Agrégateur de flux

The Private International Law Festival will take place on 16 and 17 May 2022 in Edinburgh.

The topics that will dealt with include: private international law and sustainable development; decolonising law and private international law; private international law in Scotland; forum conveniens annual lecture; private international law and sustainable migration governance; interdisciplinary latam perspectives; a book launch; new horizon for private international law.

This event is free, in person only and open to all but registration is required. To secure your place, please register through Eventbrite here.

Further information is available here.

As reported in a recent post, Germany has on 29 April 2022 instituted proceedings against Italy before the International Court of Justice in relation with the fact that Italy is allowing civil claims to be brought against Germany in connection with violations of international humanitarian law committed by the German Reich between 1943 and 1945, in breach of Germany’s jurisdictional immunity as a sovereign State.

A webinar in English, organised by the Department of Law of the University of Ferrara and the Institute of International Studies of the Catholic University of Milan, will take place on 11 May 2022, between 10.30 am and 12.30 pm, via GoogleMeet, to discuss the issues surrounding both the German application and the Italian decree-law of 30 April 2022, whereby the Italian Government addressed at least part of the concerns underlying the initiative of Germany.

The discussion will also revolve around the views that the two States are expected to put forward during the public hearings that are scheduled to take place on 9 and 10 May regarding the request made by Germany for the indication of provisional measures.

The following, among others, will speak at the webinar: Giorgia Berrino (University of Modena and Reggio Emilia), Serena Forlati (University of Ferrara), Karin Oellers-Frahm (Max Planck Institute for Comparative Public Law  and International Law, Heidelberg), Riccardo Pavoni (University of Siena), and Pierfrancesco Rossi (LUISS Guido Carli, Rome).

Attendance is free. See here for further details.

On Tuesday, May 10, 2022, the Hamburg Max Planck Institute will host its 22nd monthly virtual workshop Current Research in Private International Law at 17:00-18:30 CEST. Kermit Roosevelt (University of Pennsylvania) will speak, in English, about the topic

“The Third Restatement of Conflict of Laws: Origins and Aspirations“.

During the middle of the twentieth century, American judges and law professors reacted against the territorialist rigidity of the First Restatement of Conflict of Laws, ushering in the chaos of the choice-of-law revolution. The Second Restatement, completed in 1971, won wide acceptance by courts but found less favor with law professors and has not brought order to the field. In 2014, the American Law Institute decided to try again, beginning work on the Third Restatement. What lessons can be learned from the history of American choice of law, and how can those lessons inform the drafting of a new Restatement? Kermit Roosevelt, the Reporter for the Third Restatement, will offer an overview of the current draft that seeks to situate it within the history of American choice of law and suggest the reasons that it takes the form it does.

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.

La finale du concours de l’« European Law Moot Court » aura lieu le 6 mai à la Cour de justice de l'Union européenne à Luxembourg

As announced on this blog, the VIII Congress of Private International Law of the University Carlos III of Madrid will take place in dual mode on 12 and 13 May 2022.

It will be devoted to Regulation (EU) 2019/1111 on jurisdiction, recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction.

Under the direction of Juliana Rodríguez Rodrigo, the speakers include: Esperanza Castellanos Ruiz, Javier Carrascosa González, Beatriz Campuzano Díaz, Nuria Marchal Escalona, Giacomo Biagioni, Elena Rodríguez Pineau, Celia Caamiña Domínguez, Mónica Herranz, Ilaria Pretelli, Teresa Peramato Martín, Alfonso-Luis Calvo Caravaca.

The Congress programme and information to attend it are available here.

Ministre de la Transition écologique et Premier ministre (Responsabilité de l’État pour la pollution de l’air)
Environnement et consommateurs
Avocate générale Kokott : les États membres peuvent répondre des préjudices de santé résultant d’une pollution de l’air trop élevée

London Steam-Ship Owners’ Mutual Insurance Association
Espace de liberté, sécurité et justice
Avocat général Collins : un arrêt relatif à une sentence arbitrale peut constituer une décision pertinente dans le cadre du règlement sur la reconnaissance et l’exécution des décisions

Subdelegación del Gobierno en Toledo (Séjour d’un membre de la famille - Ressources insuffisantes)
Citoyenneté européenne
Une relation de dépendance de nature à justifier l’octroi d’un droit de séjour dérivé au parent, ressortissant non UE, d’un citoyen de l’Union mineur est présumée lorsqu’il cohabite de façon stable avec l’autre parent, citoyen de l’Union, de ce mineur

Victorinox
Rapprochement des législations
Un commerçant qui propose, sur des sites tels qu’Amazon, un bien qu’il n’a pas lui-même produit doit informer le consommateur de la garantie du producteur s’il en fait un élément central ou décisif de son offre

BPC Lux 2 e.a.
DFON
La réglementation portugaise qui sert de base à la mesure de résolution de Banco Espírito Santo est compatible avec le droit de propriété

The Early Bird Registration for the 80th Biennial Conference of the International Law Association in Lisbon (19–23 June 2022) will close on 13th May 2022.

The programme includes sessions of the ILA Committees and Study Groups and a set of parallel panels where the main issues affecting the current status of International Law will be discussed. Information on the programme is available here. Kindly register as soon as possible to secure your place. Online registration is available here.

On behalf of the European Commission (DG JUST), Milieu Consulting is conducting a study on the application of Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I bis Regulation). The aim of the study is to provide solid evidence and analysis of legal and practical issues to assist the European Commission in preparing a report on the application of the Brussels I bis Regulation. To this end, the study will analyse the application of the Brussels I bis Regulation in the Member States and identify the main legal difficulties and practical challenges encountered in practice.

As part of this study, Milieu Consulting is conducting a stakeholder consultation, which includes a series of targeted surveys with key stakeholder individuals and organisations involved in or confronted with the application of the Brussels I bis Regulation. In particular, Milieu developed a technical survey that targets legal practitioners (i.e., judges; lawyers; notaries; bailiffs), academia (i.e., scholars in private international law and relevant sectors, such as consumer protection or business and human rights), and national authorities (i.e., ministries of justice, ministries in charge with consumer protection, ministries of economy) in each Member State. Stakeholders’ views are an important source of information for gaining a concrete understanding of the difficulties in applying rules on jurisdiction, as well as the recognition and enforcement of judgments, in cross-border civil and commercial cases in the EU.

The survey is available here. For more information on the study, please refer to the accreditation letter here.

On 29 April 2022, Germany instituted proceedings before the International Court of Justice against Italy for allegedly failing to respect its jurisdictional immunity as a sovereign State by allowing civil claims to be brought against Germany based on violations of international humanitarian law committed by the German Reich between 1943 and 1945.

The First Jurisdictional Immunities Case (2008-2012)

More than ten years have passed since the International Court of Justice rendered its judgment in the case of the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening). The Court was asked then to determine whether, in civil proceedings against Germany relating to acts committed by the Third Reich during the Second World War (such as deportation and forced labour), the Italian courts were obliged to accord Germany immunity.

In its judgment of 3 February 2012, the Court held that the action of the Italian courts in denying Germany immunity constituted a breach of Italy’s international obligations.

The International Court of Justice explained that, under customary international law as it presently stood, a State was not deprived of immunity by reason of the fact that it was accused of serious violations of international human rights law or the international law of armed conflict.

The New Proceedings

The 2022 proceedings, as stated in the application filed by Germany, arise from the fact that Italian domestic courts, notwithstanding the 2012 judgment, “have entertained a significant number of new claims against Germany in violation of Germany’s sovereign immunity”.

Germany refers in particular to Judgment No. 238/2014 of 22 October 2014 of the Italian Constitutional Court, whereby the latter acknowledged the duty of Italy to comply with the 2012 ruling of the International Court of Justice but subjected that duty to the “fundamental principle of judicial protection of fundamental rights” under Italian constitutional law (the judgment has been the object of numerous comments: among those in English, see the contributions to this book edited by Valentina Volpe, Anne Peters and Stefano Battini, the remarks by Robert Kolb, Paolo Palchetti, Pasquale De Sena and others here, this paper by Marco Longobardo, and this one by Oreste Pollicino, to name a few).

In its application, Germany argues that Judgment No. 238/2014 of the Italian Constitutional Court, “adopted in conscious violation of international law and of Italy’s duty to comply with a judgment of the principal judicial organ of the United Nations, had wide-ranging consequences”. It adds that, since the delivery of the Judgment, “at least 25 new cases have been brought against Germany [before Italian courts]” and that “in at least 15 proceedings, Italian domestic courts … have entertained and decided upon claims against Germany in relation to conduct of the German Reich during World War II” (Giorgia Berrino discusses in this article a recent judgment of the Italian Court of Cassation which illustrates the approach decried by Germany).

Germany asks the International Court of Justice to adjudge and declare that Italy has violated, and continues to violate, its obligation to respect Germany’s sovereign immunity, and its obligation to respect Germany’s sovereign immunity by taking, or threatening to take, measures of constraint against German State-owned properties situated in Italy. Germany further asks the Court to declare that Italy is required to ensure that the existing decisions of its courts and those of other judicial authorities infringing Germany’s right to sovereign immunity cease to have effect, and immediately to take effective steps to ensure that Italian courts no longer entertain civil claims brought against Germany based on violations of international humanitarian law committed by the German Reich between 1943 and 1945.

Additionally, the Court is asked to adjudge that Italy is required to make full reparation for any injury caused through violations of Germany’s right to sovereign immunity, and to offer Germany concrete and effective assurances and guarantees that violations of Germany’s sovereign immunity will not be repeated.

The application of Germany contains a request for the indication of provisional measures. In fact, Germany asks the Court to order Italy to ensure that German properties indicated in the application “are not subjected to a public auction pending a judgment by the Court on the merits” and that “no further measures of constraint are taken by [Italian] courts against German property”.

The Italian Decree-Law of 30 April 2022

On 30 April 2022, i.e., the day after Germany instituted the proceedings before the International Court of Justice, a decree-law was published in the Italian Official Journal which appears to address, at least to some extent, the concerns raised by Germany.

Article 43 of Decree-Law No 36/2022 of 30 April 2022 creates a fund, financed by Italy, for the reparation of the prejudice suffered by the victims of war crimes and crimes against humanity, as a result of the violation of fundamental rights of persons by the the Third Reich’s Army (hereinafter, the Fund).

As stated in Article 43(1) of the decree-law, the purpose of the Fund is to provide reparation for the prejudice suffered for acts perpetrated on the Italian territory or otherwise harming Italian citizens between 1 September 1939 and 8 May 1945.

Article 43(2) stipulates that the Fund is available to those who obtained a final judgment whereby their right to damages has been ascertained and assessed. Such a final judgment must have been given in the framework of proceedings instituted either before the entry into force of the decree-law (i.e., 30 April 2022) or before the 30-day time-limit, starting from the entry into force of the decree, established under Article 43(6). Later requests will be rejected.

According to Article 43(3), “no new enforcement proceedings based on titles awarding damages shall be brought or pursued”. Pending enforcement proceedings, for their part, “shall be discontinued”.

The Italian Minister of Economy and Finance, as indicated in Article 43(4) shall adopt a decree, no later than 180 days following the entry into force of the decree-law, to determine: (a) the procedure for accessing the Fund; (b) the terms and the manner whereby payments will be made to those entitled to benefit from the Fund; (c) such additional provisions as may be necessary for the implementation of the above provisions.

Pursuant to Article 43(5), “any and all rights in connection with claims for damages based on the facts referred to in Article 43(1) shall cease to exist as soon as payment pursuant to the procedures under Article 43(4) is made”.

In short, the decree-law aims to shield Germany from the institution or the continuation of new and pending proceedings (including enforcement proceedings) in connection with acts perpetrated by the German Reich’s forces during the German occupation of Italy. Those entitled to claim damages for the prejudice suffered will be provided satisfaction through the Fund, following a dedicated procedure.

Apparently, this course of action is understood by the Italian Government to be consistent, at once, with the constitutional requirement that the victims of egregious violation of human rights be given access to justice and obtain reparation, and the expectation of Germany that its jurisdictional immunity, as provided for under international customary law, is preserved.

The Impact of the Decree-Law on the Proceedings Instituted by Germany

The implications of the Italian decree-law for the proceedings brought by Germany before the International Court of Justice remain to be seen.

As observed above, Germany asks the Court to adjudge, inter alia, that Italy should make “full reparation for any injury caused through violations of Germany’s right to sovereign immunity”. This is something the decree-law is not concerned with.

Germany also insists that Italy should “offer Germany concrete and effective assurances and guarantees that violations of Germany’s sovereign immunity will not be repeated”. Whether the adoption of a decree-law amounts, as such, to an appropriate insurance can arguably be challenged. Pursuant to Article 77 of the Italian Constitution, decree-laws are temporary measures that the Government may adopt “in case of necessity and urgency”. As soon as a decree-law is adopted, the measure is submitted to the Parliament for transposition into law, with the indication that it shall lose effect from the beginning if it is not transposed into law by Parliament within sixty days of its publication.

Wizz Air Hungary / Commission (TAROM; aide au sauvetage)
Aide d'État
Le Tribunal confirme la décision de la Commission approuvant l’aide au sauvetage de 36 660 000 euros accordée par la Roumanie à la compagnie aérienne TAROM

The Court of Justice of the EU has recently handed down another judgement interpreting the Succession Regulation. The judgement in VA, ZA v TP (C-645/20) of 7 April 2022 followed the view presented earlier in the opinion of AG Sánchez-Bordona. It concerns duties of the courts of Member States in verification of their jurisdiction resulting from Article 10(1)(a) Succession Regulation.

Background

The background of the case is as follows.

A French national XA died in France leaving wife TP and children from the first marriage. XA used to live in the UK, however shortly before his death has moved to France to be taken care of by one of his children. XA was on owner of a real property located in France. XA’s children have initiated a succession proceeding (namely, applied for an administrator to be appointed) in France indicating that XA was habitually resident there at the time of his death. Such view was shared by the court of the first instance, however the court of the second instance found that XA has not changed his habitual residence and at the time of death it was still located in the UK, and therefore, France lacked jurisdiction in the case.

Preliminary Question

As the case reached the Cour de Cassation, it decided to clarify with the CJEU whether the Succession Regulation requires a court of a Member State to raise of its own motion its jurisdiction under the rule of subsidiary jurisdiction provided for in its Article 10(1)(a) where, having been seised on the basis of the rule of general jurisdiction established in its Article 4, it finds that it has no jurisdiction as the deceased was not habitually resident at the time of death in the forum.

Jurisditional Rules of the Succession Regulation

It might be reminded that jurisdictional rules of the Succession Regulation are of exclusive character, meaning that there is no space left for the residual jurisdiction resulting from domestic laws of Member States (as opposed to, for example, rule provided for in Article 6(1) Brussels I bis Regulation). Recital 30 makes it clear that ‘in relation to the succession of persons not habitually resident in a Member State at the time of death, this Regulation should list exhaustively, in a hierarchical order, the grounds on which such subsidiary jurisdiction may be exercised’. Hence, if the case is covered by the material and temporal scope of the Succession Regulation, a court of a Member State may assume jurisdiction only in accordance with it, irrespective of the nationality or habitual residence of the deceased.

In accordance with Article 4 Succession Regulation courts of the Member State of the deceased’s habitual residence have jurisdiction. If the deceased was habitually resident outside of the EU, then pursuant to Article 10 jurisdiction is based in other factors. The jurisdiction is based on nationality or previous habitual residence and location of assets (Article 10(1)(a) or (b)) or location of assets only (Article 10(2) Succession Regulation). In this last case, where the only link with the forum is the location of assets, the jurisdiction covers not ‘succession as a whole’, meaning all assets irrespective of their location, but is limited to the assets located within the forum only.

It might also be added that the Succession Regulation provides for certain mechanisms (in Articles 5-9) allowing for the transfer of jurisdiction from the Member State having jurisdiction pursuant to Article 4 or Article 10 to the Member State, whose law was chosen by the deceased as applicable.

Reasoning of the Court of Justice

As nicely underlined by the AG when juxtaposing Article 4 and Article 10

each caters for a different factual situation: either the deceased was last habitually resident in a Member State of the European Union (the assumption informing Article 4) or he or she wasn’t (the assumption informing Article 10)’ [para. 47 opinion].

Sharing this view, the Court of Justice, explained that:

there is no hierarchical relationship between the forum established in Article 4 of Regulation No 650/2012 and the forum established in Article 10 thereof (…) Likewise, the fact that the jurisdiction provided for in Article 10 of that regulation is described as ‘subsidiary’ does not mean that that provision is less binding than Article 4 of that regulation, relating to general jurisdiction [para. 33].

As a result, it concluded that a court of a Member State must raise of its own motion its jurisdiction under the rule of subsidiary jurisdiction where, having been seised on the basis of the rule of general jurisdiction, it finds that it has no jurisdiction under that latter provision.

Other comments of the Court of Justice also merit attention. For example, it admits that the application of Article 10 might lead to the frustration of the so desired ius and forum, but it must be made clear that the Succession Regulation neither requires nor guarantees this coincidence.

It also made clear that Member States which do not apply the Succession Regulation, namely Ireland, Denmark and the UK (before Brexit) should be treated as third states when applying this regulation.

Conclusion

The Court of Justice rightly concluded that jurisdictional rules of both Article 4 and Article 10 of the Succession Regulation should be applied ex officio. To that end, AG has proposed what seems to be a very reasonable solution not only when it comes to the application of the Succession Regulation, but any jurisdictional or conflict of law rule, namely that the court is not obliged

to look actively for a factual basis on which to rule on its jurisdiction in a particular dispute, but they do compel it to find, by reference exclusively to the uncontested facts, a basis for its jurisdiction which may be different from that invoked by the applicant [para. 87 opinion].

This book presents a new explanation as to the conflict-of-law rule in the field of intellectual property. In addition, it also provides new insights into the history of the conflict-of-laws, aliens law and their relationship.

The book focusses on the difficult question whether the Berne Convention (on copyright) and the Paris Convention (on industrial property) contain a conflict-of-law rule. Opinions differ widely on this matter today. However, in the past, for the nineteenth-century authors of these treaties, it was perfectly self-evident that these treaties contain a conflict-of-law rule, namely in the ‘principle of national treatment’ as it is called. How is that possible? These are the fundamental questions at the heart of this book: does the principle of national treatment in the Berne Convention (article 5(1)) and the Paris Convention (Article 2(1)) contain a conflict-of-law rule? And if so, why do we no longer understand this conflict-of-law rule today?

The study reveals a ground-breaking new explanation why the principle of national treatment in these treaties contains a conflict-of-law rule: the lex loci protectionis.

Key to understanding is a paradigm shift. The principle of national treatment was developed as a doctrine-of-statute solution addressing a doctrine-of-statute problem. In that way of thinking, it is self-evident that the principle of national treatment contains a conflict-of-law rule. However, today we have started to think differently, i.e. within the paradigm of Von Savigny. This causes a problem: we look at an old, statutist solution through Savignian glasses, and as a result the conflict-of-law rule in the principle of national treatment is out of the picture. Meanwhile, we are not even aware that we are looking through Savignian glasses and that these glasses narrow our field of vision – and as a result, this conflict-of-law rule is beyond our reach. The explanation in this book results in a comprehensive and consistent interpretation of the respective provisions in these treaties, and it explains why we no longer understand this conflict-of-law rule today (see especially paragraph 5.1.2).

The search for this new explanation has, in addition, generated several new insights into the history of the conflict of laws in general (see especially paragraph 5.2.3), aliens law, and the relationship between these two fields of law.

Finally, the book is also detailed and authoritative explanation of the intersection of the conflicts of law and intellectual property law, providing a full and detailed analysis of the current state of affairs of the intersection of these fields of law. It also deals with less common themes such as material reciprocity (Chapter 6).

This book is an English translation of Sierd J. Schaafsma’s book, which appeared in Dutch in 2009, and is now updated with the most significant case law and legislation.

Elgar, 2022; see Elgar website.

Krzysztof Pacula reported end of March on CJEU C-723/20 Galapagos Bidco v DE and justifiably highlighted the Brexit issue. The case concerns a move of COMI – centre of main interest within the context of the Insolvency Regulation 2015/848 and it is on the element of impromptu move that my post will focus.

Galapagos SA is a Luxembourg holding company whose centre of administration (‘effective place of management‘ according to the former directors) was moved in June 2019, at least so contend previous directors, to England. At the end of August 2019, they apply to the High Court in England and Wales to have insolvency proceedings opened.

Echos of the tussle are here and of course also in Galapagos Bidco SARL v Kebekus & ors [2021] EWHC 68 (Ch). The day after the move of centre of administration, the former directors were replaced with one other, who moved centre of administration to Dusseldorf and issued relevant market regulation statements to that effect. This move was subsequently recognised  by the Courts at Dusseldorf as having established COMI there. The High Court action in London was never withdrawn and would seem to have been dormant since.

Applicant in the proceedings is Galapagos BIDCO Sarl, a creditor of Galapagos SA. It is I understand (but I am happy to be corrected by those in the know) Luxembourg based. As Krzysztof reports, it contests that the German move has effected move of COMI which it argues lies in England (although I fail to see how its reasoning should not also apply to the earlier instant move from presumably Luxembourg to England).

The question that arises is whether, in the determination of the centre of a debtor company’s main interests, specific requirements must be imposed to prevent abusive conduct. Specifically, in the light of the Regulation’s stated aim of preventing forum shopping, whether ‘on a regular basis’ in the second sentence of the first subparagraph of Article 3(1) Insolvency Regulation 2015, presupposes an adequate degree of permanence and is not present if the establishment of a centre of administration is pursued at the same time as a request to have insolvency proceedings opened. Respondents in the appeal, which include the insolvency administrator (trustee) contend that the requirement of administration ‘on a regular basis’ is fulfilled if the administration is permanent.

The CJEU unfortunately fails to answer that question, choosing to reply instead with a hierarchical answer which encourages race to court: [36]

the court of a Member State with which a request to open main insolvency proceedings has been lodged retains exclusive jurisdiction to open such proceedings where the centre of the debtor’s main interests is moved to another Member State after that request is lodged, but before that court has delivered a decision on that request, and that, consequently, where a request is lodged subsequently for the same purpose before a court of another Member State, that court cannot, in principle, declare that it has jurisdiction to open such proceedings until the first court has delivered its decision and declined jurisdiction.

However in the case at issue, the Withdrawal Agreement has the effect that if the High Court has not, as it would seem, taken its decision on the opening of proceedings prior to the end of Brexit Implementation Day 1 January 2021 (CET), the German courts need no longer apply that consequence of mutual trust and are at liberty to determine the existence of COMI.

The CJEU ends by suggesting Q1 no longer needs answering. Yet I think it does. Perhaps not so much for the case at issue (which explains why the judicially economical CJEU does not offer a reply). The German courts, as Zacaroli J notes in his decision [14], held in October 2019 that COMI for GAS has successfully moved to Germany as from 25 August 2019, the day the capital market and bondholders were informed that the centre of administration had been moved to Düsseldorf. Yet the file does not suggest that COMI prior to the attempted move, existed in Germany: it was established there following the new director’s decision. In accordance with the Regulation’s presumptions, it would have previously existed in Luxembourg. The element of ‘on a regular basis’ therefore still matters. Is the CJEU suggesting that a mere information of the capital markets suffices to move COMI?

Geert.

EU Private International Law, 3rd ed. 2021, Heading 5.6.1.

 

The author of this post is Jachin Van Doninck, Lecturer in civil procedure, private international law and ADR at the Vrije Universiteit Brussel.

At the final conference of the Judgtrust project in The Hague, some ten days ago, two decisions of the ECJ on the Brussels I bis Regulation took flak from more than one speaker: Wikingerhof and Toto.

Both of these decisions have already received their fair share of attention in these columns: here (by the late Peter Mankowski, including links to the other contributions dedicated to the same judgment) and here.

The writing of a recently published casenote on the Wikingerhof judgment has nonetheless left me wondering whether the criticism directed at said judgment isn’t missing the mark.

As a reminder, through Wikingerhof, the ECJ attempted to clarify its earlier Brogsitter ruling on delineating matters relating to contract and matters relating to tort for the purpose of applying the heads of jurisdiction under art. 7 point 1 and 7 point 2 of the Brussels I bis Regulation respectively.

Where Brogsitter could be interpreted as considering it sufficient for a claim made in tort under national law to be contractual for the purpose of Brussels I where the conduct complained of may be considered a breach of the terms of the contract (ECJ, para 29, my emphasis), the ECJ held in Wikingerhof that where it does not appear indispensable to examine the content of the contract in order to assess whether the conduct is lawful or unlawful, the cause of the action is a matter relating to tort within the meaning of art. 7.2 Brussels I Recast (ECJ, at para 33, again with my emphasis).

In retrospect it always seemed unlikely that the ECJ would have accepted a full and complete absorption of the forum delicti by the forum contractus in cases of concurrent causes of action, i.e. when a contracting party invokes the infringement of a general legal obligation under competition law as was the case in Wikingerhof. Through Wikingerhof, the ECJ restores the balance between forum contractus and forum delicti in the case of concurrent obligations by setting out a clear criterion, namely whether the contract is the yardstick for review (forum contractus) or merely the subject of review (forum delicti). No surprise either in seeing the potential fora being multiplied then: that has been the steady flow of the ECJ case law on art. 7.2 since the Bier-stance was adopted more than 40 years ago (E. Farnoux, ‘Delendum est Forum Delicti? Towards the jurisdictional protection of the alleged victim in cross-border torts’ in B. Hess, K. Lenaerts en V. Richard (red.), The 50th anniversary of the European law of civil procedure, Baden-Baden: Nomos 2020, (259) p. 263 et seq.).

But most interesting, and least appreciated in my opinion, is the Court’s method in reaching that result. It shouldn’t have come as a surprise though. Less than a year before, in its VKI v. TVP judgment, the ECJ had been asked whether article 1(2)(f) of the Rome I Regulation should be interpreted as excluding from the scope of that regulation contractual obligations based on a trust agreement for the purposes of administering shares in a limited partnership. Was this a corporate matter beyond the reach of Rome I?

In addressing the issue, the ECJ, following its advocate-general Saugmandsgaard Øe, focused on the cause of action of the proceedings:

The action for an injunction brought by the VKI concerns the unfairness and therefore the validity of certain terms of the trust agreements at issue. Therefore, the questions arising from the case in the main proceedings fall within the field of lex contractus and therefore of the Rome I Regulation (ECJ, at para 37).

When asked whether Brussels I Recast provides a forum delicti when the plaintiff seeks an injunction against the use of contractual terms because they are allegedly based on an abuse of a dominant position by the defendant, the ECJ and its advocate-general Saugmandsgaard Øe adopted that same reasoning.

The test again lies in the cause of action:

In particular, as the Advocate General observed in point 90 of his Opinion, the court hearing the action must decide whether a claim between contracting parties is connected to matters relating to a contract, within the meaning of point 1 of Article 7 of Regulation No 1215/2012, or to matters relating to tort or delict, within the meaning of point 2 of Article 7 of that regulation, by reference to the obligation, whether contractual or a matter relating to tort, delict or quasi-delict, which constitutes the cause of action (ECJ, at para 31).

Asked to interpret sources of European private international law, the ECJ’s answer has time and again revolved around the word ‘autonomous’. Through Wikingerhof, the ECJ has now demonstrated that such autonomous interpretation of EU instruments is no mere recipe for haphazard case by case reasoning but also involves an exercise in qualification, thereby addressing the following question: which law imposes itself through the subject matter of the claim and the legally relevant facts underlying it, i.e. the case of action? That approach warrants more credit than is currently being granted.

On 19 April 2022, the European Commission has launched a new page on the e-Justice Portal concerning children from Ukraine (available here in all EU languages).

It is an operational extension, in a dramatic context, of the work undertaken by the Commission to strengthen the protection of migrant children.

Background

According to the European Commission:

Russia’s military aggression against Ukraine raises questions about the situation of refugee children who are displaced in the European Union from Ukraine. The issue becomes even more complex when these children are separated from their families, either because they have remained in Ukraine or because they are refugees in another Member State.

It is now urgent to be able to ensure that these children are protected against the risk of violence, exploitation, illegal adoption, abduction, sale or child trafficking. For this reason, it is essential to use the instruments that protect the rights of these children.

There are instruments in European and international law to ensure the protection of children, with special provisions for the protection of and assistance to children temporarily or permanently deprived of their family environment, including in emergency situations, such as an armed conflict.

EU and International Rules on Civil Judicial Cooperation 

The new webpage contains clear and practical information on the rules applicable to judicial cooperation in cross-border cases involving Ukrainian children, including issues of jurisdiction, applicable law, recognition of decisions, and cooperation between authorities, in particular via the European Judicial Network in civil and commercial matters (EJN-civil).

It provides for many useful links to key legal instruments and information on Ukrainian law provided directly by the Ukrainian Ministry of Justice.

This page is intended for judges, lawyers, notaries, central authorities, but also for social workers in charge of child protection and staff in charge of registering minors arriving from Ukraine.

More information here.

Conventions & Instruments

On 8 April 2022, the Kingdom of Saudi Arabia deposited its instrument of accession to the HCCH Apostille Convention. The Convention will enter into force for Saudi Arabia on 7 December 2022. With this accession, the Apostille Convention now has 122 Contracting Parties. More information is available here.

Meetings & Events

From 28 March to 1 April 2022, the Experts’ Group on Parentage / Surrogacy met for the eleventh time. The Group discussed the content of the final report that is to be presented to the Council on General Affairs and Policy (CGAP) at its 2023 meeting. More information is available here.

The Permanent Bureau has announced that the inaugural CODIFI Conference will be held online from 12 to 16 September 2022. CODIFI will examine issues of private international law in the Commercial, Digital, and Financial (CODIFI) sectors, highlighting developments in the digital economy and fintech industries as well as clarifying the roles of core HCCH instruments: the 1985 Trusts Convention, the 2006 Securities Convention, and the 2015 Choice of Law Principles. 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.