Agrégateur de flux

Changement du mode de publication du Journal officiel de l’Union européenne : comment consulter les informations relatives aux affaires introduites devant la Cour de justice ou le Tribunal ou clôturées par ces juridictions à partir du 1er octobre 2023 ?

The Working Group charged by the Hague Conference on Private International Law with advancing the Jurisdiction Project met in Buenos Aires from 18 to 22 September 2023. This was the fifth meeting of the Working Group since its establishment, in 2021.

The Jurisdiction Project builds on the conclusion of the 2019 Judgments Convention and explore the possibility of drafting a harmonised set of rules dealing with jurisdiction and parallel proceedings.

In establishing the Group, the Council on General Affairs and Policy of the Conference tasked it to proceed, in an inclusive and holistic manner, with an initial focus on developing binding rules for parallel proceedings and related actions, while acknowledging the primary role of both jurisdictional rules and the doctrine of forum non conveniens, notwithstanding other possible factors, in developing such rules.

No detailed report of the recent Buenos Aires meeting was publicly available at this stage at the time of writing this post. As stated in the news section of the website of the Hague Conference, the Working Group “made further progress on the development of draft provisions on parallel proceedings and related actions or claims”.

The detailed reports of previous meetings, with the draft texts resulting therefrom, can be found here (February 2022) and here (February 2023).

The sixth meeting of the Working Group will take place in January 2024. The Group will then report on the progress of its work to the Council on General Affairs and Policy. The Council is expected to address the topic (and decide about the next steps) at its next meeting, in March 2024.

Those interested in the Project may refer to the scholarly works listed in the useful bibliography prepared by the Permanent Bureau of the Conference.

Le 14 septembre 2023, la Cour européenne des droits de l’homme (CEDH) s’est prononcée, à l’occasion de deux requêtes, sur l’interdiction de la procréation post mortem en droit français. À l’unanimité, elle conclut à l’absence de violation de l’article 8 de la Convention : le refus d’exporter, d’un côté, les gamètes du mari défunt et, de l’autre, les embryons d’un couple dont le mari est décédé, vers l’Espagne, pays qui autorise la procréation post mortem, ne porte pas atteinte au droit au respect de la vie privée des deux femmes requérantes (§ 89).

Elle précise néanmoins dans un obiter dictum que la loi du 2 août 2021, en ouvrant l’accès à l’assistance médicale à la procréation (AMP) aux couples de femmes et aux femmes seules non mariées, pose de manière renouvelée la pertinence de la justification du maintien de l’interdiction dénoncée par les requérantes. La Cour rappelle en effet que malgré l’ample marge d’appréciation dont bénéficient les États en matière de bioéthique, le cadre juridique mis en place par ces États doit être cohérent (§ 90).

La décision Baret et Cabarello, autant que les deux opinions concordantes qui la composent, permet de revenir sur l’interdiction de la procréation post mortem en droit français.

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

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Un avant-contrat prévoyant une obligation de paiement d’une pénalité contractuelle en cas de non-exécution ne relève pas de la notion de contrat de « fourniture de services » au sens de l’article 7 du règlement Bruxelles I bis, lorsque la violation de cette obligation sert de base à la demande en justice.

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La Quadrature du Net e.a. (Données personnelles et lutte contre la contrefaçon)
Rapprochement des législations
Avocat général Szpunar : la conservation et l’accès à des données d’identité civile couplées à l’adresse IP utilisée devraient être permis lorsque ces données constituent le seul moyen d’investigation permettant l’identification d’auteurs d’infractions exclusivement constituées sur Internet

Ryanair / Commission
Aide d'État
Aides d’État en faveur de SAS pendant la pandémie de Covid-19 : la Cour rejette définitivement les recours de Ryanair concernant les garanties de prêts mises en place par la Suède et le Danemark en avril 2020

Commission / Royaume-Uni (Marquage fiscal du gazole)
Fiscalité
La Cour de justice condamne le Royaume-Uni à une somme forfaitaire de 32 millions d’euros en ce qu’il n’a pas interdit l’utilisation de carburant marqué aux fins de la navigation de plaisance privée dans le délai imparti par la Commission

On 2 August 2023, Gerard Quinn, the UN Special Rapporteur on the rights of persons with disabilities, and Claudia Mahler, the Independent Expert on the enjoyment of all human rights by older persons, issued a joint statement regarding the European Commission’s proposals of 31 May 2023 on the protection of adults in cross-border situations.

As explained in a post on this blog, the latter proposals consist of a proposal for a Council Decision whereby all Member States would become (or remain) parties to the Hague Convention of 2000 on the International Protection of Adults Convention “in the interest of the Union”, and a proposal for a Regulation of the Parliament and the Council that would complement the Hague Convention in the relations between Member States, including by the creation of a European Certificate of Representation which would make it easier for the representatives of an adult to prove their powers in a Member State other than the Member State where those powers were conferred or confirmed.

Scope and Purpose of the Submission

The joint submission examines the above proposals against the background of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). While acknowledging that private international law “has a profoundly important role to play in giving effect to the object and purpose, substance and interpretation of the UNCRPD”, the authors express serious reservations regarding the solutions envisaged by the Commission, and reiterate the idea – voiced in a previous joint statement, of 2021 – whereby the Hague Convention should “be re-purposed” in light of the UNCRPD “to subserve higher and newer goal of protecting human autonomy”.

According to the document, ratification of the Hague Convention and its implementation (including regionally, through the proposed EU measures) “must selfconsciously steer toward higher substantive norms and trends”, notably as regards the preservation of the autonomy of persons with disabilities.

There is “a real risk”, the submission warns, that, “if enacted as proposed”, the Regulation and the Decision

will only be used to freeze into place an outdated policy response to disability and the needs of older persons [and] only attract needless legal liability in the international legal order for the EU and its Member States.

Hence the call to

think through how the Hague Convention might be selfconsciously moulded to underpin and not undermine the UN CRPD and also create breathing space for the drafting and eventual adoption of a universal (UN) treaty on the rights of older persons.

Main Concerns Expressed in the Submission

The authors of the submission note that the Commission did recall the UNCRPD in its proposals, notably in Recitals 10 and 15 of the proposed Regulation, but consider that is largely insufficient. They just “do not see any consistent follow-through from these Recitals in the substantive provisions of the proposed Regulation”, and rather see “many contradictions”.

According to Recital 10, the interpretation of the Regulation “should be guided by its objectives that are to enhance the protection of fundamental rights and freedoms and other rights of adults in cross-border situations, including their right to autonomy, access to justice, right to property, right to be heard, right to free movement and equality”, since the rights enshrined in this regard in both the UNCRPD and the Charter of Fundamental Rights of the European Union “are to be protected both in national and cross-border cases”. Measures taken in relation to persons with disabilities, the Recital goes on, are to be in line with the UNCRPD in order to benefit from recognition under the Regulation.

For its part, Recital 15 of the proposed Regulation observes that, regardless of the terminology used in each Member State, “measures directed to the protection of adults and taken in compliance with the fundamental rights of the adults concerned should circulate without obstacles in the Union”, adding that, to this end, the Regulation “should be interpreted in accordance with the Charter and the UNCRPD”, where assessing whether a measure taken by the authorities of another Member State is not manifestly contrary to public policy (and should accordingly be refused recognition), “the authorities of a Member State where the recognition is sought should assess whether that measure ensures the fundamental rights of the adult, in light of Articles 3, 9 12 and 19 of the UNCRPD”.

All this being regarded as insufficient, the authors of the submission reiterate the view, expressed in the joint statement of 2021, mentioned above, that States, when joining the Hague Convention, should adopt an interpretive declaration whereby they would commit to interpret and apply the Hague Convention in accordance with obligations arising out of or relating to their participation in the UNCRPD and other relevant human rights obligations, “or as a result of participation in future human rights treaties” on the same matter.

The move, the submission explains, “would make clear (not only within the EU but also vis-à-vis third States) that the CRPD is given lexical priority”.

The authors of the joint submission further suggest, for the same purpose, that States joining the Hague Convention should make a reservation to that Convention, aimed at excluding (to the effect that the Convention does allow for it) “institutionalisation” (i.e., measures whereby an adult would be placed or kept in a residential institution against or regardless of their will), from the scope of protective measures that would benefit from the Convention (and the Regulation).

This would play a significant role, they say, in ensuring that institutionalisation “is no longer seen as an appropriate response to the needs of persons with disabilities or older persons”.

According to the submission, the proposed Regulation should even go further than that, and “explicitly” prohibit institutionalisation “as a form of ‘protection’ … as between EU Member States”, as this would be “manifestly at odds” with Articles 5 and 19 of the UNCRPD.

The submission is also concerned with “representation agreements”, a term used in the document to refer to private mandates or “powers of representation”, to use the language of the Convention. The authors argue, first, that the arrangements in question “should be re-framed to only mean ‘supported decision making agreements’”. Arrangements “that only kick into place upon the occurrence of a contingency like ‘incapacity’”, it is added, should be “avoided at all costs”.

Some General Remarks

Gerard Quinn and Claudia Mahler address in their submission a range of delicate and complex issues. These cannot be discussed in detail here. I will limit myself to two rather general remarks.

Do the Hague Convention (and the Proposed EU Regulation) Really Need “Re-purposing”?

The joint submission appears to build on the premise that the rules of private international law (PIL) laid down in the Hague Convention (and in the Proposed Regulation) are designed to serve goals that differ from (and couldin fact be incompatible view) the objects of the UNCRPD. The general orientation, the submission seems to argue, not just their practical operation, should accordingly be reconsidered.

This assumption is, in my view, questionable. In a contribution to the Guide to Global Private International Law edited by Paul Beaumont and Jayne Halliday (Hart Publishing 2022), I argued that the Hague Convention was designed in such a way as to advance precisely the goals that the UNCRPD (which was adopted a few years later) is meant to promote.

The Convention, for example, sets out some rather elaborate rules regarding the allocation of jurisdiction among Contracting States and the mutual communication and cooperation between the authorities of the States concerned. These rules depart significantly from those found in other texts (the Brussels I bis Regulation for instance). This is so because they are inspired by policy considerations that reflect the peculiar concerns that surround the protection of adults, including the preservation and enhancement of their autonomy. In fact, the Convention is not guided by “value-neutral” policies such as legal certainty, nor it purports to ensure that Contracting States “blindly” open their legal systems to measures of protection taken elsewhere, or private mandates governed by foreign law. Rather, the Hague Convention aims to ensure that the fundamental rights of the adults concerned may be properly realised in cross-border situations; the same can be said, generally speaking, of the proposed EU Regulation.

The question, then, in my view, is not so much whether the purpose of the Convention or the proposed Regulation should be “corrected”. The issue is rather whether the technical solutions in the Convention and in the Regulation are such that they effectively and efficiently ensure the realisation of the UNCRPD in all circumstances.

Thus, the matter is not one of orientation, but one of legal engineering. I believe the Convention and the proposed Regulation already go in the same direction as the UNCRPD. One might wonder whether the interpretation of the Convention and the wording of the proposed Regulation can be improved in a way that is more conducive to the objectives of the UNCRPD being fully met.

Should References to the UNCRPD be Featured More Prominently in PIL Rules in this Area?

The joint submission seems to underlie a concern for the visibility of the UNCRPD. This is entirely understandable. The UNCRPD brought about a real paradigm shift in disability law. Tremendous efforts are needed at the national, regional and international law to make sure that the rights enshrined in the UNCRPD turn into policy and normative changes that can actually improve the life of those concerned. In this sense, recalling the achievements of the UNCRPD and the challenges posed by its implementation is no doubt helpful.

That said, various elements indicate that PIL scholars and practitioners are already generally aware, notably in Europe, of the need to take human rights seriously in their day-by-day work.

For instance, more than twenty years have passed since the European Court of Human Rights ruled, in Pellegrini, that foreign judgments simply cannot be recognised if they were given in breach of the fundamental rights of the parties. And while it’s true that EU legislation has made the (intra-EU) movement of judgments easier, but – as the Court of Justice itself consistently repeated (starting from Debaecker) – this goal cannot be attained by undermining in any way the fundamental rights of those concerned. The two-decade long experience with EU texts dealing with the cross-border protection of children further attest that it is perfectly possible to embody human rights considerations in PIL instruments. Additionally, as the Court made clear in Krombach, the public policy defence – if no other tools are available – can always be triggered to avoid that fundamental rights are infringed through a “mechanical” application of PIL rules.

The question, accordingly, is not whether practitioners should be directed at taking the UNCRPD into account (they obviously should, and this should occur in respect of any rule, in the field of PIL or elsewhere). The issue is, again, technical rather than political in nature. It is uncontroversial that PIL rules must be crafted and applied in a manner that is entirely consistent with the UNCRPD: the question is, rather, whether this entails that safeguards other than those arising from the Convention and the Regulation must be adopted.

The joint submission suggests that States should issue a declarative interpretation when ratifying the Hague Convention that the latter must be read and applied in light of the UNCRPD, and even make a reservation regarding institutionalisation.

I’m not entirely certain this would be strictly necessary (the Vienna Convention on the Law of Treaties already provides various tools aimed to guarantee the kind of inter-textual coordination advocated by the submission), and sense that a similar initiative may have some unintended adverse effects.

I consider, however, that such a move would hardly be sufficient in itself. It is the task of those applying PIL rules (and, of course, the task of the Union’s legislature, for its part) to ensure, creatively as the case may be, the proper articulation of PIL rules and human rights instruments relating to the protection (including the self-determination) of adults. It’s a complex and certainly unfinished task, but one that should reasonably be approached with optimism.

The joint submission of Gerard Quinn and Claudia Mahler is a powerful reminder that the topic requires further discussion, and that efforts aimed at ensure mutual understanding between experts in different fields (human rights law and PIL, in this case) remain crucially necessary.

Le « Dieselgate » fait encore parler de lui. Il offre une belle occasion à la Cour de justice de l’Union européenne de préciser son raisonnement relatif au principe ne bis in idem et à son application dans un cadre transfrontalier. Peut-on poursuivre, et sanctionner, l’entreprise Volkswagen dans deux pays européens pour des faits similaires ? Explications à partir d’un arrêt très pédagogique.

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Espagne / Commission
Aide d'État
Le Tribunal annule la décision de la Commission déclarant illicite le régime fiscal espagnol de déduction des prises de participations indirectes dans des sociétés étrangères

Valve Corporation / Commission
Concurrence
Jeux vidéo en ligne : le Tribunal confirme que le géoblocage de clés d’activation pour la plate-forme Steam a enfreint le droit de la concurrence de l’Union

Entrée en fonctions de deux nouveaux membres du Tribunal de l’Union européenne
Entry into office of two new Members of the General Court of the European Union

In C-632/21 JF and NS v Diamond Resorts Europe Limited (Sucursal en España) (‘Diamond Resorts Europe) the CJEU has held that Article 6(2) Rome I on consumer contracts is exhaustive, preventing a consumer to shop for more favourable laws different from those of their habitual residence.

Applicants are British consumers resident in the UK who concluded, on 14 April 2008 and 28 June 2010 respectively, two timeshare contracts with Diamond Resorts Europe, an English company operating as a branch in Spain of the Diamond Resorts group. The accommodation subject to the timeshare is spread across the EU with focus on Spain. Applicants request invalidity of the contracts on the basis of the Spanish timeshare laws, which implement the relevant EU law at issue. They seize a Spanish court, claiming the proceedings have as their object a right in rem in immovable property (the jurisdictional echo of C-73/04 Klein v Rhodos Management already should have made them think otherwise imho). Defendants argue the claim concerns a right in personam which in consequence of Rome Convention’s and /or the Rome I Regulation’s provisions on consumer contracts, are subject to the laws of the habitual residence of the consumers, i.e. English law.

The CJEU first of all holds (para 55) that as a consequence of Articles 66(a) and 126 of the UK-EU Withdrawal Agreement, the Rome Regulation applies to one of the contracts only, the other one being subject to the Rome Convention. It also confirms (para 52) that despite the contracts having been concluded between UK parties, the contract is clearly ‘international’ given the presence of foreign elements.

Next, it confirms without much ado (para 70 ff) the contracts as consumer contracts, notes lex voluntatis as being English law, and in consequence of the consumer title, that lex voluntatis being the same lex contractus as would have applied in the absence of choice.

Importantly, with reference mutatis mutandis to CJEU Schlecker, and a clear hint as to the future reply in VK v N1,

“An interpretation whereby it would be possible to derogate from the conflict-of-law rules laid down by the Rome I Regulation for determining the law applicable to consumer contracts, on the ground that another law would be more favourable to the consumer, would necessarily seriously undermine the general requirement of predictability of the applicable law and, therefore, the principle of legal certainty in contractual relationships involving consumers” (para 75)

A further question on Article 9 overriding mandatory provisions is declared inadmissible for lack of any detail on the nature of the national laws, given by the referring court.

Geert.

New #CJEU judgment applicable law Rome I, re timeshare agreements and consumer law
C-632/21 Diamond Resorts Europehttps://t.co/IBmyg43pzM

— Geert Van Calster (@GAVClaw) September 14, 2023

This post was written by Nadia Rusinova (Hague University of Applied Sciences).

On 12 September 2023 a draft law to amend and supplement other statutes regarding the proceedings in civil cases under the application of the law of the European Union was submitted for consideration to the Bulgarian Parliament.

The adoption of legislative changes in the Civil Procedure Code, Child Protection Act and Private International Law Code is explained in the proposal as necessitated by the need to ensure the smooth and proper functioning of the common European area of justice while respecting the different legal systems and traditions of the Member States. The draft law is currently under discussion.

Civil Procedure Code

The draft law refers to the special rules regarding civil proceedings under the application of EU law. It provides conditions for implementing the provisions of three instruments: the Taking of Evidence Regulation, the Service Regulation and the Brussels II ter Regulation.

The amendments regarding the Taking of Evidence Regulation concern: the participation of representatives of the requesting court in evidence collection by the requested court, and the rights of the parties, their representatives, and experts to participate in evidence collection in another Member State as permitted by Bulgarian law (Article 615 of the Civil Procedure Code); possibility for direct collection of evidence in another Member State by the court, a delegated member of the court, or an expert appointed by the court (Article 614); implementation of Article 3(1) of the Regulation specifying that requests for evidence collection in Bulgaria are directed to the district court within whose jurisdiction the collection will occur (Article 617); and designation of the district court in Bulgaria, within whose jurisdiction the direct evidence collection will take place, as competent to authorize and provide practical assistance for evidence collection under Article 19 of the Regulation (Article 617).

The amendments relating to the Service Regulation are as follows: the indication of bailiffs as ‘transmitting authorities’ under Article 3(1) of the Regulation, in addition to district courts (Article 611 of the Code); a new rule for service in the event of an unsuccessful attempt to serve the specified address – the receiving authority makes an official check on the recipient’s address and, if necessary, forwards the request to the district court in whose district the service must be carried out (Article 611, para. 3); the indication of competent authorities under Article 7(1)(a) of the Regulation – the district court for whose district the address data is provided is competent. When no address information is provided, the Sofia District Court is competent (Article 612).

The amendments in respect of the Brussels II ter Regulation include the introduction of domestic procedures for issuing, correcting, and revoking certificates required by the Regulation (Articles 620a and 620b). A new Article 622c is envisaged, governing the direct enforcement of decisions from another member state in Bulgaria. It adheres to regulation principles, including the right to defense for the party against whom enforcement is sought, the ability to request refusal, and the right of the plaintiff to swift enforcement with the use of coercive measures, without harming the child. Provisions are made for suspention of the enforcement if it endangers the child, as well as measures in cases of long-term risk.

Child Protection Act

Changes stemming from the Brussels II ter Regulation affect as well the Child Protection Act regarding legal proceedings before Bulgarian courts concerning child return. They include hearing the child’s opinion based on age and maturity, evidence collection, decision deadlines, and issuing certificates for decision implementation. New rules cover measures for the child’s contact with the left behind parent, child protection during and after legal proceedings, ensuring the child’s safety upon return. The participation of a prosecutor in proceedings for child return under the 1980 Hague Convention is eliminated, aligning Bulgarian procedures with those of European countries. Prosecutors’ involvement is only maintained when the prosecutor initiates the return request, whereas in cases initiated by a parent through the Ministry of Justice, the Ministry represents the applicant, and the case is considered civil.

Private International Law Code

The proposed amendments to the Private International Law Code include a rule whereby international jurisdiction should be verified ex officio by the seised court, with the court ruling at an earlier stage on its own jurisdiction, including when the choice of court is made in the course of the proceedings. This would enable the court to take a stance on jurisdiction at the time of drawing up the preliminary report and notify the parties thereof.

Such early indication on the grounds of international jurisdiction and the applicable law, as well as the reflection of the choice of court and applicable law in the minutes of the hearing, create clarity and legal certainty and provide the parties with an opportunity to conduct the process in view of the applicable legal framework. The choice of court affects the issue of parallel proceedings in other Member States so it must be documented at the time of its execution.

Par son arrêt du 7 septembre 2023, la Cour de justice de l’Union européenne précise l’étendue de l’interdiction de conservation et d’accès aux métadonnées appliquée aux enquêtes administratives et les conditions de la conservation à l’utilisation ultérieure des données et de la hiérarchie des objectifs d’intérêt général.

Sur la boutique Dalloz Code de la protection des données personnelles 2023, annoté et commenté Voir la boutique Dalloz

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Par un arrêt du 12 juillet 2023, la Cour de cassation se penche sur le régime juridique applicable à l’action directe en matière d’assurances dans l’Union européenne, en application du règlement Bruxelles I.

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Article II(3) of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (NYC) provides:

The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.

What is the meaning of a “matter” in this provision? This is the question that the UK Supreme Court addressed in its judgment of 20 September 2023 in Republic of Mozambique v Privinvest Shipbuilding SAL (Holding) [2023] UKSC 32.

Facts

In 2013 and 2014, three special purpose vehicles wholly owned by the Republic of Mozambique entered into supply contracts with three of the respondents in this case for the development of Mozambique’s exclusive economic zone. The contracts are governed by Swiss law and contain broad arbitration clauses. The arbitration clauses in two contracts cover “all disputes arising in connection with” the contracts and the arbitration clause in the third contract covers “any dispute, controversy or claim arising out of, or in relation to” to the contract.

The SPVs borrowed money from various banks and Mozambique granted sovereign guarantees for the borrowing. The guarantees are governed by English law and provide for dispute resolution in English courts.

Mozambique accuses the three respondent companies and some other persons of bribing its officials and exposing it to a potential liability under the guarantees. It brought a claim for damages against the respondents in England in 2019.

The Respondents argue that Mozambique is bound by the arbitration clauses and seek a stay of proceedings under section 9 of the Arbitration Act 1996, which implements Article II(3) of the New York Convention into English law.

Was the matter in dispute in the English proceedings a “matter” within the meaning of section 9 of the 1996 Act/Article II(3) of the NYC? This is the preliminary question that the court addressed in its judgment. For the purposes of the preliminary question, it was assumed that Mozambique was bound by the arbitration clauses.

Judgment

Lord Hodge gave the judgment, with which Lord Lloyd-Jones, Lord Hamblen, Lord Leggatt and Lord Richards agreed.

The UKSC provided an interpretation of the concept of a “matter” in this context that is based on five principles. In doing so, it considered other countries’ (HK, Singapore, Australia, and Cayman Islands) jurisprudence on this issue.

First, in applying section 9 of the 1996 Act, the court adopts a two-stage process: first, the court must identify the matter or matters which the parties have raised or foreseeably will raise in the court proceedings, and, secondly, the court must determine in relation to each such matter whether it falls within the scope of the arbitration agreement. The court must ascertain the substance of the dispute(s) between the parties, without being overly respectful to the formulations in the claimant’s pleadings, and have regard to the defences raised or reasonably foreseeable.

Secondly, the “matter” need not encompass the whole of the dispute between the parties. Partial stays of court proceedings are possible.

Thirdly, a “matter” is a substantial issue that is legally relevant to a claim or a defence which is susceptible to determination by an arbitrator as a discrete dispute, rather than an issue which is peripheral or tangential to the subject matter of the proceedings. If the “matter” is not an essential element of the claim or of a relevant defence to that claim, it is not a “matter” in respect of which the legal proceedings are brought.

Fourthly, the process entails a matter of judgment and the application of common sense rather than a mechanical exercise.

Fifthly, when turning to the second stage of the analysis, the court must have regard to the context in which the “matter” arises in the legal proceedings.

The substance of the dispute in the English proceedings was whether the contracts and the guarantees were obtained through bribery, and whether the respondents had knowledge of this at the relevant times. The court found that it was not necessary to examine the validity of the contracts and that a defence that the contracts were valid and on commercial terms would not be relevant to the question of the respondents’ liability. This defence would only be relevant in relation to the quantification of the loss suffered by Mozambique. As the validity and commerciality of the contracts were not essential to any relevant defence, the court held that they were not “matters” within the meaning of section 9 of the 1996 Act in relation to the question of the respondents’ liability. The court further found that there was no case law in which section 9 had been invoked to obtain a stay only in relation to a dispute about the quantification of a claim.

The court also dealt with the issue of scope of the arbitration clauses. It held that there was no question of the arbitration clauses extending to cover Mozambique’s allegations on which it relied to establish the respondents’ liability. With respect to the dispute over the partial defence to the quantification of Mozambique’s claim, rational businesspeople would not seek to send such a subordinate factual issue to arbitration. In other words, this partial defence fell outside the scope of the arbitration clauses and the court did not have to decide whether it was a “matter” within the meaning of section 9 of the 1996 Act.

Importance of the Judgment

English law adopts a pro-arbitration approach. But the judgment in Mozambique v Privinvest Shipbuilding SAL (Holding) shows that there are limits to this approach.

The judgment is also important because it offers an authoritative interpretation of the concept of a “matter” within the meaning of Article II(3) NYC. This is one of the ways in which English law (see also the recent proposed changes to the 1996 Act) makes an important contribution to the comparative law of international commercial arbitration.

In a recent article, Pedro de Miguel Asensio points to a seeming contradiction at the heart of EU consumer law (see La Ley – Unión Europea, issue 116/2023, soon available here). This contradiction concerns the notion of consumer in the rules of substantive consumer law and in EU Private International Law (PIL). The CJEU has constructed in both areas differently.

The Notion ‘Consumer’ in Substantive EU Law

For substantive consumer law, the Court adopts a very wide notion of the consumer, in principle also covering contracts concluded for a dual private and commercial purpose. Consumer protection is excluded only where the commercial purpose predominates the private one (see e.g. in the context of the Unfair Terms Directive CJEU Case C-570/21 I.S. and K.S. v YYY. S.A., para 53).

The Notion ‘Consumer’ in EU PIL

In the context of PIL, in contrast, the CJEU defines ‘consumer’ much more narrowly. Regarding the special provisions of the Brussels I Regulation for the protection of consumers, it has held that they must be interpreted strictly and, in principle, do not apply in case of dual use (see CJEU Case C-464/01 Gruber v Bay Wa, para 39). It would be otherwise only where the link between the contract and the trade or profession of the person concerned was ‘so slight as to be marginal’ (ibid). One must follow Pedro de Miguel when he submits that this narrow interpretation needs to be extended to the Rome I Regulation as another instrument of EU PIL as well (see Recital 7 Rome I).

Divergences Cause Distortions

As a result of these divergences, a contract may be a consumer contract for the purposes of substantive law and a professional or commercial contract for the purposes of PIL. Pedro de Miguel frets that this may give rise to certain ‘distortions’. For instance, in the Lyoness case (commented here), it was questionable whether terms in a cross-border contract were abusive in the sense of the Unfair Terms Directive. Even if this were the case and EU substantive law applied, one could not be sure that the consumer could vindicate the protections of the Directive in a Member State court. After all, the special protective heads of jurisdiction for consumer actions under the Brussels Ibis Regulation are to be interpreted more narrowly than those of the Unfair Terms Directive (see also for the possibility of a waiver of the consumer status under the Brussels Ibis Regulation the comment by Marion Ho-Dac here).

The Impact of Choice-of-Court Clauses

Pedro de Miguel brings the problem to a head with the hypothetical example of a contract with an unfair term that also contains a choice-of-court clause in favour of a non-Member State court, e.g. a Swiss court. In this case, the Member States’ courts would have to decline jurisdiction if the EU resident had pursued more than a marginal professional or commercial purpose with the contract. This evidently undermines the goals of the Unfair Terms Directive, which most certainly would not be given effect by third country courts where their general PIL rules do not lead to a Member State law. Pedro de Miguel denounces this as a hole in the EU consumer protection rules.

Attempting an Explanation

The seeming incoherence between EU substantive and Private International Law may have quite a simple reason. In its substantive law, the EU is free to take consumer protection to an extreme level, covering also contracts that serve up to 49 % a professional or commercial purpose. However, on the international plane, the EU policy clashes with that of other regions or states that follow a much more restricted concept of the consumer. In light of these divergences, it may be advisable to not fully follow the EU consumer protection policy through in order to avoid quarrels with third country courts over jurisdiction or the non-recognition and/or enforcement of Member State judgments.

Comparison with Convention Law

However, the wider notion of the consumer of EU substantive law is seemingly in line with the Hague Choice-of-Court Convention and the Hague Judgments Convention. Both contain special rules for contracts concluded by a consumer (see Art 2(1)(a) Hague Choice-of-Court Convention and Art 5(2) Hague Judgments Convention), and define the consumer as a person acting ‘primarily’ for personal, household or family purposes. This wording of ‘primarily’ seems to be more in line with the extensive definition of the consumer in EU substantive law than with the restrictive of EU PIL.

However, one must also pay attention to the notion ‘for personal, household or family purposes’, which is in fact much more restrictive than both EU notions. The latter apply whenever a contract is concluded outside a trade or profession, never mind whether it is for personal, household or family or for other purposes, e.g. a speculative investment or saving for retirement. One may thus say that the convention strikes a middle ground between the wide and the narrow consumer notion. Without venturing into an analysis of the compatibility of the Brussels Ibis Regulation’s rules with the Hague Conventions, one can say that the latter do not support an extreme version of consumer protection.

Conclusion

The definition of the ‘consumer’ in EU substantive law differs from that in EU PIL. This may mean that EU citizens and residents do not get the full benefit of the Union’s substantive law when they go abroad. But this may be a price worth paying for international harmony and avoiding quarrels with other states.

— Thanks to Paul Eichmüller for reviewing this post.

À propos du rapport d’information n° 1149 déposé par la commission des affaires européennes de l’Assemblée nationale le 28 juin 2023 et du rapport d’une commission du Club des juristes intitulé « Devoir de vigilance, quelles perspectives européennes ? »

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The international seminar “Vulnerability: a Matter of Perspective(s)”, is scheduled to be held online on Friday, 29 September 2023, starting at 10 a.m. CET on Microsoft Teams.

The seminar is centered around Private International Law (PIL). Specifically, various sessions of the seminar will delve into the diverse and interdisciplinary perspectives of PIL in the context of ‘Vulnerability.’ Many presentations will scrutinize the role of PIL, as well as international conventions and treaties, in relation to vulnerable communities, territories, and individuals. Additionally, the seminar will emphasize the importance of PIL in devising viable solutions. These solutions aim to ensure that present and future generations can remain in their homelands and achieve sustainable human development. This encompasses a broad range of societal aspects, including food, housing, artificial intelligence, and finance.

The teams link to access the seminar is: https://tinyurl.com/25knxwa8

The conference is a collaborative effort between EuriConv (www.euriconv.eu) and Omninext (www.omninext.it).

The seminar’s format comprises three sessions:

English session at 10 a.m. CET
Italian session at 4 p.m. CET
Spanish and Portuguese session at 6 p.m. CET

Each session will be coordinated by Ivan Allegranti, Ph.D. Candidate in Civil Law at the University of Camerino, while the coordination of the entire seminar is curated by Allegranti himself together with Jorge Gracia Ibáñez and Míriam Villamil Balestro. The panels will feature insights from distinguished academics and researchers across Italy, Germany, Spain, Argentina, India, Portugal, and Brazil.

Introductory Context of the Seminar: The concept of ‘Vulnerability’ has recently gained paramount importance across various disciplines – from philosophy, politics, and law to the socio-economic domain. Today, this term encompasses broader themes like environmental conservation, formulation of policies at various levels, and an array of nuanced meanings when linked with individual experiences. It provokes profound deliberations on human interactions, societal unity, and sustainable advancement. As researchers, understanding and articulating this multifaceted notion becomes essential.

The scientific committee includes: Patricia Branco, Lucia Briamonte, Piermichele La Sala, Mariana N. Sánchez, Gerald G. Sander, and Antonio Sàrcina.

The technical secretariat of the event is composed by: Grazia Sàrcina and Ilaria Tonti.

Subsequent to the seminar, the proceedings will be published in a collective work which will be released in the weeks following the event.

Furthermore, this seminar will set the stage for EuriConv’s upcoming initiative on Disaster Risk Management and the Right to Remain in Your Own Homeland, laying the groundwork for a series of future scientific initiatives.

For general information or inquiries about the seminar please contact EuriConv at: connect@euriconv.eu.