Agrégateur de flux

Pourvoi c. déc. Cour d'appel de Paris du 22 avril 2021

Pourvoi c. déc. Commission de recours des OPJ Cour de cassation du 17 février 2021

Pourvoi c. déc. Cour d'appel de Paris du 4 mars 2021

Tribunal judiciaire de Caen

Tribunal pour enfant de Bordeaux

Tribunal de commerce de Paris

Tribunal judiciaire de Thonon-les-Bains

As reported by Fabienne Jault-Seseke on this blog, the French supreme court for civil and criminal matters (Cour de cassation) ruled in a judgment of 26 May 2021 that “the principles of primacy and effectiveness of European Union law” require that French courts apply ex officio certain choice of law rules contained in EU Regulations.

This is a significant evolution from the doctrine that the court had adopted 20 years ago. This doctrine was the result of decades of academic debates and changes in the case law of the court. Interestingly enough, at the end of the 1980s, the court had ruled that choice of law rules contained in international conventions (essentially the conventions negotiated under the aegis of the Hague Conference of Private International Law) deserved a different status and should be applied ex officio, but the court dropped this exception a few years later.

Background: The Peculiar Consequence of Applying Choice of Law Rules

As most civil law jurisdictions, France recognises the principle jura novit curia. Article 12 of the French Code of Civil Procedure provides that courts must decides disputes in accordance with the legal rules which are applicable and that they should do so ex officio if necessary.

The extension of these principles to choice of law rules was always debated, however. One likely explanation is that the operation of choice of law rules may result in the designation of foreign law. The content of foreign law needs then to be determined, and this process typically involves private experts who must be remunerated (remarkably, French courts virtually never appoint judicial experts for that purpose, although they routinely do so for establishing complex facts). It is understandable, therefore, that the parties would not always want to engage the resources for establishing the content of foreign law, in particular for cases with limited financial stakes, or involving impecunious parties. The obligation to apply systematically choice of law rules may thus have appeared as generating severe practical difficulties, and it took the Cour de cassation decades to craft a doctrine which would weigh the competing interests in a satisfactory manner.

Why Impose Ex Officio Application when the Parties Could Settle?

The current doctrine of the court was adopted in two judgments of 26 May 1999. The obligation of French courts to apply ex officio choice of law rules has since then been based on a major distinction. In matters where the parties may not dispose of their rights (e.g. parenthood, as in the first 1999 judgment), French courts ought to apply choice of law rules ex officio. In contrast, in matters where the parties may dispose of their rights (e.g. an international sale of goods, as in the second 1999 judgment), French courts have no obligation to apply choice of law rules if none of the parties raised their application or the application of foreign law. The system is mixed: some choice of law rules must be applied ex officio, others need not.

The distinction is between rights that the parties may dispose of, and rights that parties may not dispose of. The origin of the distinction is to be found in the writings of the most influential scholar in French private international law in the last decades, Pierre Mayer. Mayer argued that, while in principle foreign law should be considered as law and thus applied ex officio, an exception should be made for those rights which the parties could modify, and indeed waive. This is because they could decide to settle their dispute at any time, under any terms. Thus, a pragmatic solution should be to allow them to argue their case under the (French) law of the forum if they so wish. Just as they could have ignored the content of the applicable law to reach a settlement, they should be allowed to implicitly designate another law.

The Scope of the New Obligation to Apply EU Choice of Law Rules Ex Officio

The new rule laid down by the court in the judgment of 26 May 2021 establishes a distinction between two categories of EU choice of law rules. The Cour de cassation rules that the obligation to apply them ex officio is limited to mandatory choice of law rules, and that mandatory choice of law rules are rules that cannot be derogated from. This is a clear reference to party autonomy, that many EU regulations of private international law recognise. The meaning of the ruling is thus that the obligation is limited to the application of choice of law rules for which the European lawmaker did not grant freedom of choice to the parties.

The particular case was concerned with a tort action for unfair competition. The applicable choice of law rule is contained in Article 6 of the Rome II Regulation, and it expressly excludes the power of the parties to choose the applicable law (Art. 6(4)). The rule in Article 6 is thus to be considered as an EU mandatory choice of law rule, and French courts must now apply it ex officio.

In contrast, the general choice of law rule in Article 4 of the Rome II Regulation (application of the law of the place of damage in tort actions) is a default choice of law rule. It only applies in the absence of a choice of the applicable law made by the parties pursuant to Article 14 of the Rome II Regulation. Likewise, in contractual matters, the parties may choose the law governing their contract in most cases (under Article 3), which means than most choice of law rules contained in the Rome I Regulation are defaults.

Although the Court does not say so, it seems clear that the distinction that it has introduced is inspired from its 20 year old doctrine distinguishing between rights that the parties may dispose of, and rights that parties may not dispose of. But it is not absolutely identical. In this case, the action was concerned with an act of unfair competition which affected exclusively the interests of a single competitor (Rome II Regulation, Art. 6(2)). It was governed by general fault based tort liability. The interests involved were purely private, and it is likely that the parties could freely settle the action. Under the old doctrine, it seems that a French court would not have had the obligation to apply the choice of law rule ex officio. Under the new doctrine, it should have, because the parties may not freely choose the applicable law (although they may still freely settle).

Primacy and Effectiveness of EU Law?

Would it be a problem for the effectiveness of EU law if the parties were allowed to argue a case of unfair competition under the law of the forum instead of the law designated by the applicable EU choice of law rule? The Brussels Ibis Regulation grants jurisdiction to a number of courts in the EU, and other courts might apply all choice of law rules ex officio. In most Member States, however, the idea that courts, after ruling that foreign law applies, might then go on and establish the content of foreign law without the cooperation of the parties is, at best, unrealistic. And in most Member States, if foreign law cannot be established, courts will apply the law of the forum. You can lead a horse to water, but you can’t make him drink.

So the crucial question is that of the establishment of the content of foreign law. At the present time, the courts of most Member States do not have the possibility to ascertain the content of foreign law without the assistance of the parties. For this to change, considerable resources would need to be invested, to establish either centre(s) of comparative law which could provide expert opinions, or a network of courts which would be required to cooperate for that purpose. As long as these resources are not invested, the issue of the ex officio application of choice of law rules cannot be addressed without taking into account the interests of the parties.

Crossposted at EULawLive.

The Court delivered earlier this week (2 August 2021) its decision in case C‑262/21 PPU (A v B), which is about the impact of a transfer decision under Regulation no 604/2013 on the terms “wrongful removal or retention” under Article 2 Brussels II bis (adoption of the transfer decision followed by its annulment without the tranferred persons being authorised to return). The judgment is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version):

« L’article 2, point 11, du règlement (CE) no 2201/2003 […] doit être interprété en ce sens que ne peut constituer un déplacement illicite ou un non-retour illicite, au sens de cette disposition, la situation dans laquelle l’un des parents, sans l’accord de l’autre parent, est conduit à emmener son enfant de son État de résidence habituelle vers un autre État membre en exécution d’une décision de transfert prise par le premier État membre, sur le fondement du règlement (UE) no 604/2013 du Parlement européen et du Conseil, du 26 juin 2013, établissant les critères et mécanismes de détermination de l’État membre responsable de l’examen d’une demande de protection internationale introduite dans l’un des États membres par un ressortissant de pays tiers ou un apatride, puis à demeurer dans le second État membre après que cette décision de transfert a été annulée sans pour autant que les autorités du premier État membre aient décidé de reprendre en charge les personnes transférées ou d’autoriser celles-ci au séjour ».

Source : https://curia.europa.eu/juris/document/document.jsf;jsessionid=F6B1AEDDB2F275B0B192DEE518C60676?text=&docid=244847&pageIndex=0&doclang=FR&mode=req&dir=&occ=first&part=1&cid=4913022

This event is organised by CANACO and the Chamber of Commerce of Mexico. Registration is free of charge. To register send a message to the following email address: arbitrajecanaco@arbitrajecanaco.com.mx.

Gary Born’s approach has been controversial. See our previous post here. The EAPIL blog has also been very active on this topic, see the recent post: The 2005 Hague Convention on Choice-of-Court Agreements: A Further Reply to Gary Born. Thus this event promises to be extremely interesting and will allow the further exchange of views.

Tribunal judiciaire de Valence

Tribunal judiciaire de Paris

Tribunal judiciaire de Bordeaux

Cour d'appel de Versailles

Cour d'appel de Versailles

Pourvoi c. déc. Cour d'appel de Paris du 2 novembre 2020

Dear Friends and Colleagues,

 

even though the pandemic situation seems to decrease in our part of the world, the University of Bonn remains very careful and will still not allow on-site events of a larger scale for the next months. We have therefore once again made the decision to reschedule the Conference (originally planned for the 25/26 September 2020, and already postponed to 13/14 September 2021) on Friday and Saturday, 9 and 10 September 2022. However, as there are reasonable expectations for the HCCH 2019 Judgments Convention to enter into force around that time, we are confident – especially with a view to the latest recommendations of the European Commission – that we will experience an even more focused and rewarding discussion on the topic.

Please, find below the preliminary programme of the Conference.

 

***

Brexit has become reality – one more reason to think about the EU’s Judicial Cooperation with third states:

The largest proportion of EU economic growth in the 21st century is expected to arise in trade with third countries. This is why the EU is building up trade relations with many states and other regional integration communities in all parts of the world. The latest example is the EU-MERCOSUR Association Agreement concluded on 28 June 2019. With the United Kingdom’s exit of the Union on 31 January 2020, extra-EU trade with neighboring countries will further increase in importance. Another challenge for the EU is China’s “Belt and Road Initiative”, a powerful global development strategy that includes overland as well as sea routes in more than 100 states around the globe.

The increasing volume of trade with third states will inevitably lead to a rise in the number and importance of commercial disputes. This makes mechanisms for their orderly and efficient resolution indispensable. China is already setting up infrastructures for commercial dispute resolution alongside its belts and roads. In contrast, there seems to be no elaborate EU strategy on judicial cooperation in civil matters with countries outside of the Union, despite the DG Trade’s realisation that “trade is no longer just about trade”. Especially, there is no coherent plan for establishing mechanisms for the coordination of cross-border dispute resolution and the mutual recognition and enforcement of judgments. This is a glaring gap in the EU’s policy making in external trade relations.

This is why the Bonn group of PIL colleagues – Moritz Brinkmann, Nina Dethloff, Philipp Reuss, and Matthias Weller – will host a conference on Friday and Saturday, 9 and 10 September 2022, at the University of Bonn that seeks to explore ways in which judicial cooperation in civil matters between the EU and third countries can be improved by the HCCH 2019 Judgments Convention as an important driver, if not game changer, of legal certainty in cross-border commercial relations.

The list of speakers includes internationally leading scholars, practitioners and experts from the Hague Conference on Private International Law (HCCH), the United Nations Commission on International Trade Law (UNCITRAL), and the European Commission (DG Trade, DG Justice).

The Conference is co-hosted by the HCCH as one of the first European events for discussing the HCCH 2019 Judgments Convention. The Conference will be further supported by the Zentrum für europäisches Wirtschaftsrecht at the University of Bonn and The International Litigation Exchange (ILEX).

The Organizers will kindly ask participants to contribute with € 100.- to the costs of the event (includes conference dinner).

 

Dates:

Friday, 9 September 2022, and Saturday, 10 September 2022.

 

Venue:

Universitätsclub Bonn, Konviktstraße 9, D – 53113 Bonn

 

Registration: sekretariat.weller@jura.uni-bonn.de

 

Registration Fee: € 100.-

To be transferred to the following account (you will receive confirmation of your registration only after payment was booked on this account):

Bonn Conference 2020

IBAN: DE71 5001 0517 0092 1751 07

BIC:   INGDDEFF (ING-Diba Bank)

 

Programme

Friday, 9 September 2022

 

1.30 p.m.     Registration

2 p.m.          Welcome note

Prof Dr Wulf-Henning Roth, University of Bonn, Director of the Zentrum für Europäisches Wirtschaftsrecht (ZEW)

Dr Christophe Bernasconi, Secretary General of the HCCH (video message)

2.10 p.m.      Part I: Cornerstones

Chair of Part 1: Prof Dr Matthias Weller

Keynote: Hague Conference’s Perspective and Experiences

Hans van Loon, Former Secretary General of the Hague Conference on Private International Law, The Hague

1. Scope of application

Prof Dr Xandra Kramer, Erasmus Universiteit Rotterdam, Netherlands

2. Judgments, Recognition, Enforcement

Prof Dr Wolfgang Hau, Ludwig-Maximilians-Universität Munich, Germany

Discussion

 

3.30 p.m.     Coffee Break

 

4.00 p.m.      Part II: Cornerstones (Cont.)

Chairs of Part 2: Prof Dr Nina Dethloff / Prof Dr Moritz Brinkmann

3. Jurisdictional filters

Prof Dr Pietro Franzina, Università Cattolica del Sacro Cuore Milano, Italy

4. Grounds for refusal

Prof. Dr. Marcos Dotta, Universidad de la República, Uruguay; Sub Director de Asuntos de Derecho Internacional del Ministerio de Relaciones Exteriores de Uruguay

Discussion

5. Trust management: Establishment of relations between Contracting States

João Ribeiro-Bidaoui, First Secretary of the HCCH, Netherlands

6. “The Hague System”: Relation to the HCCH 2005 Convention on Choice of Court Agreements

Prof Paul Beaumont, University of Stirling, United Kingdom

7. “The Hague System” and “the Brussels System”: Relations to the Brussels and Lugano Regime

Prof Marie-Élodie Ancel, Université Paris-Est Créteil, France

Discussion

 

7.30 p.m.               Conference Dinner

 

 

Saturday, 10 September 2022

9.00 a.m.     Part III: Prospects for the World

Chairs of Part 3: Prof Dr Moritz Brinkmann / Prof Dr Philipp Reuss

1. European Union (EU)

Andreas Stein, Head of Unit, DG JUST – A1 “Civil Justice”, European Commission

2. South European Neighbouring and EU Candidate Countries

Ass. Prof Dr Ilija Rumenov, Ss. Cyril and Methodius University, Skopje, Macedonia

3. Africa (Commonwealth / common law)

Dr. Abubakri Yekini, Lagos State University, Nigeria
Dr. Chukwuma Okoli, Postdoctoral Researcher in Private International Law at the T.M.C. Asser Institute, Netherlands

4. MERCOSUR

Dr Veronica Ruiz Abou-Nigm, Director of Internationalisation, Senior Lecturer in International Private Law, School of Law, University of Edinburgh, United Kingdom

Discussion

 

11:00 a.m.    Coffee Break

 

11:30 a.m.    Part IV: Prospects for the World (Cont.)

Chair of Part 4: Prof Dr Nina Dethloff

5. ASEAN

Adeline Chong, Associate Professor of Law, Singapore Management University, Singapore

6. China (OBOR)

Prof Zheng (Sophia) Tang, University of Newcastle, United Kingdom

Discussion

 

12:30 p.m.   Part V: Outlook

Chair of Part 5: Prof Dr Matthias Weller

7. International Commercial Arbitration

Jose Angelo Estrella-Faria, Senior Legal Officer UNCITRAL Secretariat, International Trade Law Division Office of Legal Affairs, United Nations, Former Secretary General of UNIDROIT

8. Lessons from the Genesis of the Judgments Project

Dr Ning Zhao, Senior Legal Officer, HCCH

Discussion

 

1.30 p.m.     Closing Remarks

Dr João Ribeiro-Bidaoui, First Secretary, HCCH