Agrégateur de flux

The EAPIL blog will report about the conference on The Law of Treaties as Applied to Private International Law in Milan by a dedicated post at the end of each conference day. Please follow us on Twitter (@eapilorg) and LinkedIn for updates as the conference unfolds. Check out our Instagram account, too!

The conference on The Law of Treaties as Applied to Private International Law, under the auspices of the Italian Society of International Law and EU Law (SIDI) and the European Association of Private International Law (EAPIL), has continued today.

Frascesco Bestagno (Catholic University of the Sacred Heart of Milan; Legal advisor at the Permanent Representation of Italy to the European Union) opened the second conference day offering a key-note speech.

Burkhard Hess (Director of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law) chaired the fourth panel, on The management of conflicts between private international law treaties, with Jan Klabbers (University of Helsinki) and Alex Mills (University College London) as speakers.

Finally, with Etienne Pataut (University Paris I – Panthéon-Sorbonne) chairing, Malgosia Fitzmaurice (Queen Mary University of London), Chiara Tuo (University of Genova) and Zeno Crespi Reghizzi (University of Milan) discussed issues in connection with Avoiding, exiting and litigating commitments arising from private international law treaties.

A roundtable on The role of IGOs in the elaboration, implementation and coordination of private international law treaties, chaired by Fausto Pocar (University of Milan, Emeritus), followed, with Nicolas Nord (Secretary-General of the International Commission on Civil Status), Andreas Stein (Head of Unit (Civil Justice) at the European Commission Directorate-General for Justice and Consumers – Civil and commercial justice), Ignacio Tirado (Secretary-General of the International Institute for the Unification of Private Law (Unidroit), Philippe Lortie (First Secretary of the Hague Conference on Private International Law), and Luca Castellani (Secretary of Working Group IV (Electronic Commerce) – Uncitral).

Stefania Bariatti (University of Milan) offered some concluding remarks.

Catholic University of the Sacred Heart of Milan: Pious XI Room

Francesco Bestagno

Burkhard Hess, Jan Klabbers and Alex Mills

Etienne Pataut, Malgosia Fitzmaurice, Chiara Tuo and Zeno Crespi Reghizzi

Discussion with the audience

Fausto Pocar, Nicolas Nord, Andreas Stein, Ignacio Tirado, Philippe Lortie and Luca Castellani

Stefania Bariatti

Host University: Catholic University of the Sacred Heart of Milan

The EAPIL blog will report about the conference on The Law of Treaties as Applied to Private International Law in Milan by a dedicated post at the end of each conference day. Please follow us on Twitter (@eapilorg) and LinkedIn for updates as the conference unfolds. Check out our Instagram account, too!

The conference on The Law of Treaties as Applied to Private International Law, under the auspices of the Italian Society of International Law and EU Law (SIDI) and the European Association of Private International Law (EAPIL), has started! Many people are attending in person today’s session. A warm welcome to all from the editors of the blog!

The President of the European Association of Private International Law, Gilles Cuniberti, together with Pasquale De Sena (President of SIDI – the Italian Society of International and EU Law) and Stefano Solimano (Catholic University of the Sacred Heart), started with their welcome address.

The conference has been opened by two general presentations. Catherine Brölmann (University of Amsterdam) presented the rules of public international law relating to treaties and discuss the manner in which, and the extent to which, they can reflect the specificities of the subject-matter of the treaty concerned. Patrick Kinsch (University of Luxembourg) outlined the relevance of the law of treaties to the development and implementation of international conventions in the field of private international law.

The first panel has followed, on The conclusion and entry into force of private international law treaties, chaired by Hans Van Loon (former Secretary-General of the Hague Conference on Private International Law). Presentations were delivered by Jean-Marc Thouvenin (University of Paris Nanterre; Secretary-General of The Hague Academy of International Law) and Antonio Leandro (University of Bari).

Then, in the afternoon, the second panel, chaired by Sergio Carbone (University of Genova, Emeritus), dealt with The observance, application and interpretation of private international law treaties. Luigi Crema (University of Milan), Pedro De Miguel Asensio (Complutense University of Madrid) and Paul Beaumont (University of Stirling) spoke on the topic.

Finally, the third panel was about The amendment and succession of private international law treaties: Catherine Kessedjian (University Paris II Panthéon-Assas, Emerita) moderated a discussion between Jan Wouters (KU Leuven) and Andrea Schulz (German Federal Ministry of Justice).

A lively discussion followed the presentations.

The first day of the conference ended with University’s Studium Musicale of the Catholic University of the Sacred Heart of Milan which offered in the inspiring main hall a performance with music by Saint-Saëns, Bartok, Ravel and Poulenc.

 

Host University: the Catholic University of the Sacred Heart of Milan

Gilles Cuniberti, Pasquale de Sena and Stefano Solimano

Catherine Brölmann and Patrick Kinsch

Hans Van Loon, Jean-Marc Thouvenin and Antonio Leandro

Discussion with the audience

Sergio Carbone, Luigi Crema, Pedro De Miguel Asensio and Paul Beaumont  

Catherine Kessedjian, Jan Wouters and Andrea Schulz 

University’s Studium Musicale: Musical performance

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.

Th. Pfeiffer, Judicial Presumptions: Finding of Facts or Application of Law? The characterization of so-called factual presumptions in private international law

This article discusses whether so-called factual presumptions and prima facie-evidence rules qualify as substantive or procedural rules for choice of law purposes. Having analyzed typical situations such as rear-end collisions and the use of standard terms as well as provisions in the Rome I- and II-Regulation, differentiated solution is submitted: Factual presumptions and prima facie evidence are to be qualified procedurally, unless they are exceptionally based on a specific substantive rationale and not on fact related judicial experience.

D. Moura Vicente, The Role of the Brussels I-bis Regulation in European Private International Law and the Challenges Facing it

The 1968 Brussels Convention sought to promote mutual trust between Member States in jurisdictional matters by adopting uniform rules on judicial competence in civil and commercial matters, with a view to implementing a principle of automatic recognition of foreign judgments among them. Such rules could however be formulated only in respect of a limited number of subjects, which explains the Convention’s relatively narrow scope of application. Over the half century since the Brussels Convention’s conclusion, both its nature and that of the Regulations that succeeded it have changed substantially. From an instrument originally restricted to patrimonial matters, the Convention and its successor Regulations became the backbone of a system aimed at ensuring the free movement of judgments and judicial cooperation in a broad spectrum of matters. The Brussels I-bis Regulation has provided the conceptual foundations of the other instruments that integrate that system, which at times replicate its notions and rules or simply refer to it, thereby ensuring the system’s coherence. The Regulation has moreover had a modernising effect on the domestic legal systems of its Member States. The Regulation’s referential role in European Private International Law role nevertheless faces significant challenges arising inter alia from certain shortcomings of its substantive and subjective scope of application, as well as of the available heads of jurisdiction under its rules. It is submitted that these challenges, which this paper seeks to identify, call for a limited reform of the Regulation, the opportunity for which is provided by its review as foreseen in Article 79.

A. Dutta, Reform of German private international law for the names of persons

German private international law dedicates much (probably too much) attention to the names of persons. Based on earlier ideas for a European instrument on the law applicable to names and taking into account the current debate on German substantive law, the article argues for at least a unilateral reform of the current German conflict rules, in particular, for replacing nationality by habitual residence as the primary connecting factor and for a new approach to party autonomy.

T. Helms, German Private International Law and Co-Parenthood

German law of descent does not recognise co-parenthood between two women or two men. This article examines the conditions under which co-parenthood is nevertheless accepted in international cases on the basis of German Private International Law.

M. Pika, On the pathway to European arbitration law or to non-European seats?

In Prestige, the CJEU held that judgments confirming arbitral awards under sect. 66(2) English Arbitration Act 1996 are “decisions” for the purposes of Art. 45(1) lit. c Brussels Ibis-Regulation. In addition, the CJEU held that those judgments cannot prevent recognition of an irreconcilable, earlier judgment if the arbitral tribunal (i) disregarded the lis pendens principles of the Brussels Ibis-Regulation and/or (ii) unduly extended the arbitration agreement to third parties. This is the most significant restriction of the Brussels Ibis-Regulation’s carve-out of arbitration matters in Art. 1(2) lit. d ever since the West Tankers judgment.

T. Kindt, The Pechstein-Decision of the German Federal Constitutional Court

In a long-awaited decision on June 3, 2022, the German Federal Constitutional Court annulled the contested Pechstein-judgment of the German Federal Court of Justice from 2016 that had upheld the validity of an arbitration agreement between Germany’s most prominent speed skater and the International Skating Union (ISU) in favor of the Court of Arbitration for Sport (CAS) in Lausanne. The Constitutional Court holds that the Federal Court of Justice failed to attribute sufficient weight to the claimant’s right to a public hearing as part of her fundamental right of access to justice. Considering the imbalance of power in the contractual relationship between individual athletes and international sports federations, a resort to arbitration could only be accepted if the arbitral proceeding lives up to the minimum standards of constitutionally protected procedural safeguards. In the Constitutional Court’s view, this requirement had not been met by the applicable procedural rules of the CAS at the time, given that they did not provide individual athletes with the right to one-sidedly request a public hearing. This paper argues that the Constitutional Court’s decision, despite its laudable intentions, leaves more questions open than it answers (especially with regard to the question of impartiality and neutrality of the CAS), fails to take into account an important trait of the international arbitral system and will likely only be of limited importance for the further reform of sports arbitration.

R. Geimer, Exclusive international Jurisdiction of Germany based on article 25 (1) Brussels I bis-Regulation without an additive prorogation of a local forum

A German Company registered in Mannheim and a Spanish Company registered in Barcelona had prorogated “the civil courts in Frankfurt, Germany” in a International Distributor Agreement (IDA). It was unclear, which Frankfurt was chosen: Frankfurt on the Main or Frankfurt on the Or? The Higher Regional Court of Frankfurt on the Main ruled that Frankfurt on the Main is the prorogated forum arguing as follows: The representatives on the Spanish Company came by plane over the airport Frankfurt on the Main to Mannheim for signing the International Distributor Agreement including the prorogation clause. They did not know anything about Frankfurt on the Or. Therefore also the representatives of the Spanish Company have nominated Frankfurt on the Main as the exclusively competent forum.

L. Hornkohl, Group Liability in EU Competition Law and International Jurisdiction

In Sumal, the ECJ for the first time applied the single economic entity doctrine in private enforcement of competition law towards corporate groups. According to the ECJ, a subsidiary is liable for the cartel violations of the parent company in descending order if the parent and subsidiary are linked by corresponding economic, organisational and legal relationships. Furthermore, the ECJ requires a connection between the economic activity of the subsidiary and the object of the parent’s infringement to transfer liability. The case law in Sumal has severe international and local jurisdictional consequences. Especially concerning EU-wide cartel agreements, the jurisprudence gives claimants the possibility to sue each legal entity belonging to a single economic entity jointly and severally and thus offers huge potential for forum shopping under the Brussels Ibis Regulation.

C. Mayer, (Supposed) Competing paternities in private international law

Time and again, German courts are confronted with cases in which, as a result of the alternative links in Art. 19 Para. 1 EGBGB, several legal systems are applicable to the parentage of a child. This can result in the child being assigned different legal fathers. The German Federal Court of Justice has already had several opportunities to comment on such conflicting paternity situations and to develop basic structures. Its decision to be discussed here regarding a postnatal acknowledgment of paternity, which competes with a presumption of paternity, fits seamlessly into this line of case law, but raises the interesting question as to where newborns have their habitual residence at the time of birth. The Higher Regional Court Brandenburg, on the other hand, had to clarify the more difficult constellation of whether a prenatal acknowledgment of paternity can take precedence over a presumption of parentage resulting from foreign law, although both become effective at the same time at birth.

D. Henrich, Recognition of private divorces

Private divorces are divorces not by judgment but by agreement of the parties. Art. 21 of the Brussels IIa-Regulation prescribes the automatic recognition of all Member States decisions without any procedure being required. Whether this includes the recognition of non-judicial divorces was unclear. The European Court of Justice decided, that whenever a Member State provides a special proceeding for the recognition of a private divorce, the recognition is a question of procedural law. Whenever a civil status officer of a Member State records the agreement of the parties about their divorce and the parties confirm that the procedure has been performed according to the regulations of the Member State, the record is a judgment in the sense of Art. 2 No. 4 of the Brussels IIa-Regulation. Object of the recognition is here not the decision of a court but a special procedure.

P. Scholz, Mandatory Family Protection in Succession and Ordre Public

In almost every jurisdiction today, rules on mandatory family protection qualify the principle of freedom of testation. However, not only the beneficiaries of such laws vary from country to country. Moreover, over time, different systems of mandatory protection have evolved – and they span from fixed shares in the testator’s estate (like in Austria, Germany, or France) to needs-based judicial awards for the testator’s next of kin (like in England or New Zealand). Under the choice of law regime of the EU Succession Regulation, courts in fixed-share systems will eventually have to decide whether the application of needs-based rules is incompatible with the forum’s public policy where such laws do not result in sufficient claims of the disinherited next of kin. On February 2, 2021, Austria’s Supreme Court positioned itself against such ideas. This stands in stark contrast to the decision of the Cologne Higher Regional Court issued just a few weeks afterwards, which the German High Court upheld with a questionable judgement of June 29, 2022.

Membership in the European Association of Private International Law comes with a small burden: the annual fees!

If you’re a member, and have not paid your fees for 2023, please take a moment to do so.

The amount of the fees is reasonable (and has not changed since the Association was created), and the process is rapid and straightforward: you may pay by bank transfer, or use PayPal.

All information is found here.

Thank you!

Commune d'Ans
Avocat général Collins : une entité publique peut, dans certaines conditions, interdire à ses agents le port de tout signe visible de convictions politiques, religieuses ou philosophiques sur leur lieu de travail

This short post on Agora v SPA Italiana Lastre ECLI:FR:CCASS:2023:C100265 at the French SC could suffice with referring to para 2.331 of the Handbook. That para asks exactly the question on which the SC has now referred to the CJEU:

The insertion into the Regulation of the lex fori prorogati rule often does not assist. In particular, where parties expressly make choice of court non-exclusive (non-exclusive choice of court), or where they designate a plurality of specifically identified courts, the lex fori prorogati is not immediately ascertainable.[1] Neither is it in the event of so-called ‘unilateral’ or ‘one-sided’ choice of court, which I review below. In my opinion, therefore, at the very least for these cases which are not solved with the new lex fori prorogati rule, parties are best advised to continue to (or start to) make separate and express choice of law for unilateral and non-exclusive choice of law.

[1]               An argument also made by counsel for the defendants in Commerzbank Aktiengesellschaft v Liquimar Tankers Management Inc [2017] EWHC 161 (Comm).

Please refer to François Mailhé’s post who has background to the issues here, referring ia to Banque de Rothschild. Note that Mary Keyes edited a whole volume on asymmetric aka hybrid aka unilateral choice of court.

Like François I do not think the CJEU will entertain all the questions referred. I cannot imagine it finding the very acceptability of unilateral choice of court to be covered by Article 25. That is simply not within the Article’s remit. (The CJEU might make an exception for the issue in those consumer contracts not covered by the protective regime of Brussels Ia, eg pure contracts of transport; here it might refer to secondary EU consumer law on unfair terms).

I do also wonder whether the Court will say anything about recital 20’s odd inclusion of renvoi, and whether parties may take away the uncertainty by designating a specific lex causae for the choice of court clause, and in doing so may also exclude renvoi (the answer to both in my view should be ‘yes’).

Geert.

EU Private International Law, 3rd ed. 2021, 2.331.

Agora v SPA Italiana Lastre

French SC refers to the Court of Justice of the EU on the application of A25 Brussels Ia's lex fori prorogati rule, in the event of hybrid aka asymmetric choice of court

(Effectively referring (2.331) of the 3rd ed of the Handbook). https://t.co/tHJVnTCLii

— Geert Van Calster (@GAVClaw) April 18, 2023

Luxembourg / Commission
Aide d'État
Décisions fiscales anticipatives : selon l’avocate générale Kokott, la Commission a constaté à tort que le Luxembourg a accordé au groupe Engie des aides d’État illicites sous forme d’avantages fiscaux

Österreichische Post (Préjudice moral lié au traitement de données personnelles)
La simple violation du RGPD ne fonde pas un droit à réparation

Österreichische Datenschutzbehörde
Principes du droit communautaire
RGPD : le droit d’obtenir une « copie » des données à caractère personnel implique qu’il soit remis à la personne concernée une reproduction fidèle et intelligible de toutes ces données

BCE / Crédit lyonnais
Politique économique
La Cour confirme le refus de la BCE d’exclure aux fins du calcul du ratio de levier de Crédit lyonnais 34 % de ses expositions sur la Caisse des dépôts et consignations

Agenția Națională de Integritate
Lutte contre la corruption : le droit de l’Union ne s’oppose pas à ce qu’une personne se voit interdire toute fonction publique élective pendant trois ans si elle a violé les règles relatives aux conflits d’intérêts en exerçant une telle fonction

This post was authored by François Mailhé, who is Professor of Private Law at the University of Picardie Jules Verne.

At last !

It has been more than 10 years since the French Cour de cassation decided to declare war on asymmetric forum selection clauses in the Banque de Rothschild case (Cass. fr. civ. 1, 26 September 2012, No. 11-26.022). In the span of those 10 years, no less than 7 judgments were rendered by the Cour de cassation itself. And if it found its rationale in 2015 (Cass. fr. civ. 1, 25 March 2015, No. 13-27.264, ICH), almost each new judgment tested and tried a different angle, a different legal basis. At last, two weeks ago, the Cour de cassation chose the path of wisdom and referred a prejudicial question to the European Court of Justice (Cass. fr. civ. 1, 13 April 2023, No. 22-12.965)! 

Once upon a Time: The Brussels Convention

Let’s remember the surprise most felt at reading the Banque de Rothschild decision in 2012. Even if some French court of appeal decisions in maritime cases had already excluded the clause as “potestative” in the 1990s, paragraph 3 of Article 17 of the Brussels Convention seemed to set them aside as a marginal and wrong stream of cases.

Why “potestative”? Because those clauses characteristically consist of two limbs : one, restrictive, pointing in general to only one court and which binds one party, another, liberal, offering the other party a much vaster choice of forum.

The Brussels convention used to hold a specific rule on such clauses, implicitly accepting such imbalance (Article 17, §3 : “If an agreement conferring jurisdiction was concluded for the benefit of only one of the parties, that party shall retain the right to bring proceedings in any other court which has jurisdiction by virtue of this Convention”), but its existence and the reasons of its disappearance from the texts (uselessness, as it seems…) was progressively forgotten by French courts, who became suspicious of such clauses.

From Potestative to Imbalance

This suspicion grew at the same time as the generalization of the “significant imbalance” test. Starting in consumer law, it later appeared in French business law (today at L. 442-6, I, 2° of the French Commercial Code) and last as a general norm of contractual law for standard form contracts (art. 1171 of the Civil Code). The same concern for imbalance in asymmetric forum selection clauses was clear when the Banque de Rothschild decision set one aside as “potestative” (i.e. to the sole power of one of the parties, a much criticized legal ground) but also later, when the ICH case changed the standard from potestativity to foreseeability, as the Cour expressly refer to imbalance as the justification for this new standard.  

It would be a long reading if this post was to detail all the different phrasings, legal grounds and sometimes even contradictory decisions that the Cour de cassation employed to keep its case-law. One may only refer, in English, to the excellent work of Brooke Marshall, published last month, to study the whole case law in depth. Just to give a hint as to its subtlety (or confusion, depending on the point of view), a clause stating that “the bank is nevertheless entitled to bring an action against the borrower before any other competent court” was set aside for unforeseeability (the ICH case), while a clause that “reserved for Apple the possibility of bringing an action, at its choice, before the Irish courts, the courts of the place where eBizcuss has its registered office or the courts of the countries in which Apple suffered damage” was validated (Cass. 1re civ, 7 October 2015, No. 14-16.898, eBizcuss). 

However, the solution still raised many difficulties. The first is, and will perhaps remain for a long time, its inadequacy to the problem. In the terms of the case law, the “potestative” character first, the “imbalance” second, betrays the fact that the solution aimed primarily at restoring a certain fairness to the clauses, a fairness defended by the Brussels texts for employees, insureds and consumers, but absent for SMEs and other non-consumers, who are often without sufficient jurisdictional protection in the face of these clauses. On this point, one can only hope for a reform of the texts, but this does not yet seem to be part of the debate (see the Study to support the preparation of a report on the application of Regulation (EU) No 1215/2012).

What Legal Basis?

The second difficulty is of source: where to find the normative support of this solution? The Cour has used several bases, some of which are taken from European case law, but none of which is very solid (see e.g. Cass. 1re civ., 3 October 2018, No. 17-21.309. I discussed that in Lexisnexis’ JCP G 2018, 1300: among other things, in my opinion, the ECJ never really required selected forums to be foreseeable as a condition of their validity). 

This difficulty has been deepened by Brussels I bis regulation, introducing a specific rule for such clauses substantial validity: “unless the agreement is null and void as to its substantive validity under the law of that Member State” as stated by Article 25.

A new question arose : was this French case-law the national proposition of a European uniform solution, interpreting Article 25, or could it be a French solution, by extension of the scope of this referral to the national law of the chosen court (provided French courts are chosen)?

And, as a problem never comes alone, the asymmetric nature of the clause made the application of the second limb of the question even more complex : in case asymmetry was a substantive problem to be dealt with by the national law of the chosen court, which court must be taken into account?

Those two questions are asked, at last, by the Cour de cassation in this 13 April decision. A third one completes the package: whether the enforceability of such asymmetric clause (more specifically one which allows one of the parties to choose any objectively competent court) is an issue to be governed by a uniform European rule.

The Questions Referred

From this very debatable French case-law were therefore born three interesting questions.  

First, the ECJ will have to interpret the scope of the substantial validity rule : what is to be governed by uniform European rules, and what may be delegated to national laws? 

Second, in case the ECJ decides for a uniform rule, what is to be the future of asymmetric clauses? Will the Court draw from the old versions of the Brussels convention? Will it be sensitive to problems of imbalance beyond consumer-professional relationships? 

Last, in case the ECJ decides for the inclusion in the scope of Article 25 conflict rule, how to apply this conflict rule, relying on the chosen court, when the clause actually points at several chosen courts or, worse, an undetermined number of courts? 

Three very interesting and important questions were asked. Now it is up to the ECJ to pick up the glove. Let’s hope (perhaps with moderate expectations though) that its answer fits the challenge. 

The Special Interest Group on Family and Succession Law of the European Law Institute invites everyone interested to participate in the webinar titled Application of the EU Succession Regulation in the Member States.

The webinar will present the results gathered during the five webinars on the application of the EU Succession Regulation in the Member States organized in 2022 ( which EAPIL blog covered here).

The webinar will take place on 15 May 2023 between 3 and 5 pm CET.

Attendance is free of charge. A Zoom link will be sent to those who register by sending an e-mail to: zivilrecht@uni-graz.at.

The second issue of the Journal du droit international for 2023 was released. It contains two articles and several case notes relating to private international law issues.

In the first article, Guillaume Payan (University of Toulon) analyses the recent recast of the EU regulation in matrimonial matters, the matters of parental responsibility and on international child abduction (“Brussels II ter”) in the broader context of EU judicial cooperation in civil matters.

The English abstract reads:

As its title indicates, Regulation (EU) 2019/1111 – known as “Brussels II ter” – of 25 June 2019 has three clearly identified sections: marital disunity, parental responsibility and wrongful removal or retention of a child. Within the limits of its scope thus circumscribed, it contains interesting provisions relating to the recognition and enforcement of court decisions and extrajudicial titles. Either classic or innovative, the solutions adopted converge towards the objective of a generalized abolition of the exequatur. While this development, characterized by an intensification of the principle of mutual recognition, is appropriate, it nevertheless appears insufficient with regard to the issues targeted in Regulation (EU) 2019/1111 and, by extension, the objective of creating a genuine European civil judicial area. Although it identifies the contributions of this new text in the light of Regulation (EC) n°2201/2003 – known as “Brussels II bis” – which preceded it, this study provides an opportunity to question the overall consistency of action of the European Union legislator in the field of civil judicial cooperation.

In a second article, Éric A. Caprioli (Avocat à la Cour and  Member of the French UN Delegation in the field of e-commerce) discusses the UNCITRAL Model Law on Electronic Transferable Records (MLETR), since some countries such as France and Germany are currently working on its implementation into national law.

The English abstract reads:

The UNCITRAL Model Law on Electronic Transferable Records (MLETR) has been adopted on July 13, 2017, during the 50th session of the Commission. The purpose of this document is to develop provisions about electronic equivalents of transferable paper records or instruments. This mainly relates to bills of landing, bills of exchange and promissory notes, insurance policies, and warrants. These documents are essential in the financing of international trade. UNCITRAL has used the three general principles of electronic commerce in its instruments since the Model Law of 1996: non-discrimination against the use of electronic means, technological neutrality, and functional equivalence. Two Articles of the MLETR are fundamental. According to Article 10, Electronic Transferable Record (ETR) must meet two main requirements: the document must contain information required by instrumentum (written documents) and use a reliable method. The second one requirement imposes three other requirements: (i) identify the electronic record as the ETR, (ii) render the ETR capable of being subject to control from its creation until it ceases to have any effect or validity; and (iii) retain the integrity of the electronic record. Another key concept, the Article 11 discusses the control of the electronic record, which constitutes the functional equivalent of possession in the paper environment. Indeed, the individual who has the exclusive control over the document will be allowed to request the performance of the obligation or to transfer the document. Therefore, a reliable method must be used to establish the exclusive control over this ETR and identify this person as an individual who has the control. France has launched a transposition process of the MLETR into its national legislation like other countries of G7 (UK, Germany,…).”

The table of contents of the issue can be accessed here.

We are delighted to announce a lecture hosted by Matthias Weller at the University of Bonn in cooperation with ConflictofLaws.net. Professor Amnon Lehavi (Harry Radzyner Law School, Reichman University, Israel) is going to speak on ‘Globalization through the re-codification of property law?’.

The globalization of markets, technology, and interpersonal networks poses a growing challenge for national legal systems. Property law is traditionally considered a “domestic” field of law, not only because of its structural features (such as the in rem or numerus clausus principles), but also because it promotes cultural, economic, and social values. The decision if property law should be globalized also requires a choice among potential globalization strategies (how to do so). This lecture examines four globalization strategies: (1) soft law / private ordering; (2) conflict of laws; (3) approximation; and (4) supranationalism. It does so by comparing three types of assets: land, digital assets, and cultural property – which have all been dramatically affected by current processes of globalization, albeit in diverging ways. It is argued that different strategies of globalization, and corresponding forms of re-codification of national property laws, should be adopted for land, digital assets, and cultural property.

The event will take place on 17 May at 6.30pm at the Senate Hall of the University of Bonn; it can also be joined via Zoom. The flyer can be found here.

As noted earlier on this blog, on 3 May 2023, from 6 pm to 8 pm (MET), the first webinar of the series that has been organised under the title The Future of Cross-Border Parenthood in the EU – Analyzing the EU Parenthood Proposal will take place. The webinar, chaired by Claire Fenton-Glynn, will deal with the following relations: Surrogacy in comparative perspective (Jens Scherpe), and The EU Proposal on Parenthood: What’s in it? Subject matter, scope and definitions (Cristina González Beilfuss).

Those wishing to attend have time until 2 May 2023 at noon (MET) to register. The registration form is available here.

Registered participants will receive the details to join the webinar by e-mail (please note the e-mails with these details occasionally end up in the spam folder).

The form, then, will remain open for registration for the subsequent webinars of the series.

The updated and final version of the program is available here.

Boughajdim v Hayoukane [2022] EWHC 2673 (Fam) is a good case to illustrate qualification as an essential part of the private international law exercise. I had the case as one of the many open windows on my desktop. Despite my tardiness in reporting, I still do so, seeing as it is exam season and students are likely to start grapling with the course materials.

Core question is whether the Petitioner’s (the wife) divorce petition should be allowed to proceed in E&W, based on a marriage that has been recognised by the Moroccans court and registered in Morocco pursuant to legislation designed to provide retrospective recognition of marriage in that jurisdiction. The retrospective element is the result of the (alleged) spouses, of which the husband has dual Moroccan-UK citisenship, becoming aware that the absence of a marriage certificate was precluding an application for British Citizenship for one of their children.

The wife argues that the lex loci celebrationis in this case is Morocco, that the formal validity of the marriage falls to be determined by reference to the local form under Moroccan law and that this court is dealing with a valid foreign marriage, acknowledged as such by a foreign court and affirmed following failed proceedings by the husband for perjury and on appeal. By contrast, the husband contends that a proper analysis of the lex loci celebrationis means that the formal validity of the marriage falls to be determined by reference to the domestic Marriage Acts. In this context, he submits that the Moroccan marriage cannot be recognised as valid in E&W either as to form or as to capacity, the husband submitting in respect of the latter that the law governing questions of capacity is, in any event, the law of the husband’s domicile, under which law the husband did not validly consent to the marriage. Finally, the husband argues, in any event, that in the context of the special character of marriage there are cogent reasons for refusing to recognise the Moroccan marriage on the ground of public policy.

There is a convoluted procedural background to the case which this post does not engage with, for it is not relevant to the outcome of current judgment. (This also includes nb a number of res judicata elements, held [98], arising out of concurrent Moroccan proceedings.  Clearly, whether or nor there was a valid marriage at all is of relevance for all sorts of reasons, including financial ones.

[85] English law [like much of the world, GAVC] distinguishes between the form of the marriage (formal validity), which is governed by the lex loci celebrationis and the questions of capacity to marry to marry (essential validity, aka material or substantive validity). It is well settled that in English PIL the question of the capacity to marry is determined by the law of the party’s antenuptial domicile (Dicey Rule 75; note the contrast with continental Europe which tends to opt for lex patriae). Note however that what part of the validity question is a formal one and what part a substantive one, is not unequivocally clear. In E&W, there is no authority that conclusively answers the question of which system of law will govern the question of consent to marriage, i.e. whether consent is a matter of form governed by the lex loci celebrationis or a matter of capacity governed by the law of domicile.[86]

MacDonald J holds [90]

that the lex loci celebrationis in this case is the Kingdom of Morocco. I am further satisfied, on the facts as I have decided them, that the parties complied with the local form in the lex loci celebrationis sufficient for the court to be satisfied that it is dealing with a valid marriage having regard to the principle of locus regit actum. Further, I am satisfied that the husband has not demonstrated to the satisfaction of the court in this case that grounds exist for refusing to recognise the Moroccan marriage on the basis of public policy. In the circumstances, I am satisfied that the wife’s petition can proceed.

A difficultly is [100] that neither party contends for a marriage ceremony, or any other celebratory event, on an ascertainable date or at an ascertainable place giving rise to a marriage. The wife relies on the operation of a retrospective statute in a foreign jurisdiction as having constituted a valid marriage. There was no ‘marriage ceremony or other similar celebration’: then wat is the locus celebrationis? [105] The existence of a course of conduct by which some but not all of the legal steps necessary to conclude a marriage in a jurisdiction in which a ceremony is not required might, depending on the facts of the case, also assist in identifying whether there is a lex loci celebrationis and its location in a case concerning the operation of retrospective marriage legislation. Here, the judge decides that in 2000, on the balance of probabilities, the husband proposed marriage to the wife in Morocco, that there was an engagement party held, that there was a dowry agreed and paid and that the wife and husband considered themselves to be engaged and were to be married.

[114] ff the judge holds Moroccan formal procedure (including an element of service) following the retrospective Act, was properly complied with.

[139] ff and much more briefly, consent by both parties is established.

Finally [148] the ordre public exception looks at the consequences in England and Wales of recognising the decision of a foreign court that a marriage subsists as the result of retrospective legislation in respect of a British Citizen domiciled in E&W. [149] The Judge holds that the marriage to which the husband now objects arose by operation of law as the result of legal proceedings in respect of which, as the court has found, he was aware, in which he was represented, in which he had the opportunity to make representations and in which he did make, albeit cursory, representations objecting to the relief sought by the wife.

In conclusion, an earlier pronounced stay on the divorce petition was lifted.

A good case to illustrate qualification and its consequences.

Geert.

In May 2023, the Court will decide on C-264/22, Fonds de Garantie des Victimes des Actes de Terrorisme and d’Autres Infractions. The decision is expected on 16 May.

The request for a preliminary ruling from the Tribunal da Relação de Lisboa (Portugal) concerns the interpretation of the Rome II Regulation. It was lodged in April 2022.

A French citizen was hit by a boat at Alvor Beach (Portugal) in 2020; as a result, he suffered serious bodily injuries and underwent a number of medical treatments. He sued in France the Fonds de Garantie des Victimes des Actes de Terrorisme et d’Autres Infractions, in its capacity as the French body which covers, inter alia, compensation due for accidents, claiming compensation for the damage suffered. The parties agreed compensation of EUR 229 480.73.

The civil liability of the boat’s owner was insured by Victoria Seguros, S.A., the defendant in the Portuguese proceedings, where the Fonds de Garantie des Victimes des Actes de Terrorisme et d’Autres Infractions seeks an order that the defendant must reimburse to the applicant the abovementioned amount paid. According to the applicant, Portuguese law should apply in relation to the accident and the obligation to pay compensation, and French law should apply in relation to the rules on the limitation period and the calculation of time limits, as is apparent from Article 19 of the Rome II Regulation. In its defence, the defendant put forward a substantive plea that the claim is time-barred. As regards the merits, it denied many of the facts relating to the accident and claimed that the action should be dismissed.

The national court considers it necessary to decide whether French law is applicable (in accordance with which the limitation period for the right claimed has not expired), or whether, in the alternative, if it is decided to apply Portuguese law, the right has not lapsed either, in view of the date of the last payment to the injured party. In this context, the national court is referring the Court of Justice of the EU the following question for a preliminary ruling:

Is the law applicable to the limitation rules for the right to claim compensation that of the place of the accident (Portuguese law), in accordance with Articles 4(l) and 15(h) of [the Rome II Regulation], or, if the injured party’s place is taken by subrogation, is the ‘law of the third person’ subrogee (French law) applicable in accordance with Article 19 of that Regulation?

The decision will be taken by a chamber of three judges (L.S. Rossi, J.C. Bonichot, O. Spineanu-Matei as reporting judge). The opinion of an advocate general was not requested.

As the series of webinars organised under the title The Future of Cross-Border Parenthood in the EU – Analysing the EU Parenthood Proposal starts this week (Wednesday!), we are pleased to share, for your convenience, the updated and final version of the program.

In the flyer attached you will also find the links for the registration, still open, and also accessible here.

In Autostore Technology AS v Ocado Group Plc & Ors [2023] EWHC 716 (Pat), Claimant AutoStore is a Norwegian company, pioneer in automated warehouse technology. First defendant develops automated systems for use in large scale grocery businesses.  The second defendant is a joint venture between the first defendant and Marks & Spencer. Ocado is a former customer of AutoStore’s.

Ocado’s defences include that the patents were invalid due to prior non-confidential disclosures to two parties based in Russia, including EVS, a company based in St Petersburg, and Russia’s central bank.

‘Matter made available to the public’ is part of the ‘state of the art’ condition for patents (in the UK: s.2(2) of the 1977 Act). It may affect the novelty or obviousness of a patent: Subsections 2(1) and (2) of the Patents Act 1977 (“the 1977 Act”) provide:

“2. (1) An invention shall be taken to be new if it does not form part of the state of the art.

(2) The state of the art in the case of an invention shall be taken to comprise all matter (whether a product, a process, information about either, or anything else) which has at any time before the priority date of that invention been made available to the public (whether in the United Kingdom or elsewhere) by written or oral description, by use or in any other way.”

In support of their case of lack of novelty and inventive step Ocado rely on alleged prior disclosures to the Russian entities which Autostore say were made in confidence and could not therefore be part of the state of the art.

The section of the judgment that is of relevance to the blog (other than the brief reference to the TRIPS agreement [256]), is the qualification of the obligation not to disclose matter to the public, as (non)contractual, and the subsequent application of Rome II.  Hacon J summarises the issues [263] ff

Where a party relies on an express contractual restriction on the foreign disclosure of information, the effect of the alleged contract will be assessed according to the applicable law.  The party asserting the contractual restriction is obliged to plead the existence, the circumstances of formation and the relevant terms of the contract.  An English court seised will apply Rome I to determine which foreign law governs the contract.  The court will then decide whether, according to that law, there was an express term of confidentiality as alleged and whether its effect was to restrict the use of the information in issue.

The position is not so straightforward where it is said that a party in a foreign context was restrained from using information under an obligation that was not contractual – what an English court would recognise as an equitable obligation.

Rome II does not expressly recognise equitable obligations as a separate category. Clearly however they may still qualify as ‘non-contractual’.

[270 ff] Hacon J justifiably rejects Ocado’s assertion that Rome I and II dovetail. It is beyond doubt that not all obligations that are not contractual, must necessarily be covered by Rome II and vice versa.  Likewise, the overall application of Rome II clearly may imply non-contractual obligations that are putative. Meaning for the purposes of the application of Rome II, one may have to pretend for the time being that there are non-contractual obligations at play and that these are covered by Rome II, only for the so identified substantive lex causae to decide that there are not, after all, any non-contractual obligations at play.

Re the alleged disclosures made by the Bank, [276 ff] AutoStore’s primary contention is that the hypothetical breach of the alleged equitable obligation of confidence is correctly categorised as a culpa in contrahendo within the meaning of A12 Rome II, seeking support ia in CJEU Ergo. [286] It argues the respective obligations of confidentiality arose in the context of negotiations (with the Russian companies) which ultimately led to the conclusion of the Distribution Agreement governed by Norwegian law.  Consequently, the same law applies to the obligations of confidentiality.

However upon consideration the judge holds [298] – with much support found in prof Dickinson’s Rome II volume and his contribution on Rome II in Dicey’s 16th ed – that A12 does not apply to the alleged disclosures by the Bank, seeing as in his view A12 does not apply to third parties to the contractual negotiations, even agents of the contracting parties. There were no negotiations between AutoStore and the Bank and AutoStore for its own reasons wanted to ensure that any agreement reached would be with EVS and not the Bank.

Instead, [324] ff, the lex causae is held to have arisen out of an act of unfair competition within the meaning of A6 of Rome II. That is important, for Article 6 does not have an escape clause like Article 4(3).

Here, the judge’s reasoning is under par.

Oddly for instance he holds A6(2) is not engaged ia [335] ‘because the Bank is not a competitor of AutoStore’s’ yet he nevertheless applies A6(1): ‘the law applicable to a putative obligation of confidence on the Bank was the law of the country where competitive relations or the collective interests of consumers are, or are likely to be, affected.’: this is not convincing.

Reference is then made by the judge to CJEU Verein für Konsumenteninformation v Amazon EU Sàrl , CJEU Volkswagen and to Celgard, and to the Mozaikbetrachtung present in particular in the latter case. However he then [351] holds that ‘attention must be paid to the hypothesis posited in this case. It is that the Bank was about to make Bank Bot Designs public or had already done so’, subsequently linking that [353] to the procedural relief Autosore would have hypothetically sought for the potential breach, in, the judge holds, Russia. Conclusion [354]: ‘Of the laws made applicable under art.6(1) of Rome II to apply to the question of confidentiality, the one that would have mattered on the hypothesis raised would have been Russian law.’ That link to procedural relief to me comes out of nowhere.

As for the relationship with EVS, [301] the question arises as to whether AutoStore and EVS contemplated a contractual relationship at the relevant times. The judge [302] holds that a theoretical possibility of the purchase of goods or services or of some other contractual relationship does not suffice to trigger A12: commercial parties are almost constantly on the look-out for such relationships. [322] after having considered the various arguments the judge holds that A12 is engaged vis-a-vis EVS, yet that the putative law of the contract cannot be determined by A12(1), hence requiring the application of A12(2)(a). The applicable law is the law of the country in which damage would hypothetically have occurred, here, it is held, Russia.

Applicable law for both claims having been held to be Russian law, the remainder of the judgment then deals with evidence of that law and the conclusion [396] that the information was disclosed without imposing any obligation of confidence on either EVS or the Bank.

As noted the A6 analysis in my view is appealable. For both the A6 and the A12 analysis it is also a pity and concern to see, once again, the English courts (chicken and egg-wise led of course by counsels’ probable absence of presentation of same) lack of engagement on issues of both acquired and retained EU conflict of laws, with scholarship outside of the UK and /or other than written in English.

Geert.

Equitable obligations of confidence (in context of patent DNI Denial of Infringement): whether covered by retained Rome I or Rome II (or neither)
More on the blog when I find time

Autostore Technology AS v Ocado Group Plc & Ors [2023] EWHC 716 (Pat)https://t.co/ixzMwrPqJH

— Geert Van Calster (@GAVClaw) April 15, 2023