Agrégateur de flux

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on 5 October 2023 at 2:30 pm (Mexico City time), 10:30 pm (Europe, CEST time) to launch the book entitled:

International Child Abduction: jurisprudential, doctrinal and critical study of the 1980 Child Abduction Convention. Key concepts and solutions to application problems (Madrid: Dykinson, 2023) 604 pp.

For more information about the book, see our previous post here.

The book will be presented by the author and the following AMEDIP members: Professors Jorge Alberto Silva Silva and Nuria González Martín, as well as the family law attorney María Virginia Aguilar.

The webinar will be held in Spanish and the details are:

Link: https://us02web.zoom.us/j/89498755044?pwd=NmFjQjAxZ2pSTW9tNVlqTC81NnM1dz09

Meeting ID: 894 9875 5044

Password: AMEDIP

Participation is free of charge.

This event will also be streamed live: https://www.facebook.com/AmedipMX

ADDE e.a.
Espace de liberté, sécurité et justice FRON ASIL J-AI
Réintroduction de contrôles aux frontières intérieures : la directive « retour » s’applique à tout ressortissant de pays tiers entré sur le territoire d’un État membre sans remplir les conditions d’entrée, de séjour ou de résidence

Juan
L’interdiction de la double incrimination ne semble pas s’opposer à l’exécution d’un mandat d’arrêt européen contre le responsable d’un système pyramidal frauduleux mis en place en Espagne et au Portugal
The prohibition of double jeopardy does not appear to preclude the execution of a European arrest warrant against the person responsible for a fraudulent pyramid scheme set up in Spain and in Portugal

Written by Dr. Delphine Porcheron, Associate Professor at the University of Strasbourg Law Faculty

On October 19 and 20, the University of Strasbourg is organizing a symposium on Reparation for “Crimes of the Past”.

Mass crimes, deportations, spoliations, colonial exploitation, slavery… The “crimes of the past” are first known to us as historical facts. Their protagonists have mostly disappeared; they have been documented by historians; almost all of them are mentioned in school textbooks. They have become part of our collective memory as disastrous episodes of a bygone past.

And yet, decades later, claims for reparation are initiated. Individuals and groups who have been materially, socially or psychologically affected by these events are turning to justice. They expect not just symbolic recognition, but genuine reparation for their losses, compensation for their suffering, and restoration of their social status.

But are State courts capable of responding appropriately to these claims? Are the law and litigation practice capable of delivering justice? What other institutional mechanisms can be implemented to this end?

These are the questions that the speakers at this symposium will attempt to answer, combining legal, historical and philosophical approaches by looking successively at “Jurisdictional avenues of reparation” and “Alternative avenues of reparation”.

The list of speakers and chairpersons includes: Magali Bessone, Jean-Sébastien Borghetti, Nicolas Chifflot, Marc Del Grande, Peggy Ducoulombier, Gabriel Eckert, Michel Erpelding, Etienne Farnoux, Samuel Fulli-Lemaire, Antoine Garapon, Bénédicte Girard, Patrick Kinsch, Marc Mignot, Horatia Muir-Watt, Etienne Muller, Dorothée Perrouin-Verbe,, Delphine Porcheron, Thibault de Ravel d’Esclapon, Mathieu Soula, Jeanne-Marie Tufféry-Andrieu, Patrick Wachsmann

For registration and more information, see here.

In a judgment of 28 June 2023, the French Supreme Court for Private and Criminal Matters (Cour de cassation) ruled that foreign states may rely on their immunity from suit in exequatur proceedings.

As a result, the court confirmed that French courts could dismiss proceedings to declare enforceable a US judgment which had retained jurisdiction over and ruled against Iran on the ground that Iran benefited from an immunity from suit in France.

Background

In Flatow v. the Islamic Republic of Iran et alii (999 F. Supp. 1 (D.D.C. 1999), see also this report of the NY Times), the US District Court for the District of Columbia ordered the Republic of Iran and other Iranian defendants to pay various members of the family of Alisa Flatow over USD 40 Million in compensatory damages and over USD 225 Million in punitive damages.

Alisa Michelle Flatow was a twenty-year-old Brandeis University student. For the 1995 spring semester, she arranged for and participated in an independent foreign study program in Israel.

While in Israel, she communicated with her father (picture), to ask whether she could travel to a community on the Mediterranean Sea with friends. He reviewed their itinerary with her, and as he believed that the Israeli government would not provide civilian passenger bus service unless it were safe to do so and he gave her permission to travel in Gaza.  On April 9, 1995, she took the number 36 Egged bus, which was traveling from Ashkelon, Israel to a Mediterranean resort in the Gush Katif community. At or about 12:05 p.m. local time, near Kfar Darom in the Gaza Strip, a suicide bomber drove a van loaded with explosives into the number 36 Egged bus, causing an explosion that destroyed the bus. Alisa Flatow died at an Israeli hospital the next day.

The Israeli government informed the father of Alisa Flatow that the Shaqaqi faction of Palestine Islamic Jihad had claimed responsibility for the bombing, and that their investigation had confirmed that claim.

In July 1996, the US Department of State’s Coordinator for Counterterrorism informed the father that the Department of State was satisfied that the group which had claimed responsibility for the bombing had in fact perpetrated the bombing, and that the Islamic Republic of Iran provided approximately two million dollars to Palestine Islamic Jihad annually in support of its terrorist activities.

Exception to Immunity from Suit under US Law

In the Antiterrorism and Effective Death Penalty Act of 1996, the US Congress lifted the immunity of foreign states for a certain category of sovereign acts which are repugnant to the United States and the international community. That Act created an exception to the immunity of those foreign states officially designated by the Department of State as terrorist states if the foreign state commits a terrorist act, or provides material support and resources to an individual or entity which commits such an act, which results in the death or personal injury of a United States citizen.

Of note is the fact that an amendment was adopted in 1996 to clarify that punitive damages were available in actions brought under the state sponsored terrorism exception to immunity. This provision of law is commonly referred to as the “Flatow Amendment.” It was applied retroactively by the US court in that case.

The US Court thus ruled that Iran did not benefit from an immunity from suit in this case.

Immunity from Suit in Exequatur Proceedings?

When the Flatows sought to declare the US judgment enforceable in France (it is unclear whether they had limited the scope of their claim to compensatory damages), the issue arose as to whether the issue of the immunity from suit could be raised by Iran in the French proceedings.

The Cour de cassation holds that the issue of immunity from suit is a procedural issue which must be addressed before ruling on whether the foreign judgment meets the requirements for being granted exequatur and thus declared enforceable. The court further rules that the findings of the US Court on the immunity of Iran under US law are irrelevant for that purpose.

The characterisation of the issue as procedural allows, in the particular context of exequatur, to avoid the critique that this might amount to reviewing the foreign judgment on the merits.

The most interesting contribution of the judgment is that Iran could invoke its immunity from suit in exequatur proceedings. The court does not explain why, but there are likely two rationales for it.

The first is that the court has ruled several times that States may not raise their immunity from enforcement to dismiss exequatur proceedings. The reason is, it seems, that exequatur is not enforcement per se, insofar as it does not attach any asset or constrain otherwise the (state) debtor. This is abstractly convincing, but, in practice, the essential reason for seeking exequatur is to allow enforcement of the judgment.

The second reason is likely that exequatur proceedings are judicial proceedings. It can seem only logical, then, to apply the immunity from suit in that context. But the subject matter of the suit is not the liability of the debtor. It is the foreign judgment, which has finally ruled on this issue. Should the foreign State be able to raise an immunity from suit in this context? Also, judgments can produce effects irrespective of exequatur and any judicial proceedings. They can be recognised. The result is that state immunity will block certain effects of the judgment only. Is it satisfactory to prevent certain effects, but allow others?

Maybe the initial decision of the Cour de cassation to exclude exequatur from the scope of immunity from enforcement was based on too abstract considerations.

No Exception under French State Immunity Law

Because it finds that Iran may invoke its immunity from suit, the Court then assesses whether the relevant acts were covered by state immunity.

Unsurprisingly, the Court finds that they were.

The Court starts with the case law of the European Court of Human Rights (citing Al-Adsani and J.C. v. Belgium) and rules that there can be no violation of the right to a fair trial and the right to access to court if the limitation is based on customary international law.

The Court then relies on the case law of the International Court of Justice (Germany v. Italy) and the ruling that, in the present state of customary international law, violations of jus cogens have no direct impact on state immunity.

Finally, the Court recalls that, in any case, it has ruled in 2011 that States which are only morally responsible for violations of jus cogens (i.e. sponsors as opposed to direct perpetrators) could not conceivably lose their immunity (one may add that the ECtHR has also ruled so in J.C. v. Belgium).

Iran could thus invoke its immunity from suit in exequatur proceedings. The exequatur proceedings are declared inadmissible.

Par un arrêt du 13 juillet 2023, la Cour de justice précise les conditions dans lesquelles peuvent statuer les juridictions d’un Etat membre mieux placées que celles de l’Etat membre dans lequel l’enfant avait sa résidence habituelle immédiatement avant son déplacement.

Sur la boutique Dalloz Code civil 2024, annoté Voir la boutique Dalloz

en lire plus

Belgique / Commission
Aide d'État
Tax rulings : les exonérations fiscales accordées par la Belgique à des sociétés faisant partie de groupes multinationaux constituent un régime d’aides illicite

On 19 and 20 October 2023, the Academic Research Federation “Europe in Change” (University of Strasbourg) is organising a Symposium on Reparation for “Crimes of the Past” (Réparer les “crimes du passé) under the scientific coordination of Bénédicte Girard, Etienne Muller and Delphine Porcheron. The event will be held in French.

A number of presentations will focus on private international law issues, in particular international litigation on public and private liability (e.g., State immunity and private compensation).

Mass crimes, deportations, spoliations, colonial exploitation, slavery… The “crimes of the past” are first known as historical facts. Their protagonists have mostly disappeared; they have been documented by historians; almost all of them are mentioned in school textbooks. They have become part of our collective memory as disastrous episodes of a bygone past.

And yet, decades later, claims for reparation are initiated. Individuals and groups who have been materially, socially or psychologically affected by these events are turning to justice. They expect not just symbolic recognition, but genuine reparation for their losses, compensation for their suffering, and restoration of their social status.

But are State courts capable of responding appropriately to these claims? Are the law and litigation practice capable of delivering justice? What other institutional mechanisms can be implemented to this end?

These are the questions that the speakers at this symposium will attempt to answer, combining legal, historical and philosophical approaches by looking successively at “Jurisdictional avenues of reparation” (Part I) and “Alternative avenues of reparation” (Part II).

The list of speakers and chairpersons includes : Magalie Bessone, Jean-Sébastien Borghetti, Nicolas Chifflot, Marc Del Grande, Peggy Ducoulombier, Gabriel Eckert, Michel Erpelding, Etienne Farnoux, Samuel Fulli-Lemaire, Antoine Garapon, Bénédicte Girard, Patrick Kinsch, Marc Mignot, Horatia Muir-Watt, Etienne Muller, Dorothée Perrouin-Verbe, Delphine Porcheron, Thibault de Ravel d’Esclapon, Mathieu Soula, Jeanne-Marie Tufféry-Andrieu, Patrick Wachsmann.

For registration and more information, see here. The full programme is available here.

The Ineradicable Special Consumer Conflicts Rule

This post is not about Article 6 Rome I, but about Article 6 of the Unfair Terms Directive (UTD). Paragraph 2 of this provision invalidates any choice of law of a non-EU Member State that would result in the consumer losing the protection afforded by the UTD, provided there is a ‘close connection with the territory of the Member States’.

There have been similar conflict-of-laws provisions hidden in secondary EU legislation outside the Rome I Regulation. They have however been increasingly eliminated from EU law, leading Felix Wilke to speak about their ‘silent death’.  Not so Article 6(2) UTD, which has neither died nor been amended since the Directive’s adoption in 1993.

A Question of Substantive Scope

What is the precise scope and operation of this provision? This issue became relevant in a recent decision by the CJEU in the Lyoness case (8 June 2023, Case C-455/21). A Romanian resident had entered over the internet into a membership contract with a Swiss company, providing him with certain benefits such as refunds when shopping with companies associated to the scheme. The contract was not connected to his profession as a mechanical engineer.

In the end, the contract turned out to be not so favourable after all. The Romanian resident therefore brought an action in a court in his home country, seeking a declaration that some of its terms are ‘unfair’ within the meaning of the Romanian law transposing the UTD. The Romanian court referred a request for a preliminary ruling to the CJEU concerning the substantive scope of the Directive, in particular the notion of the ‘consumer’.

Everywhere You Go, Always Take Consumer Protection With You?

Before answering the question referred, the CJEU discusses as a ‘preliminary point’ whether the case falls within the geographical scope of the Directive (paras 37–45). This was not self-evident because the membership contract contained a choice of Swiss law. Yet the CJEU overcomes these doubts by referring to Article 6(2) UTD (and also to Article 6(2) Rome I, which however does not play any role in the rest of the decision) (para 39).

Then, the CJEU derives a most remarkable conclusion from Article 6(2) UTD: where a contractual clause designates the law of a third country as applicable and the consumer has his or her habitual residence in a Member State, the national court must apply the provisions transposing the UTD into the legal order of that Member State (para 45). Taken literally, this would mean that the provision on unfair terms of their country of residence protects EU consumers everywhere. It would cover them like a shield they carry, even when they become ‘active consumers’ and go to a third country to acquire products and services there.

Making Sense of It All

Evidently, this goes too far. The CJEU neglects that Article 6(2) UTD is conditioned on ‘a close connection with the territory of the Member States’. This may be a slip of the hand. Yet this condition is itself problematic because its formulated very vaguely, especially in comparison to the much more precise criteria provided later by the Rome I Regulation.

The rather obvious solution to this problem would be to interpret this connection in line with Article 6 Rome I, especially its para 1 and 4(a). The CJEU and the European Commission, however, think otherwise. They suggest Article 6(2) UTD would grant consumers extra protection because the conditions of its application would be broader than that of Article 6 Rome I or its forerunner, Article 5 of the Rome Convention (see CJEU, Commission v Spain, Case C-70/03, para 33; European Commission, Guidance on the Interpretation and Application of the UTD, para 1.2.5). But just how broad is this protection?

Member States have identified additional cases in which unfair terms control could apply beyond those mentioned in the Rome I Regulation, e.g. where the contract was concluded on their territory (see Article L231-1 French Code de la consommation), or where the contract concerns domestic immovable property (Article 78(4) Italian Codice del consumo; Article 3 Spanish Ley 7/1998, de 13 de abril, sobre condiciones generales de la contratación). Some Member States require a comparison with the law that would be applicable in the absence of a choice of law (§ 13a Austrian Konsumentenschutzgesetz), while still others presume a close connection would exist in the cases mentioned in Article 6 Rome I, yet leave open the application to other cases (see Article 46b German EGBGB).

This situation is messy. EU consumers will not be protected in the same way, but depending on the court in which they sue. This creates divergences in the level of consumer protection, opens up opportunities for forum shopping, and makes the applicable law unforeseeable.

Conclusion

A specific conflict-of-laws rule in the UTD is unnecessary. The main protective purpose of Article 6(2) UTD was achieved by introducing the EU-wide uniform Article 6(2) Rome I. A further protection may even do more harm than good because it makes the international scope of the UTD dependent on Member States’ implementation. The gain in consumer protection is negligible when weighed against the legal uncertainty caused. Article 6(2) UTD has outlived its usefulness and should be abolished. In the meantime, it should be interpreted in line with the criteria laid down for the international application of EU consumer law in Article 6 Rome I to avoid divergences between national laws as far as possible.

One more general remark: mandatory rules on the scope as well as overriding mandatory rules in special EU acts risk undermining the uniformity of conflicts rules and the foreseeability of the applicable law. A further important drawback of such rules is that they only protect EU-residents and not those of third states, which fuels ‘EU unilateralism’ and breaks with the universalism of EU PIL. If the conflict rules are insufficient, the way to go is to amend them and not to add unilateral conflicts provisions hidden in substantive rules.

— Many thanks to Emeric Prévost, Felix Wilke, Verena Wodniansky-Wildenfeld, Felix Krysa and Paul Eichmüller for helpful comments.

The Court of Justice delivered a few days ago (14 September 2023) its judgment in case C‑632/21 (JF, NS v Diamond Resorts Europe Limited (Sucursal en España), Diamond Resorts Spanish Sales SL, Sunterra Tenerife Sales SL), which is about the applicability of Rome I and its Article 6:

“1. The provisions of [Rome I] are applicable, in the context of a dispute before a court of a Member State, to contracts the two parties of which are United Kingdom nationals, to the extent that those contracts have a foreign element.

2. Article 6(2) of Regulation No 593/2008 must be interpreted as meaning that:

–        where a consumer contract fulfils the requirements laid down in Article 6(1) of that regulation, the parties to that contract may, in accordance with Article 3 of that same regulation, choose the law applicable to that contract, provided, however, that that choice does not result in depriving the consumer concerned of the protection afforded to him or her by provisions that cannot be derogated from by agreement by virtue of the law which, in the absence of choice, would have been applicable on the basis of Article 6(1), which provides that such a contract is to be governed by the law of the country where the consumer has his or her habitual residence;

–        in view of the mandatory and exhaustive nature of that same Article 6(2), it is not possible to derogate from that provision for the benefit of legislation allegedly more favourable to the consumer”.

Source: https://curia.europa.eu/juris/document/document.jsf?mode=DOC&pageIndex=0&docid=277406&part=1&doclang=EN&text=&dir=&occ=first&cid=94681

The Court of Justice delivered a few days ago (14 September 2023) its judgment in case C‑821/21 (NM v Club La Costa (UK) plc, sucursal en España, CLC Resort Management Ltd, Midmark 2 Ltd, CLC Resort Development Ltd, European Resorts & Hotels SL), which is about Articles 18 and 63 Brussels I bis as well as Articles 3 and 6 Rome I:

“1. Article 18(1) of [Brussels I bis] must be interpreted as meaning that the expression ‘other party to a contract’, in that provision, must be understood as referring only to the natural or legal person who is a party to the contract in question and not to other persons, not parties to that contract, even if they are connected with that person.

2. Article 63(1) and (2) of Regulation No 1215/2012 must be interpreted as meaning that the determination, in accordance with that provision, of the domicile of the ‘other party to a contract’, within the meaning of Article 18(1) of that regulation, does not constitute a limitation of the choice which the consumer may make under that Article 18(1). In that regard, the clarifications provided in Article 63(2) concerning the concept of ‘statutory seat’ constitute autonomous definitions.

3. Article 3 of [Rome I] must be interpreted as not precluding a choice-of-law clause in the general terms and conditions of a contract or in a separate document to which that contract refers and which has been provided to the consumer, provided that that clause informs the consumer that he or she enjoys, in any event, under Article 6(2) of that regulation, the protection afforded to him or her by the mandatory provisions of the law of the country in which he or she has his or her habitual residence.

4. Article 6(1) of Regulation No 593/2008 must be interpreted as meaning that where a consumer contract fulfils the requirements set out in that provision and in the absence of a valid choice of law applicable to that contract, that law must be determined in accordance with that provision, which may be relied on by both parties to that contract, including the professional, notwithstanding the fact that the law applicable to the contract in accordance with Articles 3 and 4 of that regulation may be more favourable to the consumer”

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=277408&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=1961282

The Court of Justice delivered a few days ago (14 September 2023) its judgment in case C‑393/22 (EXTÉRIA s.r.o. v Spravime, s.r.o.), which is about Article 7(1)(b) Brussels I bis.

Decision: “Article 7(1)(b) [Brussels I bis] must be interpreted as meaning that a contract to enter into a future contract relating to the future conclusion of a franchise agreement which provides for an obligation to pay a contractual penalty based on non-performance of that contract to enter into a future contract, the breach of which serves as a basis for a claim, does not fall within the concept of a contract for the ‘provision of services’ within the meaning of that provision. In such a case, jurisdiction over a claim on which that obligation serves as a basis is determined, in accordance with Article 7(1)(a) of that regulation, by reference to the place of performance of that obligation”.

Facts: “The applicant in the main proceedings, which provides consultancy services in the field of occupational safety and health, and the defendant in the main proceedings concluded, on 28 June 2018, a contract to enter into a future contract relating to the future conclusion of a franchise agreement (‘the contract to enter into a future contract’) which would enable the defendant in the main proceedings to operate and manage franchised branches of the applicant in the main proceedings in Slovakia. That contract to enter into a future contract contained, in addition to the obligation to conclude that contract in the future, certain contractual terms and conditions and an undertaking on the part of the defendant in the main proceedings to pay an advance of EUR 20 400, exclusive of value added tax, and, in the event of failure to comply with that obligation, a contractual penalty equal to the amount of that advance (‘the contractual penalty’).

6 That advance, the purpose of which was not only to guarantee that obligation but also to preserve the confidentiality of all the information contained in that contract to enter into a future contract relating to the franchise concept of the applicant in the main proceedings, had to be paid within 10 days of the signing of that contract to enter into a future contract. In addition, the latter gave the applicant in the main proceedings the right to withdraw if the defendant in the main proceedings did not pay it the agreed fee within the prescribed period.

7 The contract to enter into a future contract provided for the application of Czech law, without any agreement on jurisdiction having been concluded.

8 Alleging that the defendant in the main proceedings had failed to fulfil its obligation to pay the advance in question, the applicant in the main proceedings withdrew from the contract to enter into a future contract and claimed payment of the contractual penalty.

9 To that end, it brought a European order for payment procedure before the Okresní soud v Ostravě (District Court, Ostrava, Czech Republic).

10 By order of 17 December 2020, that court dismissed the plea of lack of jurisdiction of the Czech courts raised by the defendant in the main proceedings and held that it had jurisdiction to hear the dispute at issue on the basis of Article 7(1)(a) of the Brussels I bis Regulation, since that dispute concerned the performance of an obligation, within the meaning of that provision, namely the obligation to pay the contractual penalty, which had to be performed at the place where the applicant in the main proceedings had its registered office.

11 In the appeal against that order, the defendant in the main proceedings invoked the jurisdiction of the Slovak courts on the ground that the obligation secured by that contractual penalty, which admittedly had its source in the contract to enter into a future contract, was nevertheless linked to the place of production and delivery of the goods under the franchise agreement which was to be concluded.

12 By an order of 16 February 2021, the Krajský soud v Ostravě (Regional Court, Ostrava, Czech Republic), as the court of appeal, upheld the decision at first instance, holding that the subject matter of the action was the right to payment of the contractual penalty on account of non-compliance, by the defendant in the main proceedings, of the terms of the contract to enter into a future contract and was therefore not related to the production or delivery of goods, so that Article 7(1)(b) of the Brussels I bis Regulation did not apply. Accordingly, jurisdiction should be determined in accordance with Article 7(1)(a) of that regulation, under which the court having jurisdiction is the court for the place of performance of the obligation in question, and that place must be determined in accordance with the law of the court seised, in the present case Czech law.

13 The defendant in the main proceedings brought an appeal on a point of law against that order before the Nejvyšší soud (Supreme Court, Czech Republic), the referring court, claiming that the nature of the right to payment of the contractual penalty had not been correctly assessed.

14 Referring to the Court’s settled case-law on the interpretation of the concept of ‘matters relating to a contract’ (judgments of 17 June 1992, Handte, C‑26/91, EU:C:1992:268, paragraph 15, and of 15 June 2017, Kareda, C‑249/16, EU:C:2017:472, paragraph 30), that court concludes that the dispute before it, concerning entitlement to payment of the contractual penalty, has its origin in the contract to enter into a future contract, so that that dispute falls within the concept of ‘matters relating to a contract’ within the meaning of Article 7(1) of the Brussels I bis Regulation.

15 Since, according to that court, that right is not linked to the production or delivery of goods, the application of the first indent of Article 7(1)(b) should be ruled out from the outset.

16 It is then necessary to determine whether it is not a right relating to a ‘provision of services’ within the meaning of the second indent of Article 7(1)(b) thereof.

17 The referring court points out that there are two possible solutions for the purposes of determining the court with international jurisdiction, namely one would be to classify the contract to enter into a future contract as an autonomous contract, and the other would be to determine the nature of the rights resulting from the contract to enter into a future contract on the basis of the nature of the contract to be concluded.

18 In the light of the Court’s case-law, the mere conclusion of a contract to enter into a future contract does not constitute a provision of services, within the autonomous meaning of EU law as a contract involving the performance of an activity by means of positive acts for the benefit of another person in return for remuneration (see, to that effect, judgments of 23 April 2009, Falco Privatstiftung and Rabitsch, C‑533/07, EU:C:2009:257; of 14 July 2016, Granarolo, C‑196/15, EU:C:2016:559; and of 25 March 2021, Obala i lučice, C‑307/19, EU:C:2021:236), so that the Nejvyšší soud (Supreme Court) is inclined to conclude that that contract to enter into a future contract does not fall within the scope of the second indent of Article 7(1)(b) of the Brussels I bis Regulation.

19      Consequently, in accordance with Article 7(1)(c) thereof, according to which Article 7(1)(a) applies if Article 7(1)(b) does not apply, the court with jurisdiction should be determined by reference to the place of performance of the obligation in question.

20 In so far as the Court has not yet expressly addressed the question whether a pactum de contrahendo can be classified as a ‘contract for services’, there is reasonable doubt as to the correct interpretation of Article 7(1)(b) of the Brussels I bis Regulation.

21 In those circumstances, the Nejvyšší soud (Supreme Court) decided to stay proceedings and to refer the following question to the Court for a preliminary ruling:

‘Must Article 7(1)(b) of [the Brussels I bis] Regulation be interpreted as meaning that the concept “contract for the provision of services” also includes a contract to enter into a future contract (pactum de contrahendo), in which the parties undertook to enter into a future contract that would be a contract for the provision of services, within the meaning of that provision?’”

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=277414&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=2440337

On 21 September 2023 at 17 CET Lex&Forum, in collaboration with Εκδοσεισ Σακκουλα – Sakkoulas Publications, will be holding an online day conference titled Environmental claims in Private International Law.

The webinar aims to shed light on the intersection between environmental claims and private international law.

Charis Pamboukis (Law School of the National and Kapodistrian University of Athens) will chair. Speakers include: Geert Van Calster (KU Leuven), Climate justice litigation and private international law; Ioannis Revolidis (University of Malta), Collective redress in environmental matters: outlooks through the Volkswagen litigation saga; Komninos Komnios (International Hellenic University, Plenary of the Greek Regulatory Authority for Energy (RAE)), The ‘Climate Trial’: Procedural Issues; Elina Moustaira (Law School of the National and Kapodistrian University of Athens (EKPA)), Environmental claims in cross-border insolvency; Vasiliki Marazopoulou (PhD, Lawyer), Climate Change Resolution of Disputes: Identifying Legislative and Regulatory tools in international commercial arbitration.

Registration is free and open until 20 September 2023 at 11 CET.

In order to register for the webinar, click here.

For further information, see here.

The Series Editors of International and Comparative Business Law and Public Policy are hosting a book launch and cocktail party to celebrate the publication of Blockchain & Private International Law, edited by Andrea Bonomi, Matthias Lehmann, and Shaheeza Lalani (reviewed here by Christina Blanchet Valle).

The hybrid event will take place on 5 October, 5pm Swiss Time, both at the University of Lausanne, IDHEAP, AULA, and online (Zoom-Link).

The 2023 Annual Conference of the Chinese Society of Private International Law was held on 14-16 of September in Wuhan, PRC. This is probably the most important academic event for Chinese scholars specializing and researching in the area of private international law. This year, there were more than 300 participants.

After the HCCH Asia Pacific Week in Hong Kong, the Secretary General of the HCCH, Dr. Christophe Bernasconi was invited to attend the conference and give a speech. He was also invited to act as a commentator for a panel of plenary session which was conducted in English.

The European Association of Private International Law, together with the Department of Law, Economics and Cultures of the University of Insubria (Italy), with the Law Faculty of the University of Murcia (Spain) and the Law Faculty of the Jagiellonian University in Kraków (Poland), is organising the first EAPIL Winter School. This inaugural edition will be devoted to Personal Status and Family Relationships.  

The Winter School will be held on-site in Como, in the wonderful cloister of the Basilica di Sant’Abbondio, from 12 to 16 February 2024. 

The lectures will address recent aspects and new trends regarding personal status and family relationships in cross-border situations. The following topics, among others, will be discussed: the principle of mutual recognition, to the transnational safeguard of human rights in Europe, to the continuity of the status cross-border. Both Hague conventions and EU legislative measures will be examined, under an approach combining theory and practice, and making ample room for interaction with the attendees. 

The lecturers are academics, magistrates and practising lawyers. Among them: Paula Poretti and Mirela Župan (J.J. Strossmayer University of Osijek), Anna Wysocka-Bar (Jagiellonian University in Kraków), Laura Carpaneto (University of Genova), Cristina González Beilfuss (University of Barcelona), Etienne Pataut (University Paris 1 Sorbonne), Javier Carrascosa González (University of Murcia), Silvia Marino (University of Insubria).

The Winter School is aimed at PhD students, young scholars, young practitioners and EU private international lovers!

Participation in the Winter School will additionally provide an opportunity to get in touch with colleagues from all over Europe, make new friends and enjoy the Como Lake! 

The final programme of the Winter School will be available shortly.

For information, please write an e-mail to Silvia Marino at silvia.marino@uninsubria.it.

Un arrêt contre l’Italie replace la délicate question des mineurs non accompagnés sur le devant de la scène européenne. Si les arrêts de violation de la convention européenne des droits de l’homme en raison du placement d’un mineur dans un centre pour adulte sont connus, celui-ci insiste, en plus, sur l’absence de suivi psychologique d’une mineure en détresse.

Sur la boutique Dalloz Code de l’action sociale et des familles 2023, annoté et commenté Voir la boutique Dalloz

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La limitation du nombre de licences de services de véhicule de tourisme avec chauffeur (VTC) dans l’agglomération de Barcelone est contraire au droit de l’Union européenne, et notamment au principe de la liberté d’établissement. En revanche, exiger l’obtention d’une licence supplémentaire à celle prévue au niveau national peut s’avérer nécessaire pour la bonne gestion du transport, du trafic et de l’espace public ainsi que pour la protection de l’environnement.

Sur la boutique Dalloz Droit des transports 2023/2024 Voir la boutique Dalloz

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Le ralentissement de l’activité de la Cour européenne des droits de l’homme (CEDH), traditionnellement observé pendant les deux mois de plein été, a été compensé en 2023 par l’importance d’arrêts rendus sur des questions graves et complexes tenant à l’assujettissement de la lex sportiva aux exigences de la CEDH, à la lutte contre la constitution de « casiers judiciaires virtuels », aux fouilles corporelles intégrales, au recours à la technique de la reconnaissance faciale, à l’application de la clause couperet de l’article 17 ou aux violences parapolicières exercées contre les membres d’un groupe punk. La satisfaction des besoins élémentaires au cours d’une garde à vue, l’inexécution des décisions de justice favorables aux personnes vulnérables, le placement en isolement total des pensionnaires de maisons de retraite, encore le regroupement familial et pour une fois l’application rétroactive de la loi pénale plus douce, ont également aidé à nourrir l’intérêt de la jurisprudence estivale.

Sur la boutique Dalloz Code de procédure pénale 2024, annoté Voir la boutique Dalloz

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The recently published Volume 428 of the Collected Courses of the Hague Academy of International Law includes a course by Mario J. A. Oyarzábal (Argentine Ambassador to the Netherlands, Member of the United Nations International Law Commission, Professor at the University of La Plata Law School) on The Influence of Public International Law upon Private International Law in History and Theory and in the Formation and Application of the Law.

This course explores the influence of public international law upon private international law, in the history and the theory as well as in the formation and the application of the law. It focuses on the biggest transformations that have taken place on the international plane over the course of the last century and assesses how that has affected the legal landscape, raising questions as to the scope and the potential of private international law and the suitability of the traditional sources of international law to address the role of private actors and the incursion of public law in the private arena. Examples are drawn from the areas of jurisdictional immunities and their impact on the right of access to justice, mutual legal assistance, sovereign debt restructuring, child protection, sports, arts law, cyberspace, and issues related to law of the sea and climate change. This course takes a pragmatic problem-solving approach, which nonetheless is systemic and based on principles, and argues that while public and private international law are and should be kept as separate legal fields, both are needed to address an increasing number of issues.

Further details about this course are available here.