). The issue of normative interplay between the EDIW framework and other important instruments will be crucial. This will be the case, inter alia, in the field of personal status, regarding Regulation 2019/1191 on Public Documents but probably also some ICCS conventions (such as Convention n°34 recently entered into force), as well as national rules on the international legal effects of public documents. This is also true for EU instruments which support the cross-border cooperation between public national authorities and the free movement of citizens and businesses, i.e. the IMI System and the Single Digital Gateway.

The ‘One-click EU Recognition’ is not yet ready to be the revolutionary new tool for private international law partitioners, but the European Digital Identity Wallet is definitively a topic for us!

Dr Benjamin Hayward*

The United Nations Convention on Contracts for the International Sale of Goods (‘CISG’), currently adopted by 95 States, is a treaty intended to harmonise the laws governing cross-border goods trade: and thereby promote trade itself.  So much is made clear in its Preamble:

The States Parties to this Convention, …

Being of the opinion that the adoption of uniform rules which govern contracts for the international sale of goods and take into account the different social, economic and legal systems would contribute to the removal of legal barriers in international trade and promote the development of international trade,

Have agreed as follows: …

Art. 7(1) CISG’s instruction for interpreters to have regard ‘to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade’ establishes a requirement of autonomous interpretation.  This, in turn, facilitates the CISG’s global jurisconsultorium: whereby courts, arbitrators, lawyers, academics, and other interested stakeholders can influence and receive influence in relation to the CISG’s uniform interpretation.  A recent publication edited by Peng Guo, Haicong Zuo and Shu Zhang, titled Selected Chinese Cases on the UN Sales Convention (CISG) Vol 1, makes an important contribution to this interpretative framework: presenting abstracts and commentaries addressing 48 Chinese CISG cases spanning 1993 to 2005, that may previously have been less accessible to wider international audiences.

A review of this case law collection discloses an interesting phenomenon affecting the CISG’s Chinese application: at least, until very recently.  Pursuant to Art. 142(2) General Principles of the Civil Law (which was effective in the People’s Republic of China until repealed as of 1 January 2021):

[I]f any international treaty concluded or acceded to by the People’s Republic of China contains provisions differing from those in the civil laws of the People’s Republic of China, the provisions of the international treaty shall apply, unless the provisions are ones on which the People’s Republic of China has announced reservations.

(Translation via Jie Luo.)

Numerous contributions to Guo, Zuo and Zhang’s volume – including by Wang, Guo and Zhang; Luo; Luo again; Wang; and Xu and Li – observe that some Chinese courts have interpreted this provision to require the CISG’s application only where it is inconsistent with non-harmonised Chinese law.  Whilst this approach to the CISG’s application is noteworthy for its inconsistency with international understandings of the treaty, it is arguably more noteworthy for highlighting that national law itself is often ‘where the relationship between the convention and national law is regulated’.[1]  Scholarship has given much attention to the success (or otherwise) of Art. 7(1) CISG in securing the treaty’s autonomous interpretation.  However, machinery provisions giving the CISG local effect in any given legal system (themselves being matters of ‘local legislative judgment’) have an apparently-underappreciated role to play, too.

Wang’s contribution quotes Han as writing that the Chinese inconsistency concept’s effective implementation of a reverse burden of proof in establishing the CISG’s application is a situation that ‘I am afraid … is unique in the world’.  On the contrary, and not unlike China’s former Art. 142(2) General Principles of the Civil Law, Australia’s CISG implementing Acts still ostensibly frame the treaty’s local application in terms of inconsistency.  The Sale of Goods (Vienna Convention) Act 1986 (NSW) s 6 is representative of provisions found across the Australian state and territory jurisdictions: ‘[t]he provisions of the Convention prevail over any other law in force in New South Wales to the extent of any inconsistency’.  Case law from Victoria and from Western Australia has read those jurisdictions’ equivalent inconsistency provisions as implying the CISG’s piecemeal application, only where particular provisions are inconsistent with local law.  Looking even further afield, Australia’s own use of the inconsistency device is far from unique.  Singaporean and Canadian legislation make use of the inconsistency concept, as does Hong Kong’s recently-promulgated CISG Ordinance.  In the latter case, the statutory interpretation risks associated with the adoption of an inconsistency provision were drawn to the Hong Kong Department of Justice’s attention.  However, Australia’s statutory model prevailed, perhaps in part because it has previously been put forward as a model for Commonwealth jurisdictions looking to implement the CISG.

At the risk of being slightly controversial, at least some scholarship addressing the failings of national CISG interpretations may have been asking the wrong question: or at least, missing an important additional question.  Instead of asking why any given court has failed to apply and respect Art. 7(1) CISG’s interpretative directive, we might instead (or also) usefully ask whether that given State’s CISG implementation legislation has been drafted so as to invite the local law comparisons that have then been made.  Some responsibility for problematic CISG interpretations might lie with the legislature, in addition to the judiciary.

In Australia, the Playcorp decision – Victoria’s inconsistency case referred to above – has been taken by subsequent cases in both the Federal Court and in the Full Federal Court of Australia as authority for the proposition that Art. 35 CISG’s conformity requirements equate to the implied terms contained in the non-harmonised Goods Act 1958 (Vic) s 19.  The Federal Court’s first-instance decision was itself then cited in New South Wales for that same proposition: leading to a problematic CISG interpretation that is now entrenched under multiple layers of precedent.  Whilst the equation being made here is rightly criticised in itself, it has Australia’s inconsistency provisions – in addition to our courts’ failures to apply Art. 7(1) CISG – resting at its core.

Guo, Zuo and Zhang’s Selected Chinese Cases on the UN Sales Convention (CISG) Vol 1 thereby makes a valuable contribution to the Convention’s jurisconsultorium: first, by virtue of its very existence, but secondly, by its additional disclosure of China’s former inconsistency struggles to the wider scholarly community.

[1] Bruno Zeller, ‘The CISG in Australasia: An Overview’ in Franco Ferrari (ed), Quo Vadis CISG?  Celebrating the 25th Anniversary of the United Nations Convention on Contracts for the International Sale of Goods (Bruylant, 2005) 293, 299.

 

* Senior Lecturer, Department of Business Law and Taxation, Monash Business School

Twitter: @LawGuyPI

International Trade and International Commercial Law research group: @MonashITICL

Disclosure: The author is a confirmed contributor to the forthcoming Selected Chinese Cases on the UN Sales Convention (CISG) Vol 3.

Un comité d’experts travaille actuellement sous l’égide du Conseil de l’Europe à l’élaboration d’un instrument juridique international potentiellement contraignant pour protéger la profession d’avocat. Le point sur ce projet et l’état d’avancement des travaux.

Sur la boutique Dalloz Règles de la profession d’avocat 2022/2023 Voir la boutique Dalloz

en lire plus

Their relevance is of course insignificant in light of the dreadful events that  triggered the judgments, however I thought I would flag the private international law elements in this week’s four Dutch judgments following the criminal prosecution of the suspects (now culprits) in the downing of MH17.

The judgment against Mr Pulatov was the  only one to respond to defence arguments actually made: he was the only one to have been represented (the other judgments were held in absentia). The judges extrapolate his arguments to the  other defendants to ensure some kind of proper representation, however they also explore further elements not raised by Mr Pulatov in the other judgments. This includes precisely the private international law elements for, it seems, no private claim was attached to the prosecution of Mr Pulatov while it was against the other defendants.

In this post I take the judgment against Mr Dubinskiy as the relevant text (structure and content of the other 2 judgments are essentially the same).

[12.4.1] discusses the possibility of judging the civil leg of a criminal suit. That the crimes could be prosecuted in The Netherlands is established on the basis of international criminal law of course, which is not the area of this blog. Jurisdiction for the civil leg is justified by reference to this being accepted international practice. Support (not: legal basis per se) is found by the court in Article 7(3) Brussels Ia:

A person domiciled in a Member State may be sued in another Member State:

as regards a civil claim for damages or restitution which is based on an act giving rise to criminal proceedings, in the court seised of those proceedings, to the extent that that court has jurisdiction under its own law to entertain civil proceedings;

and in the similar regime under the Lugano Convention. The court rejects a potential (this judgment as noted was issued in absentia) lis pendens argument vis-a-vis proceedings  in the United States. The court remarks that these judgments had already been issued before the Dutch criminal prosecution was initiated; that therefore there are no concurrent proceedings unto which a lis pendens argument could be raised; and that the US judgments reached the same conclusion.

Res judicata of the US judgments is dismissed as an element which would impact the Dutch judgments at this stage. The court does point out that res judicata may return at the enforcement stage of the damages part of the judgments, in that the victims will not be entitled to double compensation. Note that the US judgments included punitive damages which as readers will know is also a complicating factor for enforcement in the EU.

At 12.14.2 the court then turns to applicable law, for which it of course applies Rome II. With reference to CJEU C-350/14 Lazar, it dismisses the ‘extraordinary suffering’ of the relatives of the victims as ‘indirect damage’ under Rome II, instead exclusively taking the direct damage (the passing away) of the victims on Ukrainian territory as determinant for locus damni.

Dutch law is held not to be ‘manifestly more closely connected’ per A4(3) Rome II, despite the majority of the victims being Dutch. The court in this respect refers firstly to the link with Ukraine not being accidental (such as might be the case in ‘ordinary’ mass claims) but rather directly linked to the hostilities in Ukraine), moreover to the need to guard what it calls the ‘internal harmony’ of the judgment seeing as there are also non-Dutch relatives involved. This I find a touch unconvincing, particularly seeing as the court itself in the same para, with reference to Jan von Hein in Callies’ 2nd ed. of the Rome Regulations commentary, refers to the need to consider A4(3)’s escape clause individually, not collectively.

Geert.

Links to all 4 judgments:

https://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBDHA:2022:12219

https://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBDHA:2022:12218

https://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBDHA:2022:12217

https://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBDHA:2022:12216

Note the conflict of laws element in the civil suit's part of yesterday's #MH17 judgment:
jurisdiction per A7(3) Brussels Ia; no lis pendens or res judicata viz earlier US judgments; application of Ukranian law per Rome II

NL v Kharchenko et alhttps://t.co/d1QZXZwG96

— Geert Van Calster (@GAVClaw) November 18, 2022

The Greek Supreme Court of Cassation (Areios Pagos) rendered a very important decision at the end of June, which is giving the final blow to a period of procedural insanity. A provision in force since the 1st of January 2016 is forcing claimants to serve the document instituting proceedings abroad within 60 days following filing. Failure to abide by the rule results to the deletion of the claim as non-existent. As a consequence, the claimant is obliged to file a new claim, most probably being confronted with the same problem.

[Supreme Court of Cassation (Areios Pagos) nr. 1182/2022, available here.

 

Facts and judgment in first instance

The dispute concerns two actions filed on 31.01.2017 and 31.03.2017 against defendants living in Monaco and Cyprus respectively. The claimant served copies of the action by using the main channels provided for by the 1965 Hague Service Convention (for Monaco; entry into force: 1-XI-2007) and the Service of Process Regulation nr. 1393/2007. Service to the defendant in Monaco was effected on 08.05.2017, whereas service to the defendant in Cyprus on 19.06.2017. Both actions were dismissed as non-existent (a verbatim translation would be: non-filed) due to the belated service to the countries of destination [Thessaloniki Court of 1st Instance 2013/2019, unreported]. The claimant filed a second (final) appeal, challenging the judgment’s findings.

 

The overall picture before the decision of the Supreme Court

So far, the vast majority of Greek courts was following the rule in exactly the same fashion as the first instance court. Article 215 Para 2 of the Greek Code of Civil Procedure reads as follows: … the claim is served to the defendant within a term of 30 days after filing; if the defendant resides abroad or is of unknown residence, the claim is served within 60 days after filing. The rule applies exclusively to ordinary proceedings, i.e., mostly civil and commercial matters, with the exception of some pertinent disputes, which are regulated under a special Book of the Code of Civil Procedure [Book 4, Articles 591-465: Special Proceedings]

A countless number of motions were dismissed as a result of this rule since 2016. Courts were refusing claims even when the defendants were appearing before the court, submitting pleadings and raising their defense. Only claims addressed to defendants living in countries which are neither EU member states nor Hague Convention signatories, are ‘saved’. Article 134, in connection with Article 136 Greek of Code of Civil Procedure has established half a century ago the notorious system of fictitious service, akin to the French system of remis au parquet (Article 683 Code de Procédure Civile). This system still applies for countries such as the United Arab Emirates or Madagascar, however not for Cyprus or Monaco, due to the prevalence of the EU Regulation and the Hague Convention, anchored in the Constitution (Article 28). Hence, the non- production of a service certificate is no obstacle for the former, whereas any service certificate dated after the 60 days term is not considered good service for the latter, leading to the dismissal of the claim.

 

The decision of the Supreme Court

Against this background, the Supreme Court was called to address the matter for the first time after nearly six years since the introduction of the new provision.

The Supreme Court began with an extensive analysis of the law in force (Article 134 Code of Civil Procedure; EU Service Regulation; Hague Service Convention, and Article 215 Para 2 Code of Civil Procedure). It then pointed out the repercussions of the latter rule in the system of cross-border service, and interpreted the provision in a fashion persistently suggested by legal scholarship: The 60 days term should be related with the notification of the claim to the Transmitting Authority, i.e., the competent Prosecutor’s office pursuant to Article 134 Code of Civil Procedure and the declarations of the Hellenic Republic in regards to the EU Service Regulation and the Hague Service Convention.

The date of actual service should be disconnected from the system initiated by Article 215 Para 2 Code of Civil Procedure. The Supreme Court provided an abundance of arguments towards this direction, which may be summarized as follows: Violation of Article 9 Para 2 Service Regulation 1393/2007 (meanwhile Article 13 Para 2 Service Regulation 2020/1784); contradiction with the spirit of Article 15 of the Hague Service Convention, despite the lack of a provision similar to the one featured in the EU Regulation; violation of the right to judicial protection of the claimant, enshrined in the Greek Constitution under Article 20; violation of Article 6 (1) of the European Convention of Human Rights, because it burdens the claimant with the completion of a task which goes beyond her/his sphere of influence.

For all reasons above, the Supreme Court overturned the findings of the Thessaloniki 1st Instance court, and considered that service to the defendants in Monaco and Cyprus was good and in line with the pertinent provisions aforementioned.

 

The takeaways and the return to normality

The judgment of the Supreme Court has been expected with much anticipation. It comes to the rescue of the claimants, who were unjustly burdened with an obligation which was and still is not under their controlling powers. The judgment returns us back to the days before the infamous provision of Article 215 Para 2, where the domestic procedural system was impeccably finetuned with the EU Regulation and the Hague Service Convention.