Agrégateur de flux

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.

NADA e.a.
Principes du droit communautaire PDON
Lutte contre le dopage et protection des données : l’avocate générale Ćapeta considère qu’une autorité nationale de lutte contre le dopage qui publie sur Internet des données à caractère personnel d’un sportif professionnel dopé ne viole pas le RGPD 

TGSS (Refus du complément de maternité)
Discrimination fondée sur le sexe en Espagne : les pères de deux enfants ou plus contraints d’aller en justice pour bénéficier d’un complément à leur pension d’invalidité ont droit à une indemnisation supplémentaire

Tuk Tuk Travel
Rapprochement des législations PROT
Résiliation de voyages à forfait en cas de circonstances exceptionnelles : une juridiction nationale peut, sous certaines conditions, informer d’office le voyageur de son droit de résiliation sans frais

Volkswagen Group Italia et Volkswagen Aktiengesellschaft
Espace de liberté, sécurité et justice
Le principe ne bis in idem s’applique aux sanctions infligées en matière de pratiques commerciales déloyales qualifiées de sanctions administratives de nature pénale

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published. The table of contents is available here. The following abstracts have been kindly provided to us by the editor of the journal.

C. Budzikiewicz/K. Duden/A. Dutta/T. Helms/C. Mayer, The European Commission’s Parenthood Proposal – Comments of the Marburg Group

The Marburg Group – a group of German private international law scholars – reviewed the European Commission’s Proposal for a Council Regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood. The Group welcomes the initiative of the Commission and embraces the overall structure of the Parenthood Proposal. Nevertheless, it suggests some fundamental changes, apart from technical amendments. The full article-by-article comments of the Group with redrafting suggestions for the Commission Proposal are available at http://www.marburg-group.de. Building on the comments, the present article authored by the members of the Marburg Group focuses on the main points of critique and considers the present state of discussion on the proposed Regulation.

U.P. Gruber, A plea against ex post-adaptation of spousal inheritance rights

Adaptation is recognized as a tool to eliminate the lack of coordination between the provisions of substantive law derived from different legal systems. According to a widespread view, adaption is very often necessary with regard to the spouse’s share in the deceased’s estate, namely if the matrimonial property regime and questions relating to succession are governed by different laws. However, in this article, the author takes the opposite view. Especially in light of the ECJ’s classification of paragraph 1371(1) BGB as a provision dealing with succession, there are new solutions which render ex post adaptations superfluous.

M. Mandl, Apparent and virtual establishments reflected through Art. 7 No. 5 Brussels Ia Regulation and Art. 19 (2) Rome I Regulation

The Federal Court of Justice (Bundesgerichtshof – BGH) has ruled that a dispute has the required connection to the operation of an (existing) establishment pursuant to Article 7 (5) Brussels Ia Regulation if the business owner operates an internet presence that gives the appearance of being controlled by this establishment instead of the company’s central administration and the contract in dispute was concluded via this internet presence. This decision provides an opportunity to examine the prerequisites and legal consequences of apparent establishments and so-called virtual establishments (internet presences) from a general perspective, both in the context of Article 7 (5) Brussels Ia Regulation and in connection with Article 19 (2) Rome I Regulation.

D. Nitschmann, The consequences of Brexit on Civil Judicial Cooperation between Germany and the United Kingdom

The United Kingdom’s withdrawal from the European Union has far-reaching consequences for international civil procedure law. This is exemplified by the decisions of the Higher Regional Court of Cologne for the international service of process. Since the European Regulation on the Service of Documents no longer applies to new cases, the Brexit leads to a reversion to the Hague Service Convention and the German-British Convention regarding Legal Proceedings in Civil and Commercial Matters. Of practical relevance here is, among other things, the question of whether and under what conditions direct postal service remains permissible.

R.A. Schütze, Security for costs of english plaintiffs in Austrian litigation

The judgment of the Austrian Supreme Court (Oberster Gerichtshof – OGH) of 29 March 2022 deals with the obligation of English plaintiffs to provide security for costs according to sect. 57 Austrian Code of Civil Procedure. The principle stated in para. 1 of this section is that plaintiffs of foreign nationality have to provide security for costs. But an exception is made in cases where an Austrian decision for costs can be executed in the country of residence of the plaintiff.
The OGH has found such exception in the Hague Convention 2005 on Choice of Court Agreements. As the United Kingdom has, on 28 September 2020, declared the application of the Hague Convention 2005 for the United Kingdom, the Convention is applicable between Austria and the United Kingdom despite the Brexit. The Hague Convention opens the possibility to recognition and execution of judgments rendered under a choice of court agreement including decisions on costs.

Th. Garber/C. Rudolf, Guardianship court authorisation of a claim before Austrian courts – On international jurisdiction and applicable law for the grant of a guardianship court authorization

The Austrian court has requested court approval for the filing of an action by a minor represented by the parents. The international jurisdiction for the granting of a guardianship court authorisation is determined according to the Brussels II-bis Regulation or, since 1.8.2022, according to the Brussels II-ter Regulation. In principle, the court competent to decide on the action for which authorization by the guardianship court is sought has no corresponding annex competence for the granting of the authorization by the guardianship court: in the present case, the Austrian courts cannot therefore authorize the filing of the action due to the lack of international jurisdiction. If an Austrian court orders the legal representative to obtain the authorization of the guardianship court, the courts of the Member State in which the child has his or her habitual residence at the time of the application have jurisdiction. In the present case, there is no requirement for approval on the basis of the German law applicable under Article 17 of the Hague Convention 1996 (§ 1629 para 1 of the German Civil Code). The Cologne Higher Regional Court nevertheless granted approval on the basis of the escape clause under Article 15 para 2 of the Hague Convention 1996. In conclusion, the Cologne Higher Regional Court must be agreed, since the escape clause can be invoked to protect the best interests of the child even if the law is applied incorrectly in order to solve the problem of adaptation.

M. Fornasier, The German Certificate of Inheritance and its Legal Effects in Foreign Jurisdictions: Still Many Unsettled Issues

What legal effects does the German certificate of inheritance („Erbschein“) produce in other Member States of the EU? Is it a reliable document to prove succession rights in foreign jurisdictions? More than one decade after the entry into force of the European Succession Regulation (ESR), these questions remain, for the most part, unsettled. In particular, commentators take differing views as to whether the Erbschein, being issued by the probate courts regardless of whether the succession is contentious or non-contentious, constitutes a judicial decision within the meaning of Article 3(1)(g) ESR and may therefore circulate in other Member States in accordance with the rules on recognition under Articles 39 ESR. This article deals with a recent ruling by the Higher Regional Court of Cologne, which marks yet another missed opportunity to clarify whether the Erbschein qualifies as a court decision capable of recognition in foreign jurisdictions. Moreover, the paper addresses two judgments of the CJEU (C-658/17 and C-80/19) relating to national certificates of inheritance which, unlike the German Erbschein, are issued by notaries, and explores which lessons can be learned from that case-law with regard to certificates of inheritance issued by probate courts. In conclusion, it is submitted that, given the persisting uncertainties affecting the use of the Erbschein in foreign jurisdictions, the European Certificate of Succession provided for by the ESR is better suited for the settlement of cross-border successions.

E. Vassilakakis/A. Vezyrtzi, Innovations in International Commercial Arbitration – A New Arbitration Act in Greece

On 4.2.2023 a new Arbitration Act came into effect in Greece. It was approved by means of Law No. 5016/2023 on international commercial arbitration, and was enacted in order to align the regime of international commercial arbitration with the revision of the UNCITRAL Model Law on International Commercial Arbitration adopted in 2006 (hereinafter the revised Model Law). The new law contains 49 arbitration-related provisions and replaces the Law No. 2735/1999 on international commercial arbitration, while domestic arbitration continues to be regulated by Art. 867–903 of the Greek Code of Civil Procedure (hereinafter grCCP). A reshaping of Art. 867 ff. grCCP was beyond the “mission statement” of the drafting Committee.1 Besides, it should also be associated with a more extensive and, in consequence, time-consuming reform of procedural law. Hence, the dualist regime in matters of arbitration was preserved.
Pursuant to Art. 2, the new law incorporates on the one hand the provisions of the revised Model Law and on the other hand the latest trends in international arbitration theory and practice. Therefore, it is not confined to a mere adjustment to the revised Model Law, but also includes several innovative provisions that merit a brief presentation.

C. Rüsing, Dialogue International Family Law, 28th – 29th April, Münster, Germany

The post below was written by Giuditta Cordero-Moss, who is a Professor at the Department for Private Law, University of Oslo. It is the sixth and concluding contribution to the EAPIL online symposium on the English Law Commission’s proposed reform of the law governing arbitration agreements. The previous posts of Alex Mills, Manuel Penades, George Bermann, Sylvain Bollée and Matthias Lehmann can be found here, here, here, here and here.

Readers are encouraged to participate in the discussion by commenting on the posts. 

We are aware that some users are experiencing technical issues while posting comments: while we fix these issues, comments may be sent to Ugljesa Grusic (u.grusic@ucl.ac.uk). 

In this online symposium, we addressed one particular aspect of the Final Report on the Review of the Arbitration Act 1996 rendered by the Law Commission of England and Wales: the choice of the law applicable to the arbitration agreement.  The Law Commission recommends reversing the law as stated in the known UK Supreme Court decisions Enka (Enka v Chubb [2020] UKSC 38), and Kabab-Ji (Kabab-Ji SAL (Lebanon) v Kout Food Group (Kuwait) [2021] UKSC 48). Among other things, these decisions established that the choice of law made by the parties in their commercial contract applies also to the arbitration agreement.

Arbitration agreements are often contained in an arbitration clause which is part of a larger contract regulating the commercial relationship between the parties (which the Law Commission defines as the “matrix contract”, and I refer to as the “main contract”). Often, the main contract contains, in addition to the arbitration clause, a choice of law clause subjecting the contract to a certain law. The question is whether the choice of law made by the parties for the main contract also covers the arbitration clause. According to the Supreme Court, it does; according to the Law Commission, it does not.

In the Law Commission’s Final Report, the law chosen by the parties for the main contract applies to the arbitration clause only if it was expressly and specifically also made for the arbitration agreement. Failing an express and specific choice, the Report recommends that the arbitration agreement be subject to the law of the place of arbitral seat. This default rule is aligned with the New York Convention provision in article V(1)(a) and with the UNCITRAL Model Law provision in article 34(2)(a)(i), and will not be commented any further here, other than to commend the Law Commission for having recommended a clear rule harmonised with international sources.

The spirit of the reform is clear: party autonomy is respected, but subject to the principle of severability – although Manuel Penades points out in his post that the wording suggested by the Law Commission may give rise to some uncertainties.

The recommendation’s rationale is explained in sections 12.17-20 of the Final Report: the aim is to give a clear rule and to align the law applicable to the arbitration agreement with the law applicable to the arbitral procedure – which, incidentally, permits to apply English law to arbitration agreements that are to be performed in England.

A Restriction to Party Autonomy?

There is a general acceptance that the arbitration agreement may be subject to a law different from that governing the main agreement (see, for France, Cour de cassation, 28 September 2022, n° 20-20.260 (Kabab-Ji); for Sweden, ; for Germany,  BGH 26 November 2020, I-ZR 245/19 (Mace-Flower)). However, opinions diverge on the effects for the arbitration agreement of a choice of law contained in the main contract and that does not specifically refer to the arbitration agreement.

Alex Mills argues in his post that the Law Commission does not persuasively explain why the policies mentioned in the Report should trump the principle of party autonomy. Likewise, George Bermann finds that the law chosen by the parties should be given respect even though it does not specifically mention the arbitration agreement.

The question is, however, whether the Law Commission’s proposal represents a restriction of party autonomy. If the parties to a contract subject to the law of Ruritania decide to submit disputes between them to arbitration in England, are they more likely to expect that their arbitration agreement is subject to the law of Ruritania or to the law of England?

The arbitration agreement is the source of the arbitral tribunal’s powers. Subjecting it to the law applicable to the arbitral proceedings may turn out to be more compatible with the parties’ expectations than a scenario in which the law of Ruritania has a say on the existence and scope of the arbitral tribunal’s powers in an arbitration that, according to the parties’ choice, is to be carried out in England.

Severability and Choice of Law

The arbitration agreement is to be deemed a separate agreement, even where it is a clause within the main contract. This is confirmed, i.a., in article 16(1) of the UNCITRAL Model Law.

Without falling into excessive dogmatism, as correctly warned against in the post by Matthias Lehmann, the principle of severability has important practical consequences.

The purpose of severability is to preserve the integrity of the arbitration agreement; if there were no severability, any issues relating to the existence, validity or termination of the contractual relationship would affect the arbitration agreement. Questioning the validity of the contract would be sufficient to affect the whole basis of the arbitral process in which the contract’s validity is an issue. The question is how far severability reaches: does it cover only the validity of the arbitration agreement, or also its applicable law?

George Bermann correctly assumes, in his post, that parties who choose the arbitration seat only choose the arbitration law of that country. He concludes that rules on the arbitration agreement fall outside of this choice. Arguably, however, the arbitration law covers also questions relating to the arbitration agreement and its effects – both the New York Convention and the UNCIRAL Model Law, to name two examples, have rules precisely on this, and there is no doubt that they can be defined as arbitration law. By choosing the seat for their arbitral proceedings and the arbitration law applicable to them, therefore, parties may well have expected that their choice would cover also questions regarding the arbitration agreement.

The UK Supreme Court argues in Enka that the arbitration clause should be dealt with like any other clause in the agreement. Surprisingly, instead of concluding that the parties’ choice of law consequently directly applies to the arbitration clause, the majority in Enka states that choice of law for the main agreement amounts to an implied choice of law for the arbitration agreement. According to the minority, this choice creates a presumption that the law was chosen also for the arbitration agreement.

The Law Commission correctly points out in sections 12.34-38 that this reasoning lacks internal logic: if the arbitration agreement is a clause like any other clause in the main contract, shouldn’t the parties’ choice of law be deemed to be an expressed choice of law, just like it is for any other cause of the contract? Why is it defined as implied, or presumed? The severability principle prevents drawing a full equivalence of the arbitration agreement with any other clauses of the contract; but an implicit, or presumed, equivalence, is assumed after all.

A comparative view supports the Law Commission’s proposal.

Indirectly, some of the most arbitration-friendly national arbitration laws confirm that the law chosen by the parties for the main contract not necessarily is the law governing the arbitration agreement: Article 178(2) of the Swiss Private International Law Act, as well as Article 9(6) of the Spanish Arbitration Act, are based on the validation principle. According to these provisions, an arbitration agreement is valid if it complies with the requirements contained in (i) the law chosen by the parties to govern the arbitration agreement, (ii) the law applicable to the main contract, or (iii) the lex fori. If a choice of law for the main contract had the effect to select the law applicable to the arbitration agreement, it would not be necessary to list the law chosen by the parties as one of three alternatives.

Also under French law, the parties’ choice in the main agreement does not apply to the arbitration agreement – although this is the consequence of a special understanding of arbitration as an autonomous legal order, as Sylvain Bollée explains in his post.

According to Swedish courts, the principle of severability implies that the arbitration agreement is subject to the lex arbitri, irrespective of any choice the parties may have made for the main contract (Svea Court of Appeal, 20 May 2015, T 8043-13).

Indeed, it seems artificial to affirm that the validity of the arbitration agreement is to be examined separately, while the law applicable to the validity is the same as the law applicable to the main agreement. This does not to correspond to the practice of arbitration either.

Parties rarely specify the law governing their arbitration agreement. Usually, model Arbitration clauses recommended by arbitration institutions or, for ad hoc arbitration, by the UNCITRAL, do not contain a choice of law specific for arbitration either. The Model clauses may suggest adding which law governs the contract, but this applies to the merits of the dispute, not to the procedural aspects of the arbitration, as is confirmed by the wording suggested by the LCIA (‘The governing law of the contract shall be the substantive law of []’) and by the SCC (‘This contract shall be governed by the substantive law of […]’). By expressly mentioning the substance of the dispute, these rules arguably exclude that the choice applies to the arbitration agreement itself; and they are generally silent on the law applicable to the clauses themselves. In one instance, (Hong Kong), the model clause specifically suggests that the parties choose the law applicable to the arbitration clause, thus indirectly confirming that severability extends to choice of law.

In my opinion, the above supports extending severability to the applicable law, as the Law Commission recommends. It is compatible with the principle of severability, corresponds to the expectations in international practice, and favours harmonisation of English law with what has been defined as the preferred approach (Gary Born, International Commercial Arbitration 3rd edition, Kluwer Law International 2021, §4.04[A]).

Conclusion

The Law Commission approach is to be saluted. In addition to the practical and policy reasons it mentions, the proposal has the advantage of enhancing harmonization.

In a study carried out at the Hague Academy on the law applicable to various issues in arbitration (D. Fernández Arroyo and G. Cordero-Moss (eds.), Applicable Law Issues in International Arbitration, Brill 2023), one chapter is devoted precisely to the law applicable to arbitration agreements: Giulia Vallar, “Validity of the arbitration agreement”, pp. 325-346. Vallar suggests two main solutions to enhance predictability for the parties. One solution is readily available, but seldom applied: the parties should choose the applicable law in the arbitration agreement. The other, is defined by Vallar as utopistic: a uniform conflict rule.  While I agree with her skepticism about the feasibility of codifying a multilateral rule, I find it an acceptable second best solution that the different legal systems spontaneously adopt a harmonized solution.

The Law Commission recommendation is a step into the right direction.