Droit international général

The Court of Justice delivered today its judgment in case C‑301/20 (UE, HC v Vorarlberger Landes- und Hypothekenbank AG, intervening parties: Estate of VJ), which is about the Successions Regulation:

“1. Article 70(3) of Regulation (EU) No 650/2012 […] must be interpreted as meaning that a certified copy of the European Certificate of Succession, bearing the words ‘unlimited duration’, is valid for a period of six months from the date of issue and produces its effects, within the meaning of Article 69 of that regulation, if it was valid when it was presented to the competent authority;

2. Article 65(1) of Regulation No 650/2012, read in conjunction with Article 69(3) of that regulation, must be interpreted as meaning that the effects of the European Certificate of Succession are produced with respect to all persons who are named therein, even if they have not themselves requested that it be issued”.

Source: https://curia.europa.eu/juris/document/document.jsf;jsessionid=4EB7F36D35D24BF4E135A4654D292A60?text=&docid=243642&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=23943665

Back in April we reported about the Opinion delivered by AG Campos Sánchez-Bordona in the case Vorarlberger Landes- und Hypotheken-Bank, C-301/20, which revolves around the effects produced by an European Certificate of Succession and its certified copy, time-wise (first and third questions) as well as ratione personae, by reason of the person concerned (second question). At the request of the Court, the Opinion covered only the third preliminary question. In today’s judgment, the Court addresses all three questions.

In brief, the case concerned a certified copy of an European Certificate of Succession, which bore a marking ‘unlimited’ in the ‘Valid until’ field (element linked to the first and third questions). Moreover, the certified copy in question was issued on the application of only one of the two heirs concerned by the main proceedings emanating from Austria (element linked to the second question).

 

First and third questions, effects time-wise

The Court considered that the first and third question should be examined jointly; for the Court, by these two questions the referring court sought to establish whether a certified copy of an European Certificate of Succession which bears a marking ‘unlimited’ is valid and produces its effects (described in Article 69 of the Succession Regulation) with no further limitation, as long as this copy was valid when it was first submitted to the concerned authority (paragraph 20).

According to the Court’s answer, such certified copy is valid for six month following its issuance and continues to produce its effects, in the sense of Article 69 of the Regulation, if it was valid when it was first submitted to the competent authority (paragraph 37).

 

Second question, effects by reason of the person concerned

By its second question, the referring court sought to establish whether an European Certificate of Succession produces its effects only in favour of the person who has applied for it (under this hypothesis, only that person could use the certificate and rely on its effects) or it produces such effects in favour of all persons who are mentioned in its content by name as heirs, legatees, executors of wills or administrators of the estate, regardless whether they applied for it.

The Court clearly approved the second hypothesis; the European Certificate of Succession produces its effects in favour of all persons mentioned in it, whether they have applied for the issue of certificate or not (paragraph 45).

 

The judgment can be consulted here (in French).

Conventions & Instruments  

On 31 May 2021, Georgia deposited its instrument of accession to the HCCH 1965 Service Convention and the HCCH 1970 Evidence Convention. With the accession of Georgia, the Service Convention now has 79 Contracting Parties. It will enter into force for Georgia on 1 January 2022, subject to the Article 28 procedure. For the Evidence Convention, with the accession of Georgia it now has 64 Contracting Parties. The Convention will enter into force for Georgia on 30 July 2021. More information is available here.

Meetings & Events 

On 1 June 2021, the HCCH and the Asian Business Law Institute co-hosted the webinar “HCCH 1970 Evidence Convention and Remote Taking of Evidence by Video-link”, part of the ongoing celebrations of the Evidence Convention’s golden anniversary. More information is available here.

On 1 June 2021, the HCCH participated in a virtual Regional Discussion on Children’s Rights and Alternative Care, organised by the Council of Europe in preparation to the United Nations Committee on the Rights of the Child Day of General Discussion on this theme. More information is available here.

On 21 June 2021, the HCCH participated in the virtual inaugural event of the Nigeria Group on Private International Law. The recording of the event is available here.

 

Vacancy: The HCCH is currently seeking an Assistant Legal Officer. The deadline for the submission of applications is 23 July 2021 (00:00 CEST). More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

On 25 June 2021, the Supreme Court of the United Kingdom issued a ruling in General Dynamics United Kingdom Ltd (Respondent) v State of Libya (Appellant) [2021] UKSC 22 on the right of the claimant to dispense service to a foreign State, by invoking exceptional circumstances. The court ruled that in proceedings to enforce an arbitration award against a foreign State under the 1996 Arbitration Act, the State Immunity Act (SIA) requires the arbitration claim form or the enforcement order to be served through the Foreign, Commonwealth (and Development) Office (“FCO”) to the State’s Ministry of Foreign Affairs, thus excluding the application of pertinent CPR rules.

Background

General Dynamics United Kingdom Ltd (“GD”) is part of the General Dynamics group, a global defense conglomerate. Libya is a sovereign state which, at the time of these proceedings, had two competing governments. A dispute arose between the parties over a contract for the supply of communications systems. In January 2016, an arbitral tribunal in Geneva made an award of approximately £16 million (plus interest and costs) in favor of GD. The Award remains unsatisfied, but GD wishes, and has attempted, to enforce it in England and Wales. In July 2018, the High Court made an order which, amongst other things, allowed GD to enforce the Award, dispense with the requirement on it to serve a claim form or any associated documents on Libya and provided for Libya to be notified of the order (as the initial hearing had been held without notice).

Subsequently, Libya applied to the High Court to set aside those parts of the initial order dispensing with service. It referred to section 12(1) of the SIA, which requires service of ‘any writ or other document required to be served for instituting proceedings against a State’ to be transmitted to that state’s Ministry of Foreign Affairs by the FCO. It asserted that, as no service in this manner either of the arbitration claim form or of the High Court’s order giving permission to enforce the Award had occurred, the order had to be set aside and the Award could not be enforced. Accordingly, it argued, any assets of Libya in the jurisdiction could not be used to satisfy the Award. The High Court’s initial order was therefore overturned. However, the Court of Appeal restored the High Court’s initial order finding that it was not mandatory for the arbitration claim form or order permitting enforcement to be served through the FCO ([2019] EWCA Civ 1110). The State of Libya appealed.

Ruling

The Supreme Court was called to address the following issues:

Issue 1: In proceedings to enforce an arbitration award against a foreign State under section 101 of the 1996 Act, does section 12(1) of the SIA require the arbitration claim form or the enforcement order to be served through the FCDO to the State’s Ministry of Foreign Affairs?

Issue 2: Even if section 12(1) applies, in exceptional circumstances, can the court dispense with service of the enforcement order under rules 6.16 and/or 6.28 of the CPR?

Issue 3: Must section 12(1) be construed as allowing the court to make alternative directions as to service in exceptional circumstances where the claimant’s right of access to the court would otherwise be infringed?

The court summarised the judgment as follows.

Issue 1

The majority of the Court allowed Libya’s appeal on the first issue. They considered that a broad reading of section 12(1) of the SIA is appropriate, on account of the considerations of international law and comity which are in play. The words “other document required to be served for instituting proceedings against a State” in section 12(1) are wide enough to apply to all documents by which notice of proceedings in this jurisdiction is given to a defendant State. In the particular context of enforcement of arbitration awards against a State, the relevant document will be the arbitration claim form where the court requires one to be served, or otherwise will be the order granting permission to enforce the award. In cases to which section 12(1) applies, the procedure which it establishes for service on a defendant State through the FCO is mandatory and exclusive, subject only to the possibility of service in accordance with section 12(6) in a manner agreed by the defendant State.

The minority would have dismissed Libya’s appeal on the first issue. They considered that that Parliament intended the applicability of section 12(1) of the SIA to depend on what was required by the relevant court rules. If, as in this case, the operation of the relevant rules does not require service of the document instituting proceedings, then that document will fall outside section 12(1) of the SIA. Documents which do not institute proceedings, such as the enforcement order, fall outside the scope of section 12(1) of the SIA entirely. Where section 12(1) of the SIA does not apply, the status quo of State immunity provided for in section 1 of the SIA must prevail.

Issue 2

The majority’s answer to this question is “No”. Lord Lloyd-Jones explained that section 12(1) of the SIA does not require the court to refer to the CPR to determine whether a document is one which is required to be served. Rule 6.1(a) of the CPR also makes clear that in this instance the CPR do not purport to oust the requirements of section 12(1) of the SIA. The CPR cannot give the court a discretion to dispense with a statutory requirement in any event.

The minority’s answer to this question is “Yes”. Lord Stephens considered that, if the court exercises a discretion to dispense with service in exceptional circumstances, then the relevant document is no longer a document that is “required to be served” for the purposes of section 12(1) of the SIA. In his view, this interpretation gives effect to the underlying purpose of the legislation because it facilitates the restrictive doctrine of State immunity.

Issue 3

General Dynamics argued that the service requirements in section 12(1) of the SIA may prevent a claimant from pursuing its claim, which would infringe article 6 of the European Convention on Human Rights (“ECHR”) as well as the constitutional right of access to the court. It therefore contended that section 12(1) should be construed, pursuant to section 3 of the Human Rights Act 1998 (“HRA”) and/or common law principles, as allowing the court to make alternative directions as to service in exceptional circumstances.

The majority of the Court rejected this argument. They held that the procedure prescribed by section 12(1) of the SIA is a proportionate means of pursuing the legitimate objective of providing a workable means of service which conforms with the requirements of international law and comity, in circumstances of considerable international sensitivity. The procedure cannot therefore be considered to infringe article 6 of the ECHR, or to engage the common law principle of legality. The court cannot therefore interpret section 12 of the SIA as (for example) permitting substituted service, given that a fundamental feature of the provisions is their mandatory and exclusive nature.

The minority would interpret section 12(1) of the SIA as allowing the court to make alternative directions as to service if the claimant’s right of access to the court would otherwise be infringed. They considered that denying access to a court in circumstances where diplomatic service is impossible or unduly difficult would not be proportionate to the legitimate aim of complying with international law to promote comity and good relations between States.

Assessment

The case concerns the application of internal rules of the UK. We will therefore refrain from any comment on the domestic landscape, and approach the issue from a broader perspective.

Some clarifications first:

1. The case falls outside the scope of the EU Service Regulation: Service of process was supposed to take place outside the boundaries of the European Union.
2. The case falls outside the scope of the 1965 Hague Service Convention: The State of Libya is not a signatory of the convention aforementioned.
3. There is no bilateral convention between the UK and the State of Libya in the field of judicial cooperation in civil matters.

Efforts to notify the defendant

As evidenced from the text of the Court of Appeal judgment, the Claimant had permission to dispense with service of the Arbitration Claim Form dated 21 June 2018, any Order made by the Court and other associated documents, pursuant to Civil Procedure Rules 6.16 and 6.28. The Claimant was allowed to courier the Arbitration Claim Form, the Order and the associated documents to the following addresses:

1. Interim General Committee for Defence, Ghaser Bin Gashour, Tripoli, Libya;
2. The Ministry of Foreign Affairs, Ash Shatt St, Tripoli, Libya; and
3. Sefrioui Law Firm, 72 Boulevard de Courcelles, 75017 Paris, France.

All three addresses were associated with the Government of National Accord, the recognised government of Libya. The Defendant could, within two months of the date of this order, apply to set aside this Order and the Award could not be enforced until after the expiration of that period, or, if the Defendant applied to set aside this order within two months of the date of this Order, until after the application has been finally disposed of.

The proceedings did come to the attention of Libya which has applied (within the specified two-month period) to set aside paragraphs 4 and 5 of the order and to vary paragraphs 6 and 7 so that the period for any application to set aside paragraphs 1 to 3 will run from the date of service of the order pursuant to section 12 of the State Immunity Act.

Hence, the question was not whether the State of Libya was aware of the proceedings; it was rather whether the notification met with the requirements of UK law, i.e. with section 12 of the State Immunity Act.

European and global good practices

In the EU context, we could refer to Article 19(1)b of the Service Regulation, which reads as follows:

1. Where a writ of summons or an equivalent document has had to be transmitted to another Member State for the purpose of service under the provisions of this Regulation and the defendant has not appeared, judgment shall not be given until it is established that:

 b the document was actually delivered to the defendant or to his residence by another method provided for by this Regulation;

and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend.

The same rule applies in the field of the 1965 Hague Service Convention. Article 15(1)b states that,

Where a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and the defendant has not appeared, judgment shall not be given until it is established that –

1. b)  the document was actually delivered to the defendant or to his residence by another method provided for by this Convention,

and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend.

Violation of the defendant’s procedural rights?

In light of the factual situation, it is substantially improbable that the procedural breach has caused an essential injury to the appellant’s defense rights. The State of Libya filed timely an application to set aside the arbitral award, apparently because it received the courier in one of the addresses aforementioned.

Formal service prevails over actual knowledge of the proceedings?

As a conclusion, we wish to underline that the State of Libya was not deprived of its rights to challenge the award. Admittedly, GD could have attempted to serve the documents pursuant to the SIA, before opting for notification by courier. It did so, because it was given the right by the High Court order. In addition, GD attempted subsequently to serve the documents, by following the requirements of section 12 of the SIA, however to no avail.

And now what?

GD is obliged to follow the conditions stipulated in Section 12 SIA. According to the most favorable estimates, evidenced in the judgment of the Court of Appeal, service will be effected no sooner than a year following transmission. Of course, it may not be excluded that service will not take place at all. This will be the moment when article 6 of the European Convention on Human Rights comes into play.

 

Strategic Lawsuits Against Public Participation – SLAPPs (I look at them comparatively in my Monash Strategic and Public Interest Litigation Unit, LAW5478) are a well-known tool to silence critics. Based on defamation, they (or the threat with them) aim to shut down the voice of opposition. Not many find the energy, financial resources and nerves to fight a protected libel suit in court.

The EP recently published the study led by Justin Borg-Barthet and carried out by him and fellow researchers at the University of Aberdeen. At the substantive level, distinguishing between SLAPPs and genuine defamation suits is not straightforward. As Justin et al point out, there is an important private international law element to the suits, too. Clearly, a claimant will wish to sue in a claimant-friendly libel environment. Moreover, where a deep-pocketed claimant can sue in various jurisdictions simultaneously, this compounds the threat.

The Brussels and Lugano regime is particularly suited to the use of SLAPPs as a result of the CJEU case-law on Article 7(2) forum delicti. The Handlungsort /Erfolgort distinction as such already tends to add jurisdictional gateways. In more recent years this has been compounded by the additional ‘centre of interests’ gateway per CJEU e-Date and Bolagsupplysningen – even if this was recently somewhat contained by the Court in Mittelbayerischer Verlag. As I have flagged before, Brussels Ia’s DNA is not supportive of disciplining abusive forum shopping, as illustrated ia in competition law and intellectual property law cases.

For these reasons, the report (Heading 4, p.33 ff) suggests dropping the availability of Article 7(2) and sticking to Article 4 domicile jurisdiction, supplemented with (unlikely) choice of court.

The European Parliament more than the European Commission has picked up the defamation issues both for BIa and for applicable law under Rome II (from which the issue is hitherto exempt; the report reviews the applicable law issues, too). It remains to be seen whether with this report in hand, Parliament will manage to encourage the EC to pick up the baton.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.431 ff, 4.24 ff.

 

In a series of posts published at the Kluwer Arbitration Blog, Gary Born argues that States Should Not Ratify, and Should Instead Denounce, the Hague Choice-Of-Court Agreements Convention.

At the invitation of the Editors of the EAPIL Blog, Trevor Hartley, Professor emeritus at the London School of Economics, replies.

Gary Born starts by saying that the 2005 Hague Choice-of-Court Convention gives choice-of-court agreements the same enforceability and effect as arbitration agreements. This, he argues, is wrong because, while the parties to an arbitration agreement can choose the individual arbitrators, the parties to a choice-of-court agreement can only choose the country, or the court, from which the judges will be drawn: they cannot choose the individual judges. The reason he finds this objectionable is that the judges in many countries are corrupt or incompetent. He cites various statistics to show this. He names a number of countries which he says are especially bad: Russia, China, Venezuela, Iran, the Congo and Nicaragua. However, none of these countries is a Party to the Hague Convention; so choice-of-court agreements designating their courts would not be covered.

There can be no doubt that corrupt, biased or incompetent judges do exist, as do corrupt, biased or incompetent arbitrators. However, even though the parties to a choice-of-court agreement cannot choose the individual judges who will hear their case, they can choose the country the courts of which will hear it. They can even choose the particular court: Article 3(a) of the Convention. And since there are many countries where the judges are not corrupt, biased or incompetent—several EU countries, as well as the United Kingdom, spring to mind—the parties can, if they choose, ensure that the judges hearing their case are unbiased, competent and impartial. If the parties insist on choosing the courts of a country where judicial corruption is a problem, they have only themselves to blame.

Moreover, it cannot be said that the Convention does not deal with this problem. Article 6(c) provides that the obligation of a court of a Contracting State other than that of the chosen court to suspend or dismiss proceedings covered by an exclusive choice-of-court agreement does not apply  if giving effect to the agreement ‘would lead to a manifest injustice or would be manifestly contrary to the public policy of the State of the court seised.’ While Article 9(e) provides that recognition and enforcement of  a judgment given by a court of a Contracting State designated in an exclusive choice-of-court agreement may be refused if it would be ‘manifestly incompatible with the public policy of the requested State, including situations where the specific proceedings leading to the judgment were incompatible with fundamental principles of procedural fairness of that State.’

Born tries to argue that the grounds for refusing to recognize a judgment under the Hague Convention are insufficient compared with those applicable to arbitration awards under the New York Convention. Little would be gained by a detailed analysis of the two sets of provisions. However, it can be said that the grounds in the Hague Convention are wide ranging—Article 9 has seven paragraphs, each setting out a different ground—and they provide ample opportunities for any court willing to use them to refuse recognition. The same courts will decide on recognition of judgments under the Hague Convention as on the recognition of arbitration awards under the New York Convention. There is no reason to believe that they will be less willing to refuse recognition in the former case than in the latter. In any event, if parties think that their rights will be better protected under an arbitration agreement than under a choice-of-court agreement, there is nothing to stop them from opting for the former. To deprive them of that choice by denouncing the Hague Convention would not enhance party autonomy: it would seriously limit it.

It should finally be said that the provisions on recognition and enforcement in the Hague Convention are very similar to those of the Brussels Regulation and the common law. The Brussels Regulation, rather than the New York Convention, was in fact the model for the Hague Convention. The most important difference between the two is that the grounds for non-recognition are considerably more extensive under the Hague Convention than under the Brussels Regulation. Both the Brussels Regulation and the common law seem to have operated satisfactorily for many years now.

The ERC Building EU Civil Justice team in Rotterdam is running a series of seminars, covering a variety of topics in the field of European civil justice and international litigation.

On Thursday 1 July, 16-18 hrs CET, the webinar is dedicated to the topic Representing Future Generations: Private Law aspects of Climate Change Litigation. Speakers are Chantal Mak, Geert Van Calster and Sanne Biesmans, and the panel is moderated by Jos Hoevenaars. They will address the relationship between climate litigation, fundamental rights and the role of European judges; private international law aspects of climate litigation and strategic aspects; and liability aspects of climate litigation and implications of the recent Dutch Shell judgment (see our earlier blogpost).

Participation is free of charge. You can register here at Eventbrite.

The two remaining sessions of the series are dedicated to:

• The Arbitralization of Courts – Friday, 2 July (09:30-11:30 CET), with Georgia Antonopoulou and Masood Ahmed as speakers and moderated by Xandra Kramer (register)

• European Civil Justice in Transition: Past, Present & Future – Thursday 15 July  (15.30-17.30 CET) with Alan Uzelac, Burkhard Hess, John Sorabji and Eva Storskrubb, moderated by Alexandre Biard and Xandra Kramer (register)

This post was written by Edyta Figura-Góralczyk, University of Economics in Kraków (Poland).

On 17 June 2021 the Court of Justice of the EU pronounced a judgment in case C‑800/19 Mittelbayerischer Verlag KG v. SM. At the time of writing this post, the text of the judgment was available only in Polish and French.

The preliminary question originates from a Court of Appeal in Warsaw and concerns jurisdictional rules for online infringements of personality rights according to Article 7(2) of the Brussels I bis Regulation. The opinion in this case was prepared by AG Bobek.

Comments concerning this judgments have already been posted by Tobias Lutzi and Geert van Calster. The case was also discussed on this blog by Marta Requejo Isidro.

Background

The plaintiff (SM) based the lawsuit on Polish material law – Article 23 and 24 of Polish Civil Code. The broad understanding of personality rights under those articles of Polish law causes qualification of the national identity and national dignity to be protected by such rights.

SM is a Polish national, lives in Poland and is a former prisoner of Auschwitz extermination camp during World War II. The online article was published by Mittelbayerischer Verlag KG, having the title: “Ein Kämpfer und sein zweites Leben” (The Warrior and His Second Life) in Germany on the website that was accessible in Poland. This article presented in German language the pre- and post-war life of Israel Offman, a Jew who survived the Holocaust. The online article included the statement  that Israel Offman’s sister ‘was murdered in the Polish extermination camp Treblinka [(im polnischen Vernichtungslager Treblinka ermordet worden war)]’ instead of informing that she ‘was murdered in Nazi German extermination camp Treblinka’. SM belongs to group of former prisoners of Nazi German extermination camps. SM claims that the words ‘Polish extermination camp Treblinka’ that were used in online article instead of ‘Nazi German extermination camp’  infringed national identity and dignity of SM what according to Polish material law causes the infringement of personality rights.

Polish courts have already issued judgments in similar cases without having doubts about the basis for jurisdiction (here and here). However this time Court of Appeal in Warsaw raised the question, if Polish courts have jurisdiction in such cases on the basis of Article 7 (2) Brussels I bis Regulation.

Limits to ‘Centre of Life Interests’ – Article 7(2) of the Brussels I bis Regulation

The CJEU ruled in this case that Article 7(2) of the Brussels I bis Regulation:

should be interpreted in this way that the court in which jurisdiction is the centre of life interests of the person alleging infringement of its personality rights by the content published on the website, has jurisdiction to hear – with regard to all harm suffered and damages suffered – an action for damages brought by that person, only if the content contains objective and possible elements to be verified allowing for the direct or indirect individual identification of that person.

As already mentioned above, the case concerns the jurisdiction of the court of Member State based on ‘centre of life interests’ of the person that personality rights were infringed by the online publication (Article 7(2) of the Brussels I bis Regulation).

The CJEU already ruled the similar case – in eDate judgment and confirmed this judgment in Bolagsupplysningen. However, the specificity of the case C-800/19 is that the plaintiff (SM) is not addressed in person (name or surname) in the online article. On the contrary, in this case the plaintiff belongs to the group addressed in the article (the group of prisoners of Nazi German extermination camps). SM also has habitual residence in Poland. SM filed the lawsuit with claims that are ‘indivisible’ (e.g. the claim for publishing apology of the plaintiff for the false statement). In order to judge such claims the Polish court should have the jurisdiction based on the ‘centre of life interests’ according to Article 7 (2) Brussels I bis Regulation as it was introduced in eDate case.

According to the opinion of AG Bobek, the jurisdiction of the  courts in such cases based on the ‘centre of life interests’ doesn’t require that the allegedly harmful online content names a particular person.  However there should occur a close connection between that court and the action at issue, thus ensuring the sound administration of justice. On the contrary the Commission argued, in essence, that a person whose personal rights, according to its claim, would be infringed, should be able to bring an action before the court having jurisdiction in the centre of life interests, if this person was mentioned by name in the publication in question.

Moreover AG Bobek has proposed after AG Cruz Villalón in eDate opinion, the  proportionality test that should clarify the jurisdiction in online infringements of personality rights.

The ‘centre of gravity’ test [should] to be composed of two cumulative elements, one focusing on the claimant and the other on the nature of the information at issue. The courts of a Member State would have jurisdiction only if that were the place of the claimant’s centre of interests and if ‘the information at issue [was] expressed in such a way that it may reasonably be predicted that that information is objectively relevant in [that Member State]’. (para 64 of AG Bobek opinion).

As a result of this test AG Bobek arrives at the following assessment:

indeed [it is] difficult to suggest that it would have been wholly unforeseeable to a publisher in Germany, posting online the phrase ‘the Polish extermination camp of Treblinka’, that somebody in Poland could take issues with such a statement. It was thus perhaps not inconceivable that ‘the place where the damage occurred’ as a result of that statement could be located within that territory, especially in view of the fact that that statement was published in a language that is widely understood beyond its national territory. Within that logic, while it is ultimately for the national court to examine all those issues, it is difficult to see how jurisdiction under Article 7(2) of Regulation No 1215/2012 could be axiomatically excluded. (para. 74 of AG Bobek opinion)

However CJEU in the discussed judgment didn’t follow the proposed centre of gravity test. The Court stated that the sound administration of justice requires such interpretation of basis of jurisdiction in Article 7(2) Brussels I bis Regulation that the centre of life interests is located in the country foreseeable for the defendant. This requires the clarification of the previous judgments of CJEU (e.g. eDate).

The CJEU introduced this clarification in such a way that the connection of the plaintiff with the alleged online material should be based on objective and verifiable elements that allow the person to be identified, directly or indirectly, individually. The CJEU stated in the analysed case that SM (plaintiff) was clearly not directly or indirectly identified individually in the content published on the Mittelbayerischer Verlag website. The plaintiff bases the claim of an infringement of its personal rights due to the fact that SM belongs to the Polish nation and was the prisoner of extermination camp. The CJEU states that in such a situation, there is no particularly close connection between the court in which area of jurisdiction lies the centre of the life interests of the person claiming infringement of the personality rights and the dispute in question (para 45). Therefore, that court does not have jurisdiction to hear all ‘indivisible’  dispute claims on the basis of Article 7(2) Brussels I bis Regulation.

Assessment

The CJEU limited the interpretation of ‘centre of life interests’ in Article 7(2) of the Brussels I bis Regulation by invoking that the online content should contain objective and possible elements to be verified allowing for the direct or indirect individual identification of the person infringed.  However the CJEU didn’t limit the possibility to sue on the basis of jurisdiction from Article 7(2) in case of claims that may be ‘divided’ between the territories of the counties (mosaic principle) – e.g. the claim for compensation.

Generally, this judgment is a step forward to clarification of the broad basis for jurisdiction of ‘centre of life interests’ in case of online personality rights infringements. However the CJEU didn’t conduct the overall analysis but pronounced the sentence of the judgment based on the specificity of the analysed case.

The future will show how this criteria (the online content should contain objective and possible elements to be verified allowing for the direct or indirect individual identification of the person infringed) is to be applied further (e.g. in the pending Gtflix case).

On 1 July 2021, the ERC Building EU Civil Justice team at Erasmus University will be organising an online seminar (the fourth in a series of seminars dedicated to EU Civil Justice) that will be discussing the private law aspects of climate litigation touching upon the recent case law such as milieudefensie/Shell case. This case marks a turn in climate change litigation by targeting mainly the responsibilities of governments in curtailing the effects of climate change to suing corporations.

The seminar moderated by Jos Hoevenaars will bring together renown speakers on the topic Prof. Chantal Mak, Prof. Geert van Calster and Sanne Biesmans. They will discuss the implications of recent climate litigation in the context of private international law, fundamental rights and corporate liability.

Click here to register. More information on the coming two seminars can be found here.

The Antwerp court of first instance (criminal section) has held last Friday, 25 June (I have copy of the judgment (in Dutch) on file) in the prosecution against CMB (an Antwerp based shipowner; specifically: Bocimar NV) and a number of individuals for the alleged illegal transport of waste, in the shape of the discarded ship the Mineral Water, destined for beaching at Chittagong, Bangladesh (the same location of relevance in Begum v Maran).

The Mineral Water was built in 1999, bought by CMB in 2007. A decision was made ‘end 2015’ (the judgment does not clarify specific date and /or circumstance of that decision) to sell  her, with a view to recycling. That sale was approved on 19 January 2016 by Bocimar Board Decision, to a cash buyer based on the British Virgin Islands, when the ship was anchored at Fangcheng, China. Actual transfer of the ship happened at Malaysia a few weeks later. The ship’s registry was changed from Antwerp to Niue after the transfer and she was beached at Chittagong in February.

The case is a criminal prosecution which of course carries with it a high burden of proof. Seeing as the ship sailed under Belgian flag, the principled application of Belgian and EU law was not as such disputed. Neither do the original owners dispute that at the time of the January 2016 decision, the ship met with the definition of waste ia per CJEU Shell. However defendants argue the EU Waste Shipments Regulation – WSR does not apply for, they argue, the Mineral Water never sailed in European waters and was not physically exported from the EU with a view to recycling (p.5 in fine).

[The court later (p.8) notes this is not quite correct: occasionally EU ports were used for (un)loading and in 2015 there was rare bunkering at Malta].

The court held for the defence. Core to the decision is Article 2, 30 31 and 32: the definitions of ‘import’, ‘export’, ‘transfer’. The prosecutor seeks support in Article 2.22: ”country of dispatch’ means any country from which a shipment of waste is planned to be initiated or is initiated’. The court however held that neither the place of decision nor the flag State is of relevance to the territorial scope of application of the WSR. (Note the contrast on that point with the Ships Recycling Regulation – SRG 1257/2013, not applicable to the facts at issue).

One imagines more on that issue can and should be said upon appeal.

The countries of dispatch, transfer and destination of the ship are all ex-EU. Importantly, at p.8 the court notes there is no indication that the owners would have gamed the system to ensure the ship lay outside EU territorial waters at the time of the decision to discard.

The case shows the importance of the flag State in the SRG (itself not free of difficulties; the IMO Hong Kong Convention should avoid gaming). Of note is also that the place of decision-making (relevant for conflict of laws: locus delicti commissi, eg under A7 Rome II as discussed in Begum v Maran) did not play a  role. The crucial element was the almost complete lack of physical contact between the ship and the EU.

One assumes the prosecution will appeal.

Geert.

Handbook of EU Waste law, 2015, Chapter 3.

Ships dismantling, beaching in Bangladesh
Update – Belgian court last week reportedly held https://t.co/XFFcwWXqZa #CMB intent to discard only materialised late in the chain, in PRC, making EU rules in force at the time inapplicable.
Am chasing copy of judgment. https://t.co/sT3unlCehg pic.twitter.com/WCn1FvgX6x

— Geert van Calster (@GAVClaw) June 28, 2021

The summary below has been kindly provided by the author:

The International Commission on Civil Status has been working for seventy years for international cooperation in the field of civil status. In this period, 34 Conventions and 11 Recommendations were adopted. Notably, the Commission developed innovative methods, for example, multilingual Forms and Coding of entries in order to overcome translation problems related to civil status documents. Its results are remarkable to a point that some of its instruments serve as a model specially for the European Union.

Despite all the work already accomplished and the many projects still existing, the International Commission on Civil Status is now in risk of vanishing, mainly because of France and Germany’s recent withdrawal.

Still, its know-how is vital in the face of the new challenges posed by changes in the civil status of persons: same-sex marriage, medically assisted reproduction, surrogate motherhood, etc. In this context and for the common interest of present and future generations, rather than abandoning the Commission and the question of civil status in the international arena, it is more than ever time to get involved, by joining it and actively participating in its work.

In that perspective, the article constitutes a plea intended to convince the German authorities of course, but also those of other States, former members of the International Commission on Civil Status or not, to invest in it in order to save an institution which works in an essential field for private relations of an international character.

Such an investment would be all the more appropriate given that the International Commission on Civil Status has fundamentally changed its statutes and its mode of operation in recent years. For example, English is now the second official language of the Commission beside French.

These efforts must henceforth be accompanied. If this were not the case, the risk of losing all the patiently drawn up normative acquis which goes well beyond civil status in the strict sense but also affects family and nationality law exists.

The article is part of an awareness campaign carried out by eminent Authors for several months now.

 

Source: G. Cerqueira, « Internationale Kommission für das Zivilstandswesen. Eine einzigartige, beispielhafte und notwendige internationale Organisation», StAZ Das Standesamt, n. 6, Juni, 2021, p. 169-170.

 

In a judgment of 22 June 2021, the Paris Court of Appeal ruled that that liability claims against arbitrators fall within the arbitration exception of the Brussels Ibis Regulation and retained jurisdiction on the basis of French national rules of jurisdiction. It allowed the appeal loged against the judgment of 31 March 2021 which had ruled otherwise and declined jurisdiction.

Background

In this case, a Qatari company had entered into a distributorship agreement with the Emirati subsidiary of the Volkswagen group (VW). The contract provided for ICC arbitration in Paris and the application of German law. After the VW subsidiary terminated the contract, the Qatari company initiated arbitration proceedings before the ICC.

The Qatari company was advised to appoint as an arbitrator a German lawyer from a Stuttgart law firm. The German arbitrator did not disclose that his firm had worked previously for a bank of the VW group. The German arbitator did not disclose either that, after the arbitration started, his firm accepted work from another subsidiary of the VW Group, Porsche.

The parties and the arbitrators agreed that the hearing would be held in Frankfurt. The arbitators met in Germany.

After the Qatari company lost the arbitration on all accounts, including the fees of the arbitrators and of the VW company party to the arbitration, the Qatari company initiated annulment proceedings in Paris courts. It eventually prevailed, when the French supreme court for civil and criminal matters (Cour de cassation) found in a judgment of 3 October 2019 that the German arbitrator had violated his duty of disclosure when he failed to disclose the new work that his firm had accepted from Porsche (the previous work was considered by the court to be notorious in German legal circles).

The Qatari company sued the arbitrator in Paris for reimbursement of the fees of the arbitral tribunal that the plaintiff was ordered to pay by the award (€ 270 000), the fees incurred (by both parties it seems) in the arbitration (€ 2.6 million) and the balance of the fees incurred in the proceedings before French courts to set aside the award (€ 100 000).

Arbitration Exception

Contrary to the first instance court, the Paris Court of Appeal finds that liability claims against arbitrators fall within the arbitration exception of the Brussels I bis Regulation.

The Court explains that a liability claim based on a violation of the disclosure duty of an arbitrator is closely related to the constitution of the arbitral tribunal and to the arbitration, as it aims at assessing whether the arbitrator performed properly his “mission”, in accordance with the obligations resulting from the arbitration contract.

As I had already underlined in my previous post, I was not convinced by the idea that, because of the existence of a contract between the parties and the arbitrators, a liability claim based on this contract is unrelated to the arbitration proceedings. The duty to disclose is provided by the lex arbitri, and the arbitration contract, which will typically be implied, will not define the regime of this duty (in this case, the terms of reference are essentially silent on the duty to disclose).

More importantly, the Paris Court rightly points to Recital 12 of the Brussels I bis Regulation, which states that

This Regulation should not apply to any action or ancillary proceedings relating to, in particular, the establishment of an arbitral tribunal, the powers of arbitrators, the conduct of an arbitration procedure or any other aspects of such a procedure, nor to any action or judgment concerning the annulment, review, appeal, recognition or enforcement of an arbitral award.

It is beyond doubt that an action to dismiss an arbitrator for violating his duty to disclose would fall within the arbitration exception. Why then wouldn’t an action aimed at sanctioning such violation by the award of damages? All actions sanctioning the (improper) “establishment” of an arbitral tribunal should fall within the arbitration exception.

French National Rules of Jurisdiction

After finding that the Brussels I bis Regulation does not apply, the court logically applies its national rules of jurisdiction. It finds that the claim is contractual in nature, which is uncontroversial under French law, as the existence of a contract excludes tort claims (principe de non-cumul).

Remarkably, the French rule is pretty much the same as Article 7(1)(b) of the Brussels Ibis Regulation. Article 46 of the French Code of Civil Procedure provides for the jurisdiction of the courts of the domicile of the defendant or the courts of the place where the services were provided. But the French court had no reason to follow the interpretation of the CJEU in this context, and to rely on a factual assessment of where the services were actually provided.

Instead, the court rules that the service provided by arbitrators is not merely contractual, but is also partly adjudicatory. As a consequence, the court finds that the services were provided at the place of the seat of the arbitration, and that the place where the hearings were held, or the arbitrators might have reflected on the case, is irrelevant.

What’s in a Seat?

Beyond the technicalities and the details of the applicable rules, the outcome of the case is that the propriety of the actions of the German arbitrator will be assessed by a French court, and not by the home court of both the respondent in the arbitration and the arbitrator. This is critical.

The promise of international commercial arbitration is to offer neutrality of adjudication. This is achieved by 1) appointing neutral and independent arbitrators and 2) by choosing a neutral seat for the arbitration. One of the most important consequences of the choice of the seat is to grant jurisdiction to supervise the arbitration proceedings. A neutral seat means, inter alia, neutral courts to decide about the fairness of the arbitration proceedings.

In this case, the German arbitrators, the German lawyers, and the respondent wanted that the arbitration physically take place in Germany. That was fine as long as this choice was only about convenience, and did not have any legal consequence.

The dramatic consequence of the first instance decision was that the choice of the venue triggered legal consequences: it could change the jurisdiction to supervise the arbitration, which the French court was happy to transfer to a German court, i.e. the home court of the arbitrator, of Porsche, of VW.

The bargain of the Qatari party was that it would not litigate against the largest German company before an arbitral tribunal seated in Germany, and even less in a German court.

The case exemplifies why the courts of the seat of the arbitration should retain jurisdiction on the sole ground that they are the courts of the seat of the arbitration.

           

 

Comments by Ivana Isailovi? & Alice Margaria

 

The case of Valdís Fjölnisdóttir and Others v. Iceland brings to the attention of the European Court of Human Rights (ECtHR) the no longer new, yet persistently complex, question of the determination of legal parenthood following international surrogacy arrangements. Similar to previous cases, such as Mennesson v France, Labassee v France, andParadiso and Campanelli v Italy, this complaint originated from the refusal of national authorities to recognise the parent-child relationship established in accordance with foreign law on the ground that surrogacy is prohibited under national law. Valdís Fjölnisdóttir and Others is the first case of this kind involving a married same-sex couple who subsequently divorced. Like the applicants in the case of Paradiso and Campanelli v Italy, Ms Valdís Glódís Fjölnisdóttir and Ms Eydís Rós Glódís Agnarsdóttir are not biologically linked to their child, who was born in California.

 

Ivana Isailovi? & Alice Margaria’s comments answer three questions:

1) What’s new in this case?

2) What are the legal effects of this decision?

3) What are alternative legal framings and ideas?

 

1. Were you surprised by this ruling? Is there anything new in this case?

Alice: This judgment is emblematic of the ECtHR’s generally cautious and minimalistic approach to assessing the proportionality of non-recognition vis-à-vis unconventional parent-child relationships. It is widely agreed (e.g., Liddy 1998; Stalford 2002; Choudhry and Herring 2010) that the Court has over time expanded the boundaries of what constitutes ‘family life’ and supported the adoption of more inclusive and diverse conceptions of ‘family’ through its dynamic interpretation of Article 8 ECHR. Yet, as I have argued elsewhere, this conceptual expansion has not translated into the same protection of the right to respect for family life for all unconventional families. Valdís Fjölnisdóttir and Others is a further manifestation of this trend. The Court has indeed no difficulty in qualifying the bonds existing between the two women and their child as ‘family life’. As far as the applicability of the ‘family life’ limb of Article 8 is concerned, the quality and duration of the relationship at stake trump biological unrelatedness. Yet when it comes to assessing the proportionality of the interference of non-recognition with the applicants’ right to respect for family life, the Court is satisfied with the de facto preservation of the family ties existing between the applicants, and diminishes the disadvantages created by lack of recognition of their parent-child relationship – just as it did in Mennesson. Icelandic authorities had taken steps to ensure that the applicants could continue to enjoy their family ties in spite of non-recognition by placing the child in the foster care of the two women and making these arrangements permanent. This had – from the Court’s perspective – alleviated the distress and anguish experienced by the applicants. In addition, the child had been granted Icelandic citizenship by a direct act of Parliament, with the effect of making his stay and rights in the country regular and secure. As a result, according to the Court, non-recognition had caused the applicants only limited practical hindrances to the enjoyment of their family life. As in Mennesson, therefore, the Court finds that there is family life among the three applicants, but no positive obligation on the part of the State to recognise the parent-child relationships in accordance with the California birth certificate. Whilst it is true that, in the case at hand, the family ties between the applicants had indeed been afforded some legal protection through foster care arrangements (unlike in previous cases), it seems that the unconventional nature of the family at stake – be it due to the lack of a biological link, the fact that it involves two mothers, or because they resorted to surrogacy – continues to hold back the Court from requiring the State to recognise the existing ties ab initio and through filiation. This is also line with the Advisory opinionof 10 April 2019 (request no. P16-2018-001), where the Grand Chamber clarified that States have the obligation to provide ‘only’ some form of legal recognition – e.g., adoption – to the relationship between a child born from surrogacy and their non-genetic mother.

Whilst not setting a new jurisprudential trajectory on how to deal with the determination of legal parenthood following international surrogacy, Valdís Fjölnisdóttir and Others brings two novel elements to bear. The first is encapsulated in para 64, where the Court determines the Supreme Court’s interpretation of domestic provisions attributing legal motherhood to the woman who gives birth to be ‘neither arbitrary nor unreasonable’ and, accordingly, considers that the refusal to recognise the family ties between the applicants and the child has a ‘sufficient basis in law’. In this passage, the Court takes a clear stance on the rule mater semper certa est, which, as this case shows, has the potential to limit the recognition of contemporary familial diversity (not only in the context of surrogacy but also in cases of trans male pregnancies, see e.g. OH and GH v Germany, Applications no. 53568/18 and 54941/18, communicated on 6 February 2019). Second, and in contrast, Judge Lemmens’ concurring opinion takes one important step towards demystifying and problematising the relevance of biological relatedness in regulating legal parenthood following international surrogacy. He points out that the negative impact of non-recognition is equal for all children born from surrogacy abroad who find themselves in legal limbo, regardless of whether they are biologically connected to their parents or not. He further adds that, whilst adoption is an alternative means of recognition, it does not always provide a solution to all difficulties a child might be experiencing. In the case at hand, for instance, adoption would have benefited only one parent-child relationship: the couple had indeed divorced through the national proceedings and, therefore, a joint adoption was no longer a possibility for them. This concurring opinion therefore moves towards questioning and potentially revising the terms of the debate between, on the one hand, preventing illegal conduct by intended parents and, on the other hand, tolerating legal limbo to the detriment of children.

 

Ivana:  On the one hand, there is nothing new in this decision. Like in Mennesson (2014) and Paradiso & Campanelli (2017), the Court continues to “constitutionalize” domestic PIL rules. As many PIL scholars argued, this reflects the transformations of conflict of laws rules and methods, as the result of  human rights field’s influence. Following the ECHtR and the CJEU case law, conflicts of laws rules became subordinate to a proportionality test which implies weighing various interests at stake. In this case, it involves balancing applicants’ rights to private and family life, and the interests of the state in banning commercial surrogacy.

Second, like in its previous decisions on surrogacy, by recognizing the importance of the mater semper est principle, the ECtHR continues to make the biological link preeminent when defining the scope of human rights protection

On the other, it seems that there is a major rupture with previous decisions. In Mennesson (para 81 & 99), and the advisory opinion requested by the French Cour de cassation (2019) (para 37-38), the ECtHR emphasized child’s right to a recognition of their legal relationship with their intended parents (part of the child’s right to private and family life). This has in turn influenced the Court’s analysis of the scope of states’ margin of appreciation.

In the case however, the Court pays lip service to child’s interests in having their legal relationship with their intended parents recognized (besides pointing out that, under domestic law, adoption is open to one of the two women, par. 71, and that the State took steps to preserve the bond between the (intended) parents and their child).

Without the legal recognition of the parent-child relationship, however, the child—who is placed in foster care—is left in a vulnerable legal position that is hardly in line with the protection of children’s rights. It is unclear what explains this shift in the Court’s reasoning, and Judge Lemmens’ concurring opinion that tries to make sense of it is unconvincing.

 

2. What are the effects of this decision in terms of the regulation of global surrogacy?

Ivana: There are at least two legal consequences for PIL. First, the decision legitimizes a flawed, biological and marginalizing understanding of legal parenthood/motherhood. Second, it legitimizes feminists’ anti-surrogacy arguments that dovetail with conservative anti-LGBTQ transnational movements’ positions.

According to the Court, mater semper certa est—the notion that the woman who gives birth to the child is the legal mother of that child— which justifies Iceland’s refusal to recognize the foreign parent-child link, is neither “arbitrary nor manifestly unreasonable” (para 69)

But mater semper certa est has consistently been a bit more than an incantation.

In France, scholars showed that the Civil Code from 1804 originally allowed and promoted the constitution of families which didn’t reflect biological bonds, as it was enough to prove marriage to infer kinship. In addition, the mater semper certa est principle has been continuously eroded by assisted reproductive technology, which today enables multiple individuals to be genetic parents.

Motherhood has always been stratified, and mater semper est has operated differently in relation to class, race and gender. Research shows how in the US during slavery, African American women were not considered to be the legal mothers of children they gave birth to, and how today, the state monitors and polices the lives of women of color and poor women (see for instance the work by Angela Davis and Dorothy Roberts). On this side of the Atlantic, between 1962-1984, the French state forcefully deported thousands of children from poor families from Réunion (a former French colony now an oversees territory) to metropolitan France. Finally, this principle penalizes those who do not identify with gender binaries, or with female identity, while being able to give birth, or those who identify as women/mothers, but are unable/unwilling to give birth.

Second, the decision in some respects illustrates the mainstreaming within law of feminists’ anti-surrogacy arguments, which overlap with ant- feminist, conservative, anti-LGBTQ movements’ discourses. Iceland’ s argument that surrogacy is exploitative of surrogates, mirrors  affluent anti-surrogacy networks’ positions that anti-surrogacy feminist groups  adopted in the 1980s. These lobbies argue that surrogacy constitutes the exploitation of women, and that surrogacy severs the “natural maternal bonding” and the biological link between the mother and the child.

This understanding of surrogacy promoted by feminists came to overlap with the one adopted by transnational conservative, pro-life, anti-feminist, anti-LGBTQ groups, and it is interesting that some of the arguments adopted by the Court correspond to those submitted by the conservative institute Ordo Iuris, which intervened in the case. Another example of this overlap, is the EU lobby group No Maternity Trafficking, which includes right-wing groups, such as La Manif pour tous, that organized protests against the same-sex marriage reform in France in 2013.

Here is how the emphasis on the biological link in relation to the definition of legal parenthood may overlap with anti-LGBTQ discourses. As I argued elsewhere, in France, private lawyers, feminists, psychoanalysts, and conservative groups such as La Manif pour tous defended the biological understanding of legal filiation, to oppose the same-sex marriage reform which also opened adoption to same-sex couples, because, according to them, biological rules sustain a “symbolic order” which reflects the “natural order” and outside that order a child will become “psychotic.” This understanding of legal filiation is however relatively recent in France and is in contradiction with the civil law approach to filiation based on individual will. In fact, different actors articulated these arguments in the 1990s, when queer families started demanding that their families be legally protected and recognized. 

 

Alice: This decision confirms the wide, yet not unlimited, freedom States enjoy in regulating surrogacy and the legal consequences of international surrogacy in their territories and legal systems. In so doing, it legitimises the preservation and continuing operation of traditional filiation rules, in particular the mater semper certa est rule, which anchors legal motherhood to the biological processes of pregnancy and birth. It follows that the public order exception can still be raised. At the same time, however, authorities are required to ensure that some form of recognition be granted to de factoparent-child relationships created following international surrogacy through alternative legal routes, such as foster care or adoption. In a nutshell, therefore, the regulatory approach to international surrogacy supported by this decision is one of accommodation, as opposed to recognition, of familial diversity. Parental ties created following surrogacy arrangements abroad have to be granted some form of legal recognition, to be given some standing in the national legal order, but do not necessarily have to be recognised in their original version, i.e., as legal parental ties ab initio.

 

3. If not this legal framing, which one should we (scholars, courts or activists) adopt to think about transnational surrogacy? 

Alice: Conflicts of laws in this context can result in two opposing outcomes: openness to familial and other types of diversity, but also – as this case shows – attachment to conventional understandings of parenthood, motherhood and ways of creating and being a family. If we imagine a continuum with the abovementioned points as its extremes, the Court seems to take an intermediary position: that of accommodating diversity. The adoption of such an intermediary position in Valdís Fjölnisdóttir and Others was facilitated by the existence of foster care arrangements and the uninterrupted care provided by the first and second applicants to their child since his birth. In the Court’s eyes, therefore, the child in this case was not left in ‘complete’ legal limbo to the same extent as the children in Mennesson, nor put up for adoption as in the case of Paradiso and Campanelli.

To address the question ‘which framing shall we adopt?’, the answer very much depends on who ‘we’ is. If ‘we’ is the ECtHR, then the margin for manoeuvring is clearly more circumscribed than for activists and scholars. The Court is bound to apply some doctrines of interpretation, in primis the margin of appreciation, through which it gains legitimacy as a regional human rights court. The application of these doctrines entails some degree of ‘physiological’ discretion on the part of the Court. Determining the width of the margin of appreciation is never a mechanical or mathematical operation, but often involves drawing a balance between a variety of influencing factors that might concur simultaneously within the same case and point to diametrically opposed directions. Engaging in this balancing exercise may create room for specific moral views on the issue at stake – i.e., motherhood/parenthood – to penetrate and influence the reasoning. This is of course potentially problematic given the ‘expressive powers’ of the Court, and the role of standard setting that it is expected to play. That being said, if regard is given to the specific decision in Valdís Fjölnisdóttir and Others, despite the fact that the outcome is not diversity-friendly, the reasoning developed by the Court finds some solid ground not only in its previous case law on surrogacy, but more generally in the doctrinal architecture that defines the Court’s role. So, whilst scholars advocating for legal recognition of contemporary familial diversity – including myself – might find this decision disappointing in many respects (e.g., its conventional understandings of motherhood and lack of a child-centred perspective), if we put Valdís Fjölnisdóttir and Others into (the Strasbourg) context, it would be quite unrealistic to expect a different approach from the ECtHR. What can certainly be hoped for is an effort to frame the reasoning in a manner which expresses greater sensitivity, especially towards the emotional and psychological consequences suffered by the applicants as a result of non-recognition, and thus gives more space to their voices and perceptions regarding what is helpful and sufficient ‘to substantially alleviate the uncertainty and anguish’ they experienced (para 71).

 

Ivana:  In some respects, this decision mirrors dominant PIL arguments about surrogacy. For some PIL scholars, surrogacy challenges traditional (“natural”) mother-child bond, when historically legal motherhood has always been a stratified concept. Other PIL scholars argue that surrogacy raises issues of (over)exploitation of surrogates and that women are coerced into surrogacy, but never really explain what these terms mean under patriarchy, and in a neoliberal context.

Like many economic practices in a neoliberal context, transnational surrogacy leads to abuses, which are well documented by scholars. But, understanding what law can, cannot or should do about it, requires, questioning the dominant descriptions of and normative assumptions about surrogacy that inform PIL discourses.

Instead of the focus on coercion, or on a narrow understanding of what womanhood is, like the one adopted by relational feminism, I find queer and Marxist-feminists’ interventions empirically more accurate, and normatively more appealing.

These scholars problematize the distinctions between nature/ technology, and economy/ love which shape most of legal scholars’ understanding of surrogacy (and gestation). As Sophie Lewis shows in her book Full Surrogacy Nowprocreation was never “natural” and has always been “technologically” assisted (by doctors, doulas, nurses, nannies..) and gestation is work. Seeing gestation as work seeks to upend the capitalist mode of production which relies on the unpaid work around social reproduction. Overall, these scholars challenge the narrow genetic understanding of kinship, argue for a more capacious definition of care, while also making space for the recognition of surrogates’ reproductive work, their voices and their needs.

Legally recognizing the reproductive labor done by surrogates, may lead to rethinking how we (scholars, teachers, students, judges, activists…) understand the public policy exception/ recognition in PIL, and the recent proposals to establish binding transnational principles, and transnational monitoring systems for regulating transnational surrogacy in the neoliberal exploitative economy.

 

Ivana Isailovic is Assistant Professor of Law at the University of Amsterdam and is a member of the Sustainable Global Economic Law project. She is the co-leader (with Ralf Michaels) of the Gender & Private International Law project. Her research and teaching sit at the intersection of law, gender and political economy in transnational contexts.

Alice Margaria is a Senior Research Fellow in the Law & Anthropology Department at the Max Planck Institute for Social Anthropology. Her current research focuses on fatherhood, cultural/religious diversity and human rights. She teaches ‘Gender and Diversity in the International Context’ at Freie Universität (Berlin).

 

Andrew Dickinson and Edwin Peel are the editors of A Conflict of Laws Companion – Essays in Honour of Adrian Briggs, which was just published by Oxford University Press.

The book is a collection of 13 essays written by scholars and practionners, including three members of the highest courts of common law jurisdictions, who all did either the BCL or a DPhil at Oxford with or under guidance from Adrian Briggs.

The book is a tribute to a teacher and scholar that one of the contributors presents as Oxford’s third giant in the conflicts field in succession to A V Dicey (to 1922) and J H C Morris (to 1984). In the foreword of the book, Lord Mance notes that, “on the top of all this (…) Adrian Briggs has managed a busy Temple practice (including at the highest levels cases such as Rubin v Eurofinance, The Alexandros T and Enka v OOO Chubb, all discussed in the book) as well as featuring in and contributing valuably to the work of Parliamentary and other committees.”

The list of the contributions and their authors can be found here. They examine, inter alia, again in the words of Lord Mance:

– how far conflicts principles serve private interests of consent and obligation and how far statist interests;
– the proper understanding of comity, which Briggs roots in territoriality;
– the concept of the natural forum, to the development of which the young Briggs contributed so significantly (as recorded by Lord Goff in The Spiliada in 1986);
– the extent to which jurisdiction needs to be defined in England or in overseas jurisdictions both by gateways for service out and within these by discretion;
– the scope and operation of the EU rule regarding joinder of co- defendants (Art 8(1) of Brussels 1) in the light of the ‘sorry mess’ made by the Court of Justice in this area in and after Owusu v Jackson;
– the extent to which the anti- suit injunction can really be justified as directed purely in personam;
– the extent to which recognition of a foreign decision may, consistently with principles of comity and territoriality, be refused where it was in English eyes clearly obtained in breach of an English choice of jurisdiction clause; and
– as a final example close to Adrian Briggs’ heart, the extent to which such a breach may, where necessary as a fall- back, be redressed by the tool of a damages claim, a course recently sanctioned at highest judicial levels in The Alexandros T.

On a personal note, I should add that Adrian Briggs also supervised the work of numerous doctoral students visiting Oxford to delve into the intricacies of the common law. I was fortunate to be one of them 25 years ago (and to learn that, yes, it was necessary to read Australian scholars to understand equitable remedies). He was also ready to participate to the defence of doctoral theses in Paris and Luxembourg.

In a memorable post that he wrote for this blog on the recent case of the CJEU in Wikingerhof, he concluded: “Brexit, Covid, and now Wikingerhof. What a wretched year. We are only one horse short of an Apocalypse.” One hopes that this horse is not his retirement from Oxford, and that, to avoid any Apocalypse, he will continue to write, including on this blog.

By Tobias Lutzi, University of Cologne

There should be few readers of this blog, and few conflict-of-laws experts in general, to whom Adrian Briggs will not be a household name. In fact, it might be impossible to find anyone working in the field who has not either read some of his academic writings (or Lord Goff’s seminal speech in The Spiliada [1986] UKHL 10, which directly credits them) or had the privilege of attending one of his classes in Oxford or one of the other places he has visited over the years.

Adrian Briggs has taught Conflict of Laws in Oxford for more than 40 years, continuing the University’s great tradition in the field that started with Albert Venn Dicey at the end of the 19th century and had been upheld by Geoffrey Cheshire, John Morris, and Lawrence Collins (now Lord Collins of Mapesbury) among others. His writings include four editions of The Conflict of Laws (one of the most read, and most readable, textbooks in the field), six editions of Civil Jurisdiction and Judgments and his magnus opus Private International Law in English Courts, a perfect snapshot of the law as it stood in 2014, shortly before the UK decided to turn back the clock. His scholarship has been cited by courts across the world. Still, Adrian Briggs has managed to maintain a busy barrister practice in London (including well-known cases such as Case C-68/93 Fiona Shevill, Rubin v Eurofinance [2012] UKSC 46, and The Alexandros T [2013] UKSC 70) while also remaining an active member of the academic community regularly contributing not only to parliamentary committees but also, on occasion, to the academic discussion on this blog.

To honour his impact on the field of Conflict of Laws, two of Adrian’s Oxford colleagues, Andrew Dickinson and Edwin Peel, have put together a book, aptly titled ‘A Conflict of Laws Companion’. It contains contributions from 19 scholars, including four members of the highest courts of their respective countries, virtually all of whom have been taught by (or together with) the honorand at Oxford. The book starts with a foreword by Lord Mance, followed by three short notes on Adrian Briggs as a Lecturer at Leeds University (where he only taught for about a year), as a scholar at Oxford, and as a fellow at St Edmund Hall. Afterwards, the authors of the longer academic contributions offer a number of particularly delightful ‘recollections’, describing Adrian Briggs, inter alia, as “the one time wunderkind and occasional enfant terrible of private international law” (Andrew Bell), “the perfect supervisor: unfailingly generous with his time and constructive with his criticism” (Andrew Scott), and “a tutor, colleague and friend” (Andrew Dickinson).

The academic essays that follow are conventionally organised into four categories: ‘Jurisdiction’, ‘Choice of Law’, ‘Recognition and Enforcement of Foreign Judgments’, and ‘Conflict of Laws within the Legal System’. They rise to the occasion on at least two accounts. First, they all use an aspect of Adrian Briggs’ academic oeuvre as their starting point. Second, they are of a quality and depths worthy of the honorand (possibly having profited from the prospect of needing to pass his critical eye). While they all are as insightful as inspiring, Ed Peel’s contribution on ‘How Private is Private International Law?’ can be recommended with particular enthusiasm as it picks up Adrian Briggs’ observation (made in several of his writings) that, so far as English law is concerned, “a very large amount of the law on jurisdiction, but also on choice of law, is dependent on the very private law notions of consent and obligation” and critically discusses it from the perspective of contract-law expert. Still, there is not one page of this book that does not make for a stimulating read. It is a great testament to one of the greatest minds in private international law, and a true Conflict of Laws companion to countless students, scholars, colleagues, and friends.

Chinese Private International Law

Edited by Xiaohong Liu and Zhengyi Zhang

Written with the assistance of a team of lecturers at the Shanghai University of Political Science and Law, this book is the leading reference on Chinese private international law in English. The chapters systematically cover the whole of Chinese private international law, not just questions likely to arise in commercial matters, but also in family, succession, cross-border insolvency, intellectual property, competition (antitrust), and environmental disputes.  The chapters do not merely cover the traditional conflict of law areas of jurisdiction, applicable law (choice of law), and enforcement.  They also look into conflict of law questions arising in arbitration and assess China’s involvement in the harmonisation of private international law globally and regionally within the Belt and Road Initiative. Similarly to the Japanese and Indonesian volumes in the Series, this book presents Chinese conflict of laws through a combination of common and civil law analytical techniques and perspectives, providing readers worldwide with a more profound and comprehensive understanding of Chinese private international law.

 

Xiaohong Liu is Professor and President and Zhengyi Zhang is Associate Professor and Deputy Director of the International Affairs Office, both at Shanghai University of Political Science and Law, China.

 

May 2021   |   9781509924370   |   352pp   |   Hbk   |    RSP: £130

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This post has been drafted by Dr. Felix M. Wilke, University of Bayreuth, Germany.

A new contestant has entered the ongoing debate about the law applicable to Electronic Securities and/or in the blockchain context. On 10 June 2021, the new German Act on e-Securities (Gesetz zur Einführung von elektronischen Wertpapieren, eWpG) entered into force. Its § 32 contains a special conflict-of-laws rule.

The following is a sketch of my first impressions and potential implications of the new rule. Any input is very much welcome!

The German E-Securities Act in General

The substantive scope of the eWpG somewhat belies its broad title. Far from being about all types of e-securities one can imagine, it only concerns bearer bonds (§ 1 eWpG). The act introducing the eWpG, however, also contains changes to the Capital Investment Code (Kapitalanlagegesetzbuch, KAGB), providing for the possibility of issuing electronic shares in investment funds.

It should also be noted that the e-Securities Act is no genuine piece of blockchain legislation. The word “blockchain” does not appear in it. The Act is not limited to securities recorded in a blockchain, nor would all blockchains necessarily meet the requirements of the Act.

Indeed, parts of the act merely concern centralized registers for e-securities to be maintained, e.g., by central securities depositories. Here, the main difference to current practice seems to consist in dispensing with the need for the depository to safekeep even only one paper (global) certificate.

Yet when other parts of the eWpG mention registers which are supposed to be decentralized as well as forgery-proof (sic) and to offer protection against any subsequent modification of recorded information (§§ 16(1), 4(11) eWpG), it becomes obvious that blockchain/distributed ledger technology can play an important role for so-called “crypto securities”. If one looks closely at the changes to the KAGB, one comes across an opening for distributed ledger technology for shares in investment funds, as well: § 95(5) KAGB.

Core aspects of the Act are the publicity, the contents, and the conditions for changes of registers for e-securities. A litany of (technical) details are delegated to the German Federal Ministry of Justice and Consumer Protection and the German Federal Ministry of Finance. One provision that will certainly raise an eyebrow or two is § 2(3) eWpG: It sets forth that e-securities are to be considered “things” within the meaning of the German Civil Code (Bürgerliches Gesetzbuch, BGB). Thus, in principle, the rules for corporeal objects will apply to an incorporeal asset.

The New Conflict-of-Laws Rule

32 eWpG concerns the applicable law. I would tentatively translate it as follows, sticking closely to the structure and word order of the German original:

(1) To the extent that § 17a Securities Account Act does not apply, rights regarding an e-security and dispositions about an e-security are governed by the law of the State under whose supervision the register office is in whose e-securities register the e-security is recorded.

(2) If the register office is not under supervision, its seat is decisive. If the seat of the register authority cannot be determined, the seat of the issuer of the e-security is decisive.

The Subject Matter

32 eWpG applies to rights regarding and dispositions about e-securities. Due to the limitation of the entire Act, one might assume that the conflict-of-laws rule will only apply to electronic bearer bonds (under German law). Yet as the provision has clearly been designed as an omnilateral provision, and considering that the definition of an e-security is much broader (§ 2 eWpG), it is conceivable that the conflict-of-laws rule encompasses more securities than that the Act in which it is found. This, of course, would be a phenomenon well-known to private international law scholars, but perhaps not-so-well-known in other circles.

In any case, the express reference to § 17a Security Account Act (Gesetz über die Verwahrung und Anschaffung von Wertpapieren, DepotG) has a limiting effect – whose impact is not obvious. The bill had not included this proviso.

§ 17a DepotG is Germany’s transposition of Article 9(2) of the Settlement Finality Directive (SFD). If the rule(s) of SFD were to be interpreted broadly to encompass modern digital assets (not an easy task: see Matthias Lehmann’s thoughts on this blog), a rule like Germany’s would likely have to be interpreted in conformity with the SFD. Not that we did not already have enough discussions about § 17a DepotG, including about its conformity with the SFD, in the first place…

What is more, the Security Account Act itself was changed along with the introduction of the eWpG, extending the meaning of securities for the purposes of the former to e-securities under the latter. This should affect the scope of § 17a DepotG, shaping the understanding of § 32 eWpG in turn.

My first idea is that § 17a DepotG will be the relevant conflict-of-laws provision for e-securities in a collective deposit, and that § 32 eWpG will apply to the rest.

The Connecting Factors

The law of the State with supervision over the respective e-securities register office governs rights in and dispositions about an e-security under paragraph 1.

At first sight, this might seem to be a rather easy rule. I would submit, however, that it actually implicates a tricky analysis. In order to correctly apply the rule, one seems to have to look for (typically unilateral) rules of competence for financial supervision authorities.

First, it will not always be easy even to ascertain the respective rules (at least for foreign States).

Second, their connecting factors are likely to differ from State to State: e.g. seat of an institution to be supervised vs. place where it carries out business activities. This could lead to an accumulation of applicable laws that somehow would have to be resolved.

And what if a foreign register without State supervision is at issue? Under the bill, this was an open question. The final version now has a second paragraph, making the seat of the register office a subordinate connecting factor. But why does the provision not again refer to “State” supervision?

If the seat of the register office cannot be determined, either (also in cases where there is no register office?), the second clause of the second paragraph employs the seat of the issuer of the e-security as the connecting factor. The substantive part of the eWpG contains a similar approach, in that the issuer of an e-security will be treated as the register office if the issuer does not designate such an office in relation to the bearer (§ 16(2) cl. 2 eWpG).

Outlook

The new Act and its conflict-of-laws rule offer plenty of food for thought. Expect the first articles and even rule-for-rule commentaries to pop up in the near future. Because of the obvious connections between the conflict-of-laws rule to the substantive provisions of the Act, it will not always be easy to tell apart where private international law is supposed to be limited and where it can strike out on its own.

 

The Project Jean Monnet Network – BRIDGE, co-funded by the Erasmus+ Programme of the European Union, and the Latin-American Center for European Studies invite young Latin American researchers to submit their works to the “Monograph Contest for Young Latin American Researchers – Jean Monnet Award”, whose main objective is to foster excellence in research on topics related to European integration in Latin America.

Only unpublished monographs submitted by young researchers who are up to 30 years old at the date of the submission will be accepted. Authors must also be enrolled in any higher education institution of Latin America.

Monographs (between 60-120 pages) written in English, Spanish or Portuguese will be accepted and authors must submit their monographs by 1 August 2021.

For more information, access: https://eurolatinstudies.com/laces/announcement/view/25.

 

By Stephen G.A. Pitel, Western University

In common law Canada, it has long been established that a court will not recognize and enforce a foreign judgment concerning title to land in the forum.  The key case in support is Duke v Andler, [1932] SCR 734.

The ongoing application of that decision has now been called into question by the British Columbia Court of Appeal in Lanfer v Eilers, 2021 BCCA 241 (available here).  In the court below the judge relied on Duke and refused recognition and enforcement of a German decision that determined the ownership of land in British Columbia.  The Court of Appeal reversed and gave effect to the German decision.  This represents a significant change to Canadian law in this area.

The Court of Appeal, of course, cannot overturn a decision of the Supreme Court of Canada.  It reached its result by deciding that a more recent decision of the Supreme Court of Canada, that in Pro Swing Inc v Elta Golf Inc, 2006 SCC 52, had overtaken the reasoning and result in Duke and left the Court of Appeal free to recognize and enforce the German decision (see paras 44-45 and 74).  This is controversial.  It has been questioned whether Pro Swing had the effect of superseding Duke but there are arguments on both sides.  In part this is because Pro Swing was a decision about whether to recognize and enforce foreign non-monetary orders, but the orders in that case had nothing to do with specific performance mandating a transfer or title to land in the forum.

I find it hard to accept the decision as a matter of precedent.  The title to land aspect of the foreign decision seems a significantly different element than what is at issue in most non-monetary judgment decisions, such that it is hard to simply subsume this within Pro Swing.  What is really necessary is detailed analysis of whether the historic rule should or should not be changed at a normative level.  How open should courts be to recognizing and enforcing foreign judgments concerning title to land in the forum?  This raises related issues, most fundamentally whether the Mocambique rule itself should change.  If other courts now know that British Columbia is prepared to enforce foreign orders about land in that province, why should foreign courts restrain their jurisdiction in cases concerning such land?

In this litigation, the defendant is a German resident and by all accounts is clearly in violation of the German court’s order requiring a transfer of the land in British Columbia (see para 1).  Why the plaintiff could not or did not have the German courts directly enforce their own order against the defendant’s person or property is not clear in the decision.  Indeed, it may be that the German courts only were prepared to make the order about foreign land precisely because they had the power to enforce the order in personam and that it thus did not require enforcement in British Columbia (analogous to the Penn v Baltimore exception to Mocambique).

Given the conflict with Duke, there is a reasonable likelihood that the Supreme Court of Canada would grant leave to appeal if it is sought.  And if not, a denial of leave would be a relatively strong signal of support for the Court of Appeal’s decision.  But the issue will be less clear if no appeal is sought, leaving debate about the extent to which the law has changed.

 

Carlos Santaló Goris, Researcher at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law and Ph.D. candidate at the University of Luxembourg, offers an analysis of some aspects of a judgment rendered by the Paris Court of Appeals.

Regulation No 655/2014, establishing a European Account Preservation Order (“EAPO Regulation”) introduced not only the first uniform provisional measure at the EU level but also the first European specific system to search for the debtors’ bank accounts. The so-called information mechanism is, though, less accessible than the EAPO itself. According to Article 5 of the EAPO Regulation, creditors can apply for an EAPO ante demandam, during the procedure on the substance of the matter; or when they have already a title (a judgment, a court settlement, or an authentic document). However, only creditors with a title can submit a request for information. Furthermore, in case the title is not yet enforceable, creditors are subject to specific additional prerequisites.

In broad terms, the information mechanism operates following a traditional scheme of cross-border cooperation in civil matters within the EU. A court in a Member State sends a request for information to an information authority in the same or other Member State. The information authority then searches for the bank accounts and informs the court of origin about the outcome of that search.

Member States have a wide margin of discretion in implementing the information mechanism. They can freely pick the national body appointed as information authority. They also have the freedom to choose whichever method they consider more appropriate to search for the debtors’ bank accounts as long as it is “effective and efficient” and “not disproportionately costly or time-consuming” (Article 14(5)(d) EAPO Regulation).

France assigned the role of information authority to its national enforcement authority, the bailiffs (“huissiers”). Information about the debtors’ bank accounts is obtained by filing an application with FICOBA (“Fichier national des comptes bancaires et assimilés”). FICOBA is a national register hold by the French tax authority containing data about all the bank accounts existing in France. Other Member States, such as Poland or Germany, have also relied on similar domestic registers.

This is where the paradox emerges. In France, creditors without an enforceable title who apply for a French domestic preservation order do not have access to FICOBA; conversely, creditors without an enforceable title who apply for an EAPO do. Article L151 A of the French Manual on Tax Procedures (“Livre des procédures fiscales”) expressly indicates that bailiffs can access FICOBA for the purpose of ensuring the execution of an enforceable title (“aux fins d’assurer l’exécution d’un titre exécutoire”). The only exception is found, precisely, when they have to search for information in an EAPO procedure. This situation generates an imbalance between creditors who can access the EAPO Regulation and those who cannot.

In a judgment rendered by the Paris Court of Appeal on 28 January 2021 (Cour d’appel de Paris, Pôle 1 – chambre 10, 28 janvier 2021, n° 19/21727), the court found that such a difference of treatment between creditors with and without access to the EAPO Regulation “constitutes an unjustified breach of equality and discrimination between creditors” (“cette différence de traitement constitue une rupture d’égalité injustifiée et une discrimination entre créanciers”). Relying on the principle of equality, the court decided to extend access to FICOBA, beyond the context of the EAPO Regulation, to those creditors without an enforceable title.

The relevance of this judgment lies in the French court’s use of the EAPO Regulation to interpret a national domestic procedure. The influence of the national civil procedures system on the European procedure is well known. Uniform European civil procedures, such as the EAPO Regulation, contain numerous references to the Member States’ national law. Furthermore, courts tend to read these instruments through the lens of the national civil procedural systems, even with regard to those aspects that should apply uniformly (here is an example concerning the EAPO Regulation kindly offered by Prof. Requejo Isidro). The Paris Court of Appeal shows us that the European civil procedures can also be a source of inspiration when it comes to interpreting domestic procedural law.

The irony behind this judgment is that, during the travaux préparatoires of the EAPO Regulation, the French delegation expressly requested to restrain access to the information mechanism to those creditors who had “an enforceable title to support [their] application”. One of the reasons argued by the delegation was that “in French law, access to information is only given if the creditor possesses an enforceable title”. Ultimately, it is the French civil procedural system that is being influenced by the EAPO Regulation, and not the other way around.