Agrégateur de flux

Issue 1 of the Journal of Private International Law is now available. It contains the following articles:

Rhona Schuz, Choice of law in relation to matrimonial property in the 21st century, pp. 1-49

Abstract: The traditional lack of consensus in relation to the choice of law rule/s governing matrimonial property has become topical and relevant over the last few years. The European Union, concerned about the impact of the disparities between the laws of Member States in this field, in the light of increasing divorce and migration, embarked on an initiative to harmonize private international law rules in relation to matrimonial property. However, the Regulation which it produced did not command universal support. Moreover, the recent demographic changes in Europe have added a new dimension to the problem. To date, relatively little attention has been paid to the choice of law implications of migration from non-Western States, in which religious or customary law governs the economic consequences of marriage and which typically have separate property systems which discriminate against women. The mass migration into Europe from such States over the past few years makes it imperative to consider the implications of the choice of law rules in relation to matrimonial property for migrants from non-Western States.

Accordingly, in the light of these developments, there is a need to revisit critically the issues involved and the different approaches to choice of law in relation to matrimonial property in the light of modern choice of law theory. This article meets this need by analysing the extent to which the various approaches best promote central choice of law objectives. In addition, insights are gleaned from the experience of the Israeli legal system in relation to couples migrating from Islamic States. The conclusions drawn from this analysis, which are significantly different from those which informed the EU Regulation, will be of value to law and policymakers throughout the world, when facing the challenge of making decisions pertaining to choice of law in relation to matrimonial property in the twenty-first century.

Liam W. Harris, Understanding public policy limits to the enforceability of forum selection clauses after Douez v Facebook, pp. 50-96

Abstract: This article explores the nature of public policy limits to the enforcement of forum selection clauses, recently considered by the Supreme Court of Canada in Douez v Facebook. The public policy factors relied on by the plurality of the Court, inequality of bargaining power and the quasi-constitutional nature of the right at issue, possess neither the doctrinal clarity nor the transnational focus necessary to guide the deployment of public policy in this context. Here, I argue for a public policy exception to the enforcement of forum selection clauses based on the doctrine of mandatory overriding rules. This approach would focus on whether a forum selection clause has the effect of avoiding the application of local norms intended to enjoy mandatory application in the transnational context. This conception of public policy would be a more coherent guide to the exercise of courts’ discretion to enforce forum selection clauses in cases like Douez.

Adeline Chong & Man Yip, Singapore as a centre for international commercial litigation: party autonomy to the fore, pp 97-129

Abstract: This article considers two recent developments in Singapore private international law: the establishment of the Singapore International Commercial Court and the enactment of the Hague Convention on Choice of Court Agreements 2005 into Singapore law. These two developments are part of Singapore’s strategy to promote itself as an international dispute resolution hub and are underscored by giving an enhanced role to party autonomy. This article examines the impact of these two developments on the traditional rules of private international law and whether they achieve the stated aim of positioning Singapore as a major player in the international litigation arena.

Muyiwa Adigun, Enforcing ECOWAS judgments in Nigeria through the common law rule on the enforcement of foreign judgments, pp. 130-161

Abstract: The ECOWAS Court was established by the Revised ECOWAS Treaty. By virtue of that treaty, the Court has assumed an existence at the international plane and has delivered a number of judgments. This study therefore examines the enforcement of the judgments of the ECOWAS Court in Nigeria as a Member State. The study finds that Nigeria has not been enforcing the judgments of the Court like other Member States. The study further finds that there are five sources of international law namely: treaties, custom, general principles of law recognised by civilised nations, judicial decisions and the writings of the most qualified publicists and that while Nigerian law has addressed domestic effect of treaties and custom, that of other sources most notably the decisions of international tribunals has not been seriously addressed. The study therefore argues that the common law on the enforcement of foreign judgments can be successfully adapted to give domestic effect to the judgments of the ECOWAS Court as an international tribunal in Nigeria. The study therefore recommends that the Nigerian judiciary should take the gauntlet to make the judgments of the ECOWAS Court effective in Nigeria.

Justin Monsenepwo, Contribution of the Hague Principles on Choice of Law in International Commercial Contracts to the codification of party autonomy under OHADA Law, pp. 162-185

Abstract: The Organization for the Harmonization of Business Law in Africa (hereinafter referred to as OHADA) was created on 17 October 1993 to foster economic development in Africa by creating a uniform and secure legal framework for the conduct of business in Africa. In an effort to reform the law of contracts in its Member States, OHADA has prepared the Preliminary Draft of the Uniform Act on the Law of Obligations (hereinafter referred to as the Preliminary Draft). Several provisions of the Preliminary Draft set forth general principles concerning choice of law in international commercial contracts. Indeed, the Preliminary Draft encompasses innovative provisions on party autonomy in international contracts, such as the explicit recognition of the right of parties to choose the law applicable to their contracts and the inclusion of limited exceptions to party autonomy (overriding mandatory rules and public policy). Yet, it still needs to be improved in respect of various issues, including for instance the ability of parties to choose different laws to apply to distinct parts of their contract and the possibility for the parties to expressly include in their choice of law the private international law rules of the chosen law. This paper analyses the provisions of the Preliminary Draft in the light of the Hague Principles on Choice of Law in International Commercial Contracts (hereinafter referred to as the Hague Principles). More particularly, it explores how the Hague Principles can help refine the rules on party autonomy contained in the Preliminary Draft to enhance legal certainty and predictability in the OHADA region.

Jeanne Huang, Chinese private international law and online data protection, pp. 186-209

Abstract: This paper explores how Chinese private international law responds to online data protection from two aspects: jurisdiction and applicable law. Compared with foreign laws, Chinese private international law related to online data protection has two distinct features. Chinese law for personal jurisdiction is still highly territorial-based. The “target” factor and the interactive level of a website have no play in Chinese jurisprudence. Regarding applicable law, Chinese legislators focus more on the domestic compliance with data regulations rather than their extra-territorial application. Moreover, like foreign countries, China also resorts to Internet intermediaries to enhance enforcement of domestic law. These features should be understood in the Chinese contexts of high-level data localization and Internet censorship.

Giorgio Risso, Product liability and protection of EU consumers: is it time for a serious reassessment? pp 210 – 233 

Abstract: The European Union (EU) has not enacted a coherent and fully-fledged product liability regime. At the substantive level, the Product Liability Directive – adopted in 1985 – is the only piece of legislation harmonising the laws of the Member States. At the private international law level, the special choice-of-laws provision in the Rome II Regulation coexists with the general rules in the Brussels I-bis Regulation. Cross-border product liability cases are therefore subject to different pieces of legislation containing either “general” or “specific” provisions. In turn, such general and specific provisions do have their own rationales which, simplistically, can be inspired by “pro-consumer”, “pro-producer”, or more “balanced” considerations, or can be completely “indifferent” to consumer protection. This article examines the interactions between the Directive, the Rome II and the Brussels I-bis Regulations in cross-border product liability cases. The aim of this article is to assess whether the piecemeal regime existing at the EU level risks undermining the protection of EU consumers. The analysis demonstrates that the regime is quite effective in guaranteeing an adequate level of consumer protection, but reforms are needed, especially to address liability claims involving non-EU manufacturers or claims otherwise connected to third States, without requiring a complete overhaul of the EU product liability regime.

Guangjian Tu, The flowing tide of parties’ freedom in private international law: party autonomy in contractual choice of law in China, pp. 234-240 (Review Article)

Building on the successful conferences held in Aberdeen (2005), Birmingham (2007), New York (2009), Milan (2011), Madrid (2013), Cambridge (2015) and Rio (2017) the Journal of Private International Law will be holding its 8th Conference at the University of Munich from 12 – 14 September 2019.

Following the call for papers the Editors of the Journal (Professor Jonathan Harris QC of King’s College, Londonand Professor Paul Beaumont FRSE of the University of Aberdeen) and the organizer of the conference (Professor Anatol Dutta, University of Munich) have selected from a great number of applications from all over the world a variety of papers covering all areas of private international law which will be presented in a mixture of plenary (Friday) and parallel panel sessions (Thursday afternoon and Saturday morning).

We ask all speakers and guests to register via this website.

We thank the publisher Routledge and the German Federal Chamber of Notaries  for their generous support.

Case C-18/18 Eva Glawischnig-Piesczek v Facebook as I noted in my short first review of the case, revolves around Article 15 of the E-Commerce Directive. Does Article 15 prohibit the imposition on a hosting provider (Facebook, in this case) of an obligation to remove not only notified illegal content, but also identical and similar content, at a national or worldwide level?

Szpunar AG kicks off with a memorable Erica Albright quote from The Social Network:  The internet’s not written in pencil, [Mark], it’s written in ink’. 

His Opinion to a large degree concerns statutory interpretation on filtering content, which Daphne Keller has already reviewed succinctly here and which is not the focus of this blog. The jurisdictional issues are what interest me more: the territorial scope of any removal obligation.

Firstly, Szpunar AG matter of factly confirms my reading, against that of most others’, of his Opinion in C-505/17 Google: at 79:

‘in my Opinion in that case I did not exclude the possibility that there might be situations in which the interest of the Union requires the application of the provisions of that directive beyond the territory of the European Union.’

Injunctions (ordering removal) are necessarily based on substantive considerations of national law (in the absence of EU harmonisation of defamation law); which law applies is subject to national, residual conflicts rules (in the absence of EU harmonisation at the applicable law, level, too): at 78. Consequently, a Court’s finding of illegality (because of its defamatory nature) of information posted may well have been different had the case been heard by a court in another Member State. What is however harmonised at the EU level, is the jurisdiction for the civil and commercial damage following from defamation: see e-Date, in particular its centre of interests rule which leads to an all-encompassing, universal’ jurisdiction for the damages resulting from the defamation.

Separate from that is the consideration of the territorial extent of the removal obligation. Here, the AG kicks off his analysis at 88 ff by clearly laying out the limits of existing EU harmonisation: the GDPR and data protection Directive harmonise issues of personal data /privacy: not what claimant relies on. Directive 2000/31 does not regulate the territorial effects of injunctions addressed to information society service providers. Next, it is difficult, in the absence of regulation by the Union with respect to harm to private life and personality rights, to justify the territorial effects of an injunction by relying on the protection of fundamental rights guaranteed in Articles 1, 7 and 8 of the Charter: the scope of the Charter follows the scope of EU law and not vice versa. In the present case, as regards its substance, the applicant’s action is not based on EU law. Finally, Brussels Ia does not regulate the extra-EU effects of injunctions.

For the sake of completeness, the AG does offer at 94 ff ‘a few additional observations’ as regards the removal of information disseminated worldwide via a social network platform. At 96 he refers to the CJEU’s judgment in Bolagsupplysningen which might implicitly have acknowledged universal jurisdiction, to conclude at 100 (references omitted)

the court of a Member State may, in theory, adjudicate on the removal worldwide of information disseminated via the internet. However, owing to the differences between, on the one hand, national laws and, on the other, the protection of the private life and personality rights provided for in those laws, and in order to respect the widely recognised fundamental rights, such a court must, rather, adopt an approach of self-limitation. Therefore, in the interest of international comity…, that court should, as far as possible, limit the extraterritorial effects of its junctions concerning harm to private life and personality rights. The implementation of a removal obligation should not go beyond what is necessary to achieve the protection of the injured person. Thus, instead of removing the content, that court might, in an appropriate case, order that access to that information be disabled with the help of geo-blocking.

There are very sound and extensive references to scholarship in the footnotes to the Opinion, including papers on the public /private international law divide and the shifting nature of same (the Brussels Court of Appeal recently in the Facebook case justifiably found jurisdictional grounds in neither public nor private international law, to discipline Facebook Ireland and Facebook Inc for its datr-cookies placed on Belgian users of FB).

I find the AG’s Opinion convincing and complete even in its conciseness. One can analyse the jurisdictional issues until the comes come home. However, in reality reasons of personal indemnification may argue in specific circumstances for universal jurisdiction and ditto reach of injunctive relief. However these bump both into the substantial trade-off which needs to be made between different fundamental rights (interest in having freedom removed v freedom of information), and good old principles of comitas gentium aka comity. That is not unlike the US judicial approach in similar issues.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2, Heading 2.2.8.2.5.

On 10–11 October 2019, the Albert-Ludwig-University of Freiburg (Germany) will host the final conference of the German branch in the framework of the research project “Informed Choices in Cross-Border Enforcement” (IC2BE). Funded by the Justice Program (2014-2020) of the European Commission, the project aims to assess the working in practice of the “second generation” of EU regulations on procedural law for cross-border cases, i.e. the European Enforcement Order, Order for Payment, Small Claims and the Account Preservation Order Regulations. As a result, a database of CJEU and national case law has been created which is available here. The project is carried out by a European consortium (the MPI Luxembourg and the universities of Antwerp, Complutense (Madrid), Milan, Rotterdam, and Wroclaw) and is coordinated by Prof. Jan von Hein, Freiburg. Confirmed speakers include Professors Eva Lein (Lausanne), Caroline Meller-Hannich (Halle), Christoph Althammer (Regensburg), Florian Eichel (Bern), Christian Heinze (Hanover), Haimo Schack (Kiel), and Michael Stürner (Konstanz). In addition, the conference will feature a panel discussion by distinguished practitioners, Prof. Dr. Andreas Baumert (Achern), Dr. David Einhaus (Freiburg), and Dr. Carl Friedrich Nordmeier (Frankfurt). The language of the conference will be German. Participation is free of charge (except for the dinner), but requires a registration. For further information about the program and the process of registration, please click here.

Mal en point après la déposition, mercredi 5 juin, du responsable de la fiduciaire suisse Getrust qui a monté les structures offshore pour l’acquisition de la villa Dar Gyucy à Marrakech, la défense de Patrick Balkany s’est arcboutée jeudi à la « jolie fable » de l’accusation concernant une commission de 5 millions de dollars qui a servi à payer et entretenir ce pied-à-terre marocain.

en lire plus

The CJEU this morning held (without AG Opinion) in C-361/18 Ágnes Weil v Géza Gulácsi.

Overall context is that Brussels Ia does not apply to ‘the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession’.

Ms Weil and Mr Gulácsi were unregistered partners. Mr Gulácsi was ordered by Hungarian court order to pay Ms Weil approximately EUR 2 060, together with interest for late payment, by virtue of the settlement of rights in property arising out of their de facto (unregistered) non-martial partnership. Ms Weil later applied to the same court to have it issue the Article 53 certificate which would facilitate her enforcement in the UK (where Mr Gulácsi lives and has a regular income). Questions raised, were

‘(1)      Is Article 53 of Regulation … No 1215/2012 to be interpreted as meaning that, if requested by one of the parties, the court of the Member State that delivered the decision must issue the certificate relating to the decision automatically, without examining if [the case] falls within the scope of Regulation … No 1215/2012?

(2)      If the answer to the first question is in the negative, is Article 1(2)(a) of Regulation … No 1215/2012 to be interpreted as meaning that a repayment action between members of an unregistered non-marital [de facto] partnership falls within the scope of the rights in property arising out of a relationship deemed … to have comparable (legal) effects to marriage?’

The  Court answers the first question in the negative: at the recognition and enforcement stage, things must go very swift indeed. The mutual trust required of courts must be backed up by proper consideration of the Regulation by the courts of the Member State of initial adjudication: at 33:

‘the need to ensure the swift enforcement of judgments, while preserving the legal certainty on which the mutual trust in the administration of justice in the European Union is based, justifies, in particular in a situation such as that of the main proceedings — where the court which gave the judgment to be enforced did not adjudicate, when giving that judgment, on whether [Brussels I and Ia] was applicable — that the court hearing the application for the certificate ascertains, at that stage, whether the dispute falls within that regulation.’

It adds at 35 that

the enforcement procedure, under Regulation No 44/2001, precludes, like enforcement under Regulation No 1215/2012, any subsequent review on the part of a court of the Member State addressed of whether the action giving rise to the judgment for which enforcement is sought falls within the scope of Regulation No 44/2001, the grounds for challenging the declaration that a judgment is enforceable being exhaustively laid down by that regulation.

This I find interesting for unless I missed it, there has not yet been a CJEU decision holding this much and as I discuss on pp 191-192 of the Handbook, there is scholarly discussion on same.

With respect to the matrimonial property exception, the CJEU after of course emphasising the need for a restrictive interpretation of the exceptions, acknowledges that Brussels Ia has extended this but only to relationships deemed comparable to marriage (at 44). Unregistered partnerships do not qualify.

Geert.

(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 2, Heading 2.1.2, Heading 2.2.16.1.2 .

Propriété - Servitude

Bail rural

Appel civil – Aide juridictionnelle