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I am on a break with the family until after Easter, hence only slowly treating myself to writing up blog posts. There are one or two in the queue, and I hope to be clearing them before long. ]

In C‑832/21 Beverage City & Lifestyle GmbH v Advance Magazine Publishers Inc. Richard de la Tour AG Opined a few weeks back. The claim is for trademark infringement between a US domiciled holder of an EU Trademark, and its EU suppliers in Poland and Germany. The AG suggest Article 8(1)’s joinder mechanism may apply in the case, provided the claimant in limine litis (at the start of proceedings) prove the anchor defendant’s role in the chain of infringements.

Background is the Union Trademark Regulation 2017/1001, which has separate rules on jurisdiction discussed in ia AMS Neve, however it leaves A8(1) Brussels Ia’s anchor defendant mechanism untouched.

(34) ff the AG uses the opportunity to clarify CJEU Nintendo,  with respect to Article 8)1)’s condition of ‘same situation in law’: the AG suggests the Court clarify that the application of different national laws as a result of intellectual property rights’ territorial scope, does not stand in the way of the situation being the same in law in the case of a Union trademark.

Next the AG discusses the issues also of relevance in ia CJEU C‑145/10 Painer, namely the question of sameness in fact, and argues for a flexible interpretation despite the defendants at issue not being contractually linked. He suggests inter alia that it would run against the intention of the Regulation to force the claimant into proving the anchor defendant be the main instigator of the infringement. Along similar lines, that the anchor defendant is not a corporation itself but rather one of its directors, with domicile in a different Member State, does not in the view of the AG prevent him being used as anchor defendant, provided (77) claimant prove at the start of proceedings that the director actively engaged in the infringement or should have known about it but did not stop it.

One can see merit in the AG’s approach in that it, as he also suggests, addresses the issue of abuse of the anchor defendant mechanism. On the other hand, this engagement with some of the merits of the case always raises the issue of how intensive that can /ought to be at the jurisdictional stage without leading to a ‘mini’ trial’. It may be preferable simply to hold that as a director of a corporation, one should not be surprised to be used as jurisdictional anchor for that corporation’s infringements, in one’s place of domicile.

Geert.

EU Private international law, 3rd ed. 2021, 2.482 ff.

Opinion Richard de la Tour this AM re anchor defendants, Article 8(1) Brussel Ia, infringement of Community Trademark

C‑832/21 Beverage City & Lifestyle GmbH v Advance Magazine Publishers Inc.https://t.co/yjOXA6OrbR

— Geert Van Calster (@GAVClaw) March 23, 2023

On 26 May 2023 the Center for the Future of Dispute Resolution (Ghent Univeristy) in collaboration with leading organizations, including ArbTech, Arbitrate.com, Cepani, Cepani40 CyberArb, MetaverseLegal, and UNCITRAL will bring together leading voices in technology and dispute resolution to discuss how blockchain, the metaverse and Web3 affects and will transform arbitration

The conference proposes five panels that will debate the impact of the blockchain, the metaverse and Web3 technologies on the fundamentals of arbitration and explore how arbitration practitioners and arbitration institutions have to adjust to stay relevant.

The blockchain, the Metaverse, and Web3 have become part of the conversation in the arbitration community, but few understand their true significance and potential impact. That is why this conference aims to explore how these technologies will transform arbitration and how practitioners and institutions can adapt to stay relevant.

The questions to be addressed are:

• Blockchain: what is it and (why) should the arbitration community care?
• Metaverse: what is it and (why) should the arbitration community care?
• Bringing down the house: How a new architecture (may) affect the fundamentals of arbitration
• A role and place for lawyers: Is the legal market prepared for this new dispute resolution constellation?
• Arbitration institutions in an era of decentralized spaces: on the cutting edge (or falling off)?

Additionally, UNCITRAL will present its insights and work in the area of blockchain and arbitration.

The list of confirmed speakers includes Mihaela Apostel, Pedro Arcoverde, Elizabeth Chan, Paul Cohen, Dirk De Meulemeester, David Earnest, Elizabeth Zoe Everson, Anna Guillard Sazhko, Wendy Gonzales, Emily Hay, Cemre Kadioglu Kumptepe, Crenguta Leaua, Matthias Lehman, Niamh Leinwather, Aija Lejniece, Maud Piers, Colin Rule, Sean McCarthy, Sophie Nappert, Ekaterina Oger Grivnova, Pietro Ortolani, Amy Schmitz, Takashi Takashima, David Tebel, Leandro Toscano, and Dirk Van Gerven.

The conference will take place at Ghent University (Belgium). Additional details related to the event and the speakers can be found here.

For registration, information can be found here.

La Cour de cassation examine le régime juridique d’un jugement italien déclaré exécutoire en France dans un premier temps, avant que le juge italien ne décide de suspendre l’exécution provisoire du jugement.

Sur la boutique Dalloz Droit et pratique des voies d’exécution 2022/23 Voir la boutique Dalloz

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On 9 March 2022, the CJEU ruled on the concept of “consumer” under Article 17(1)(c) of Brussels I bis Regulation (Wurth Automotive, Case C-177/22).

According to the CJEU, national court may take into account the “impression” created by a person’s conduct towards the other contracting party in order to deny the former consumer status. Behaving like a trader may therefore lead to the consumer being deprived of his/her procedural protection provided by Brussels I bis Regulation, Section 4. Although this solution is already found in the Gruber judgment (paras 51-52), the facts of this new case are quite different. It is therefore questionable whether the analogical reasoning followed by the Court is fully justified.

Facts and Issue

A person, domiciled in Austria bought a second-hand car over the Internet from a German seller. In practice, however, she had asked her partner, a provider of an online car sales platform, to handle the purchase for her. The contract mentioned that it was concluded between the buyer, described as a “trader” and the German seller. The buyer did not ask for any modification. A few months later, she brought an action for warranty of hidden defects against the German seller before the Austrian court.

Did the Austrian court have jurisdiction based on the consumer’s domicile pursuant to Article 18(1) Brussels I bis Regulation?  And to begin with, was there a “consumer” at all?

The German seller argued that the contract was a B2B contract and raised an objection to international jurisdiction. The Austrian court referred the matter to the Court of Justice to find out how to overcome the factual uncertainties surrounding the characterisation of the “consumer” in this case.

Classical Criterion: Private Consumption’s Purposes of the Contract

As recalled by the CJEU, the concept of consumer within the meaning of Article 17(1) of the Brussels I bis Regulation is based on the purposes (present or future) pursued by the conclusion of the contract. These purposes must be (for the most part) private or, put differently, for non-business use. The rest, in particular the professional status of the person (i.e., whether the person is employed or self-employed) does not matter. In the present case, the buyer was the regular web designer for her partner’s online car sales platform. The only question to be analysed by the referring court here is therefore whether this car was purchased for personal purposes or (mainly) for the pursuit of a professional activity.

Proof of the Private Consumption’s Purposes: From Objective Assessment to Behavioural Analysis

In order to ascertain the private purposes of the contract, the national court must first and foremost rely on the evidence which objectively results from the case in question. But what if this evidence is insufficient? According to the CJEU, the national court may take into account more subjective, “psychological” elements, by checking whether the alleged consumer’s behaviour gave the impression to the other party (i.e. the trader) that she was acting for business purposes.

Consequently, the Court of justice held that

even if the contract does not as such serve a non-negligible business purpose, … the individual must be regarded, in view of the impression he or she has given to the other party acting in good faith, as having renounced the protection afforded by those provisions (para 32, by analogy, Gruber, C‑464/01, para 53).

Hence, a B2C dispute can be removed from Section 4 of Brussels I bis Regulation by a form of “implied waiver” by the consumer.

How to Assess the Behaviour of the Customer?

In order to assess the behaviour of the buyer, the national court must rely on a body of evidence showing “the impression created by that person’s conduct on the other contracting party” (Section 2 of the operative part). In the case at hand, this impression could be revealed (inter alia) by a lack of a reaction on the part of the person relying on the status of consumer to the terms of the contract designating him or her as a trader, by the fact that she had concluded the contract through a professional intermediary in the field of covered by the contract (her partner) or by the fact that, after the contract was signed, the latter had asked the seller about the possibility of mentioning the VAT on the invoice (Section 2 of the operative part).

In addition, where it proves impossible to determine certain circumstances surrounding the conclusion of a contract, the national court must assess the evidentiary value of the available information “in accordance with the rules of national law, including whether the benefit of the doubt must be given to the person relying on the status of consumer” (Section 3 of the operative part). This is a classic expression of procedural autonomy in EU law. Even though the “consumer” within the meaning of Article 17 of the Brussels I bis Regulation is an autonomous concept of EU law, the national court’s assessment shall be based on the lex fori (within the limits of the principles of equivalence and effectiveness).

Critical Assessment

In contrast to the Gruber judgment, the present case did not involve a contract with a twofold private and professional purpose. It was thus not a question of assessing the “non-negligible business purpose” of the contract in order to exclude consumer procedural protection. Therefore, the consideration of the behaviour of the consumer acting as a trader does not have the same scope here as in Gruber. The CJEU is certainly aware of this since it insists on the “good faith” of the professional contractual party as a counterbalance (paras 34 and 37). The good faith of the other party is a necessary condition for denying the consumer his/her procedural protective regime, whereas in theory he/she should be entitled to it in the case of a contract concluded for entirely private purposes.

The implicit reason why the consumer may lose procedural protection is that traders need legal certainty in contractual matters. Either they are dealing with a consumer and they know (and can anticipate) that the consumer enjoys a favourable regime. Or they are doing business with a partner of their own category and party autonomy fully applies. Vis-à-vis a careless or negligent consumer who, inter alia, did not deny entering into the contract as a “trader”, it can be considered that his/her professional co-contracting party was not able to anticipate and integrate the “risk” of concluding a contract with a weaker party.

From a rational point of view, the solution can be approved. But based on the functional logic of consumerism, offering a derogatory regime to protect the weaker party, one may have a doubt. Was the poker player in the judgment Personal Exchange International (analysed here) more of a consumer than this buyer of a second-hand car? The methodology provided by the Court of Justice is not easy to handle and implies a tricky case-by-case analysis. It is therefore not sure that in the end legal certainty will really be strengthened.

Par un arrêt du 9 mars 2023, la Cour de justice de l’Union européenne fournit des précisions sur le contenu du certificat successoral européen, dans ses liens avec les systèmes de publicité foncière des Etats de l’Union.

Sur la boutique Dalloz Liquidation des successions 2023/2024 Voir la boutique Dalloz

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Conventions & Instruments

On 1 March 2023, the 1993 Adoption Convention entered into force for Botswana. The Convention currently has 105 Contracting Parties. More information is available here.

On 8 March 2023, China deposited its instrument of accession to the 1961 Apostille Convention and Malta deposited its instrument of ratification of the 2000 Protection of Adults Convention during the meeting of the Council on General Affairs and Policy. The 1961 Apostille Convention, which has 124 Contracting Parties, will enter into force for China on 7 November 2023. The Convention is already in force in the Hong Kong and Macao Special Administrative Regions of the People’s Republic of China. The 2000 Protection of Adults Convention, which has 15 Contracting Parties, will enter into force for Malta on 1 July 2023. More information is available here.

On 9 March 2023, the 1961 Apostille Convention entered into force for Pakistan. The Convention currently has 124 Contracting Parties. More information is available here.

On 20 March 2023, the 1961 Apostille Convention entered into force for Senegal. The Convention currently has 124 Contracting Parties. More information is available here.

Publications & Documentation

On 6 March 2023, the Permanent Bureau published the Practical Guide to Access to Justice for International Tourists and Visitors. More information is available here.

On 8 March 2023, the Permanent Bureau published the HCCH 2022 Annual Report. More information is available here.

Meetings & Events

From 7 to 10 March 2023, the Council on General Affairs and Policy (CGAP) of the HCCH met in The Hague, with over 450 participants joining both in person and online. HCCH Members reviewed progress made to date and agreed on the work programme for the year ahead in terms of normative, non-normative and governance work. More information is available here.

Among other important developments, during the meeting CGAP took the historic decision to adopt Spanish as an official language as of 1 July 2024, on which more information is available here. It also decided to recommend Dr Christophe Bernasconi to the Netherlands Standing Government Committee on Private International Law for the position of Secretary General, on which more information is available here.

On 22 March, the Regional Office for Asia and the Pacific of the HCCH hosted the webinar “HCCH 1961 Apostille Convention – Application and Future Prospects in the Asia Pacific Region”.

Upcoming Events

Registrations are open for the conference “The HCCH 2019 Judgments Convention: Cornerstones – Prospects – Outlook”, which will be held in person on 9 and 10 June 2023 at the University of Bonn in Germany. More information is available here.

Des modifications importantes des règles de procédure du Tribunal de l’Union européenne entreront en vigueur le 1er avril

The desirability of adopting a French code of private international law in a field dominated by EU law is hotly debated in France.

In October 2022, the French Committee of Private International Law hosted a conference on the project. The text of the presentations is freely available here. The presentations were followed by a Q&A session where a number of French scholars expressed their criticism of the draft code and indeed of the entire project. The drafters of the code have since then responded in writing to these critiques.

Some of the criticisms voiced during this conference were since then published. They include an article by Dominique Bureau and Horatia Muir Watt and an article by Louis d’Avout.

CC Rainer Lück 1RL.de, https://commons.wikimedia.org/wiki/File:Bundesverfassungsgericht_IMGP1634.jpg

 

I.

Yesterday, on March 29, 2023, the German Constitutional Court published its long-awaited (and also long) decision on the German “Act to Combat Child Marriage” (Gesetz zur Bekämpfung von Kinderehen). Under that law, passed in 2017 in the midst of the so-called “refugee crisis”, marriages celebrated under foreign law are voidable if one of the spouses was under 18 at the time of marriage (art. 13 para. 3 no. 2 EGBGB), and null and void if they were under 16 (art. 13 para. 3 no. 1 EGBGB) – regardless of whether the marriage is valid under the normally applicable foreign law. In 2018, the German Federal Court of Justice refused to apply the law in a concrete case and asked the Constitutional Court for a decision on the constitutionality of the provision.

That was a long time ago. The wife in the case had been fourteen when the case started in the first instance courts; she is now 22, and her marriage certainly no longer a child marriage. And as a matter of fact, the Constitutional Court decision itself is  already almost two months old; it was rendered on February 1. This and the fact that the decision cites almost no sources published after 2019 except for new editions of commentaries, suggests that it may have existed as a draft for much longer. One reason for the delay may have been internal: the president of the Court, Stephan Harbarth, was one of the law’s main drafters. The Court decided in 2019 that he did not have to recuse himself, amongst others for the somewhat questionable reason that his support for the bill was based on political, not constitutional, considerations. (Never mind that members of parliament are obligated by the constitution also in the legislative process, and that a judge at the Constitutional Court may reasonably be expected to be hesitant when judging on the unconstitutionality of his own legislation.)

 

II.

In the end, the Court decided that the law is, in fact, unconstitutional: it curtails the special protection of  marriage, which the German Constitution provides, and this curtailment is not justified. The decision is long (more than sixty pages) but characteristically well structured so a summary may be possible.

Account to the Court, the state’s duty to protect marriage (art. 6 para. 1 of the Basic Law, the German Constitution) includes not only marriage as an institution but also discrete, existing marriages, and not only the married status itself but also the whole range of legal rules surrounding it and ensuing from it. Now, the Court has provided a definition of marriage as protected under the Basic Law: it is a union, in principle in perpetuity, freely entered into, equal and autonomously structured, and established by the marriage ceremony as a formalized, outwardly recognizable act. (Early commentators have spotted that “between one man and one woman” is no longer named as a requirement, but it seems far-fetched to view this as a stealthy inclusion of same-sex marriage within the realm of the Constitution.) The stated definition includes marriages celebrated abroad under foreign law. Moreover, it includes marriages celebrated at a very young age as long as the requirement is met that they were entered into freely.

A legislative curtailment of this right could be justified. But the legislator has comparably little discretion where a rule, as is the case here, effectively amounts to an actual impediment to marriage. Whether a curtailment is in fact justified is a matter for the classical test of proportionality: the law must have a proper and legitimate purpose; it must be suitable towards that purpose; it must be necessary towards that purpose; and it must be adequate (“proportional” in the narrow sense) towards the purpose, in that the balance between achieving the purpose and curtailment of the right must not be out of proportion.

Here, the law’s purposes themselves – the protection of minors, the public ostracization of child marriage, and legal certainty – isarelegitimate. The worldwide fight against child marriage is a worthy goal. So is the desire for legal certainty regarding the validity of specific marriages.

The law is also suitable to serve these purpose: the minor is protected from the legal and factual burdens arising from the marriage; the law may deter couples abroad from getting married (or so the legislator may legitimately speculate; empirical data substantiating this is not available.) A clear age rule avoids the uncertainty of a case-by-case ordre public analysis as the law prior to 2017 had required.

According to the Court, the measures are also necessary towards these purposes, because alternative measures would not be similarly successful. Automatic nullity of the affected marriages is more effective, and potentially less intrusive, than determining nullity in individual proceedings. It is also more effective than case-by-case determinations under a public policy analysis. And it offers better protection of minors than forcing them to go through a procedure aimed at annulling the marriage would.

Nonetheless, the Court sees in the law a violation of the Constitution: the measure is disproportionate to the curtailment of rights. That curtailment is severe: the law invalidates a marriage that the spouses may have considered valid, may have consummated, and around which they may have built a life. Potentially, they would be barred from living together although they consider themselves to be married.

The Court grants that the protection of minors is an important counterargument in view of the risks that child marriages pose to them. So is legal certainty regarding the question of whether a marriage is or is not valid.

But the legislation is disproportionate for two reasons. First, the law does not regulate the consequences of its verdict on nullity. So, not only does the minor spouse lose the legal protections of marriage, including the right to cohabitation; they also lose the rights arising from a proper dissolution of the marriage, including financial claims against the older, and frequently wealthier, spouse. These consequences run counter to the purpose of protecting the minor. Second, the law does not enable the spouses to carry on their marriage legally after both have reached maturity unless they remarry, and remarriage may well be complicated. This runs counter to the desire to protect free choice.

The court could have simply invalidated the law and thereby have gone back to the situation prior to 2017. Normally, substantive validity of a marriage is determined by the law of each spouse’s nationality (art. 13 para. 1 EGBGB). Whether that law can be applied in fact, is then a matter of case-by-case determinations based on the public policy exception (art. 6 EGBGB). That is in fact the solution most private international lawyer (myself included) preferred. The Court refused this simple solution with the speculation that this might have resulted in bigamy for (hypothetical) spouses who had married someone else under the assumption that their marriages were void. (Whether such cases do in fact exist is not clear.) Therefore, the Court has kept the law intact and given the legislator until June 30, 2024 to reform it. In the meantime, the putative spouses of void marriages are also entitled to maintenance on an analogy to the rules on divorce.

 

III.

The German Constitutional Court has occasionally ruled on the constitutionality of choice-of-law rules before. Its first important decision – the Spaniard decision of 1971 – dealt with whether the Constitution had anything to say about choice of law at all, given that choice of law was widely considered to be purely technical at the time, with no content of constitutional relevance. That decision, which addressed a Spanish prohibition on remarrying after divorce, already concerned the right to marry. Another, more recent decision held that a limping marriage, invalid under German law though valid under foreign law, must nonetheless be treated as a marriage for purposes of social insurance. Both decisions rear their heads in the current decision, forming a prelude to a constitutional issue that now resurfaces: the court is interested less in the status of marriage itself and more in the actual protections that emerge from a marriage.

The legal consequences of a marriage are, of course, manifold, and the legislator’s explicit determination that the child marriage should yield no consequences whatsoever is therefore far-reaching. (Konrad Duden’s proposal to interpret the act so as to restrict this statement to consequences that are negative for the minor is not discussed, unfortunately). Interestingly, the Court accords no fewer than one fifth of its decision, thirteen pages, to a textbook exposition of the relevance of marriage in private international law. Its consequences were among the main reasons for near-unanimity in the German conflict-of-laws field in opposition to the legal reform. Indeed, another fifth of the decision addresses the positions of a wide variety of stakeholders and experts –the federal government and several state governments, the Max Planck Institute for Comparative and International Private Law, a variety of associations concerned with the rights of women, children, and human rights as well as psychological associations. Almost all of them urged the Court to rule the law unconstitutional.

These critics will regard the decision as an affirmation, though perhaps not as a full one, because the Court, worried only about consequences, essentially upholds the legislator’s decision to void child marriages entered into before the age of sixteen. This is unfortunate not only because the status of marriage itself is often highly valuable to spouses, as we know from the long struggles for the acceptance of same-sex marriage rather than mere life partnership. Moreover, the result is the acceptance of limping marriages that are however treated as though they were valid. This may be what the Constitution requires. From the perspective of private international law, it seems slightly incoherent to uphold the nullity of a marriage on one hand and then afford its essential protections on the other, both times on the same justification of protecting minors. In this logic, the Court does not question whether the voiding of the marriage is generally beneficial to all minors in question. Moreover, in many foreign cultures, these protections are the exclusive domain of marriage. It must be confusing to tell someone from that culture that the marriage they thought was valid is void, but that it is nonetheless treated as though it were valid for matters of protection.

 

IV.

An interesting element in the decision concerns the Court’s use of comparative law. Germany’s law reform was not an outlier: it came among a whole flurry of reforms in Europe that were quite comprehensively compiled and analyzed in a study by the Hamburg Max Planck Institute (it is available, albeit only in German, open access). In recent years, many countries have passed stricter laws vis-à-vis child marriages celebrated under foreign law: France (2006), Switzerland (2012), Spain (2015), the Netherlands (2015), Denmark (2017), Norway (2007/2018), Sweden (2004/2019) and Finland (2019). Such reforms were successful virtue-signaling devices vis-a-vis rising xenophobia (not surprisingly, right-wingers in Germany have already come out again to criticize the Constitutional Court). Substantively, these laws treat foreign child marriages with different degrees of severity – the German law is especially harsh. However, comparative law reveals more than just matters of doctrine. Several empirical reports have demonstrated that foreign laws were not more successful at reducing the number of child marriages than was the German law, which is more a function of economic and social factors elsewhere than of European legislation. Worse, the laws sometimes had harmful consequences, not only for couples separated against their will, but even for politicians: in Denmark, one former immigration minister was impeached after reports by the Danish Red Cross of a suicide attempt, depression, and other negative psychosocial effects of the law on married minors. And surveys have shown that enforcement of the laws has been spotty in Germany and elsewhere.

The Constitutional Court did not need to pay much attention to these empirical reports. In assessing whether annulling foreign marriages was necessary, the Court did however take guidance from the Max Planck comparative law study, pointing out (nos 182, 189) that the great variety of alternative measures in foreign legislation made it implausible that the German solution – no possibility to validate a marriage at age eighteen – is necessary . This makes for a good example of the usefulness of comparative law – comparative private international law, to be more precise –  even for domestic constitutional law. If demonstrating that a measure is necessary requires showing a lack of alternatives, then comparative law can furnish both the alternatives as well as empirical evidence of their effectiveness. That comparative law can be put to such practical use is good news.

 

V.

The German legislator must now reform its law. What should it do? The Court has hinted at a minimal solution: consider these marriages void without exception, but extend post-divorce maintenance to them, and enable the couple to affirm their marriage, either openly or tacitly, once they are of age. In formulating such rules, comparative analysis of various legal reforms in other countries would certainly be of great help.

But the legislator may also take this admonition from the Constitutional Court as an impetus for a bigger step. Not everything that is constitutionally permissible is also politically and legally sound. The German reform was rushed through in 2017 in the anxiousness of the so-called refugee crisis. The same was true, with some modifications, of other countries’ reforms. What the German legislator can learn from them is not only alternative modes of regulation but also that these reforms’ limited success is not confined to Germany. This insight could spark legislation that focuses more on the actual situation and needs of minors than on the desire to ostracize child marriage on their backs. Such legislation may well reintroduce case-by-case analysis, something private international lawyers know not to be afraid of. This holds true especially in view of the fact that the provision does not regulate a mass problem but rather a relatively small number of cases which is unlikely to create excessive burdens on agencies and the judiciary. The legislator could also substitute the place of celebration for the spouses’ nationality as the relevant connecting factor for substantive marriage requirements, as the German Council for Private International Law, an advisor to the legislator, has already proposed (Coester-Waltjen, IPRax 2021, 29). This would make it possible to distinguish more clearly between two very different situations: couples wanting to get married in Germany (where the age restriction makes eminent sense) on the one hand, and couples who already got married, validly, in their home countries and find their actually existing marriage to be put in question. Indeed, this might be a good opportunity to move from a system that designates the applicable law to a system that recognizes foreign acts, as is the case already in some other legal systems.

In any case, the Court decision provides Germany with an opportunity to move the fight against child marriage back to where it belongs and where it has a better chance of succeeding – away from private international law, and towards economic and other forms of aid to countries in which child marriage would be less rampant if they were less afflicted with war and poverty.

 

 

 

 

 

 

 

The European Commission has published, on 29 March 2023, a Study to support the preparation of a report on the application of the Brussels I bis Regulation, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

The blurb reads as follows.

Regulation 1215/2012 (Brussels Ia Regulation) was adopted on 12 December 2012, entered into force on 9 January 2013, and started to apply from 10 January 2015 onwards. It aims to establish a uniform and comprehensive set of rules governing jurisdiction and the recognition and enforcement of judgments in cross-border civil and commercial matters. The scope of the Regulation encompasses a wide range of civil and commercial matters, including insurance, consumer, and employment contracts. It applies in all EU Member States. Since the adoption of the Regulation, several developments, such as the case-law of the CJEU, increased worker mobility, digitalisation, the adoption of new international instruments in the field of private international law (PIL) (such as the 2019 Hague Judgments Convention), the adoption of other EU instruments providing for PIL rules applicable in civil and commercial cross-border matters (such as the Maintenance Regulation or the Insolvency Regulation) are likely to have had an impact on its operation. In this context, the objective of the Study is to assist the Commission in preparing the report on the application of the Brussels Ia Regulation (as provided under its Article 79), and to provide a thorough legal analysis of the application of the Brussels Ia Regulation in the Member States. In particular, the Study aims to determine whether the Regulation is correctly applied in the Member States and to identify specific difficulties encountered in practice. The Study also aims to assess whether recent socioeconomic changes pose challenges to the application of Brussels Ia Regulation’s rules, definitions, and connecting factors. The analysis – based on desk research, CJEU and national case-law analysis and interviews at both the EU and national levels – covers 34 questions on the main legal and practical issues and questions arising from the application of the Brussels Ia Regulation.

The study, written by Milieu, is based on advice provided by Pedro de Miguel Asensio and Geert Van Calster, and draws on input from a team of national experts including Florian Heindler and  Markus Schober, Michiel Poesen, Dafina Sarbinova, Christiana Markou, Hana Špániková, Bettina Rentsch and Maren Vogel, Morten M. Fogt, Thomas Hoffmann and Karine Veersalu, Argyro Kepesidi Eduardo Álvarez-Armas, Katja Karjalainen, Virginie Rouas, Ivan Tot, Tamás Fézer, William Binchy, Laura Carpaneto and Stefano Dominelli, Yvonne Goldammer and Arnas Stonys, Vincent Richard, Aleksandrs Fillers, Emma Psaila, Kirsten Henckel, Anna Wysocka-Bar, Maria João E. de Matias Fernandes, Sergiu Popovici, David Jackson, Ela Omersa, and Natalia Mansella.

The report can be found here.

Xella Magyarország
Libre circulation des capitaux
Avocate générale Ćapeta : le droit de l’Union ne s’oppose en principe pas à une législation nationale qui permet le filtrage des investissements directs étrangers en provenance de pays tiers, même si ces investissements sont réalisés par une société établie dans l’Union

Volkswagen Group Italia et Volkswagen Aktiengesellschaft
Espace de liberté, sécurité et justice
Selon l’avocat général Campos Sánchez-Bordona, Volkswagen ne peut pas être sanctionnée en Italie en raison du « Dieselgate », après l’avoir été en Allemagne, si la coordination entre les procédures de sanction des deux États a été insuffisante

Green Network (Injonction de remboursement de frais)
Liberté d'établissement
Les autorités de régulation nationales de l’énergie peuvent avoir le pouvoir d’imposer aux entreprises d’électricité la restitution des sommes perçues en violation des exigences relatives à la protection des consommateurs

Hauptpersonalrat der Lehrerinnen und Lehrer
Principes du droit communautaire
La diffusion en direct par vidéoconférence des cours d’enseignement scolaire public tombe sous le coup du RGPD

As many readers of the blog surely know already, the Unified Patent Court Agreement (UPC Agreement) will enter into force on 1 June 2023.

With this in mind, a 3-month Sunrise period started on 1 March 2023. From that date, an opt-out from the jurisdiction of the Court, as laid down in Article 83(3) of the UPC Agreement, can be filed. According to the provision, applicants for and proprietors of a “classic” European patent, as well as holders of a supplementary protection certificate (SPC) issued for a product protected by a “classic” European patent, can opt out their application, patent or SPC from the exclusive competence of the Court. As a result, the UPC will have no jurisdiction concerning any litigation related to this application, patent or SPC. The application to opt out can only be made via the Case Management System of the Court (CMS); the conditions are explained here. It should be noted that the opt-out will only become effective on the date of entry into force of the Agreement on a Unified Patent Court.

Filing a request to become a representative before the UPC, as per Article 48 of the Agreement, is also possible since 1 March 2023. Two categories are eligible to become representative before the UPC: lawyers authorised to practice before a court of a Contracting Member State  (Article 48(1) UPCA) and European Patent Attorneys who are entitled to act as professional representatives before the European Patent Office and who have appropriate qualifications as per Article 48(2) UPCA and the European Patent Litigation Certificate Rules.

The first experiences with the live version of the Court’s Case Management System (CMS) have just been reported by the Registrar (a week before, Luxembourg launched a call for applications for administrative support staff at the Registry and Court of Appeal of the Unified Patent Court in Luxembourg, deadline ending soon, in case of interest. Other vacancies are posted here).

Just for the record: 24 EU Member States have signed the Agreement on a Unified Patent Court (Spain, Poland and Croatia have not). Initially, the UPCA will be in force in 17 states which have ratified the Agreement (Cyprus, Czech Republic, Greece, Hungary, Ireland, Romania, Slovakia have not). The unitary patent is the outcome of enhanced cooperation procedure; it was established via Regulation No 1257/2012 of 17 December 2012. In 2014, Regulation No 542/2014 was adopted amending Regulation No 1215/2012 as regards the rules on jurisdiction to be applied with respect to the Unified Patent Court (see consolidated version of the latter Regulation, whose Article 24(4) will still remain in force after 1 June 2023, albeit with a more limited scope of application).

For litigants embroiled in cross-border litigation, the anti-suit injunction has become a staple in the conflict of laws arsenal of common law courts. Its purpose being to restrain a party from instituting or prosecuting proceedings in a foreign country, it is regularly granted to uphold arbitration or choice of court agreements, to stop vexatious or oppressive proceedings, or to protect the jurisdiction of the forum court. However, what is a party to do if the foreign proceeding has already run its course and resulted in an unfavourable judgment? Enter the anti-enforcement injunction, which, as the name suggests, seeks to restrain a party from enforcing a foreign judgment, including, potentially, in the country of judgment.

Decisions granting an anti-enforcement injunction are “few and far between” (Ecobank Transnational Inc v Tanoh [2015] EWCA Civ 1309, [2016] 1 WLR 2231, [118]). Lawrence Collins LJ (as he then was) described it as “a very serious matter for the English court to grant an injunction to restrain enforcement in a foreign country of a judgment of a court of that country” (Masri v Consolidated Contractors International (UK) Ltd (No. 3) [2008] EWCA Civ 625, [2009] QB 503 at [93]). There must be a good reason why the applicant did not take action earlier, to prevent the plaintiff from obtaining the judgment in the first place. The typical scenario is where an applicant seeks to restrain enforcement of a foreign judgment that has been obtained by fraud.

This was the scenario facing the New Zealand High Court in the recent case of Kea Investments Ltd v Wikeley Family Trustee Limited [2022] NZHC 2881. The Court granted an (interim) anti-enforcement injunction in relation to a default judgment worth USD136,290,994 obtained in Kentucky (note that the order was made last year but the judgment has only now been released). The decision is noteworthy not only because anti-enforcement injunctions are rarely granted, but also because the injunction was granted in circumstances where the foreign proceeding was not also brought in breach of a jurisdiction agreement. Previously, the only example of a court having granted an injunction in the absence of a breach of a jurisdiction agreement was the case of SAS Institute Inc v World Programming Ltd [2020] EWCA Civ 599 (see Tiong Min Yeo “Foreign Judgments and Contracts: The Anti-Enforcement Injunction” in Andrew Dickinson and Edwin Peel A Conflict of Laws Companion – Essays in Honour of Adrian Briggs (OUP, 2021) 254).

Kea Investments Ltd v Wikeley Family Trustee Limited involves allegations of “a massive global fraud” perpetrated by the defendants – a New Zealand company (Wikeley Family Trustee Ltd), an Australian resident with a long business history in New Zealand (Mr Kenneth Wikeley), and a New Zealand citizen (Mr Eric Watson) – against the plaintiff, Kea Investments Ltd (Kea), a British Virgin Islands company. Kea alleges that the US default judgment is based on fabricated claims intended to defraud Kea. Its substantive proceeding claims tortious conspiracy and a declaration that the Kentucky judgment is not recognised or enforceable in New Zealand. Applying for an interim injunction, the plaintiff argued that “the New Zealand Court should exercise its equitable jurisdiction now to prevent a New Zealand company … from continuing to perpetrate a serious and massive fraud on Kea” (at [27]) by restraining the defendants from enforcing the US judgment.

The judgment is illustrative of the kind of cross-border fraud that private international law struggles to deal with effectively: here, alleged fraudsters using the Kentucky court to obtain an illegitimate judgment and, apparently, frustrate the plaintiff’s own enforcement of an earlier (English) judgment, in circumstances where the Kentucky court is unwilling (or unable?) to intervene because Kea was properly served with the proceeding in BVI.

Gault J considered that the case was “very unusual” (at [68]). Kea had no connection to Kentucky, except for the defendants’ allegedly fabricated claim involving an agreement with a US choice of court agreement and a selection of the law of Kentucky. Kea also did not receive actual notice of the Kentucky proceedings until after the default judgement was obtained (at [73]). In these circumstances, the defendants were arguably “abusing the process of the Kentucky Court to perpetuate a fraud”, with the result that “the New Zealand Court’s intervention to restrain that New Zealand company may even be seen as consistent with the requirement of comity” (at [68]).

One may wonder whether the Kentucky Court agrees with this assessment – that a foreign court’s injunction restraining enforcement of its judgment effectively amounts to an act of comity. In fact, Kea had originally advanced a cause of action for abuse of process, claiming that the alleged fraud was an abuse of process of the Kentucky Court. It later dropped the claim, presumably due to a recent English High Court decision (W Nagel (a firm) v Chaim Pluczenik [2022] EWHC 1714) concluding that the tort of abuse of process does not extend to foreign proceedings (at [96]). The English Court said that extending the tort to foreign proceedings “would be out of step with [its] ethos”, which is “the Court’s control of its own powers and resources” (at [97]). It was not for the English court “to police or to second guess the use of courts of or law in foreign jurisdictions” (at [97]).

Since Gault J’s decision granting interim relief, the defendants have protested the Court’s jurisdiction, arguing that Kea is bound by a US jurisdiction clause and that New Zealand is not the appropriate forum to determine Kea’s claims. The Court has set aside the protest to jurisdiction (Kea Investments Ltd v Wikeley Family Trustee Limited [2023] NZHC 466). The Court also ordered that the interim orders continue, although the Court was not prepared to make a further order that the defendants consent to the discharge of the default judgment and withdraw their Kentucky proceedings. This, Gault J thought, was “a bridge too far” at this interim stage (at [98]).

L’arrêt rendu le 21 mars 2023 contre la Turquie illustre l’un des aspects fascinants des arrêts de la Cour européenne des droits de l’homme. À travers les affaires qu’elle est amenée à traiter, la juridiction européenne offre, pour les besoins de l’affaire, une description précise de systèmes juridiques variés, parfois même lointains. Cet ancrage topographique du droit étend l’horizon et permet, par le biais d’une interprétation autonome des notions contenues dans la Convention, de renforcer la protection offerte pour la rendre encore plus concrète et effective.

Sur la boutique Dalloz Code civil 2023, annoté Voir la boutique Dalloz

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UBS’ bailout of Credit Suisse, arguably strong-armed by the Swiss State, will have had countless lawyers phoning investors, and countless investors lawyering up. I am no expert in banking and finance law, I am of course like everyone else aware that the anger is most visible in so-called AT1 bondholders. This blog is interested in the dispute resolution fall-out likely to rain down on various dispute resolution avenues for some time to come.

A quick flag that those considering litigation, will have a range of issues to ponder. Who to sue, for starters. The Swiss authorities might be a target, leading of course to considerations of immunity and, give the close involvement of the Swiss authorities in the rescue, of the qualification of the claims as ‘civil and commercial’ (echoes here of CJEU Kuhn etc, now under the Lugano Convention).

What litigation avenue to pursue, next: the bond holders will be subject to dispute resolution clauses, one imagines either with choice of court for Switzerland or providing for commercial arbitration. Depending on time and avenue of acquisition of the bonds, the holders may well argue they are not bound by such clauses, Further, a potential to use the route typically favoured by Swiss-headquartered multinationals, against other States: ISDS. Investor-State Dispute Settlement (with their ‘fork in the road’ provisions).

(Digital) Rolodexes the world over will be spinning by now. As and when this leads to litigation as suggested above, the blog will be reporting.

Geert.

 

 

On 21 April, Louvain-La-Neuve will be hosting a conference in honour of prof emeritus Marc Fallon. The general concept of the conference is included below (summary provided by prof Stéphanie Francq, one of the main organisers of the event). More info with full program and link for registration is here. This will be a thoughtFest for all interested in EU private international law and with working languages both English and French, it speaks to a broad audience.

Get thee to Louvain. Geert.

 

Why and for what purpose should European private international law be codified? This twofold question will be at the heart of the discussions on April 21, 2023, during a colloquium paying tribute to the remarkable work of Professor Marc Fallon in the fields of private international law and European law, and in particular to his involvement in the Belgian and European codification of private international law. How did we come to envisage a European codification of private international law? What do we expect from it? Does an EU codification have the same ambitions as national codifications? Do these ambitions not vary according to the place, the time and the context of international constraints imposed on the legislator? Does a codification at the European level, and at the present time, imply specific needs, challenges and consequences, even dangers, for both the national and the European legal orders? And above all, does it offer new prospects or hopes for the European project and for the discipline of private international law?

The European Commission has published in December 2022 an ambitious proposal for a new Regulation dealing with the private international law of parenthood (COM (2022) 695 final).

With this proposal, the EU could for the first time adopt a private international law instrument dealing with the creation (and not only the effects) of a family status. While both the CJEU and the ECtHR have somewhat limited the freedom enjoyed by States faced with parenthood established abroad, there is not yet any precedent of an international instrument dealing with all issues arising when parenthood crosses national borders.

The proposal is currently being discussed in the Council, with the assistance of the Commission. There is no guarantee that a Regulation will effectively be adopted. Nor is it possible to tell at this stage how much a future Regulation will deviate from the proposal.

The proposal raises, however, many intriguing questions which are likely to trigger an intense debate. It offers a unique opportunity to discuss the private international law treatment of parenthood with a special focus on the proposal.

During four sessions in May 2023, experts from various Member States will discuss the main elements of the proposal, find weaknesses and possibilities of improvement. Each webinar will start at 6 pm and end at 8 pm, and focus on two topics, each presented by one expert, who will discuss the content of the proposal and examine the questions and possible improvement it raises. There will be ample room for discussion.

The programme of the series is as follows:

• 3 May 2023, webinar chaired by Claire Fenton-Glynn: The EU Proposal on Parenthood: lessons from comparative and substantive law (Jens Scherpe), and What’s in it? Subject matter, scope and definitions (Cristina González Beilfuss)
• 10 May 2023, webinar chaired by Fabienne Jault-Seseke: The EU Proposal and primary EU law: a match made in heaven? (Susanne Gössl), and The law governing parenthood: are you my father? (Tobías Helms)
• 17 May 2023, webinar chaired by Nadia Rustinova: The mutual recognition of decisions under the EU Proposal: much ado about nothing? (Alina Ontanu), and Who decides on parenthood? The rules of jurisdiction (Maria Caterina Baruffi)
• 24 May 2023, webinar chaired by Steven Heylen: Authentic documents and parenthood: between recognition and acceptance (Patrick Wautelet), and The European certificate of Parenthood: a passport for parents and children? (Ilaria Pretelli)

The series of webinars is organized by Cristina González Beilfuss (Universitat de Barcelona), Susanne Gössl (Universität Bonn), Ilaria Pretelli (Institut Suisse de Droit Comparé), Tobias Helms (Universität Marburg) and Patrick Wautelet (Université de Liège) under the auspices and with the support of EAPIL, the European Association of Private International Law.

A post on this blog will announce the opening of registrations in mid-April 2023 and provide further details.

For inquiries, please contact sgoessl@uni-bonn.de.