Agrégateur de flux

Two conferences on private international law have been announced for Brazil. From March 13-16, the University of Brasilia will organize a conference on the topic of “Challenges to Private International Law in contemporary society” (Program here.) Prior to that, I will teach a graduate mini-course on comparative law and private international law on March 11-13. Sign-up information for both is on the linked sites.

And then, on March 15-17, the 3rd international law conference RIBAMAR at the Universidade Estadual do Maranhão will discuss “Emerging Topics in Private International Law.” The program is here, instructions for signing up here.

Exciting to see that the energy is sustained n Brazil, after the JPIL conference in 2017 in Rio de Janeiro.

 

Case C‑149/18 Martins v Dekra Claims gave the Court of Justice an opportunity (it held end of January) essentially to confirm its Unamar case-law, specifically with respect to limitation periods.

The Portuguese claimant’s vehicle was damaged in an accident in Spain in August 2015. He issued proceedings in Portugal in November 2016 to recover his uninsured losses. Under Portuguese law, the lex fori, the limitation period is 3 years. Under Spanish law, the lex causae per Rome II, limitation is fixed at 1 year.

The Court first of all re-emphasises the importance of co-ordinated interpretation of Rome I and II, here with respect to the terminology of the two Regulations which in the French version in particular differs with respect to the use of the term ‘lois de police’ (Article 9 Rome I) and ‘dispositions impératives dérogatoires’  (Article 16 Rome II). The lois de police of Rome I (albeit with respect to the Rome Convention 1980) had already been interpreted in Unamar, leading to the first of the two conditions discussed below.

The Court effectively held there is little limit content-wise to the possibility for courts to invoke the lois de police /overriding mandatory law provision of Article 9 Rome II. Despite Article 15 Rome II verbatim mentioning limitation periods as being covered by the lex causae (but see the confusion on that reported in my post on Kik this week), limitation periods foreseen in the lex fori may be given priority.

This is subject to two conditions:

firstly, the national court cannot interpret any odd lex fori provision as being covered by the lois de police exception: here the Court re-emphasises the Rome I /II parallel by making the Unamar test apply to Rome II: at 31: ‘the referring court must find, on the basis of a detailed analysis of the wording, general scheme, objectives and the context in which that provision was adopted, that it is of such importance in the national legal order that it justifies a departure from the applicable law.’ Here, the fact that limitation periods are mentioned in so many words in Article 15, comes into play: at 34: given that express reference, the application of the overriding mandatory law exception ‘would require the identification of particularly important reasons, such as a manifest infringement of the right to an effective remedy and to effective judicial protection arising from the application of the law designated as applicable pursuant to Article 4 of the Rome II Regulation.’

secondly, and of course redundantly but worth re-emphasising: the rule at issue must not have been harmonised by secondary EU law. As Alistair Kinley points out, the Motor Insurance Directive (MID) 2009/103 is currently being amended and a limitation period of minimum 4 years is being suggested – subject even to gold plating. That latter prospect of course opens up all sorts of interesting discussions particularly viz Article 3(4) Rome I.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 3, Heading 3.2.8, Heading 3.2.8.3.

 

Indemnisation des victimes d'infraction

Assurance - Règles générales

Arbitrage

Officiers publics ou ministériels

Etranger

Prêt - prescription civile

Avocat - Conseil juridique

The meaning of submission was the central question, though by no means the only one, in the Supreme Court of Canada’s decision in Barer v Knight Brothers LLC, 2019 SCC 13 (available here).  Knight sought enforcement of a Utah default judgment against Barer in Quebec.  The issue was governed by Quebec’s law on the recognition and enforcement of foreign judgments, which is set out in various provisions of the Civil Code of Quebec (so much statutory interpretation analysis ensued).  Aspects of the decision may be of interest to those in other countries that have similar provisions in their own codes.

The court held that the Utah decision was enforceable in Quebec.  Seven judges (Gascon J writing the majority decision) held that Barer had submitted to the Utah court’s jurisdiction.  Two judges held that he had not.  One of them (Brown J) held that the Utah court had jurisdiction on another basis, and so concurred in the result, while the other (Cote J) held it did not, and so dissented.

The majority held that in his efforts to challenge the Utah’s court’s jurisdiction, Barer had presented substantive arguments going to the merits of the dispute (para 6).  It analysed various possible steps in a foreign proceeding that either would or would not constitute submission (paras 59-63).  It was invited by Barer to consider the “save your skin” approach to submission, which would recognize that a defendant who both challenged jurisdiction and raised substantive arguments would not be taken to have submitted.  It rejected that approach (para 68).  Its core concern was to protect “the plaintiff’s legitimate interest in knowing at some point in the proceedings, whether or not the defendant has submitted to the jurisdiction” (para 62).  It added that “plaintiffs who invest time and resources in judicial proceedings in a jurisdiction are entitled to some certainty regarding whether or not the defendants have submitted to the court’s jurisdiction” (para 67).

The majority acknowledged that in a case in which the process of the foreign forum required the raising of a substantive argument alongside a jurisdictional challenge, this could affect the determination of whether the defendant had submitted (para 75).  But this was not such a case: the defendant had not established, as a factual matter, that this was such a feature of the Utah procedure (paras 75 and 78).  Accordingly, the fact that Barer had raised a defence on the merits – that a pure economic loss rule barred the claim against him – amounted to submission (para 71).

In dissent, Justice Cote finds the majority’s test for submission to be “too strict” (para 212).  She urged a “more flexible approach” which would allow a defendant to raise substantive arguments alongside a jurisdictional challenge (para 213).  In her view, if “a broad range of arguments may convince a Utah court that it lacks jurisdiction over a matter … A defendant must be allowed to present those arguments” (para 219).  While Gascon J put the onus of showing that the Utah process required raising substantive arguments at a particular time on the defendant, Cote J put that onus on the plaintiff, the party seeking to enforce the foreign judgment (para 223).

Brown J’s concurring decision did not comment at any length on the test for submission.  He held that “I agree with my colleague Cote J. that Mr. Barer has not submitted to the jurisdiction of the Utah court merely by presenting one argument pertaining to the merits of the action in his Motion to Dismiss” (para 146; emphasis in original).  This is consistent with Cote J’s approach to the meaning of submission.

There is a further interesting dimension to the reasons.  Cote J held, in the alternative, that even if Barer had submitted, the plaintiff also had to show a real and substantial connection between the dispute and Utah before the judgment could be enforced (para 234).  This engaged her in a complex argument about the scheme and wording of the Civil Code.  Having identified this additional legal requirement, she held this was a case in which the submission itself (if established) was not a sufficiently strong connection to Utah and so the decision should nonetheless not be enforced (para 268).  In contrast, Brown J held that there was no separate requirement to show such a connection to Utah (paras 135 and 141-42).  Showing the submission was all that was required.  The majority refused to resolve this interpretive dispute (para 88), holding only that on the facts of this case Barer’s submission “clearly establishes a substantial connection between the dispute and the Utah court” (para 88).

The judges disagreed about several other aspects of the case.  Put briefly and at the risk of oversimplification, Brown J relied primarily on the notion that all parties and aspects of the dispute should have been before the Utah court.  Barer was sufficiently connected with various aspects of the dispute, over which Utah clearly did have jurisdiction, that its jurisdiction over him was proper (see paras 99, 154 and 161-62).  Neither Cote J nor Gascon J agreed with that approach.  There are also disputes about what types of evidence are proper for establishing the requirements for recognition and enforcement and what law applies to various aspects of the analysis.

In a small tangent, the majority decision criticized the “presumption of similarity” doctrine for cases in which the content of foreign law is not properly proven and it offered a more modern explanation of why forum law is applied in such cases (para 76).

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

H.-P. Mansel/K. Thorn/R. Wagner: European conflict of laws 2018: Final Spurt!

This article provides an overview of developments in Brussels in the field of judicial cooperation in civil and commercial matters from January 2018 until December 2018. It provides an overview of newly adopted legal instruments and summarizes current projects that are presently making their way through the EU legislative process. It also refers to the laws enacted at the national level in Germany as a result of new European instruments. Furthermore, the authors look at areas of law where the EU has made use of its external competence. They discuss both important decisions and pending cases before the CJEU as well as important decisions from German courts pertaining to the subject matter of the article. In addition, the article treats current projects and the latest developments at the Hague Conference of Private International Law.

C. Kohler: Lis pendens of a complaint seeking to join a civil claim for damages to criminal proceedings before the investigating magistrate

Case C-523/14 raised the issue whether a complaint seeking to join a civil claim for damages to criminal proceedings before the investigating magistrate is lis pendens in respect of subsequent proceedings brought in another Member State involving the same cause of action. The ECJ held at the outset that such a complaint falls within the scope of Regulation No 44/2001 in so far as its object is to obtain monetary compensation for harm allegedly suffered by the complainant. On the point of lis pendens the ECJ ruled that under Art. 27(1) of the Regulation proceedings are brought when the complaint seeking to join the civil action has been lodged with an investigating magistrate, even though the judicial investigation of the case at issue has not yet been closed. The Court further held that according to Article 30 of the Regulation, where the complaint seeking to join a civil action is initiated by lodging a document which need not, under the applicable national law, be served before that lodging, the relevant time for holding the investigating magistrate to be seised is the time when the complaint was lodged. The author approves the ECJ’s interpretation of the relevant provisions of Regulation No 44/2001. However, he considers that the rule which gives jurisdiction to the court seised of criminal proceedings to rule on a civil claim for damages deserves criticism. That rule is an alien element within the Brussels-Lugano system which favours the plaintiff whereas the defendant may be sued in exorbitant jurisdictions and cannot oppose the recognition and enforcement of the civil judgment given by the criminal court.

S. Kurth: Determining the habitual residence of a testator who alternately lived in two states

The article critically analyses the decision of the German Higher Regional Court (Oberlandesgericht) Hamm (reference number: 10 W 35/17) on the interpretation and application of the habitual residence concept to establish jurisdiction under Art. 4 (EU) Regulation No 650/2012. The Court relies on the concept to determine the habitual residence of a German testator who for several decades spent extended periods of time on the Spanish Costa Brava and in the German backcountry. The author argues for an autonomous interpretation of the Regulation and expresses regret over the approach taken by which the “habitual residence of the deceased” as the connecting factor under the Regulation is construed in line with national law. Moreover, the article examines the two definitions of habitual residence used by the Court and demonstrates that on closer scrutiny none of them is persuasive in light of the established canons of interpretation. The author argues to instead define the habitual residence of the deceased as the place where he is primarily integrated as well as regularly and consistently spends time. Further, the article criticises the Court’s findings on circumstantial evidence and, among others, demonstrates the importance of the deceased’s re-lationships with family and friends as pieces of circumstantial evidence neglected by the Court.

D. Coester-Waltjen: Marriages of Minors – Against the Legislative Furore

The German law against “child marriages” of 2017 was the subject matter of some recent court decisions. The German Supreme Court doubts in its decision the constitutionality of the “Law against Child Marriages” regarding the invalidation of marriages validly formed under the applicable foreign law, but void under the new German law in case one of the spouses was below the age of fourteen at the time of formation. The other cases concerned marriages each validly formed under the applicable law by two EU citizens in their respective home country. Since the bride in both cases was only 16, respectively 17 years old, the new German law obliges the German courts to invalidate these marriages, unless under extraordinary circumstances such invalidation would cause extreme hardship to the still minor spouse (or the spouse has reached majority and wants to stay in the marriage). Only in those cases, by way of exception, no invalidation should take place. Despite the pitfalls of the new law the courts succeed in reaching a sensible and adequate result. This article analyses how the courts struggle with the interpretation of the relevant provisions. Emphasis is placed on the European dimension of the topic as well as on the constitutional aspects in the relevant situations.

C. Benicke: The need for Adaptation (Anpassung) to cure deficiencies in the protection of the child’s financial interests caused by the parallel application of German inheritance law and English child custody law

The decision of the Munich Higher Regional Court raises the question of the extent of the father’s power of representation for his minor son under English law when he sells the interest in a German partnership which the son has inherited under German law. The parallel application of English law for the parental responsibility issues on the one hand and of German law as inheritance law for the acquisition of the partnership interest on the other hand leads to a legal gap in respect to the provisions aiming at the protection of the child’s financial interests. As German law regulates this issue in its child custody law through provisions limiting the extent of the parents’ powers to act as legal representatives, and English law protects the child’s interests in its inheritance law through provisions about the administration of the estate, neither of these provisions are invoked by the relevant choice of law rules. This raises the question of adaptation (Anpassung) as an instrument of private international law to avoid outcomes that are inconsistent with both legal orders at stake.

L. Rademacher: Multilocal Torts, Favor Laesi, and Renvoi

In the case of a multilocal tort, the defendant commits the tortious act in a state different from the state in which the claimant suffers the resulting injury. In such a scenario, identifying the applicable law can prove difficult. Under Art. 4 para. 1 Rome II Regulation, the defendant’s liability is determined by the law of the state in which the claimant was injured. By contrast, Art. 40 para. 1 sent. 1 EGBGB (Introductory Act to the German Civil Code) relies on the location of the defendant’s tortious act as the relevant connecting factor. The injured party, however, can demand the application of the law of the state where the injury was sustained according to Art. 40 para. 1 sent. 2 EGBGB. Since the codification of German international tort law in 1999, it has been in dispute whether in the case of a multilocal tort the references in Art. 40 para. 1 EGBGB encompass a foreign legal system’s conflict-of-laws rules or refer to foreign substantive law only. This case note, on the occasion of a decision of the Higher Regional Court of Hamm, critically evaluates the arguments for and against the acceptance of renvoi in this context. Contrary to the court, it argues in favour of a reference that includes foreign private international law. It is submitted that only this view can be reconciled with the general rule on renvoi laid down in Art. 4 EGBGB and with the absence of a strict notion of favor laesi in Art. 40 para. 1 EGBGB.

P. Hay: Foreign Law as Fact in American Litigation – Foreign Government’s Interpretation of Its Own Law is Not Conclusive

The U.S. Supreme Court confirmed unanimously that foreign law is to be treated as fact, not law, in federal civil litigation. In determining the content and in interpreting foreign law, the lower court may consider all relevant materials. The interpretation of the foreign government of its own law is to be received with respect under principles of comity, but it is not conclusive. The Court reversed and remanded an appellate court’s decision that had concluded that courts were “bound to defer” to the “reasonable” interpretation of the Chinese government of its own law. The Supreme Court ruled that Federal Rule of Civil Procedure 44.1 does not go this far, but continues to embody the traditional American fact-orientation with regard to foreign country law.

M. Stürner/A. Hemler: Recognition of a French astreinte in California

The French astreinte is a private penalty payable to the creditor designed to bend the debtor’s will. In the case discussed, the U.S. Court of Appeals for the Ninth Circuit examines the enforceability of a French judgement condemning Californian editor Wofsy to pay an astreinte in favour of French publisher de Fontbrune. First, the Court of Appeals considers the determination of foreign law in accordance with Rule 44.1 FRCP, which permits the decision on foreign law using “any relevant material or source”, thus classifying it as “question of law”. Given this explicit departure from the question of fact doctrine, the Court of Appeals holds that the ascertaining of foreign law is permitted outside the pleading stage as well. Since foreign penal judgements are not enforceable under Californian law, the Panel also examines whether the astreinte is punitive in nature. In view of its characterisation as predominantly inter partes and its connection to the fulfilment of the debtor’s obligation, the Court of Appeals concludes that the enforcement of the astreinte in question cannot be denied.

With the accession of Guyana, the HCCH Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“Child Abduction Convention”) has reached the milestone of 100 Contracting Parties.

For acceding States, it is important to bear in mind that a bilateralisation regime applies. Under Article 38(4) of the Child Abduction Convention, an accession “will have effect only as regards the relations between the acceding State and such Contracting States as will have declared their acceptance of the accession. Such a declaration will also have to be made by any Member State ratifying, accepting or approving the Convention after an accession [see Art. 37 of the Convention]. Such declaration shall be deposited at the Ministry of Foreign Affairs of the Kingdom of the Netherlands; this Ministry shall forward, through diplomatic channels, a certified copy to each of the Contracting States.”

It is therefore of great importance that ratifying States and previous acceding States accept the accession of new States.

A useful excel sheet of the acceptances of accessions under this Convention is available here.

The HCCH news item is available here.

 

Amazon EU
Environnement et consommateurs
L’avocat général Pitruzzella propose à la Cour de déclarer qu’une plate-forme de commerce électronique comme Amazon ne peut pas être obligée de mettre un numéro de téléphone à la disposition du consommateur

Craeynest e.a.
Environnement et consommateurs
L’avocate générale Kokott propose à la Cour de juger que les juridictions nationales sont tenues de rechercher, à la demande de personnes concernées, si le choix de l’emplacement des stations de mesure de la qualité de l’air est conforme aux prescriptions du droit de l’Union

Baltic Media Alliance
SERV
Avocat général Saugmandsgaard Øe : la directive « Services de médias audiovisuels » n’empêche pas l’adoption, par un État membre, d’une mesure obligeant à ne diffuser ou retransmettre une chaîne de télévision étrangère que dans des bouquets payants, afin de limiter la propagation, par cette chaîne, d’informations incitant à la haine auprès du public de cet État

Línea Directa Aseguradora
Rapprochement des législations
L’avocat général Bot propose à la Cour de déclarer que le cas de l’incendie spontané d’un véhicule stationné dans un garage privé depuis plus de 24 heures relève de la notion de « circulation des véhicules »