Agrégateur de flux

John F. Coyle from the University of North Carolina has published on SSRN an article titled The Mystery of the Missing Choice-of-Law Clause.

The abstract reads as follows:

There is widespread agreement among experienced contract drafters that every commercial contract should contain a choice-of-law clause. Among their many virtues, choice-of-law clauses facilitate settlement and reduce litigation costs. While most modern contracts contain these provisions, some do not. In many instances, the absence of these clauses may be attributed to outdated forms, careless drafting, inattentive lawyers, or some combination of the three. In a few instances, however, it appears that sophisticated contract drafters purposely omit choice-of-law clauses from their agreements. If these clauses add value to a contract—and there is near-universal agreement that they do—then this decision raises a perplexing question. Why would any experienced contract drafter ever consciously choose not to write a choice-of-law clause into an agreement?
This Article seeks to answer this question with respect to one type of agreement where choice-of-law clauses are routinely omitted—insurance contracts. All of the available evidence suggests that most insurance contracts lack choice-of-law clauses. This is surprising because insurance companies are the epitome of the sophisticated contract drafter. To unravel the mystery of why so many insurance contracts do not contain choice-of-law clauses, the Article draws upon more than thirty interviews and email exchanges with industry experts. It argues that the absence of these provisions is attributable to a complex amalgam of legislative and regulatory hostility, judicial skepticism, standard forms, and strategic maneuvering on the part of insurers. The Article argues further that manuscript policies—which are negotiated between insurers and policyholders—sometimes lack choice-of-law clauses due to a perceived first-mover disadvantage and the absence of any body of truly neutral insurance law within the United States.
Solving the mystery of the missing choice-of-law clause in insurance contracts unlocks three important insights. First, it informs the efforts of state legislators and insurance commissioners called upon regulate the terms of insurance policies. Second, it suggests that insurance companies should adopt a differentiated approach to drafting choice-of-law clauses that accounts for the relative favorability of the law in the policyholder’s state. Third, and most importantly for contract scholars, solving the mystery sheds light on the nature of the contract production process, the drafting acumen of insurance companies, and the stickiness of absent contract terms.

This Tuesday the Court of Justice delivered its judgment in the case Gtflix Tv, C-251/20, where it has been asked to interpret Article 7(2) of the Brussels I bis Regulation in the context of an online publication allegedly disparaging a legal person and an action for compensation brought by that person before the court of a Member State in the territory of which that content was accessible.

The preliminary question referred to the Court read as follows:

“Must Article 7(2) of [the Brussels I bis Regulation] be interpreted as meaning that a person who, considering  that his or her rights have been infringed by the dissemination of derogatory comments on the internet, brings proceedings not only for the rectification of information and the removal of content but also for compensation for the resulting non-material and material damage, may claim, before the courts of each Member State in the territory of which content published online is or was accessible, compensation for the damage caused in the territory of that Member State, in accordance with the judgment in eDate Advertising (paragraphs 51 and 52), or whether, pursuant to the judgment in [Bolagsupplysningen and Ilsjan] (paragraph 48), that person must make the application for compensation before the court with jurisdiction to order rectification of the information and removal of the derogatory comments?”

In essence, the referring court sought to establish whether the mosaic approach stood up to the test of time (also) in the contexts such as the one described in the preliminary question.

The Court answered in the affirmative.

A person who brings proceedings not only for the rectification of information and the removal of content but also for compensation for the resulting non-material and material damage, may claim, before the courts of each Member State in the territory of which content published online is or was accessible, compensation for the damage caused in the territory of that Member State, despite the fact that – as the Court seems to stress it in its answer – these courts would not have jurisdiction to rule on the rectification or removal of content.

The judgments is available here (in French, so far), with a press release in English.

Trapeza Peiraios
Environnement et consommateurs
La Cour précise l'étendue de la protection assurée aux consommateurs dans le cadre d’un contrat de prêt remboursable en devise étrangère

Randstad Italia
DFON
Le droit de l’Union ne s’oppose pas à ce que la juridiction suprême de l’ordre judiciaire d’un État membre ne puisse annuler un arrêt rendu en violation de ce droit par la juridiction suprême de l’ordre administratif de cet État membre

Gtflix Tv
Espace de liberté, sécurité et justice
Diffusion de propos prétendument dénigrants sur Internet : l’indemnisation du préjudice qui en résulte sur le territoire d’un État membre peut être demandée auprès des juridictions de cet État membre

Azurair e.a.C-188/20, C-196/20 et C-270/20,C-263/20 Airhelp,C-395/20 Corendon Airlines
Transport
Un vol doit être considéré comme « annulé » lorsque le transporteur aérien effectif avance celui-ci de plus d’une heure

Euro Box Promotion e.a.,C-379/19 DNA- Serviciul Teritorial Oradea, C-547/19 Asociaţia « Forumul Judecătorilor din România », C-811/19 FQ e.a., C-840/19 NC
Droit institutionnel
Le droit de l’Union s’oppose à l’application d’une jurisprudence de la Cour constitutionnelle dans la mesure où celle-ci, combinée avec les dispositions nationales en matière de prescription, crée un risque systémique d’impunité

Bank Melli Iran
Libre circulation des capitaux
L’interdiction posée par le droit de l’Union de se conformer aux sanctions secondaires prises par les États-Unis contre l’Iran peut être invoquée dans un procès civil

This post was contributed by Olivera Boskovic, who is a Professor at the Université de Paris.

The situation of victims of environmental damages or human rights violations caused in non-EU countries by subsidiaries or subcontractors of companies established in the EU (but the issue can be extended to companies merely operating in the EU) trying to bring actions before the courts of EU Member States is well known. The Shell case, in which victims of serious environmental damage in Nigeria sued the Dutch parent company and its Nigerian subsidiary before the Dutch court, is quite emblematic in this respect. (The last decision in this case has been issued on 29th of January 2021 by the Hague Court of Appeal. See Shell Nigeria liable for oil spills in Nigeria). The need to modify certain rules of private international law in order to address these actions in a satisfactory manner has been debated for some time now. The purpose of this post is to provide an update and examine the current state of the debate. Difficult questions may arise both concerning jurisdiction and concerning the determination of applicable law.

Jurisdiction

Jurisdiction, first of all, remains problematic although the situation has somewhat improved in recent years. From a European perspective, as the law stands today, a first fundamental distinction is between cases in which the defendant is domiciled in an EU Member State and those in which the defendant is domiciled in a third country.

Where the action is brought against a defendant domiciled in an EU Member State (i.e, in our context, actions brought directly against the parent company or the ordering company), jurisdiction is based on the Brussels Ia Regulation. This regulation always allows a defendant to be sued in the court of his domicile, so that jurisdiction should not be a problem in this case. (For example, in the Shell case the jurisdiction of the Dutch court to hear the action against the Dutch company did not pose any problem). Instead, the obstacles are of a substantive nature and relate to the difficulty of holding companies liable for the actions of their subsidiaries or subcontractors.

The situation is more problematic when the defendant is domiciled outside the EU, (i.e. in our context when the action is brought against subsidiaries or subcontractors who are direct perpetrators of the damage or simply against companies domiciled outside the EU). These actions are excluded from the scope of the Brussels Ia Regulation. They are subject to the national laws of the Member States, and the rules may therefore differ considerably from one country to another. Generally speaking, it is quite difficult to establish the jurisdiction of a Member State court in this type of case. One can therefore consider that there is a problem of access to justice, in so far as the rules of jurisdiction do not take account of economic links, or even the economic unity of groups of companies. Nevertheless, there are avenues available and in particular two worth mentioning: the co-defendants’ rule and the forum necessitatis (or jurisdiction based on the risk of denial of justice) Indeed, several Member States have rules based on one or other of these mechanisms, or even both. As a reminder, the co-defendants’ rule makes it possible, when an action is brought against several defendants, one of whom is domiciled in the forum State and the other outside the EU, to sue all the defendants before the court of the domicile of the one domiciled in the forum State, provided of course that the claims are related. The forum necessitatis, on the other hand, allows the court of the forum to be seized when no foreign court can be seized by the claimant, who therefore risks a denial of justice. More than the issues raised by the application of each of these rules what is noteworthy is the lack of unification at the European level. As regards the forum necessitatis, its introduction into the Brussels I Regulation was proposed in 2010 and again recently in 2020, but without success. As for the co-defendants rule (involving a defendant domiciled outside the EU), its introduction in the Regulation has never been proposed.

New Grounds of Jurisdiction in the Brussels Ibis Regulation

Nevertheless, it appears that the introduction of these two rules into the Regulation would be a real improvement. Of course, this opinion is not shared by all writers. There are divergent views among scholars. Some are hostile to the introduction of the forum necessitatis. (see Ch. Tomale, On the EP draft report on corporate due diligence) They consider there is no need for such a rule, especially at a time when the Supreme court of the United States is moving in the opposite direction and has adopted a very strict position. However, contrary to what can sometimes be read, the idea is not to allow member state courts to hear cases with no connection whatsoever to the EU. A minimum link with the legal order of the court seized is required by all proposals (see the GEDIP proposal concerning the private international law aspects of the future European instrument on corporate due diligence and corporate accountability, October 2021; draft treaty on business and human rights, August 2020; Sofia guidelines for international civil litigation for human rights violation, 2012 adopted by the ILA). Of course, the question is then whether this minimum link should be defined by the rule or left for the court to decide. Taking into account the diversity of situations that may occur, it is preferable to leave the definition of the minimum link to the courts. This seems to be the approach adopted by recent initiatives. On the contrary, other scholars consider that situations where a real risk of denial of justice can be characterised are the only situations in which European courts should rule on this type of dispute. The concern that home state courts should not consider that it is always better for them to decide this type of case and that they should assert jurisdiction only when it is really necessary because the host state courts cannot handle the litigation in a satisfactory way has been voiced by many commentators during debates. Even the Court of Appeal in the famous Vedanta case decided in the UK commented that ‘there must come a time when access to justice in this type of case will not be achieved by exporting cases, but by the availability of local lawyers, experts, and sufficient funding to enable the cases to be tried locally”. Scholars who hold this position are implicitly hostile to the co-defendants rule. These differences raise the question of relations between these two grounds of jurisdiction and whether one should be preferred. In the opinion of the present writer the answer is no. These rules are complementary. (The opinion according to which the forum necessitates rule is a second-best solution and an activity-based rule could be imagined is also worth mentioning. This question was discussed during the interesting webinar on “The recommendation of GEDIP concerning the private international aspects of the future EU instrument on corporate due diligence and corporate accountability” organised by the Italian Interest group on Private international law on December 10 2021 featuring as speakers H. Van Loon and Giulia Vallar.)

Therefore, the minimum solution would be to introduce into the Brussels Ia Regulation the forum necessitatis which allows victims to bring an action in front of the court of a EU Member State, irrespective of the existence of a co-defendant domiciled in an EU Member State, but on condition that they can show that it is impossible to bring the case before another court. The rule is devised as an exceptional rule. If the European legislator wanted to go further, (it is the present writer’s opinion that this is desirable), they should introduce, in addition, the co-defendants rule, which makes it easier to bring an action, without the need to show the impossibility of seizing another court, but provided that a European defendant is also involved in the proceedings and that the claims are related. This approach has been adopted by several recent initiatives. The latest version (August 2020) of the draft binding treaty on business and human rights negotiated within the UN framework contains both rules. The same is true of the GEDIP recommendation to the European Commission. Considering the fact that England has often been described as a magnet forum for this type of litigation, it is interesting to note that in all these proposals, contrary to the English system, the two grounds of jurisdiction (presence of a forum-based co-defendant and the risk of denial of justice) are two separate grounds of jurisdiction. This indeed seems to be a better solution. Another difference lies in the fact that the English system takes into account the risk of substantial denial of justice whereas the forum necessitatis focuses on the impossibility to seize another court. However, the two systems might be closer than they seem at first sight. The impossibility to seize another court can be characterized if the claimant can not “reasonably” seize another court. This is an open door for consideration of a risk of substantial denial of justice. In a nutshell, it appears that the attractivity of the English forum does not lie in rules on jurisdiction.

Parallel Litigation

Another important question relating to jurisdiction is the question of parallel proceedings. The Mariana Dam case recently brought in front of the English courts shed light upon this question. In the aftermath of the worst environmental disaster in the history of Brazil, an action was brought in the UK against the Anglo-Australian mining multinational BHP. It was initially rejected, but has been reopened in July 2021 under exceptional appeals legislations (CPR 52.30) in order to “avoid real injustice”. The way lis pendens and the related actions exceptions are treated is very important. In addition to the problem of parallel litigation brought by victims both in the host and in the home country, It is vital to make sure that they are not transformed into weapons by potential defendants seeking declarations of non-liability in non-member States and then invoking the lis pendens or related actions exception. However, one may consider that the tools that already exist in the Bia regulation are satisfactory and that no legislative reform is needed on this point. Although relying on the conditions of recognition and the concept of “good administration of justice” can seem a bit vague, it is submitted that a certain degree of judicial discretion is inevitable.

Applicable Law

After jurisdiction, the second question concerns the determination of the law applicable to these actions. As the law stands today, a difficulty arises from the fact that choice of law rules often designate the law of the place of the damage, which in these cases is frequently the law of a country outside the EU with a less developed legal system. In reality, to understand the current situation, a twofold distinction must be made, firstly according to whether or not the defendant is domiciled in the EU, and secondly according to whether it is a question of environmental damage or a human rights violation. With regard to actions against defendants domiciled outside the EU, (i.e. in current litigation, actions against subsidiaries and subcontractors), they will always be governed by the law of the place where the damage occurred, which corresponds to the law of their activity. (It is important to note that this does not necessarily mean impunity for these defendants. For example, in the Shell case the Dutch court held the Nigerian subsidiary liable by virtue of Nigerian law). On the other hand, with regard to actions against parent companies or ordering companies established in the EU, as the law stands today, a distinction must be made between cases involving environmental damage and cases involving a violation of human rights. The former are covered by Article 7 of the Rome II Regulation, which allows the claimant to choose between the law of the place of the event giving rise to the damage and the law of the place where the damage occurred. The latter are covered by Article 4, which designates exclusively the law of the place of the damage. This last rule, in our context, is problematic. This problem is at the origin of the proposal by the European Parliament’s Committee on Legal Affairs to insert an Article 6a on “Actions for breach of human rights in commercial matters” which would have allowed the victim to choose between several laws.

The first question that arose upon publication of the proposal was: do we need a new choice of law rule? Some scholars consider that we do not and that it is sufficient to classify the rules of the future European instrument as overriding mandatory provisions (see. the post of G. Rühl here). However, a different view is possible. It is the opinion of the present writer that a choice of law rule would indeed be useful. Indeed, by definition, only a limited number of provisions can be characterised as overriding mandatory provisions. The rules on limitation, for example, will not be considered as such. However, they can be quite decisive in litigation. The action may be dismissed because, for example, the law of the place of the damage, which is a law of a non-EU country, contains a very short limitation period. Therefore, a choice of law rule would protect the victims more than the overriding mandatory rules method and consequently contribute to the public interest objective of making companies more responsible. In any event, the two methods can be combined. The adoption of a new choice of law rule for human right abuses, would not make the overriding mandatory rules approach irrelevant. This is also the position of the GEDIP. In its recommendation it combines the two approaches.

Extending the Scope of Article 7 Rome II

Going back to the European Parliament’s Committee on Legal Affairs’ proposal, although it is the opinion of the present writer that a special choice of law rule is indeed desirable, the provision as proposed was not immune from criticism (See. O. Boskovic, « La loi applicable aux « actions pour violations des droits de l’homme en matière commerciale », Recueil Dalloz 11 fév. 2021, p. 252). Firstly, having two provisions, one applicable to environmental damage and the other applicable to human rights violations would cause very difficult boundary problems (bearing in mind, for example, that according to some estimates one third of human rights violations involve environmental offences). Secondly, the connecting factors used in the proposed article 6a raised many questions. For this reason, it appears more appropriate to have a single choice of law rule for human rights violations and for environmental damage. Article 7 should therefore be rewritten to include human rights violations. The victim would then be able to choose between the law of the place of the damage and the law of the place where the event giving rise to the damage occurred, which would increase their chances of success. (This is also the position of the GEDIP proposal. However, one should note that the scope of the GEDIP proposal is wider and applies, just like the future European instrument, not only to human rights and environmental damages but also to good governance. The precise definition of this last concept is difficult and the desirability of having the same rule is debatable. This very interesting question was discussed during the above-mentioned webinar organised by the Italian interest group on private international law.) However, this idea then gives rise to another question: How should the “event giving rise to the damage” be interpreted in this context? Obviously, for the text to achieve its objective, it must be accepted that the event giving rise to the damage can, at least if the factual circumstances are appropriate, be located at the place where the decisions were or were not taken, i.e. at the domicile of the parent company (a recital could be inserted to encourage such an interpretation) (I have developed these ideas in O. Boskovic, « La loi applicable aux « actions pour violations des droits de l’homme en matière commerciale », Recueil Dalloz 11 fév. 2021, p. 252.). The Hague Tribunal in the Shell case ruled along these lines in its decision issued on May 26th 2021, which has already been characterised as historical. It is interesting to note that a similar question arose in the Arica v. Boliden case decided by the Swedish courts in 2019. In this case under Swedish choice of law rules, applicable rationae temporis, the lex loci delicti commissi applied. In determining the locus delicti commissi, the court held that the center of gravity should be found and that ‘This center may be established with regard to where the qualitatively important elements have their focus rather than according to quantitative criteria’. Therefore, in this case concerning the export of toxic waste from Sweden to Chile, contrary to the first instance decision, the court of appeal held that the event giving rise to the damage was localized in Sweden. It is certain that agreeing on an adequate choice of law rule is not enough. The localization of the connecting factors is of paramount importance. (A similar question arose in the Nestlé v. Doe case. The Supreme Court explained that, because the ATS does not apply extraterritorially, in order for the court to have jurisdiction “plaintiffs must establish that conduct relevant to the statute’s focus occurred in the United States”. This was not the case because the only relevant alleged domestic conduct by the defendants consisted of general corporate activity-like decisionmaking- which  is insufficient to establish domestic application of the ATS. Contrary to the emerging trend in the EU, the Supreme Court of the US has shown continuous caution on this matter, apparently considering that it is not a matter for judicial lawmaking)

Revising Article 17 Rome II

Another important question concerns situations where poor performance of contractual obligations causes damage to third parties. The Kik case in Germany or Begun v. Maran case in the UK come to mind. A very important step in the fight for corporate accountability would be to facilitate actions brought by these third parties The aim is to ensure that the ethical and environmental clauses contained in international contracts do not remain a dead letter. Indeed, as the Court of Appeal observed in Begun v. Maran, often all protagonists know that theses clauses will be totally ignored. A revision of Article 17 of the Rome II Regulation could thus be envisaged in the form of the addition of a sentence: “Account shall also be taken of the ethical clauses contained in the contracts whose breach has caused the damage.” (on this problem see our forthcoming article « Contrats internationaux et protection de l’environnement », in actes du colloque du 15 juin 2021, Le droit économique, levier de la transition écologique ?)

Finally, it appears that the possibility of applying more widely foreign overriding mandatory provisions would contribute to the pursuit of these global governance goals. A modification of Rome I and Rome II along these lines would be welcome.

As these few remarks show, the debate on private international law aspects of corporate social accountability is far from over.

The University of Antwerp is looking for a doctoral candidate in the domain of International Accountability through the value chain.

The research addresses the question of how entities in the North can be held accountable for human rights infringements that happen in their value chain, often in the South. It examines recent and pending legislation on value chain due diligence in selected countries and/or regional organisations. The research can be approached from the perspective of human rights law, public international law or private international law, including private law mechanisms (either in tort or in contract law).

The deadline for applications is 14 February 2022 and the start date is 15 September 2022. For more information, see the full vacancy text.

Renouvellement du mandat de M. Alfredo Calot Escobar en qualité de greffier de la Cour de justice

The jugdment on C-251/20, Gtflix, will be published on Tuesday 21. The request for a preliminary reference of the French Cour de Cassation, focused on Article 7(2) of the Brussels I bis Regulation, had triggered a long opinion by M. Hogan (the Irish Advocate General at that point in time). Although he favoured the characterization of the act at stake as a form of malicious falsehood – thus falling under the scope of unfair competition rules-  and indicated expressly that “the present case is not the right one for the Court to take a position on whether or not the mosaic approach should be maintained” (point 95), the actual relevance of the case lies precisely there. He himself devoted his opinion to it, providing the Grand Chamber (K. Lenaerts, L. Bay Larsen, A. Arabadjiev, A. Prechal, I. Jarukaitis, N. Jääskinen, T. von Danwitz, L.S. Rossi, A. Kumin, N. Wahl, and M. Safjan as reporting judge) with arguments and counterarguments. It would be disappointing if the Court does not take a stance.

Eagerly waiting.

Quick reminder:

The question was:

‘Must Article 7(2) of Regulation (EU) No 1215/2012 be interpreted as meaning that a person who, considering  that his or her rights have been infringed by the dissemination of derogatory comments on the internet, brings proceedings not only for the rectification of information and the removal of content but also for compensation for the resulting non-material and material damage, may claim, before the courts of each Member State in the territory of which content published online is or was accessible, compensation for the damage caused in the territory of that Member State, in accordance with the judgment in eDate Advertising (paragraphs 51 and 52), or whether, pursuant to the judgment in Svensk Handel (paragraph 48), that person must make the application for compensation before the court with jurisdiction to order rectification of the information and removal of the derogatory comments?’

Advocate General Hogan proposed the following answer:

“Article 7(2) of Regulation No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that a claimant who relies on an act of unfair competition consisting in the dissemination of disparaging statements on the internet and who seeks both the rectification of the data and the deletion of certain content and compensation for the non-material and economic damage resulting therefrom, may bring an action or claim before the courts of each Member State in the territory of which content published online is or was accessible, for compensation only for the damage caused in the territory of that Member State. In order, however, for those courts to have the requisite jurisdiction it is necessary that the claimant can demonstrate that it has an appreciable number of consumers in that jurisdiction who are likely to have access to and have understood the publication in question.”

After the Coman judgment of 2018, the Grand Chamber of the Court of Justice of the European Union (CJEU) has again rendered a judgment in the field of free movement of citizens that is of importance for private international law. Like in Coman, the judgment in V.M.A. of 14 December 2021 concerned a non-traditional family of which the members sought to make use of their right to free movement in the EU under the Treaty on the Functioning of the European Union (TFEU) and Directive 2004/38. The  Charter of Fundamental Rights of the EU (Charter) was also pertinent, particularly its Article 7 on respect for private and family life, Article 9 on the right to marry and the right to found a family,  Article 24 on the rights of the child, and Article 45 on freedom of movement and of residence.

While Coman concerned the definition of “spouse” under Article 2 of the Directive, in V.M.A. the CJEU addressed the definition of  “direct descendants” in the same provision.

Two women, V.M.A., a Bulgarian national, and K.D.K., a national of the United Kingdom, were married and lived in Spain. A daughter, S.D.K.A., was born in Spain. Her Spanish birth certificate indicated V.M.A. as “mother A” and K.D.K. as “mother”. V.M.A. applied to the Sofia municipality for a birth certificate for S.D.K.A. in order to obtain a Bulgarian identity document for her. She submitted a legalised and certified translation into Bulgarian of the extract from the civil register of Barcelona.

The Sofia municipality refused this application, due to the lack of information on S.D.K.A.’s biological mother and because the reference to two mothers was contrary to Bulgarian public policy.

The Administrative Court of the City of Sofia, to which V.M.A. appealed the municipality’s decision, posed four questions to the CJEU. It sought to know whether Articles 20 and 21 of the TFEU and Articles 7, 24 and 45 of the Charter oblige Bulgaria to recognise the Spanish birth certificate despite its mentioning two mothers and despite the fact that it was unclear who the biological mother of the child was. It also questioned EU Member States’ discretion regarding rules for the establishment of parentage. A further relevant point was Brexit and the fact that the child would not be able to get EU citizenship through the other mother, who is a UK citizen.

The Grand Chamber ruled as follows:

Article 4(2) TEU, Articles 20 and 21 TFEU and Articles 7, 24 and 45 of the Charter of Fundamental Rights of the European Union, read in conjunction with Article 4(3) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, must be interpreted as meaning that, in the case of a child, being a minor, who is a Union citizen and whose birth certificate, issued by the competent authorities of the host Member State, designates as that child’s parents two persons of the same sex, the Member State of which that child is a national is obliged (i) to issue to that child an identity card or a passport without requiring a birth certificate to be drawn up beforehand by its national authorities, and (ii) to recognise, as is any other Member State, the document from the host Member State that permits that child to exercise, with each of those two persons, the child’s right to move and reside freely within the territory of the Member States.

The CJEU thus obliges Bulgaria, through EU law, to recognise the Spanish birth certificate. The CJEU is not concerned with the issue of a  birth certificate in Bulgaria, but rather with the identity document (the requirements under national law for the identity document cannot be used to refuse to issue such identity document – see para 45).

The parentage established lawfully in Spain has the result that the  parents of a Union citizen who is a minor and of whom they are the primary carers, be recognised by all Member States as having the right to accompany that child when her right to move and reside freely within the territory of the Member States is being exercised (para 48)

The CJEU refers to the identity document as the document that permits free movement. This wording seems, on a first reading, to be broader than the ruling in Coman, where the CJEU ruled on the recognition of the same-sex marriage only for purposes of the right to residence. However, in para 57 the Court seems to include the Coman limitation: Such an obligation does not require the Member State of which the child concerned is a national to provide, in its national law, for the parenthood of persons of the same sex, or to recognise, for purposes other than the exercise of the rights which that child derives from EU law, the parent-child relationship between that child and the persons mentioned on the birth certificate drawn up by the authorities of the host Member State as being the child’s parents.

But I’m sure much debate will follow about the extent of the obligation to recognise. As readers might be aware, the European Commission earlier this year set up an Expert Group on the Recognition of Parentage between Member States.

 

 

 

Written by Stephen G.A. Pitel, Western University

Many Canadian and some other conflicts scholars will know that the Uniform Law Conference of Canada (ULCC) has drafted (in 1994) model legislation putting the taking of jurisdiction and staying of proceedings on a statutory footing. This statute, known as the Court Jurisdiction and Proceedings Transfer Act (CJPTA), has subsequently been adopted and brought into force in 4 of Canada’s 13 provinces and territories (British Columbia, Saskatchewan, Nova Scotia, Yukon).

The ULCC has now released a revised version of the CJPTA. It is available here and background information is available here.

The most notable changes, each explained at some length in the commentaries, are as follows: 1. New provisions on exclusive and non-exclusive forum selection clauses in the staying of proceedings (s. 11); 2. A new section on subject matter competence dealing with the foreign immovable property rules (s. 12.2); 3. Use of the phrase “clearly more appropriate” for a stay of proceedings based on forum non conveniens (s. 11); 4. Territorial competence in respect of necessary parties (s. 3(d.1)); 5. Clarification of the meaning of the presumptive connection based on carrying on business in the forum (s. 10(h)).

Disclosure: I was a member of the Working Group for the revised statute. Solely in a personal capacity, I can offer three observations on the revisions. First, s. 12.2 is an attempt to largely (though not perfectly) codify the common law’s Mocambique rule regarding jurisdiction over foreign immovable property (classified as subject matter competence under the CJPTA). Some may find this interesting as there are not many available codifications of this complex rule. Second, the role given to exclusive forum selection clauses reflects the fact that under Canadian common law these are not treated as absolutely binding and instead are subject to a “strong cause” test before they can be disregarded (see ss. 11(3) and (4)). Section 11(5), however, allows a consumer or employer to treat such a clause as non-exclusive rather than exclusive (but also rather than disregarding it altogether). Third, there is a provision for taking jurisdiction (called territorial competence in the CJPTA) over a defendant who is a “necessary party” (s. 3(d.1)). Canadian common law has largely rejected “necessary or proper party” as an acceptable basis on which to exercise jurisdiction, but this flows from the undue breath of what can constitute a “proper party”. The statutory provision uses a very narrow meaning of “necessary party”.

It will now fall to the provinces and territories that have enacted the CJPTA to determine how to act on the changes. It will also be interesting to see if the revised and updated version generates any interest in the provinces and territories that have not so enacted.

All best wishes of the season.

This post has been prepared by He Qisheng, Professor of International Law, Peking University Law School, and Chairman at the Peking University International Economical Law Institute, has published the 7th Survey on Chinese Practice in Private International Law.

 

This survey contains materials reflecting the practice of Chinese private international law in 2020. First, regarding changes in the statutory framework of private international law in China, three legislative acts, one administrative regulation on the Unreliable Entity List and ten judicial interpretations of the Supreme People’s Court were adopted or amended in 2020 on a wide range of matters, including conflict of laws, punitive damages, international civil procedure, etc. Second, 11 typical cases involving Chinse courts’ jurisdiction are selected to highlight the development in Chinese private international law, involving standard essential patents, abuse of market dominance, declaration of non-infringement of patent, asymmetric choice of court agreement and other matters. Third, nine cases on choice of law questions relating, in particular, to habitual residence, rights in rem, matrimonial property regimes and ascertainment of foreign law, are examined. Fourth, five cases involving anti-suit injunction or anti-enforcement injunction are reported and one introduced in detail. Fifth, the first occasion for on international judicial assistance of extracting DNA, as well as three representative cases on the recognition and enforcement of foreign judgments, are discussed. The Statistics of international judicial assistance cases in China is first released in this survey. Finally, this survey also covers five recent decisions illustrating Chinese courts’ pro-arbitration attitude towards the uncertainty brought about by contractual clauses referring to both litigation and arbitration.

Here are the links to the article:

·         Standard link (you may share this link anywhere):
https://academic.oup.com/chinesejil/advance-article-abstract/doi/10.1093/chinesejil/jmab031/6449363

·         Free-access link (see below for how you may use this link):
https://academic.oup.com/chinesejil/advance-article/doi/10.1093/chinesejil/jmab031/6449363?guestAccessKey=4f7f76a9-41f4-4c46-9366-ea0198ab74ca

Table of Contents

1. Introduction
2. Overview

II.A. Report on the Work of the SPC in 2020

II.B. Laws and the SPC’s interpretation

II.C. Provisions on punitive damages

III. Jurisdiction

III.A. Intellectual property

III.A.i. Jurisdiction over the standard essential patent disputes

III.A.ii. Jurisdiction over the disputes of abuse of market dominance

III.A.iii. Jurisdiction over the giving of declaratory judgment in patent disputes

III.B. Choice of court agreement

III.C.i. An asymmetric choice of court agreement

III.C.ii. Choice of court agreement and hierarchical jurisdiction of the Chinese court system

III.C. Other choices in contracts

1. Choice of law

IV.A. Habitual residence

IV.B. Proprietary rights

IV.C. Matrimonial assets

IV.D. Ascertainment of foreign law

1. International judicial assistance

V.A. Statistics of judicial assistance in civil or commercial matters

V.B. Taking of evidence for foreign courts

1. Action preservation and anti-suit Injunction  

VII. Recognition and enforcement of foreign judgments

VIII. International arbitration

VIII.A. Agreements with jurisdiction and arbitration clauses

VIII.B. Construction on “judgment upon the award”

Aldricus – Tak bisa dipungkiri, kebhidupan kita saat ini cukup bergantung pada HP. Tak heran jika gadget yang satu ini tidak bisa dipisahkan dalam segala aktifitas kita sehari-hari. Karena itulah penting untuk memberikan perlindungan pada HP kesayanganmu. Di sini, yang kalian butuhkan adalah asuransi HP.

Apa Itu Asuransi HP?

Asuransi ini (asuransi smartphone) merupakan asuransi yang akan memberi ganti rugi dan perlindungan produk elektronik yang dibeli dengan harga tertentu, baik jika ponselmu hilang ataupun rusak. Jika HPmu hilang atau rusak, pihak asuransi akan memberi ganti rugi. Biasanya, kalian akan mendapatkan penawaran asuransi ini Ketika membeli HP baru. Namun, kalian juga bisa mendapatkannya dari perusahaan asuransi seperti PasarPolis.

Kenapa Butuh Asuransi ini?

Dengan asuransi smartphone, kalian dapat melindungi HP kesayangan dari berbagai kemungkinan resiko. Selain itu, kalian juga dapat menghemat waktu dari semua proses transaksi, status, aplikasi, sampai pengecekan online dengan sistem terintegrasi.

Pihak asuransi ini akan memberi data lengkap tentang polis & cara klaim yang simple. Dengan begitu, mobilitas kalian tak akan terganggu apabila harus mengurus klaim. Bahkan, kalian juga dapat memperoleh referensi dari produk asuransi & pembelian lewat toko online.

Perlindungan Layar HP

Asuransi smartphone menawarkan berbagai macam perlindungan. Salah satunya adalah perlindungan layar HP. Seperti kita semua tahu, berbagai model HP saat ini menggunakan layar sentuh. Artinya, layar HP menjadi salah satu bagian terpenting yang harus dilindungi dari resiko retak dan pacah. Itulah kenapa kalian memerlukan asuransi smartphone yang memberi perlindungan pada layar HP.

Efek Negatif Layar HP Retak

Layar HP yang retak/pecah bisa menimbulkan efek negative. Salah satunya adalah jari mudah terluka, lebih lagi kalau kalian suka main game di HP. Selain itu, retak atau pecahnya layar HP juga meningkatkan resiko penyakit mata. Satu lagi, layar HP yang retak/pecah juga membuat pancara radiasi membesar.

Untuk menghindari berbagai efek negative itu, kalian memerlukan asuransi HP. Selain memberikan perlindungan pada layar, asuransi smartphone juga bisa meliputi pemulihan data berharga, penggantian unit baru, dan menghemat pengeluaran.

The post Asuransi HP untuk Melindungi Smartphone Kesayanganmu appeared first on Aldri Blog.

Last week, the Supreme Court of the United States agreed to hear a case concerning Hague Convention on the Civil Aspects of International Child Abduction. Amy Howe has an excellent summary of the case on her blog, Howe on the Court.

Under the convention, children who are wrongfully taken from the country where they live must be returned to that country, so that custody disputes can be resolved there. The convention makes an exception for cases in which there is a “grave risk” that returning the child would expose him or her to physical or psychological harm.

In Golan v. Saada, a U.S. citizen married an Italian citizen in 2015; they had a child, born in Milan, in 2016. The husband was allegedly abusive toward the wife throughout the marriage, but he did not directly abuse their son. In 2018, the wife took the child to the United States and did not return, remaining in a domestic-violence shelter in New York. The husband went to federal court there, trying to compel the child’s return to Italy.

The U.S. Court of Appeals for the 2nd Circuit ruled that, when a district court concludes that a child’s return would pose a grave risk of harm, the district court must consider measures that would reduce that risk. This holding clashes with the holdings of other courts of appeals, which do not mandate the consideration of such measures, particularly in cases involving domestic violence. The case then went back to the district court, which ordered the child’s return to Italy with a variety of protective measures in place – for example, mandatory therapy and parenting classes. The Supreme Court agreed to decide whether courts are required to consider all measures that might reduce the grave risk of harm if the child were to return home.

The case will be argued in the Spring and decided before June 2022; the docket and publicly available filings can be accessed here.

EFFORTS (Towards more EFfective enFORcemenT of claimS in civil and commercial matters within the EU) is an EU-funded Project conducted by the University of Milan (coord.), the Max Planck Institute Luxembourg for Procedural Law, the University of Heidelberg, the Free University of Brussels, the University of Zagreb, and the University of Vilnius.

The fifth EFFORTS Newsletter has just been released, giving access to up-to-date information about the Project, save-the-dates on forthcoming events, conferences and webinars, and news from the area of international and comparative civil procedural law.

Regular updates are also available via the Project’s website, and  LinkedIn and Facebook pages.

Project JUST-JCOO-AG-2019-881802
With financial support from the Civil Justice Programme of the European Union

Do actions for recovery of sums unduly paid by way of unjust enrichment fall within exclusive jurisdiction under Article 22(5) of the Brussels I Regulation and, if not, do they fall within alternative jurisdiction set out in Article 5(3) in respect of “quasi-delicts”?

This is the twofold question that a Croatian court addressed to the Court of Justice in the case HRVATSKE ŠUME, C-242/20.

Last week, on 9th December, the Court handed down its judgment in this case.

Gilles Cuniberti and Geert van Calster reported and commented on the judgment. I am happy to refer to their contributions. As the judgment has already made object of their interesting analysis, the present post aims solely to complement the initial post about the Opinion presented by AG Saugmandsgaard Øe in the case at hand and the observations made there.

 

A brief reminder of the Opinion and its findings

Back in September, AG Saugmandsgaard Øe presented his Opinion in this case. At the request of the Court, he did only elaborate on the second part of the question presented above – and, technically speaking, the first preliminary question – pertaining to the interpretation of Article 3(5) of the Brussels I Regulation (point 20 of the Opinion).

In essence, he argued that an action for unjust enrichment is not a “matter relating to a contract” in the sense of Article 5(1), save where it is closely connected with a preexisting (or alleged to exist) contractual relationship (points 44-52). Nor it is a “matter relating to tort, delict or quasi-delict” within the meaning of Article 5(3) of the Regulation (point 79).

 

The judgment of the Court On the exclusive jurisdiction

The Court starts its analysis with first part of the question presented in the introduction of the this post – and again, technically speaking, the second preliminary question – on the interpretation of Article 22(5) on the exclusive jurisdiction.

The Court reads this question in the context of a particularity of the case that is brought up by the referring court in its request for a preliminary ruling: an action for recovery of sums unduly paid by way of unjust enrichment falls within the scope of exclusive jurisdiction set out in Article 22(5) where that action concerns an amount levied in the enforcement proceedings and is brought before a court because it is not possible anymore, given the lapse of time (since the date of enforcement), to seek recovery of the levied amount in the same enforcement proceedings? (paragraph 26).

The reasoning of the Court relies heavily on the autonomous character of the action in question with regards to the enforcement proceedings (paragraph 31) and on the predictability argument (paragraphs 30 and 34).

This reasoning leads the Court to conclude that, despite the aforementioned particularity of the case, the action for recovery of sums unduly paid does not fall within the scope of Article 22(5) of the Brussels I Regulation (paragraph 37).

 

On the alternative jurisdiction for contracts/torts

After that, the Court, logically, proceeds to the interpretation of Article 5(3) in order to clarify whether the action in question falls within the scope of that provision.

In short, it considers that due to the lack of the “harmful event” in the meaning of Article 5(3) , an action for recovery of sums unduly paid by way of unjust enrichment cannot fall within the scope of that provision (paragraph 55).

It also clarifies that the unjust enrichment does not, generally speaking, result from the act voluntarily undertaken by the party enriched at the expense of another. Thus, in principle it does not fall within the scope of Article 5(1), as a “matter relating to a contract” (paragraph 45). However, echoing the Opinion delivered by AG Saugmandsgaard Øe, the Cour considers that action “closely linked” to a contract would fall within the ambit of that provision (paragraphs 47 and 48).

 

Already second time’s a charm ?

In the initial post on the Opinion, I speculated that the solution proposed by AG Saugmandsgaard Øe may have brought to mind the proposal made by AG Bobek in the context of actio pauliana in his Opinion delivered in the case Feniks, C-337/17. As a reminder, in the latter Opinion, AG Bobek proposed to consider, in essence, that an actio pauliana cannot be seen as a “matter relating to a contract”, nor it is a “matter relating to tort, delict or quasi-delict”. It has to be brought before the court having jurisdiction under the general rule of jurisdiction, according to the principle actor sequitur forum rei.

Let us speculate and take that proposal one step further: while in order to identify the law governing action pauliana it might be necessary to decide whether this action is contractual or non-contractual in nature and thus falls within the scope of the Rome I Regulation or within the scope of the Rome II Regulation, it is not the case for the contract/tort distinction under the rules of jurisdiction set out in Article 5(1) and 5(3) of the Brussels I Regulation.

In the judgment in the case Feniks, C-337/17, the Court did not follow the proposal advanced by AG Bobek (see paragraph 44 of that judgment). Thus, it did not have to face or even to consider the one-step-forward speculative consequence mentioned above.

By contrast, it decided to do exactly that in the present case.

The Court acknowledges that a non-contractual characterization of the unjust enrichment is mandated by the Rome II Regulation (even though it falls within a scope of a special choice-of-law rule of Article 10), but it does not automatically translate to a similar characterization under the rules of jurisdiction of the Brussels I Regulation (paragraph 46).

 

The judgment can be consulted here.

Ilaria Queirolo (University of Genova), Salvatore Patti (University of Rome La Sapienza), Carlos Esplugues Mota (University of Valencia), Boriana Musseva (Sofia University), Dana Rone (Turiba University, Riga), Laura Carpaneto (University of Genova) and Francesca Maoli (University of Genova) have edited Children’s Right to Information in EU Civil Actions, published by the Italian publisher Pacini.

The volume collects the results of the EU co-funded Project Minor’s Right to Information in EU civil actions – Improving children’s right to information in cross-border civil cases – MiRI, European Union Justice Programme 2014-2020, JUST-JCOO-AG-2018-831608. It critically addresses the fundamental right of the child to receive information during the course of civil proceedings affecting him or her, with particular reference to the peculiarities characterizing cross-border proceedings in family matters. In this context, the right to information is coinceived not only as a corollary of the right of the child to be heard during the course of the proceedings, but also in the light of the possible developments as an autonomous procedural right. The volume rationalizes the main criticalities emerging from the current practice in several EU Member States and offers a set of Guidelines, aimed at improving the situation of children involved in cross-border family proceedings, in order to enhance and protect their fundamental rights.

The contributors include Roberta Bendinelli, Leontine Bruijnen, Laura Carpaneto, Carlos Esplugues Mota, Samuel Fulli-Lemaire, Maria González Marimón, Sara Lembrechts, Francesca Maoli, Boriana Musseva, Vasil Pandov, Francesco Pesce, Ilaria Queirolo, Pablo Quinzá Redondo, Geraldo Rocha Ribeiro, Dana Rone, Tine Van Hof, Daja Wenke.

The book is fully accessible here.