Agrégateur de flux

Pour le juge des référés du Conseil d’État, les conditions dans lesquelles sont retenus provisoirement dans les locaux de la police à la frontière franco-italienne, des ressortissants des pays tiers à l’Union européenne, faisant l’objet d’un refus d’entrée en France en attente de leur réacheminement vers l’Italie, ne révèlent pas, en l’état de l’instruction, une atteinte grave et manifestement illégale aux libertés fondamentales de nature à justifier la fermeture immédiate de ces locaux de mise à l’abri et de rétention. 

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Jan von Hein and Thalia Kruger are the editors of a new volume published with Intersentia on Informed Choices in Cross-Border Enforcement. The European State of the Art and Future Perspectives. The book is dedicated to the functioning of the European Uniform Procedures in eight Member States (Belgium, France, Germany, Italy, Luxembourg, The Netherlands, Poland, and Spain), and is the outcome of the research project financed by the European Commission called Informed Choices in Cross-Border Enforcement (IC2BE).

The blurb of the book reads as follows:

How to choose the most beneficial enforcement regime for cross-border claims of a client? A question considerably complicated by (1) the existence of various European Union enforcement tools and (2) particularities in the national legal systems that impact on the operation and suitability of the various enforcement tools.

This book compares and analyses the practical utility and potential pitfalls of the 2nd generation regulations (European Enforcement Order, European Order for Payment, European Small Claims Procedure and European Account Preservation Order) and their relation to Brussels I-bis. Further, it analyses whether and to what extent all of the 2nd generation EU regulations prove their worth in the cross-border enforcement of claims, and which measures can be recommended for their practical improvement and for achieving greater consistency in European enforcement law.

The work is based on an extensive evaluation of case law (more than 500 published and unpublished), empirical data (150 interviews with practitioners) and literature from eight Member States (Belgium, France, Germany, Italy, Luxembourg, The Netherlands, Poland, Spain) and the Court of Justice of the European Union. It provides an extensive and up-to-date picture of the cross-border enforcement of claims across Europe and is an important resource for academics and practitioners alike.

Additionally, the case law that was used for the analysis can be consulted online in a free access database. This includes the decisions of the Court of Justice of the European Union (here) and the English summaries (and in certain cases also the links to the original decisions) of the judgments of the national courts regarding the four European procedures (here).

More information about the IC2BE project can be found here.

Funded by Elite Network of Bavaria the International Doctorate Programme „Business and Human Rights: Governance Challenges in a Complex World“ (IDP B&HR_Governance) establishes an inter- and transdisciplinary research forum for excellent doctoral projects addressing practically relevant problems and theoretically grounded questions in the field of business and human rights. Research in the IDP B&HR_Governance will focus on four distinct areas:

• Global value chains and transnational economic governance
• Migration and changing labour relations
• Digital transformation
• Environmental sustainability

The IDP’s research profile builds on law and management as the core disciplines of B&HR complemented by sociology, political, and information sciences. Close cooperation with partners from businesses, civil society, and political actors will enable the doctoral researchers to develop their projects in a broader context to ensure practical relevance. The IDP’s curriculum, lasting for eight semesters, aims at contributing to the professional development of independent and critical researchers through a variety of courses, research retreats, colloquia, and conferences as well as the possibility of practical projects.

The IDP B&HR_Governance will include up to twenty doctoral researchers selected through a competitive process and sixteen principal investigators from Friedrich-Alexander-University Erlangen-Nürnberg (FAU), the University of Bayreuth and Julius-Maximilians-University Würzburg (JMU). The IDP involves law, management, sociology, political sciences and information systems.

The IDP B&HR_Governance will offer a comprehensive and innovative curriculum for the doctoral researchers. Its activities will commence on 1 November 2021.

The Acting Spokesperson of the IDP B&HR_Governance is Professor Markus Krajewski.

The IDP includes the following professors:

• University of Erlangen-Nürnberg: Anuscheh Farahat, Klaus Ulrich Schmolke, Patricia Wiater, Martin Abraham, Markus Beckmann, Evi Hartmann, Dirk Holtbrügge, Sven Laumer, Matthias Fifka, Petra Bendel, Sabine Pfeiffer
• University of Bayreuth: Eva Lohse, Thoko Kaime
• University of Würzburg: Isabel Feichtner, Eva Maria Kieninger

The IDP B&HR invites applications for 12 doctoral research positions (4-year contract) starting 1 November 2021.

Applicants need an excellent university degree at master’s level in a relevant discipline (law, management, sociology, political, or information science) and very good knowledge of English. International, intercultural, and practical experiences will be an asset.

An application comprises the following documents:

• Research proposal (in English, max. 5000 words)
• Curriculum Vitae (CV)
• Letter of motivation (in English, max. 1000 words)
• Writing sample, e.g. published article, thesis or seminar paper.
• Certificates of all university degrees with corresponding transcript of records

Applications must be sent in a single PDF document by 15 June 2021 to humanrights-idp@fau.de

The full Call for Applications can found here.

On Friday, 23 April 2021, we informed our readers about an article on the legal aspects of a possible claim brought by the EU against the pharmaceutical company AstraZeneca. The post could not have been timelier. Today (Monday, 26 April 2021), the Commission announced it has indeed commenced legal proceedings last Friday against AstraZeneca due to vaccine shortages.

The action was brought before the Belgian courts, as is provided for under the contract between both parties and as was predicted in the article authored by Sixto Sánchez Lorenzo.

Stefan de Keersmaecker, a spokesman on health issues for the Commission, said:

The reason indeed being that the terms of the contract, or some terms of the contract, have not been respected and the company has not been in a position to come up with a reliable strategy to ensure the timely delivery of doses.

It is reported that the decision to bring the action was made jointly with all 27 Member States. It is unclear whether this means the Member States have formally joined or merely support the  action. The further developments remain to be seen.

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

A. Dickinson: Realignment of the Planets – Brexit and European Private International Law

At 11pm (GMT) on 31 December 2020, the United Kingdom moved out of its orbit of the European Union’s legal system, with the end of the transition period in its Withdrawal Agreement and the conclusion of the new Trade and Cooperation Agreement. This article examines the impact of this realignment on private international law, for civil and commercial matters, within the legal systems of the UK, the EU and third countries with whom the UK and the EU had established relationships before their separation. It approaches that subject from three perspectives. First, in describing the rules that will now be applied by UK courts to situations connected to the remaining EU Member States. Secondly, by examining more briefly the significance for the EU and its Member States of the change in the UK’s status from Member State to third country. Thirdly, by considering the impact on the UK’s and the EU’s relationships with third countries, with particular reference to the 2007 Lugano Convention and Hague Choice of Court Convention.  The principal focus will be on questions of jurisdiction, the recognition and enforcement of judgments and choice of law for contract and tort.

S. Zwirlein-Forschner: Road Tolls in Conflict of Laws and International Jurisdiction – a Cross-Border Journey between the European Regulations

Charging tolls for road use has recently undergone a renaissance in Europe – mainly for reasons of equivalence and climate protection. The payment of such road tolls can be organized either under public or under private law. If a person resident in Germany refuses to pay a toll which is subject to foreign private law, the toll creditor can sue the debtor for payment at its general place of jurisdiction in Germany. From the perspective of international private law, such claim for payment of a foreign toll raises a number of complex problems to be examined in this article.

T. Pfeiffer: Effects of adoption and succession laws in US-German cases – the example of Texas

The article discusses how adoption and succession laws are intertwined in cases of adoptions of German children by US-parents in post WW2-cases, when Germany still had a contract based system of adoptions. Addressing the laws of Texas as an example, the author demonstrates that, so far, the legal effects of these adoptions have not been analysed completely in the available case law and legal writing. In particular, the article sets forth that, in relation to adoption contracts, Texan conflicts law (like the law of other US States) refers to the law of the adoption state so that the doctrine of a so-called hidden renvoi is irrelevant. Furthermore, in this respect, the renvoi is a partial one only in these cases: Under Texan conflicts law, the reference to the laws of the adoption state is relevant only for the status of being adopted, not for the effects of adoption, e.g. the question to whom the adopted is related; the latter issue is governed by the law of the domicile of the child, which is identical to the adoptive parents’ domicile, at least if this is also the adoptive family’s domicile after the adoption.

Furthermore, the author discusses matters of succession and argues: According to the ECJ’s Mahnkopf decision, a right of inheritance of the adopted child in relation to the biological parents under the laws applicable to the effects of the adoption, as provided for in Texas, has to be characterised as a succession rule, at least if that law provides for a mere right of inheritance, whereas all legal family relations to the biological family are cut off. As a consequence, such a “nude” inheritance right cannot suffice as a basis of succession under German succession laws. Even if one saw that differently, Texan succession conflicts law, for the purpose of succession, would refer to the law of the domicile of the deceased for movables and to the law of the situs for real property. Additionally, even if the Texas right of inheritance in relation to the biological parents constituted a family relationship, this cannot serve as a basis for a compulsory share right.

W. Voß: Qualifying Direct Legal Claims and culpa in contrahendo under European Civil Procedure Law

Legal institutions at the interface between contract and tort, such as the culpa in contrahendo or direct claims arising out of contractual chains, typically elude a clear, uniform classification even within the liability system of substantive national law. Even more so, qualifying them adequately and predictably under European civil procedure law poses a challenge that the European Court of Justice (ECJ) has not yet resolved across the board. In two preliminary rulings, the ECJ now had the opportunity to sharpen the borderline between contractual and noncontractual disputes in the system of jurisdiction under the Brussels I bis Regulation, thus defining the scope of jurisdiction of the place of performance of a contractual obligation and, at the same time, of jurisdiction over consumer contracts. However, instead of ensuring legal clarity in this respect, the two decisions rendered by the ECJ further fragment the autonomous concept of contract under international civil procedural law.

C. Thomale: International jurisdiction for rights in rem in immovable property: co-ownership agreements

The CJEU decision reviewed in this case note, in its essence, concerns the scope of the international jurisdictional venue for immovable property under Art. 24 No. 1 Brussels Ia-Regulation with regard to co-ownership agreements. The note lays out the reasons given by the court. It then moves on to apply these reasons to the Austrian facts, from which the preliminary ruling originated. Finally, some rational weaknesses of the Court’s reasoning are pointed out while sketching out a new approach to determining the fundamental purpose of Art. 24 No. 1 Brussels Ia-Regulation.

F. Rieländer: Solving the riddle of “limping” legal parentage: “Pater est” presumption vs. Acknowledgment of paternity before birth

In its judgment of 5/5/2020, the Kammergericht Berlin (Higher Regional Court of Berlin) addressed one of the main outstanding issues of German private international law of filiation. When children are born out of wedlock, but within close temporal relation to a divorce, the competing connecting factors provided for in Art. 19 (1) EGBGB (Introductory Act to the German Civil Code) are apt to create mutually inconsistent results in respect of the allocation of legal parentage. While it is firmly established that parenthood of the (former) husband, assigned at the time of birth by force of law, takes priority over any subsequently established filiation by a voluntary act of recognition, the Kammergericht held that where legal parentage is simultaneously allocated to the husband by one of the alternatively applicable laws and to a third person by way of recognition of paternity before birth according to a competing law, the (domestic) law of the state of the child’s habitual residence takes precedence. Though the judgment is well argued, it remains to be seen whether the controversial line of reasoning submitted by the Kammergericht will stand up to a review by the Bundesgerichtshof (German Federal Court of Justice). Nonetheless, the decision arguably ought to be upheld in any event. In circumstances such as those in the instant case, where divorce proceedings had commenced, recognition of legal parentage by a third person with the consent of the child’s mother and her husband is to be treated as a contestation of paternity for the purposes of Art. 20 EGBGB. Thus, according to domestic law, which was applicable to the contestation of paternity since the child’s habitual residence was situated in Germany, any possible legal ties between the child and the foreign husband of its mother were eliminated by a recognition of parentage by a German citizen despite suspicions of misuse. All in all, the judgment demonstrates once again the need for a comprehensive reform of German private international law of filiation.

Mark Makowsky: The attribution of a specific asset to the heir in the European Succession Certificate

According to Art. 63 (2) lit. b and Art. 68 lit. l of the European Succession Regulation, the European Certificate of Succession (ECS) may be used to demonstrate the attribution of a specific asset to the heir and shall contain, if applicable, the list of assets for any given heir. In the case at hand the ECS, which was issued by the Austrian probate court and submitted to the German land registry, assigned land plot situated in Germany solely to one of the co-heirs. The Higher Regional Court of Munich found, that the ECS lacked the presumption of accuracy, because the applicable Austrian inheritance law provides for universal succession and does not stipulate an immediate separation and allocation of the estate. Contrary to the court’s reasoning, however, Austrian inheritance law does allow singular succession of a co-heir, if (1) the co-heirs agree on the distribution of the estate before the probate court orders the devolution of property and (2) the court’s devolution order refers to this agreement. The presumption of accuracy of the ECS with respect to the attribution of specific assets is therefore not excluded by legal reasons. In the specific case, however, the entry in the land register was not based on the ECS, but on the devolution order of the Austrian probate court, which does not include a reference to a previous agreement of the co-heirs on the distribution of the estate. As a consequence, the devolution order proves that the land plot has become joint property of the community of heirs and that the ECS is therefore inaccurate.

R. Hüßtege: Internet research versus expert opinion

German courts have to determine the applicable foreign law by virtue of their authority. The sources of knowledge they rely on are based on their discretionary powers. In most cases, however, their own internet research will not be sufficient to meet the high demands that discretion demands. As a general rule, courts will therefore continue to have to seek expert opinions from a national or foreign scientific institute in order to take sufficient account of legal practice abroad.

A.R. Markus: Cross-Border Attachment of Bank Accounts in Switzerland and the European Account Preservation Order

On 18 January 2017 the Regulation on European Account Preservation Order (EAPO Regulation) came into force. It allows the creditor to place a security in a bank account so that enforcement can be carried out from an existing title or a title yet to be created. The provisions of the abovementioned Regulation stand beside existing national provisions with a similar purpose. As a non-EU member state, Switzerland does not fall within the scope of application of the EAPO Regulation and the provisional distraint of bank accounts is thus exclusively governed by national law. The present article illustrates in detail the attachment procedure under the Swiss Debt Enforcement and Bankruptcy Law. Comparative reference is made to the provisions of the EAPO Regulation. Finally, the recognition and enforcement of foreign interim measures, which is often crucial in cross-border cases, will be addressed. The article shows that there are considerable differences between the instruments provided by the Swiss law and those provided by the EU law.

J. Ungerer: English public policy against foreign limitation periods

Significantly different from the EU conflict-of-laws regime of the Rome I and II Regulations, the British autonomous regime provides for a special public policy exception in the Foreign Limitation Periods Act 1984, whose design and application are critically examined in this paper. When English courts employ this Act, which could become particularly relevant after the Brexit transition period, the public policy exception not only has a lower threshold and lets undue hardship suffice, it also leads to the applicability of English limitation law and thereby splits the governing law. The paper analyses the relevant case law and reviews the recent example of Roberts v Soldiers [2020] EWHC 994, in which the three-years limitation period of the applicable German law was found to cause undue hardship.

E. Jayme: Forced sales of art works belonging to the Jewish art dealer René Gimpel in France during the Nazi–period of German occupation – The Court of Appeal of Paris (Sept. 30, 2020) orders the restitution of three paintings by André Derain from French public museums to the heirs of René Gimpel

The heirs of the famous French art dealer René Gimpel brought an action in France asking for the restitution of three paintings by André Derain from French public museums. René Gimpel was of Jewish origin and lost his art works – by forced sales or by expropriation – during the German occupation of France; he died in a concentration camp. The court based its decision in favor of the plaintiffs on the “Ordonnance n. 45-770 du 21 avril 1945” which followed the London Inter-Allied Declaration of Dispossession Committed in Territories Under Enemy Occupation Control (January 5th 1943).

M. Wietzorek: First Experience with the Monegasque Law on Private International Law of 2017

This essay presents the Monegasque Law concerning Private International Law of 2017, including a selection of related court decisions already handed down by the Monegasque courts. Followed by a note on the application of Monegasque law in a decision of the Regional Court of Munich I of December 2019, it ends with a short summary.

José R. Mata Dona (Independent Practitioner and Member of the Brussels and Caracas Bars) and Nikos Lavranos (Guest Professor at the Free University of Brussels and Secretary-General of the European Federation for Investment Law and Arbitration) are the editors of International Arbitration and EU Law, which has been published by Edward Elgar Publishing in the Elgar Arbitration Law and Practice Series.

The blurb reads as follows:

This book examines the intersection of EU law and international arbitration based on the experience of leading practitioners in both commercial and investment treaty arbitration law. It expertly illustrates the depth and breadth of EU law’s impact on party autonomy and on the margin of appreciation available to arbitral tribunals.

 It contains an analysis of the relevance of EU law on the validity of international agreements to arbitrate; consideration of the impact of EU law on challenges, recognition and enforcement of international commercial awards, and the relationship between anti-suit relief, EU law and the New York Convention; a discussion of selected areas of intersection between EU law and international commercial arbitration, including the ECtHR, consumer protection, damages, competition damages, GDPR, commercial agency and others; an introduction to the complex areas in which the EU regime and international investment arbitration laws intertwine, through a review of the development of the EU’s investment policy; an examination of the impact of EU law on specific issues in international investment arbitration including the Energy Charter Treaty, procedural issues (both ICSID and non-ICSID), damages, taxation, and the proposed Multilateral Investment Court; an appraisal of the potential of International Commercial Mediation and its interrelations with EU law.

Contributors include N. Bassiri, G.A. Bermann, A. Blumrosen, C. Brower, L. Capiel, S. Castagna, D. Chochitaichvili, O. Cojo, Q. Declève, M. Feria-Tinta, A.-K. Grill, E. Hay, B.R. Hoebeke, D. Ingle, T. Kalliokoski, S.J. Lamb, E. Martin, D. Overduin, R. Price, F. Rosenfeld, A. San Román Rivera, J.M. Sánchez Pueyo, S.I. Strong, J. Sullivan, I. Van Damme, M.-C. Van den Bossche, O. van der Haegen, P. Wiliński, B. Williams, H. Wöss, P. Živković.

More information is available here.

À la suite de sa ratification par l’Italie le 21 avril 2021, le protocole n° 15 portant amendement à la Convention européenne des droits de l’homme entrera en vigueur le 1er août. Le délai dans lequel la Cour peut être saisie après une décision nationale définitive passera de six à quatre mois le 1er février 2022.

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Le Conseil d’État affirme la primauté de la Constitution sur le droit de l’Union européenne et l’existence d’une clause de sauvegarde lui permettant d’écarter le second pour faire primer la première. Sur la question de la conservation des données de connexion, il sauve l’essentiel du système français sans avoir recours à cette clause.

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We all know that the 3rd Nuremberg law banned marriages between Jews and Non-Jews. But did you know that it was first applied not by a German but by a Dutch court, as the law applicable under private international law? Didier Boden presents fifteen years of research – not just of court decisions, but also of administrative practice, with a focus on the personal fates of the couples involved. He combines this with a plea for a private international law that goes beyond doctrine and focuses on individual humans.

Talk (in German) on April 27, 5 pm CET.
More information and sign-up here.

Comparative Procedural Law and Justice (CPLJ) is a global project of the Max Planck Institute Luxembourg for Procedural Law, with the support of the Luxembourg National Research Fund (O19/13946847), involving more than one hundred scholars from all over the world.

CPLJ is envisioned as a comprehensive study of comparative civil procedural law and civil dispute resolution schemes in the contemporary world. It aims at understanding procedural rules in their cultural context, as well as at highlighting workable approaches to the resolution of civil disputes.

In this framework, the Max Planck Institute Luxembourg for Procedural Law will host its 4th CPLJ Webinar on 7 May 2021, 3:00 – 5:15 pm (CET).

The programme reads as follows:

Chair   Margaret Woo (Northeastern University and CPLJ Editor)

3:00 PM          Judith Resnik (Yale University)

            Puzzling about Trans-procedural Substantive Norms across Time and Domains

3:30 PM          Discussion

4:00 PM          Intermission

4:15 PM          Marie-Claire Foblets (Max Planck Institute for Social Anthropology)

            Extrajudicial Dispute Resolution in Europe: Anthropological Insights on the Impact of Religion and Tradition

4:45 PM          Discussion

5:15 PM          End of conference

The full programme is available here.

Participation is free of charge, but registration is required by 4 May 2021 via a short e-mail to events@mpi.lu.

(Image credits:  Rijksmuseum, Amsterdam)

In WWRT Ltd v Tyshchenko & Anor [2021] EWHC 939 (Ch) and following an earlier Worldwide Freezing Order, Bacon J engages with Article 34 Brussels Ia’s forum non conveniens ‘light’ regime.

The proceedings are brought by WWRT ltd against Mr Serhiy Tyshchenko and his ex-wife, Mrs Olena Tyshchenko. The claim is founded on an allegation that the Defendants carried out an extensive fraud on the Ukrainian bank, JSC Fortuna Bank during which time the bank was (it is claimed) ultimately owned by Mr Tyshchenko. The bank was subsequently declared insolvent and was liquidated, in the course of which a package of its assets, including the disputed loans, was sold to Ukrainian company Star Investment One LLC.  Star in turn sold those rights and assets to WWRT in March 2020. WWRT’s case is that following those two assignments it has now acquired the rights to bring the claim relied upon in the present proceedings, which is one in tort under Article 1166 of the Ukrainian Civil Code.

In current proceedings, defendants contest jurisdiction, on the basis of 3 alternative grounds:

Firstly, the principle of ‘modified universalism’ (which I have discussed ia here) which should ground a stay under common law so as to prevent WWRT from bypassing the Ukrainian insolvency proceedings. The suggestion is that CJEU Owusu did not deal with a potential stay to allow the judge in one EU Member State to stay proceedings so as to support insolvency proceedings in another Member State. Bacon J held [57], in my view justifiably, that even if indeed the CJEU in Owusu did not specifically deal with this issue, its reasoning (particularly the insistence on predictability and legal certainty) extends to the current scenario. Insolvency proceedings may well (and indeed clearly) fall outside BIa’s scope, however the claim at issue is one in tort, which falls squarely within it. At 62 ff he discusses obiter that even if such stay would have been theoretically possible, he would not have exercised his discretion to grant it.

Secondly, at 89 ff, a stay by analogy with A34 BIa. It is seemingly common ground between the parties and the judge that the bankruptcy exclusion in A1 BIa precludes the express application of A34 if the pending action in the third State is in the nature of bankruptcy or insolvency proceedings. Support is found in Baker J’s views in BB Energy. This is not a settled issue. Neither is much discussion, pro or contra, of the in my view unjustifiable finding of reflexive application of A28 Lugano in JSC Commercial Bank v Kolomoisky [2019] EWCA Civ 1708. The more sound rejection of an A34 stay in the case at issue  in my view lies in the judge’s obiter finding at 95 that the proceedings in E&W are not ‘related’ to those in the Ukraine.

Thirdly, a more straightforward argument of lack of domicile of one of the defendants in the UK, hence room for a forum non conveniens stay. This argument was in fact dealt with first, at 38 ff, with Bacon J  holding on the basis of a pattern of settled residence that domicile was in fact established. At 98 ff he holds obiter that even if A4 hence BIa had not been engaged, he would not have allowed a stay on forum non grounds.

In conclusion, the freezing orders were continued.

Geert.

EU Private International Law, 3rd ed 2021, para 2.539 ff

WWRT v Tyshchenko aor [2021] EWHC 939 (Ch)
Principle of modified universalism should not be used to circumvent A4 BIa, Owuso; A34 held not to apply viz foreign #insolvency proceedings
More on the blog soonhttps://t.co/nt2vDo9BFN pic.twitter.com/p54PKkBH2Y

— Geert Van Calster (@GAVClaw) April 23, 2021