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Renvoi

On Youtube you can find the videos of the Annual Conference of the German-Colombian Lawyers Association (DKJV/ACAJ). The conference took place digitally from 29 to 30 October 2020. It dealt with current legal developments in Germany and Colombia with a special focus on Covid-19.

The presentations are in Spanish. They are not only interesting from a comparative point of view. They also they deal with private international law and international procedural law matters.

The program was the following:

• Saludos y bienvenida a los participantes

del Embajador de Colombia en Alemania Hans-Peter Knudsen Quevedo

• Ponencia 1:

Prof. Dr. Dr. h. c. Martin Ibler, Universität Konstanz (Alemania): Últimos límites constitucionales que protegen los Derechos Fundamentales en la lucha contra Covid19

• Ponencia 2:

Prof. Dr. Christian Wolffhügel, Ministerio de Justicia (Colombia): Valoración de las medidas de la Administración Colombiana durante la pandemia Covid19

• Ponencia 3:

Prof. Dr. Bernd Marquardt, Universidad Nacional (Bogotá, Colombia): Corona y el derecho constitucional: Colombia en el contexto latinoamericano

• Ponencia 4:

Prof. Dr. María Julia Ochoa Jiménez, LL.M., Universidad de Antioquia (Medellín, Colombia): El Derecho Internacional Privado en el proyecto de reforma del Código Civil de Colombia

• Ponencia 5:

Prof. Gabriel Barreto Ferro, LL.M., Universidad Santo Tomás; Barreto, Torres & Puig (Bogotá, Colombia): La digitalización de la justicia bajo la influencia de la crisis del Covid19

• Ponencia 6:

Prof. Mauricio Torres Guarnizo, LL.M., Universidad Santo Tomás, Barreto, Torres & Puig (Bogotá, Colombia): Los efectos de la crisis del Covid19 en el Derecho Económico en Colombia

• Ponencia 7:

Prof. Dr. John Zuluaga Taborda, LL.M., Universidad Sergio Arboleda (Bogotá, Colombia): La cooptación del sistema sanitario por parte del poder punitivo. Un análisis del caso colombiano

• Ponencia 8:

Prof. John Jairo Morales Alzate, LL.M., Arbitro Lista A Cámara de Comercio; Conjuez Sección 2 Consejo de Estado y Sala Disciplinaria (Bogotá, Colombia): El arbitraje en Colombia en tiempos de Covid19

• Ponencia 9:

Prof. Dr. Susanne Gössl, LL.M., Universität zu Kiel (Alemania): La legislación de Covid19 en materia civil en Alemania

• Ponencia 10:

Dr. Katharina König, Editorial Nomos (Alemania/Colombia): La admisión de juristas extranjeros como abogados en Colombia de la perspectiva alemana

• Ponencia 10:

Magistrado Prof. Milton Chaves García, Consejo de Estado (Colombia): La Fiscalidad ante la Crisis del Covid19

• Ponencia 11:

Prof. Dr. Michael Stöber, Universität zu Kiel (Alemania): Evolución reciente del Derecho Tributario Alemán con especial atención a las medidas Covid19

• Ponencia 12:

Elisabeth Hincapié Hincapié, LL.M., Harsco Rail Europe GmbH (Alemania): Actuales preguntas sobre el Cumplimiento

The first EAPIL Seminar will take place on 11 December 2020, from 11 am to 1 pm (MET). It will be devoted to the impact of Brexit on Private International Law.

In short introductory statements speakers from the United Kingdom and the European Continent will analyse the legal framework that will apply to cross-border cases in the short-term, i.e. as of 1 January 2021 when the transition period provided for in the Withdrawal Agreement has expired.

In addition, they will discuss what the future relationship between the EU and the UK could and should look like. Special emphasis will be placed on the question of whether the EU and the UK should strive to adopt a new – bespoke – bilateral agreement (or whether it should simply join existing international conventions).

The speakers of the first session, on civil and commercial matters, are Alexander Layton (Twenty Essex Street Chambers, London), Eva Lein (University of Lausanne) and Michiel Poesen (KU Leuven).

The second session, on family matters, will feature presentations by Sir Andrew Moylan (Court of Appeal of England and Wales), Pietro Franzina (Catholic University of the Sacred Heart, Milan) and Anatol Dutta (Ludwig Maximilian University Munich).

The Seminar will take place via Zoom. Information about how to register will be announced in due course through this blog.

The EAPIL (Virtual) Seminar Series wishes to contribute to the study and development of (European) Private International Law through English-language seminars on topical issues. It will provide an easily accessible and informal platform for the exchange of ideas – outside the bi-annual EAPIL conferences. At the same time, it will serve as a means for EAPIL members to connect with other EAPIL members and non-members.

The University of Zurich, Switzerland, has asked CoL to publish the following:

The University of Zurich is seeking applications for a Professorship in civil procedure and private law to take effect from the beginning of the Fall Semester 2021 (1 August 2021), or by arrangement.

We are seeking a candidate with an excellent legal track record who is committed to carrying out teaching and research across the whole spectrum of civil procedure law, including from an international and comparative law perspective. Experience in arbitration as well as restructuring and insolvency law is an advantage. This should be reflected in an outstanding dissertation, a habilitation thesis (or equivalent academic achievement) that is complete or at an advanced stage, and additional publications. Depending on the successful candidate’s qualifications, the professorship will take the form of a full or associate professorship. A temporary position as assistant professor with tenure track is possible provided that the candidate’s habilitation thesis is at an advanced stage. In all cases, the professorship will be a full-time position. If an excellent application is submitted, particularly from countries or regions (such as French-speaking Switzerland) that do not require a habilitation thesis to be completed, the requirement for habilitation can be waived if comparable achievements are demonstrated. Applicants must be able to teach in English and, ideally, in French. Applicants without a Swiss background must be willing to familiarise themselves with Swiss civil procedure and private law within a reasonable amount of time and, if necessary, attain the level of German required for teaching and examination. The University of Zurich strives to increase the proportion of under-represented groups – in particular women – in its teaching and research staff, and therefore explicitly encourages applications from these candidates. Further information relating to this job profile can be found below. Please submit your application documents as specified in the following job profile by 9 December 2020 via www.recruiting.ius.uzh.ch. You may be requested to submit hard-copy documents separately at a later point. The relevant member of the appointment committee, Professor Tanja Domej (tanja.domej@rwi.uzh.ch), is available to answer any questions and provide further information.

Further information is here.

Presse - Diffamation

Presse - Diffamation

Presse - Diffamation

John Coyle (University of North Carolina) has posted Cruise Contracts, Public Policy, and Foreign Forum Selection Clauses on SSRN.

The abstract reads:

This Essay critiques the analytical framework used by the U.S. Court of Appeals for the Eleventh Circuit to determine when to enforce foreign forum selection clauses in cruise ship passenger contracts. In Estate of Myhra v. Royal Caribbean Cruises, Ltd., the Eleventh Circuit held that such clauses should be enforced even when the foreign court is likely to give effect to provisions in the Athens Convention that limit the liability of the cruise company. This approach is flawed, the Essay argues, because it fails to account for the fact that 46 U.S.C. § 30509 expressly prohibits cruise companies from utilizing contract provisions to limit their liability in passenger contracts. The Essay then looks to analogous cases from other areas of the law to propose a new analytical framework for evaluating when the courts should enforce foreign forum selection clauses in the cruise ship context.

The paper is forthcoming in the University of Miami Law Review.

Kareem Olatoye and Abubakri Yekini, both lecturers at Lagos State University, Nigeria, recently published an article titled: “Islamic Law in Southern Nigerian Courts: Constitutional Law and Conflicts of Laws Perspectives” (2019/2020) 6 Benin Journal of Public Law 120. The abstract reads as follows:

This article challenges the prevailing views that Islamic law is not applicable in southern part of Nigeria and that the civil courts do not have jurisdiction over matters bordering on Islamic personal law. It argues that these views are wrong as litigants are denied access to justice since no state in the southern part of Nigeria has established Islamic courts. The article further argues that the existing legal frameworks – the Constitution, High Court Laws and Evidence Act – support the recognition and application of Islamic law either as a lex fori or lex causae. Thus, there ought to be no distinction between north and south because Islamic law is not a territorial law. The article suggests a paradigm shift in the Nigerian courts’ approach to Islamic law in Southern Nigeria, particularly, the Southwest which has a near-majority Muslim population. It further suggests the establishment of Islamic law courts or the creation of divisions in the existing civil courts for Islamic law matters to ensure that litigants have access to justice, and Islamic law questions are determined by those learned in that law.

The ELI-Unidroit Model European Rules of Civil Procedure were adopted by the European Law Institute and Unidroit in 2020. It consists of a set of main principles and rules covering a wide array of topics in the area of European civil procedure. It contains 245 rules in twelve parts, dedicated to  general provisions, rules on parties, case management, commencement of proceedings, proceedings preparatory to a final hearing, access to information and evidence, judgment, res iudicata and lis pendens, means of review, provisional and protective measures, collective proceedings and costs.

Aiming at transforming the ALI-Unidroit Principles on Transnational Civil Procedure (2004) to make them suitable for the European regional context, the groundwork was laid at an exploratory workshop in Vienna in October 2013. The project kicked off in 2014, when the first three working groups were established. In the following years, five more working groups dedicated to specific topics were added, and in 2016, the Structure group was tasked with coordinating the work of the different working groups, filling the gaps, and securing a coherent set of model rules to be used by European and national legislators in particular. In collaboration with a task force charged with the (overview of) the translation of the Rules into French, the work was completed in 2020. It was approved by the ELI Council on 15 July and by ELI Membership on 5 August, and approved by the Unidroit Governing Council on 24 September 2020. This project, involving some 45 academics and practitioners participating in the working groups as well as a Steering group, advisory members from all over the world, and European and international institutions as observers, is the most encompassing set of model rules on European Civil Procedure.

A series of conferences and seminars were held over the past years and will be held to discuss the Rules, including an expected celebratory ELI-Unidroit event that had to be postponed due to Covid-19. A Nordic conference organized by the Swedish Network for European Studies and Uppsala University will take place on 15-16 March 2021. More information is available here.

Erasmus School of Law of Erasmus University Rotterdam is organizing a mini-webinar on Friday, 6 November 2020 from 11.30-13 hrs CET. You can register for free here until 6 November at 9 am CET.

The ELI-Unidroit Model European Rules of Civil Procedure: soft law shaping the future of European Civil Procedure?

11.20 – 11.30     Welcome and opening

11.30 – 11.50    Xandra Kramer (Erasmus University Rotterdam, Utrecht University)

Creation, main principles, and perspectives of the ELI-Unidroit Model Rules

11.50 – 12.00    Discussion

12.00 – 12.20    Eva Storskrubb (Uppsala University)

Cost Rules in the ELI-Unidroit Model Rules

12.20 -12.40      Masood Ahmed (University of Leicester)

Costs, Management & ADR: an English view on the ELI-Unidroit Model Rules

12.40 – 13.00    Discussion

This webinar is organized in the context of the ongoing ERC project Building EU Civil Justice at Erasmus School of Law (PI: Xandra Kramer), financed by the European Research Council and anticipates the Vici project Affordable Access to Justice, financed by the Dutch Research Council that will kick off in December 2020.

En présence d’une action en liquidation d’intérêts patrimoniaux d’époux engagée avant l’entrée en vigueur du règlement n° 2016/1103 du 24 juin 2016 en matière de régimes matrimoniaux, la compétence du juge s’apprécie en application de l’article 42 du code de procédure civile.

en lire plus

On Tuesday, November 3, the Hamburg Max Planck Institute will host its fifth monthly virtual workshop in private international law at 11:00-12:30. Susanne Gössl (Christian Albrecht University Kiel) will speak, in German, about the topic

„Wer oder was bin ich überhaupt? – Zur Zukunft des Personalstatuts unter europäischen Einflüssen
(“Who or What am I Anyway? The Future of the Law Applicable to Natural Persons under European Influence”)

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

This is the fifth such lecture in the series, after those by Mathias Lehmann in June, Eva-Maria Kieninger in July, Giesela Rühl in September, and Anatol Dutta in October. The designated December speaker isMarc-Philippe Weller (Heidelberg). Starting in January 2021,  we plan to alternate between German and English, in order to enable more interested scholars to participate.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de

I discussed the first instance judgment in Enka Insaat here and the Court of Appeal’s findings here. The Supreme Court’s judgment, Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb [2020] UKSC 38 attempts to settle one of the many issues which choice of law in arbitration provokes, as I first flagged in a post on Sulamerica here: one needs to determine lex arbitri (the law that governs the arbitration agreement; it decides issues such as what issues are arbitrable, and whether the agreement to arbitrate is valid at all); the curial law or the ‘law of the seat’ (the procedural law which will guide the arbitration proceedings; despite the latin curia not commonly referred to as lex curiae); the ‘proper law’, the law that governs the actual contract (lex contractus) of which the agreement to arbitrate is only one part; and the locus arbitri and the lex locus arbitri:  the venue of the arbitration and its laws, which may or may not interact with the proceedings. That 2013 post on Sulamerica contains many further references, including comparative ones. Further case-law may be found by using the search tag ‘Sulamerica’ on the blog.

The Supreme Court held 3-2 in favour of dismissing the appeal, but only on the facts. Lord Burrows dissented in part, Sales dissented. The Supreme Court has now effectively held that unlike the Court of Appeal’s suggestion,  in the absence of express contractual provision there is no “strong presumption” of an implied term for the lex curiae, the law of the seat of the arbitration, to be  the lex arbitri (the law that governs the arbitration agreement), instead pushing the lex contractus (of the agreement of which the arbitration agreement is part) as the lex arbitri.

There has been plenty of analysis since the 9 October judgment and I shall let readers find that for themselves (Google search ‘proper law arbitration Enka v Chubb’ should do the trick). Ex multi I found Peter Ashford’s analysis very useful, including his use of the term ‘host contract’.

As the discussion here shows, with 2 strong dissenters and open discussions on the determination of implied choice of law, I do not think judgment in Enka v Chubb has truly settled the issue. Per inspiratio Steven Barrett’s quote, this might be one of those authorities one can drive a coach and horses through.

Geert.

The UKSC dismisses the appeal in Enka, #arbitration, choice of law https://t.co/1xFtH8Iv9W
Holds there is no such thing as "strong presumption" of an implied term.
3-2 in favour of dismissing. Burrows dissents in part, Sales dissents.
For CA judgment see https://t.co/jkma6VzDRq

— Geert Van Calster (@GAVClaw) October 9, 2020

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

C. Wendehorst: Digital Assets in Private International Law

Rights with third party effect (erga omnes rights, rights in rem) in digital assets may exist at four levels: (a) the level of physical manifestation of data on a medium; (b) the level of data as encoded information; (c) the functional level of data as digital content or services; and (d) the level of data as representation of rival assets. As yet, recognized conflict-of-law rules exist only for level (c), which has always been dealt with under international intellectual property law.

As to rights in physical manifestations of data, these may be dealt with under Art. 43 EGBGB where data is stored and accessed only locally. In the case of remote access to data, especially in the case of data stored in the cloud, the law of the state where the controller is located should apply. In the case of two or more controllers located in different states, the location of the server operator (cloud provider) may decide instead, but neither of these connecting factors applies if the facts of the case indicate a closer connection with the law of another state.

Data as encoded information is a non-rival resource. Should a foreign jurisdiction recognise exclusive data ownership rights, these would have to be dealt with under international intellectual property law. For data access rights, portability rights and similar rights the rules on the territorial scope of the GDPR may provide some helpful indications as to the applicable law. However, where such rights arise within a contractual relationship or other specific framework the law applicable to this framework may prevail.

As to crypto assets, uniform conflict-of-law rules would be highly desirable. Subject to further integration of crypto assets into the existing system for intermediated securities, rights in tokens should primarily be governed by the law referred to by conflict-of-law rules specifically addressing crypto assets, including appropriate analogies to such rules. Where no such rules exist, the closest connection must be ascertained by a connecting factor that is sufficiently certain and clearly visible to third parties, such as the law that has visibly been chosen as the applicable law for the whole ledger (elective situs), the location of the issuer (LIMA), or the place of the central administrator (PROPA) or of the sole holder of a private master key (PREMA).

R. de Barros Fritz: The new legal tech business model of mass action litigation from the choice of law perspective

In recent years, courts had to increasingly deal with questions of substantive law concerning a new, but in practice already well-established business model of mass action litigation, which is offered by companies such as Financialright Claims and Myright. These are often cases that have links to foreign countries. The present article has therefore taken this opportunity to examine the question of the law applicable to this business model in more detail.

P. Hay: Forum Selection Clauses – Procedural Tools or Contractual Obligations? Conceptualization and Remedies in American and German Law

German and American law differ methodologically in treating exclusive forum selection clauses. German law permits parties, subject to limitations, to derogate the jurisdiction of courts and, in the interest of predictability, to select a specific court for any future disputes. The German Supreme Court emphasized in 2019 that, as a contract provision, the clause also gives rise to damages in case of breach. American law historically does not permit parties to “oust” the jurisdiction a court has by law. But the parties’ wishes may be given effect by granting a party’s motion to dismiss for forum non conveniens (FNC) when sued in a different court in breach of the agreement. FNC dismissals are granted upon a “weighing of interests” and in the court’s discretion. The clause, even when otherwise valid, is therefore not the kind of binding obligation, enforced by contract remedies, as in German law. The case law does not give effect to its “dual nature,” as characterized by the German Supreme Court. The latter’s decision correctly awarded attorneys’ fees for expenses incurred by the plaintiff when the defendant had sued (and lost) in the United States in breach of a forum selection clause, especially since German jurisdiction and German law had been stipulated. Application of the “American Rule” of costs most probably would not have shifted fees to the losing party had American law been applied, although the rule is far less stringent today than often assumed.

A. Stadler/C. Krüger: International jurisdiction and the place where the damage occurred in VW dieselgate cases

Once again the European Court of Justice had to deal with the question of where to locate the place where the harm or damage occurred (“Erfolgsort”, Article 7 no. 2 Brussels Ibis Regulation) which is particularly difficult to define in case of pure economic loss tort cases. Previous case law of the ECJ resulted in a series of very specific judgments and a high unpredictability of the international jurisdiction. In the Austrian “Dieselgate” case the referring court had doubts whether the Austrian car purchasers who had bought and received their cars in Austria suffered a “primary loss” or only an irrelevant “secondary loss”. The ECJ rightly rejects the idea of a secondary loss and concludes that the place where the (primary) damage occurred is to be located in Austria. The authors criticise that the ECJ – without an obvious reason – emphasises that the case at hand is not about pure economic loss. Although they agree with the court’s finding that the place where the damage occurred was in Austria as the place of acquisition of the cars, they discuss whether in future cases one might have to distinguish between the place where the sales contract was entered into or the place where the defective object became part of the purchasers’ property. The authors reject any detailed approach and advocate in favour of abandoning the principle of ubiquity in cases of pure economic loss. Alternatively, the only acceptable solution is an entire consideration of all relevant facts of the individual case.

P.F. Schlosser: Jurisdiction agreements binding also third beneficiaries in contracts?

Even in the context of jurisdiction agreements, the European Court applies the rules protecting the policy holder for the benefit of the “insured”. In this respect the Court’s methodology and result must be approved of. The restriction of the holding as to the consent of the insured and the qualification of the insured as an insurance company are of no practical impact and due to the narrow question referred to the Court. The holding may, however, not be transferred by a reverse argumentation to assignments of rights against consumers or employees to commercial entities.

B. Heiderhoff: Article 15 Brussels IIbis Regulation, the Child’s best interests, and the recast

Article 15 Brussels IIbis Regulation provides that the court competent under Article 8 et seq Brussels IIbis Regulation may, under certain prerequisites, transfer the case to a court in another Member State. In the matter of EP./. FO (ECJ C-530/18) the ECJ once more explains the central notion of this rule, being the best interest of the child. The ECJ holds that the competent court must not initiate the transfer on the basis that the substantive law applied by the foreign court is more child friendly – which is, by the way, a rather unrealistic scenario for various reasons. Concerning procedural law, the ECJ points out that different rules may only be taken into account if they “provide added value to the resolution of the case in the interests of the child”. Notwithstanding the ECJ’s fundamental and recurrent statement that the transfer is never mandatory, it still seems reasonable for the competent court to apply a well-balanced, comprehensive approach towards the transfer. Should it deny the transfer to a court that is “better placed to hear the case” on the grounds that the foreign law is “different” or maybe that it even seems to be less in the interest of the child? According to the principle of mutual trust, the author suggests to use the public policy standard and to ignore any differences in the substantive and procedural law, as long as they do not threaten to add up to a public policy infringement. The paper also points out some changes in the new Articles 12 and 13 Brussels IIbis Recast which aim at further specifying the transfer mechanism. The resulting deletion of the comprehensive evaluation of the child’s best interests by the transferring court in para 1 seems unintentional. Thus, the author recommends to keep up the current handling.

F. Koechel: Article 26 of the Brussels Ibis Regulation as a Subsidiary Ground of Jurisdiction and Submission to Jurisdiction Through Eloquent Silence

According to the CJEU’s decision, a court may assume jurisdiction based on the entering of an appearance of the defendant only if Articles 4 ff. of the Brussels Ibis Regulation do not already provide for a concurrent ground of jurisdiction in the forum state. This restrictive interpretation complicates the assessment of jurisdiction and limits the scope of the Brussels Ibis Regulation without any substantial justification. On the contrary, a subsidiary application of Article 26 of the Brussels Ibis Regulation is systematically inconsistent with Article 25, which generally privileges the jurisdiction agreed by the parties over any concurrent ground of jurisdiction. In this decision, the CJEU confirms its previous interpretation according to which Article 26 Brussels Ibis Regulation may not be employed as a ground of jurisdiction vis-à-vis a defendant who chooses not to enter an appearance. However, the CJEU does not sufficiently take into account that in the main proceedings the court had requested the defendant to state whether or not he wanted to challenge jurisdiction. The question therefore was not simply if a defendant submits to a court’s jurisdiction by not reacting at all after having been served with the claim. Rather, the CJEU would have had to answer whether a defendant enters an appearance within the sense of Article 26 of the Brussels Ibis Regulation if he does not comply with the court’s express request to accept or challenge jurisdiction. The article argues that the passivity of the defendant may only exceptionally be qualified as a submission to jurisdiction if he can be deemed to have implicitly accepted the court’s jurisdiction.

C. Lasthaus: The Transitional Provisions of Article 83 of the European Commission’s Succession Regulation

The European Commission’s Succession Regulation 650/2012 aims to facilitate cross-border successions and intends to enable European citizens to easily organise their succession in advance. In order to achieve this goal, the regulation – inter alia – facilitates the establishment of bilateral agreements as to succession. This is the case not only for agreements made after 17/8/2015 but – under the condition that the testator dies after this date – according to the transitional provisions in Article 83 also for those made prior. Due to these transitional provisions, some formerly invalid agreements made prior to the effective date of the regulation turned valid once the regulation applied. In its judgment, the German Federal Court of Justice (“BGH“) ruled on the legal validity of a formerly invalid bilateral agreement as to succession between a German testator and her Italian partner. This legal review inter alia deals with the distinction between Article 83 para. 2 and Article 83 para. 3 of the Regulation as well as legal aspects concerning the retroactive effect of the transitional provisions.

P. Kindler: The obligation to restore or account for gifts and advancements under Italian inheritance law: questions of applicable law and international civil procedure, including jurisdiction and the law applicable to pre-judgment interest

The present decision of the Higher Regional Court of Munich deals with the obligation to restore or account for gifts and advancements when determining the shares of different heirs under Italian law (Article 724 of the Italian Civil Code). Specifically, it addresses a direct debit from the bank account held by husband and wife and payed to the wife alone a few days before the husband’s death. The husband was succeeded on intestacy by his wife and three descendants one of which sued the deceased’s wife in order to obtain a declaratory judgment establishing that half of the amount payed to the wife by the bank is an advancement, received from the deceased during his lifetime, and that such advancement has to be adjusted in the partitioning between the heirs. The article presents the related questions of applicable law under both the European Succession Regulation and the previous conflict rules in Germany and Italy. Side aspects regard, inter alia, the law applicable to interest relating to the judicial proceedings (Prozesszinsen) and how the Court determined the content of the foreign substantive law.

P. Mankowski: Securing mortgages and the system of direct enforcement under the Brussels Ibis Regulation

On paper, the Brussels Ibis Regulation’s turn away from exequatur to a system of direct enforcement in the Member State addressed was a revolution. In practice, its consequences have still to transpire to their full extent. The interface between that system and every-day enforcement practice is about to become a fascinating area. As so often, the devil might be in the detail, and in the minute detail at that. The Sicherungshypothek (securing mortgage) of German law now stars amongst the first test cases.

E. Jayme: Registration of cultural goods as stolen art: Tensions between property rights and claims of restitution – effects in the field of international jurisdiction and private international law

In 1999, the plaintiff, a German art collector had acquired a painting by the German painter Andreas Achenbach in London. In 2016 the painting was registered in the Madgeburg Lost Art Database according to the request of the defendant, a (probably) Canadian foundation. The painting was owned, between 1931 and 1937, by a German art dealer who had to leave Germany and was forced to close his art gallery in Düsseldorf. The plaintiff based his action on a violation of his property rights. The court dismissed the action: the registration, according to the court, did not violate the plaintiff’s property rights. The case, at first, involves questions of international civil procedure. The court based jurisdiction, according to para. 32 of the German Code of Civil Procedure, on the place of the pretended violation of property, i.e. the seat of the German foundation, which had registered the painting in its lost art register. The European rules were not applicable to a defendant having its seat outside the European community. The author follows the Magdeburg court as to the question of jurisdiction, but criticises the outcome of the case and the arguments of the court for generally excluding the violation of property rights. A painting registered as lost art loses its value on the art market, it cannot be sold. In addition, the registration of a painting as lost art may perhaps violate property rights of the German plaintiff in situations where there has been, after the Second World War, a compensation according to German public law, or where the persons asking for the registration did not sufficiently prove the legal basis of their claim. However, the Magdeburg registration board has developed some rules for cancelling registration based on objective arguments. Thus, the question is still open.

I. Bach/H. Tippner: The penalty payment of § 89 FamFG: a wanderer between two worlds

For the second time within only a few years, the German Federal Supreme Court (BGH) had to decide on a German court’s jurisdiction for the enforcement of a (German) judgment regarding parental visitation rights. In 2015, the BGH held that under German law the rule regarding the main proceedings (§ 99 FamFG) is to be applied, because of the factual and procedural proximity between main and enforcement proceedings. Now, in 2019, the BGH held that under European law the opposite is true: The provisions in Articles 3 et seq. Brussels IIbis Regulation are not applicable to enforcement proceedings. Therefore, the question of jurisdiction for enforcement proceedings is to be answered according to the national rules, i.e. in the present case: according to § 99 FamFG.

D.P. Fernández Arroyo:Flaws and Uncer tain Effectiveness of an Anti-Arbitration Injunction à l’argentine

This article deals with a decision issued by an Argentine court in the course of a dispute between an Argentine subsidiary of a foreign company and an Argentine governmental agency. The court ordered the Argentine company to refrain from initiating investment treaty arbitration against Argentina. This article addresses the conformity of the decision with the current legal framework, as well as its potential impact on the ongoing local dispute. Additionally, it briefly introduces some contextual data related to the evolution of Argentine policies concerning arbitration and foreign investment legal regime.

After the semaine blanche, the Court of Justice will deliver some judgments and opinions, starting on 11 November 2020, with C-433/19, Ellmes Property Services. The request has been referred by the Oberster Gerichtshof (Austria), in a case where the applicant seeks to prevent the use of the apartment for tourist purposes, contrary to its designated use and in the absence of consent of the other co-owners; he claims the touristic use interferes with the applicant’s rights of co-ownership. He relies on Article 24(1) of the Brussels I bis Regulation; the defendant objects on the basis of the lack of local and international jurisdiction. The questions read as follows:

1. Is the first alternative in the first subparagraph of Article 24(1) of [the Brussels I bis Regulation] to be interpreted as meaning that actions brought by a co-owner seeking to prohibit another co-owner from carrying out changes to his property subject to co-ownership, in particular to its designated use, arbitrarily and without the consent of the other co-owners, concern the assertion of a right in rem?
2. If the first question should be answered in the negative: Is Article 7(1)(a) of the [Brussels I bis Regulation] to be interpreted as meaning that the actions referred to in paragraph 1 concern contractual obligations to be performed at the location of the property?

According to AG Szpunar (Opinion of June 18, 2020), the Court should reply:

1. Article 24(1) of [the Brussels I bis Regulation] must be interpreted as meaning that an action by a co-owner seeking to prevent the use of an apartment by another co-owner for tourist purposes, on the ground that such use is not that agreed in the co-ownership agreement, only falls under that provision if that use is enforceable erga omnes. It is for the national court to carry out the final appraisal in that respect.
2. Article 7(1)(a) of that regulation must be interpreted as meaning that, where the use agreed in the co-ownership agreement is not enforceable erga omnes, such an action falls within the concept of ‘matters relating to a contract’ within the meaning of that provision. In those circumstances, the contractual obligation at issue is an obligation not to do something, specifically, not to change the designated use of a property, in breach of the co-ownership agreement, at the place where the property is situated. In order to ascertain whether the place of performance of that obligation is the place where the apartment subject to co-ownership is situated, it is for the national court to determine that place of performance in accordance with the law governing that obligation on the basis of the conflict of law rules of the court seised.

The decision corresponds to the 1st Chamber (judges Bonichot, Silva de Lapuerta, Toader, Safjan, Jääskinen, with Ms. Silva de Lapuerta as reporting judge).

On 12 November 2020, AG Hogan’s Opinion on C-729/19, Department of Justice for Northern Ireland will be published. The request, from the Court of Appeal in Northern Ireland, is related to a dispute between a Polish national and the Department of Justice for Northern Ireland (the Central Authority for the purpose of the Maintenance Regulation). The questions for the Court focus on the temporary scope of application of the Regulation, and on the consequences of the incorporation of the Hague Protocol on the law applicable to maintenance obligations to the system of the Regulation:

1. Must Article 75(2) of the [Maintenance Regulation] be interpreted as applying only to “decisions” which were given in States that were member States of the EU at the time those decisions were made?
2. Bearing in mind that Poland is now a Member State of the European Union which is bound by the Hague Protocol, are maintenance decisions made by a Court in Poland in 1999 and 2003, that is, prior to Poland becoming a member state of the European Union, now capable of being registered and enforced in another EU Member State pursuant to any part of [the Maintenance Regulation], and in particular:
   (a) Pursuant to Article 75(3) and Article 56 of the Maintenance Regulation;
   (b) Pursuant to Article 75(2) and Section 2 of Chapter IV of the Maintenance regulation;
   (c) Pursuant to Article 75(2)(a) and Section 3 of Chapter IV of the Maintenance regulation;
   (d) Pursuant to any other Articles of the Regulation?

A hearing was held on 14 October 2020 where the parties, among other, explained their position, in the light of the judgment in C-283/16, S., on whether Article 75(3) of the maintenance regulation covers the situation where the Central Authority of the requested Member State has lodged with a court of a Member State an application for recognition of a decision in matters relating to maintenance obligations given in a third State that was transmitted to it, after the accession of that State to the European Union and after the date of application of the Maintenance Regulation, via the Central Authority of that new Member State.

Case C-519/19, DelayFix, a preliminary reference where the AG’s opinion was not requested, will be delivered on 18 November 2020. The reference was sent by the Regional Court in Warsaw in a dispute concerning the unfair character of a term (a choice of court clause) included in a consumer’s contract. The case involves the interpretation of Directive 93/13/EEC on unfair terms in consumer contracts and Article 25 of the Brussels I bis Regulation. As the claim had been assigned, the claimant was not the consumer himself, thus the question from the Polish Court. The judgment will be a 1st Chamber one (judges Bonichot, Bay Larsen, Toader, Safjan, Jääskinen; Ms. Toader is the reporting judge).

The much awaited judgment in C-59/19, Wikingerhof, is scheduled for 24 November 2020. It will be a Grand Chamber decision (judges Lenaerts, Silva de Lapuerta, Bonichot, Arabadjiev, Prechal, Piçarra, von Danwitz, Toader, Safjan, Šváby, Rodin, Jürimäe, Lycourgos, Xuereb, Rossi; Mr. Safjian as reporting judge). Here the question, submitted by the Bundesgerichtshof (Germany):

Is Article 7(2) of [the Brussels I bis Regulation] to be interpreted as meaning that jurisdiction for matters relating to tort or delict exists in respect of an action seeking an injunction against specific practices if it is possible that the conduct complained of is covered by contractual provisions, but the applicant asserts that those provisions are based on an abuse of a dominant position on the part of the defendant?

AG Saugmandsgaard Øe delivered his opinion last September. Here my translation (the official English one is not yet available):

Article 7, point 2, of Regulation (EU) No. 1215/2012 of the European Parliament and of the Council, of 12 December 2012, on jurisdiction, recognition and enforcement of judicial decisions in civil and commercial matters must be interpreted in the sense that a civil liability action, based on the infringement of competition law, is a matter relating to “delict or quasi-delict”, within the meaning of the provision, even in the in the event that the plaintiff and the defendant are parties to a contract and the anti-competitive behavior the plaintiff attributes to the defendant is reflected in their contractual relationship.

Finally, AG Bobek’s opinion in C-307/19, Obala i lučice – a preliminary reference from the Commercial Court of Appeal, Croatia – will be delivered on 26 November 2020. Not a short request, in relation to a civil proceedings to recover the principal amount of HRK 84 (some 11 Euros), owed as payment for a daily parking ticket for a car parked on the public highway in Zadar (Croatia):

1. Are notaries authorised to effect service of documents under [the Service Regulation] when they serve notice of their decisions in cases in which [the Brussels I bis Regulation] does not apply, bearing in mind that, in Croatia, notaries acting within the framework of the powers conferred on them by national law in enforcement proceedings based on an ‘authentic document’ do not fall within the concept of ‘court’ within the meaning of [the Brussels I bis Regulation]? In other words, given that notaries do not fall within the concept of ‘court’ for the purposes of [the Brussels I bis Regulation], are they able, when acting within the framework of the powers conferred on them by national law in enforcement proceedings based on an ‘authentic document’, to apply the rules governing service of documents established in [the Service Regulation]?
2. Can parking in the street and on the public highway, where the right to collect payment is conferred by the Zakon o sigurnosti prometa na cestama (Law on Road Safety) and the legislation governing the performance of municipal activities as public authority activities, be considered a civil matter within the meaning of [the Brussels I bis Regulation], which governs the question of the jurisdiction of the courts and the recognition and enforcement of judgments in civil and commercial matters, especially having regard to the fact that, where a vehicle is found without a parking ticket or with an invalid ticket, it is immediately subject to a requirement to pay for a daily ticket, as though it had been parked for the whole day, regardless of the precise length of time for which it was parked, meaning that this daily parking charge has a punitive effect, and that in some Member States this type of parking constitutes a traffic offence?
3. In court proceedings of the type referred to above concerning parking in the street and on the public highway, where the right to collect payment is conferred by the Law on Road Safety and the legislation governing the performance of municipal activities as public authority activities, can the courts effect service of a document on the defendants in another Member State under [the Service Regulation]?

If, based on the above questions, this type of parking is ruled to be a civil matter, the following further questions are referred.

4. In the present case, there is a presumption that a contract is concluded in respect of the aforesaid on-street parking in a space designated by horizontal and/or vertical markings; in other words, by parking there one is deemed to enter into a contract, and if one fails to pay the correct hourly parking charge one has to pay for a daily ticket. The question is therefore raised as to whether that presumption, that parking gives rise to a contract and entails consent to pay for a daily ticket if one does not buy a ticket in accordance with the hourly parking tariff or if the parking period on the ticket has expired, is contrary to the basic stipulations on the provision of services in Article 56 of the Treaty on the Functioning of the European Union and to the other provisions in the EU acquis.
5. In the present case the parking took place in Zadar, Croatia, and there is therefore a connection between that contract and the Croatian courts. But does this parking constitute a ‘service’ within the meaning of Article 7(1) of [the Brussels I bis Regulation], bearing in mind that the concept of service implies that the party who provides the service carries out a particular activity, that is, that the said party carries out that particular activity in return for remuneration. The question is therefore whether the activity carried out by the appellant is sufficient for it to be considered a service. If the Croatian courts do not have special jurisdiction under Article 7(1) of [the Brussels I bis Regulation], jurisdiction to hear the case would lie with the court of the respondent’s domicile.
6. Can parking in the street and on the public highway, where the right to collect payment is conferred by the Law on Road Safety and the legislation governing the performance of municipal activities as public authority activities, and charges are levied only during a specified period during the day, be considered a tenancy agreement for immovable property under Article 24(1) of [the Brussels I bis Regulation]?
7. If the aforementioned presumption that the parking entails the conclusion of a contract (fourth question referred) cannot be applied in this case, can this type of parking, where authority to collect parking charges is conferred by the Law on Road Safety and a daily ticket must be purchased if a ticket for the parking period is not purchased in advance or if the parking ticket has expired, be deemed to constitute a matter relating to tort, delict or quasi-delict within the meaning of Article 7(2) of [the Brussels I bis Regulation]?
8. In the present case, the parking took place before Croatia joined the European Union, specifically at 13.02 on 30 June 2012. Therefore, the question is asked whether the regulations governing applicable law, namely [the Rome I Regulation] or [the Rome II Regulation], apply in the present case, having regard to their temporal validity.

If the Court of Justice of the European Union has jurisdiction to provide a response on the application of the material law, the following question is referred.

9. Is the presumption that this type of parking gives rise to a contract and entails consent to pay for a daily ticket if one does not pay the hourly parking charges or if the ticket expires, contrary to the basic stipulations on the provision of services in Article 56 TFEU and to the other provisions of the acquis, irrespective of whether the owner of the vehicle is a natural or a legal person? In other words, for the purposes of determining the material law, can the provisions of Article 4 of [the Rome I Regulation] apply in this case (given that there is no evidence in the proceedings to show that the parties came to an agreement on the applicable law)?
   • If a contract is held to exist, would it be a contract for the provision of services in the present case, that is to say, can the parking contract be considered a service within the meaning of Article 4(1)(b) of [the Rome I Regulation]?
   • In the alternative, could the parking be considered to constitute a tenancy agreement in accordance with Article 4(1)(c) of [the Rome I Regulation]?
   • In the alternative, if the parking comes under the provisions of Article 4(2) of [the Rome I Regulation], the question arises as to what constitutes the characteristic performance in the present case, bearing in mind that, in essence, the appellant merely marks the parking area on the roadway and collects parking charges, while the respondent parks and pays for the parking. In practice, if the characteristic performance is considered to be that of the appellant, Croatian law would apply, whereas if the characteristic performance is that of the respondent, Slovenian law would apply. However, given that in this case the right to collect parking charges is regulated by Croatian law, with which, therefore, the contract is more closely connected, can the provisions of Article 4([3]) of [the Rome I Regulation] nevertheless also apply?
   • If the case is considered to involve a non-contractual obligation within the terms of [the Rome II Regulation], could this non-contractual obligation be considered to constitute damage, meaning that the applicable law would be determined in accordance with Article 4(1) of [that Regulation]?
   • In the alternative, could this type of parking be considered to constitute unjust enrichment, meaning that the applicable law would be determined in accordance with Article 10(1) of [the Rome II Regulation]?
   • In the alternative, could this type of parking be considered to constitute negotiorum gestio, in which case the applicable law would be determined in accordance with Article 11(1) of [the Rome II Regulation]?
   • In the alternative, could this type of parking be considered to constitute liability on the part of the respondent for culpa in contrahendo, in which case the applicable law would be determined in accordance with Article 12(1) of [the Rome II Regulation]?

A hearing was foreseen which could not be held (questions and answers were thus in written form). The decision will be taken by the 1st Chamber (judges Bonichot, Bay Larsen, Toader, Safjan, Jääskinen, with Ms. Toader as reporting judge).

The website of The Hague Conference on Private International Law in October 29th recorded an important development, which reads as follows:

“Following the approval of the Explanatory Report on the HCCH Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (Judgments Convention) on 22 September 2020, the Permanent Bureau is pleased to announce the official publication of the Explanatory Report prepared by the co-Rapporteurs Professors Francisco Garcimartín (Spain) and Geneviève Saumier (Canada).”

More information can be found here

Membership

On 21 October 2020, Nicaragua deposited its instrument of acceptance of the Statute, becoming the 86th Member of the HCCH. More information is available here.

Conventions & Instruments 

On 1 October 2020, the HCCH 1965 Service Convention entered into force for the Philippines. It currently has 78 Contracting Parties. More information is available here.

On 23 October 2020, Serbia deposited its instrument of ratification of the HCCH 2007 Child Support Convention. It now has 42 Contracting Parties (41 States and the European Union) and will enter into force for Serbia on 1 February 2021. More information is available here. 

On 25 October 2020, the HCCH 1980 Child Abduction Convention and HCCH 1980 Access to Justice Convention celebrated their 40th anniversaries since adoption at the Fourteenth Session. More information is available here. 

On 29 October 2020, Costa Rica deposited its instrument of accession to the HCCH 1996 Child Protection Convention. It now has 53 Contracting Parties and will enter into force for Costa Rice on 1 August 2021. More information is available here. 

Meetings & Events

From 6 to 9 October 2020, the Experts’ Group on the Tourists and Visitors (ODR) Project met for the third time, via videoconference. The meeting focused on the necessity, desirability, and feasibility of a soft law instrument on matters relating to online dispute resolution (ODR). More information is available here.  

From 12 to 16 October 2020, the Experts’ Group on Parentage / Surrogacy met for the seventh time, via videoconference. The meeting focused on developing possible provisions for a general private international law instrument on the recognition of foreign judicial decisions on legal parentage and a separate protocol on the recognition of foreign judicial decisions on legal parentage rendered as a result of an international surrogacy arrangement. More information is available here. 

On 29 October 2020, the HCCH, together with the University of Bonn, co-hosted an online roundtable discussion of the prospects for judicial cooperation in civil and commercial matters between the EU and third countries. This event was a precursor to the conference ‘The HCCH 2019 Judgments Convention’ which is being held in September 2021, jointly organised by the University of Bonn and HCCH. More information is available here. 

Publications & Documentation

Following its approval last month, the Permanent Bureau has released the official publication of the Explanatory Report on the HCCH 2019 Judgments Convention. An electronic copy of the Report is now available for download, in English and French, and hard copies are available for purchase from our website. More information is available here.

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

AG  Saugmandsgaard Øe delivered yesterday (29 October 2020) his opinion in case C‑804/19 (BU v Markt24 GmbH), which is about Brussels I bis and employment contracts in an interesting scenario where no effective work has been carried out. The opinion is currently available in all EU official languages only (save Irish). It is not available 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):

« 1) Une action en paiement de la rémunération convenue dans un contrat de travail, intentée par un travailleur domicilié dans un État membre contre un employeur domicilié dans un autre État membre, relève du règlement (UE) no 1215/2012 […] et, plus spécifiquement, de la section 5 de son chapitre II, et ce même lorsqu’aucune prestation de travail n’a été accomplie, dans les faits, par ce travailleur en exécution du contrat litigieux.

2) Le règlement no 1215/2012 s’oppose à l’application de règles de compétence, prévues dans le droit national de la juridiction saisie, qui permettent au travailleur de saisir le tribunal dans le ressort duquel il a son domicile ou sa résidence habituelle pendant la durée de la relation de travail, ou de saisir le tribunal dans le ressort duquel la rémunération est due.

3) Lorsqu’un travailleur et un employeur ont conclu un contrat de travail et que, pour une raison quelconque, aucune prestation de travail n’a été accomplie, dans les faits, par ce travailleur en exécution du contrat, le « lieu où ou à partir duquel le travailleur accomplit habituellement son travail », au sens de l’article 21, paragraphe 1, sous b), i), du règlement no 1215/2012, correspond, en principe, au lieu de travail convenu dans ledit contrat ».

Source : http://curia.europa.eu/juris/document/document.jsf?docid=233041&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=FR&cid=10869171

On 29 October 2020, Costa Rica acceded to the HCCH Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, which will enter into force for Costa Rica on 1 August 2021.

Source: https://www.hcch.net/en/news-archive/details/?varevent=762

The Explanatory Report on the HCCH Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters has been officially published in both English and French. Please find attached to this post the English version.

Source: https://www.hcch.net/en/news-archive/details/?varevent=761