Agrégateur de flux

This is the second post in the online symposium on the recent judgment of the CJEU in Air Berlin (see also here). It is authored by Antonio Leandro (University of Bari, Italy), who edited and contributed to the recent Elgar Commentary on the European Insolvency Regulation and Implementing Legislations. The first post was authored by […]

La règle générale attribuant compétence aux juridictions du domicile du défendeur s’oppose à la réglementation d’un État au terme de laquelle ses ressortissants sont obligés de disposer d’une adresse permanente dans cet État, indépendamment du lieu où ils résident effectivement.

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

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This is the first post in the online symposium on the recent judgment of the CJEU in Air Berlin (see also here). It is authored by Ilaria Queirolo and Stefano Dominelli (University of Genoa, Italy), who contributed to the recent Elgar Commentary on the European Insolvency Regulation and Implementing Legislations. In Air Berlín Luftverkehrs KG, […]

Written by Hadrien Pauchard (assistant researcher at Sciences Po Law School)

The fourth issue of the Revue critique de droit International privé of 2023 (available here) was released online some time ago. It features two articles and several case notes. The non-French speaker will be pleased to find that, for the first time, the articles have been made available in English on the editor’s website (for registered users and institutions).

By opening new horizons beyond French private international law, the doctrinal part of the volume sheds light on the role played by conflict of laws in a legal anthropology.

The first article authored by Dr. El Hadji Samba Ndiaye (Université de Cheikh Anta Diop de Dakar) is dedicated to La double nationalité des Africains subsahariens et les conflits de lois en matière de statut personnel (Dual nationality of sub-Saharan Africans and conflicts of law in matters of personal status). Its abstract reads as follows:

The principle of precedence of the nationality of the forum has an undeniable foundation in African private international law. Fortunately, however, it does not converge with the dynamics of migration of Africans towards the West and the contemporary diasporic realities. Dual nationality becoming more and more a reality in sub-Saharan Africa, it is urgent to review the treatment it receives in the field of conflicts of laws in matters of personal status when the African courts are the subject of direct referral to the proportion of dual Africans nationals who obtained a naturalization decree during their stay in the West. Taking advantage of the singularities shared between the conflict mobile and the positive conflict of nationalities, this analysis suggests applying to African dual nationals the law of their secondarily acquired nationality corrected, if possible, by the exception of dual nationality.

In the second article, Pr. Sabine Corneloup (Université Paris Panthéon-Assas) discusses L’appréhension des mariages d’enfants célébrés à l’étranger. Droit international privé et droits fondamentaux (Engaging with child marriages celebrated abroad. Private international law and fundamental rights). The abstract reads as follows:

While the fight against child marriages is a widely shared international objective, the choice of the best way to deal with such marriages, when they have been validly celebrated abroad, is a highly complex and controversial issue. On 1st February 2023, the German Federal Constitutional Court declared that article 13, paragraph 3, 1° of the EGBGB, relating to marriages of minors under the age of 16 celebrated abroad, was contrary to the freedom to marry guaranteed by the Basic Law of 1949. Adopted against a tense political backdrop, the provision stemmed from a 2017 law aimed specifically at combating child marriages. Its radical penalty – automatic nullity without any specific assessment of the situation of the spouses and without any substitute regime – attracted a great deal of criticism in Germany. The decision invites a more general reflection, beyond German constitutional law, on the questions of method and legal policy that the apprehension of these marriages gives rise to in private international law. The flexibility of the international public policy exception is problematic when the marriage has been contracted at a particularly early age. Public policy should then systematically oppose its validity in France. The benefit of putative marriage, as well as the possibility of celebrating the marriage again when majority has been reached, constitute sufficient guarantees to limit the effects of nullity in the legal order of the forum.

The issue also contains two case notes related to major transnational litigations on corporate responsibility. Written by Pr. Horatia Muir Watt (SciencesPo), they provide a critical comparative perspective on the contemporary developments and challenges of value chain disputes. The first note on Amici curiae : alerte à la vigilance ! (Amici curiae: vigilance alert!) scrutinizes the recent decision of the Tribunal judiciaire de Paris regarding the interim measures requested in the Total-Ouganda case under French law on corporate duty of care – “loi sur le devoir de vigilance” (TJ Paris, référé, 28 févr. 2023). The second note on Fuites de pétrole et fuite du temps: le point de départ de la prescription en cas de faits dommageables plurilocalisés à effets continus (Oil leaks and the passage of time: the starting point of the limitation period for plurilocal facts with continuous effects) then focuses on the judgement of the UK Supreme Court of May 10th, 2023 in the Jalla v Shell ([2023] UKSC 16) case.

The full table of contents is available here.

Previous issues of the Revue Critique (from 2010 to 2022) are available on Cairn.

On 18 April 2024, the CJEU delivered its judgment in Joint Cases C-765/22 and C-772/22, Air Berlin Luftverkehrs KG. The judgment, which was briefly presented on this blog, addresses several novel issues related to the application of the European Insolvency Regulation. In the coming days, the EAPIL Blog will host an online symposium on this case. […]

Burkhard Hess and his team at the University of Vienna recently finalised an Academic Position Paper on the Reform on the Brussels Ibis Regulation, which is now available on SSRN. They have kindly shared the following summary with us.

The Brussels Ibis Reform project leading up the Academic Position Paper commenced with the formation of a Working Group within the European Association for Private International Law (EAPIL) in 2021, spearheaded by Burkhard Hess and Geert Van Calster. This Working Group consisted of 42 academics from 22 EU Member States plus Iceland, Norway, Switzerland and the UK. The Members of the Working Group provided information on the application of the Brussels Ibis Regulation in their respective jurisdictions by means of a questionnaire, after which a Members Consultative Committee of the EAPIL produced a report. Based on this input, the former MPI Luxembourg and the KU Leuven organised a conference in Luxembourg on 9 September 2022.

After the Luxembourg conference, Burkhard Hess and a team of researchers of the former MPI Luxembourg prepared a Working Paper with 32 reform proposals. The Members of the EAPIL Working Group and the academic public were invited to express their opinion on these proposals through online surveys. The results of these surveys were processed by Burkhard Hess and his team , which led to amendments to the original proposals. These amended proposals were presented discussed at a conference in Vienna on 12 April 2024. The findings of this conference were integrated into the Academic Position Paper that, after consulting the Members of the EAPIL Working Group, received a final update before being uploaded on SSRN

The five different parts of the Academic Position Paper cover the role and scope of the Brussels Ibis Regulation, collective redress, third-state relations, jurisdiction and pendency, as well as recognition and enforcement. Each part covers distinct issues identified at the 2022 Luxembourg conference and formulates specific proposals to resolve them. The background of each proposal is briefly explained and the charts indicating the responses to the surveys are presented, before discussing the feedback received through the surveys and during the 2024 Vienna Conference.

Burkhard Hess and his team would like to thank everyone that has taken the time to answer the surveys and/or attend the conferences. Your input was invaluable, and we have sought to take your views into account as much as possible. We believe that the proposals in the Academic Position Paper provide a solid set of recommendations to consider in recasting the Brussels Ibis Regulation, which will be presented to the European Commission as a meaningful contribution of academia in the upcoming law-making process.

Francisco Garcimartin (University Autónoma of Madrid) has posted Is EU Insolvency Law consistent? on SSRN. The abstract reads as follows: The piecemeal approach to the harmonisation of insolvency law in the EU and the corresponding time lag between the unification of choice of law rules, on the one hand, and substantive harmonisation, on the other, has […]

On 24 May 2024, the Council of the European Union approved the position of the European Parliament at first reading on the proposal for a directive of the European Parliament and of the Council on corporate sustainability due diligence and amending Directive (EU) 2019/1937 (and subsequently also Regulation (EU) 2023/2859). The directive has thereby been […]

INGSTEEL
Rapprochement des législations
Marchés publics : le soumissionnaire illégalement évincé d‘une procédure de passation peut réclamer des dommages et intérêts en raison d’une perte de chance

Ryanair / Commission
Aide d'État
Covid-19 : la Cour confirme la décision de la Commission autorisant le fonds de soutien à la solvabilité des entreprises stratégiques espagnoles

The Australian Branch of the International Law Association is now calling for submissions for the 2024 Nygh Essay Prize in Private International Law.

The prize is named in honour of Dr. Peter Nygh, a leading Australian scholar of private international law and former President of the Branch.

The Nygh Essay Prize is awarded to the author of an essay in private international law (conflict of laws), including in the field of international commercial arbitration. Essays for the prize to be awarded in 2024 should be sent to the email address of the Secretary of the Australian Branch at secretary@ila.org.au.

Further details (including conditions of entry) are available here. The deadline for submission is: 31 July 2024.

The results will be made available on the website of the ILA (www.ila.org.au) on approximately 31 August 2024. Winners will be notified by email.

 

 

by Ennio Piovesani

Certain EU Member States have enacted special rules governing the activities of content creators and influencers. In this context, the French legislature passed Law No. 2023-451 on June 9, 2023, aimed at regulating influencer marketing and addressing potential misconduct by influencers on social media platforms (1). Article 8, I, of Law No. 2023-451 requires that contracts between influencers and (influencer marketing) agents or advertisers, or their representatives, must be made in writing and include a specified set of clauses; failure to comply results in the contract being null.

One such clause mandates ‘[t]he submission of the contract to French law, notably to the Consumer Code, the Intellectual Property Code, and the present Law, when said contract has as its object or effect the implementation of influencer marketing activities through electronic means targeting notably an audience established on French territory’ (Article 8, I, 5°, Law No. 2023-451). Scholars have highlighted the ‘innovative’ nature of the mechanism set forth in Article 8, I, 5°, Law No. 2023-451 and its resemblance to the (more established) concept of overriding mandatory provisions (2).

(1) LOI n° 2023-451 du 9 juin 2023 visant à encadrer l’influence commerciale et à lutter contre les dérives des influenceurs sur les réseaux sociaux

(2) See Sandrine Clavel, Fabienne Jault-Seseke, Droit international privé, Recueil Dalloz 2024, 987, accessed online at Dalloz.fr; see also Ermanno Calzolaio, L’attività pubblicitaria dell’influencer nel diritto francese (Loi n. 451 del 9 giugno 2023), Il Diritto dell’Informazione e dell’Informatica, 2023, no. 6, p. 909, accessed online at Dejure.it).

Malacalza Investimenti et Malacalza / BCE
Droit institutionnel
Responsabilité non contractuelle de l’Union : le Tribunal rejette le recours en indemnisation de Malacalza Investimenti et de M. Vittorio Malacalza contre la BCE

Supermac's / EUIPO - McDonald's International Property (BIG MAC)
Propriété intellectuelle et industrielle
McDonald's perd la marque de l’Union européenne Big Mac pour les produits de volaille

Regulation (EU) 2024/1183 establishing the European Digital Identity Framework entered into force on 20 May 2024. As reported on this blog (at the time of the Commission’s proposal), the major contribution of this Regulation is the creation of a “European Digital Identity Wallet” (EUDIW). It aims to allow citizens and companies based in the European […]

Medel / Conseil
Cohésion économique et sociale
État de droit : les recours des organisations de juges européens contre la décision du Conseil approuvant le plan pour la reprise et la résilience de la Pologne sont rejetés comme irrecevables

On 6 June 2024 the Court of Justice will be holding a hearing in case C-393/23, Athenian Brewery et Heineken. The request for a preliminary ruling comes from the Hoge Raad der Nederlanden (the Dutch Supreme Court). In the main proceedings, Macedonian Thrace Brewery SA (‘MTB’) is suing Athenian Brewery SA (‘AB’) and Heineken NV (‘Heineken’) […]

The latest issue of ZEuP – Zeitschrift für Europäisches Privatrecht has just been released. It includes contributions on private law, comparative law and legal history, among others. The full table of content can be accessed here. In addition to the editorial by Christine Budzikiewicz on the Commission Proposal for an EU Regulation on Parenthood and […]

Nicholls & Anor v Mapfre Espana Compania De Seguros Y Reaseguros SA [2024] EWCA Civ 718 is the unsuccessful appeal against Sedgwick v Mapfre Espana Compania De Seguros Y Reaseguros Sa [2022] EWHC 2704 (KB) which I discuss here and against Nicholls v Mapfre and Sonia Woodward v Mapfre [2023] EWHC 1031 (KB) which I discuss here.

The case centres around the difference in the Rome II Regulation between matters of procedure on the one hand and substantive law on the other hand, for the purposes of private international law and the interpretation of A1 and 15 Rome II.

In the appeals Mapfre contend that the interest payable under Spanish Insurance Contract Act Act 50/1980 is penal in nature because it rises to 20 per cent per annum in the third year of application, is payable as a matter of Spanish procedural law to encourage early settlement of disputes by insurance companies, and is a matter of procedure which is not covered by Rome II. This means that in their view the laws of E&W apply to the assessment and award of interest. Mapfre also contend that it is wrong to use the statutory discretion under either section 35A of the (English) Senior Courts Act or section 69 of the County Courts Act to allow Spanish penal interest in by the back door when it relates to a different procedural environment to which different procedural rules apply, and where the laws of England and Wales contain within Part 36 of the Civil Procedure Rules procedural provisions to encourage the early settlement of disputes.

Respondents contend that Act 50/1980 is a matter of substantive law because it is an integral part of the way in which damages and interest are assessed in proceedings in Spain for personal injuries in actions against insurers. Therefore it should be ordered to be paid as Spanish law governs the action. As an alternative, the respondents also contend that if Act 50/1980 is a matter of procedure for the purposes of Rome II, then all of the judges were right, and made no error in the exercise of their discretion, in ordering the payment of an equivalent rate of interest under Act 50/1980 as a matter of discretion under section 35A of the Senior Courts Act or section 69 of the County Courts Act.

Dingemans LJ referred to Wall, Lazar, and Actavis as most relevant authority. I agree with his view [33] which I have expressed before (eg in the Handbook, 4th ed, 4.83), that the the evidence and procedure carve-out need not be given either a narrow, strict, or broad interpretation. It simply needs to be applied as intended. [34] he argues

In order to carry out the task of determining whether the interest payable under article 20.4 of Act 50/1980 is a matter of procedure, it is necessary to undertake a consideration of Act 50/1980. That is not to discover whether the provision is considered to be substantive law or a matter of procedure under either Spanish law or the laws of England and Wales, because what is a matter of procedure for the purposes of article 1(3) of Rome II is an autonomous concept under Rome II. The purpose of undertaking a consideration of Act 50/1980 is to determine whether the issue of interest under that provision is so “intertwined” with the assessment of damages, which is a matter of substantive law under Rome II, that interest payable under Act 50/1980 should be considered a matter of substantive law and not a matter of procedure.” (emphasis added)

The test put forward by the Court of Appeal therefore would seem to be the intensity of intertwinedness of the issue at stake, with one of the elements that are clearly listed in A15’s ‘scope of the law applicable’ (here: “assessment of damage”). (Note Stuart-Smith LJ’s concurrence [79] not to look at the issue through an “overly-Anglo/Welsh prism”).

This leads here [58] to the conclusion that

the interest payable under Act 50/1980 is not a matter of procedure for the purposes of article 1(3) of Rome II, and is governed by the law applicable to the non-contractual obligation, namely the law of Spain.

[68] ff then discusses subrogation under A19 Rome II with reference [70] to relevant CJEU authority.

Of note.

Geert.

EU Private International Law, 4th ed 2024, ia Heading 4.8.

https://x.com/GAVClaw/status/1806583047313121464

 

The latest issue of the Journal of Private International Law was published yesterday It contains the following articles.

Alex Mills, Sustainability and jurisdiction in the international civil litigation market

The sustainability of the global economy, particularly in response to the concerns of climate change, is an issue which impacts many different aspects of life and work around the world. It raises particular questions concerning globalised industries or markets which depend on long distance transportation for their function. This article takes as its focus international civil litigation – the judicial resolution of cross-border disputes – as a particular example of a globalised market in which sustainability considerations are presently neglected, and examines how this omission ought to be addressed. It proposes a modification to English law which aims to ensure that jurisdictional decisions by the English courts take into account their environmental impact – that is to say, the environmental impact of the selection of a particular forum. The article also considers the implications of adopting this change on the position of the English courts in the global litigation marketplace, arguing that the effects are likely to be limited, and it could have an incidental benefit in promoting the development and adoption of communications technologies in judicial dispute resolution.

 

Saloni Khanderia, The law applicable to documentary letters of credit in India: A riddle wrapped in an enigma?

Despite significantly fostering international trade in India, letters of credit and the determination of applicable law in cross-border disputes arising from the same have received negligible attention from lawmakers. The Indian Supreme Court, too, has failed to use its power to mould the law despite regularly being confronted with disputes on this subject. This paper demystifies India’s conflict of law rules on the law governing disputes on letters of credit by examining relevant judicial trends. It highlights rampant references to the lex fori – and explores reasons why it is considered the “proper law” by being the country possessing the closest and most real contractual connection. It anticipates a “ripple effect” prompting parties to evade Indian courts through choice-of-court agreements preferring a foreign forum or to avoid business with Indian traders insisting on such payment mechanisms. Accordingly, it identifies the need for coherent rules and suggests some solutions that Indian lawmakers should consider.

 

Frederick Rieländer, The EU private international law framework for civil disputes concerning credit ratings: Exploring the status quo and prospects of reform

This article addresses the EU private international law framework for cross-border disputes concerning credit ratings. It argues that investors harmed by faulty ratings face considerable challenges when enforcing claims against credit rating agencies. These challenges arise not only due to the high standard of proof for damages claims and additional barriers rooted in substantive law but also from the limited territorial reach of the common EU civil liability regime of Article 35a of the amended Regulation (EC) No 1060/2009. Additionally, uncertainties concerning the determination of the concurrently applicable national law and the lack of unified European cross-border collective redress mechanisms in the area of capital markets law compound the problem. Against this background, this article discusses the options for reforming the existing private international law regime to enhance investors’ access to justice in disputes with CRAs.

 

Tony Ward & Ann Plenderleith Ferguson, Proof of foreign law: a reduced role for expert evidence?

This article considers the position as to proof of foreign law in the English courts in light of the case of FS Nile Plaza v Brownlie [2021] UKSC 45 and the 11th edition of the Commercial Court Guide. We discuss the “old notion” of proof by expert witnesses, the extent to which recent developments displace the traditional role of the expert and enhance that of the advocate, and the dicta in Brownlie concerning the presumptions of similarity and continuity and judicial notice. While welcoming the greater flexibility in the way foreign law can be put before the English court, we argue that the use of oral expert evidence and cross-examination will remain important in at least two types of case: those where the issue of foreign law is complex or novel, and those where the English court does not just need to ascertain the “correct” interpretation of foreign law, but rather predict whether a foreign court would in reality provide appropriate relief in relation to the matter before the court.

 

Olivera Boskovic, Extraterritoriality and the proposed directive on corporate sustainability due diligence, a recap

Tortious actions brought against companies for the violation of human rights and/or environmental damage have raised important issues of jurisdiction and choice of law. Damage caused abroad by subsidiaries of European companies or the possibility of bringing actions against non-European companies for damage caused outside of the European union have been referred to in terms of extraterritoriality. This paper examines these issues in relation to the proposed directive on corporate sustainability due diligence.

 

Leonard Lusznat, The Brussels IIb Regulation – Most significant changes compared to its predecessor and enhancement of the 1980 Hague Convention on International Child Abduction

The Brussels IIb Regulation, dealing with proceedings in matrimonial matters, those of parental responsibility and international child abduction cases, is the newest instrument of the European Union in international family law. The article critically evaluates its most significant changes compared to its predecessor, the Brussels IIa Regulation, in the fields of jurisdiction and of recognition and enforcement. In addition, it analyses how the Brussels IIb Regulation optimises the provisions of the 1980 Hague Convention on International Child Abduction between the member states of the European Union. The article argues that the regulation is overall a helpful and welcome addition to international family law because it strengthens the welfare of the child and enhances the practical functionality and normative structure of its predecessor. Nevertheless, scope for further improvements in another recast regulation is identified.

 

Olga Bobrzy?ska & Mateusz Pilich, Cases of cross-border child abduction in times of populism: a Polish perspective

This article analyses the case law in Poland on matters of the return of children wrongfully removed or retained within the framework of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction during the period of the “populist” government (2020–2022). It takes account of the legislative and judicial developments in the EU and the European Court of Human Rights and of the aims of the Hague Convention. It seeks to ascertain whether the influence of populist reforms and politicisation of the courts has become apparent in the case law of the Polish Supreme Court on international child abduction cases.

 

Ye Shanshan & Du Tao, The Jurisdiction of China International Commercial Court: substance, drawbacks, and refinement

The wave of setting up international commercial courts has emerged internationally. Following the trend, China established the China International Commercial Court (CICC) in 2018. The CICC exercises consensual jurisdiction and non-consensual jurisdiction over international commercial disputes, and has jurisdiction to support international commercial arbitration. This article analyses the CICC’s criteria for determining international commercial disputes and the specific requirements for each type of jurisdiction based on the relevant provisions and judicial practice of the CICC. In addition, this article identifies the drawbacks of the CICC’s current jurisdiction system, and provides several suggestions for refinement, including the modification and clarification of the criteria for determining the internationality and commerciality of disputes, the removal of restrictions on jurisdiction agreements, the clarification of substantive standards for case transfer, and the expansion of its jurisdiction to support international commercial arbitration.

 

Gülüm Bayraktaroglu-Özçelik, When migration meets private international law: issues of private international law in divorce actions of Syrian migrants under temporary protection before the Turkish courts

The extended stay of Syrian nationals under temporary protection in Türkiye for more than a decade has caused an increase in their involvement in private law actions before the Turkish courts. Even though their substantive rights have mostly been regulated following their arrival, the private international law legislation has not yet been reviewed. This research, focusing on the most recent judgments of Turkish courts in divorce actions of Syrian migrants identifies important issues of private international law. These include questions on determination of international jurisdiction of Turkish courts, their access to legal aid and the obligation to provide security, questions of applicable law concerning marriage (including the recognition of the marriages validly celebrated in Syria), determination of the law applicable to divorce and the content of Syrian law. The study demonstrates that some of these questions arise because of the ongoing unfamiliarity of Turkish courts with “temporary protection status” as a relatively new concept in Turkish law, whereas others are related to application of general provisions to temporary protection beneficiaries and highlights the urgent need to review the Turkish private international law legislation considering the status of these persons to provide uniformity in court decisions and to ensure predictability.