Droit international général

The latest issue (21/1) of the Dutch journal Nederlands Internationaal Privaatrecht has been published. It includes the following articles.

Vriesendorp, W. van Kesteren, E. Vilarin-Seivane & S. Hinse, Automatic recognition of the Dutch undisclosed WHOA procedure in the European Union / p. 3-17

On 1 January 2021, the Act on Court Confirmation of Extrajudicial Restructuring Plans (‘WHOA’) was introduced into the Dutch legal framework. It allows for extrajudicial debt restructuring outside of insolvency proceedings, a novelty in the Netherlands. If certain requirements – mostly relating to due process and voting – are met, court confirmation of the restructuring plan can be requested. A court-confirmed restructuring plan is binding on all creditors and shareholders whose claims are part of that plan, regardless of their approval of the plan. WHOA is available in two distinct versions: one public and the other undisclosed. This article assesses on what basis a Dutch court may assume jurisdiction and if there is a basis for automatic recognition within the EU of a court order handed down in either a public or an undisclosed WHOA procedure.

Arons, Vaststelling van de internationale bevoegdheid en het toepasselijk recht in collectieve geschilbeslechting. In het bijzonder de ipr-aspecten van de Richtlijn representatieve vorderingen / p. 18-34

The application of international jurisdiction and applicable law rules in collective proceedings are topics of debate in legal literature and in case law. Collective proceedings distinguish in form between multiple individual claims brought in a single procedure and a collective claim instigated by a representative entity for the benefit of individual claimants. The ‘normal’ rules of private international law regarding jurisdiction (Brussel Ibis Regulation) and the applicable law (Rome I and Rome II Regulations) apply in collective proceedings. The recently adopted injunctions directive (2020/1828) does not affect this application.

 Nonetheless, the particularities of collective proceedings require an application that differs from its application in individual two-party adversarial proceedings. This article focuses on collective redress proceedings in which an entity seeks to enforce the rights to compensation of a group of individual claimants.

Collective proceedings have different models. In the assignment model the individual rights of the damaged parties are transferred to a single entity. Courts have to establish its jurisdiction and the applicable law in regard of each assigned right individually.

In the case of a collective claim brought by an entity (under Dutch law, claims based on Art. 3:305a BW) the courts cannot judge on the legal relationships of the individual parties whose rights are affected towards the defendant. The legal questions common to the group are central. This requires jurisdiction and the applicable law to be judged at an abstract level.

Bright, M.C. Marullo & F.J. Zamora Cabot, Private international law aspects of the Second Revised Draft of the legally binding instrument on business and human rights / p. 35-52

Claimants filing civil claims on the basis of alleged business-related human rights harms are often unable to access justice and remedy in a prompt, adequate and effective way, in accordance with the rule of law. In their current form, private international law rules on jurisdiction and applicable law often constitute significant barriers which prevent access to effective remedy in concrete cases. Against this backdrop, the Second Revised Draft of the legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises has adopted a number of provisions on private international law issues which seek to take into account the specificities of such claims and the need to redress the frequent imbalances of power between the parties. This article analyses the provisions on jurisdiction and applicable law and evaluate their potential to ensure effective access to remedy for the claimants.

Conference report

Touw, The Netherlands: a forum conveniens for collective redress? / p. 53-67

On the 5th of February 2021, the seminar ‘The Netherlands: a Forum Conveniens for Collective Redress?’ took place. The starting point of the seminar is a trend in which mass claims are finding their way into the Dutch judicial system. To what extent is the (changing) Dutch legal framework, i.e. the applicable European instruments on private international law and the adoption of the new Dutch law on collective redress, sufficiently equipped to handle these cases? And also, to what extent will the Dutch position change in light of international and European developments, i.e. the adoption of the European directive on collective redress for consumer matters, and Brexit? In the discussions that took place during the seminar, a consensus became apparent that the Netherlands will most likely remain a ‘soft power’ in collective redress, but that the developments do raise some thorny issues. Conclusive answers as to how the current situation will evolve are hard to provide, but a common ground to which the discussions seemed to return does shed light on the relevant considerations. When legal and policy decisions need to be made, only in the case of a fair balance, and a structural assessment thereof, between the prevention of abuse and sufficient access to justice, can the Netherlands indeed be a forum conveniens for collective redress.

 

Latest PhDs

Van Houtert, Jurisdiction in cross-border copyright infringement cases. Rethinking the approach of the Court of Justice of the European Union (dissertation, Maastricht University, 2020): A summary / p. 68-72

The dissertation demonstrates the need to rethink the CJEU’s approach to jurisdiction in cross-border copyright infringement cases. Considering the prevailing role of the EU courts as the ‘law finders’, chapter four argues that the CJEU’s interpretation must remain within the limits of the law. Based on common methods of interpretation, the dissertation therefore examines the leeway that the CJEU has regarding the interpretation of Article 7(2) Brussels Ibis in cross-border copyright infringement cases.

On 22 April 2021, Advocate General Campos Sánchez-Bordona presented his Opinion in the joined cases SC Gruber Logistics and Sindicatul Lucratorilor din Transporturi, C-152/20 and 218/20, in which he addresses in a pedagogical manner a number of issues of relevance to the choice of law to an individual employment contract under Article 8 of the Rome I Regulation as well as, indirectly, to the choice made in relation to a consumer contract under Article 6 of the Regulation.

Since numerous judgments and opinions were delivered at the Court of Justice at the end of April, we are only now reporting on the present cases, which are by no means less interesting than those previously covered.

 

Factual context

The factual contexts of the two requests for a preliminary ruling are somewhat similar. Both in the case C-152/20 and in the case C-218/20, the procedure pending before the national court (same for these two cases) concerns an action on payment of certain sums to the employees engaged as lorry drivers.

Notwithstanding the existence of some nuance discussed below, in both cases the employment contracts are said to contain a choice of law clause in favour of Romanian law.

In the former case, the employment contracts provided that the employees shall carry out their work in Romania and in “any location in the country and abroad as may be requested”. However, the employees argue that the place of performance lied within the territory of Italy and thus, according to Article 8 of the Rome I Regulation, it is the law of this Member State that governs at least their minimal wage.

In the latter case, the contract did not mention any specific place of performance. It is argued though that the employee carried out his work in Germany.

 

Preliminary questions and their assessment in the Opinion

It is in this context that the referring court decided to stay the main proceedings in these two cases and to refer to the Court nearly identical sets of three questions.

At the outset, AG notices that while the referring court is not asking for the interpretation of the Directive 96/71 (Posted Workers Directive 1996), it cannot be a priori excluded that the provisions thereof are of relevance in the context of the present cases. With respect to the terms and conditions of employment specified in its Article 3(1), the Directive would mandate the application of the law of the Member State where the work is carried out, rather than of the law applicable to the employment contract under the Rome I Regulation (points 29 to 33). However, in the absence of any clear information supporting the relevance of the Directive, AG deems it appropriate to follow the premise on which the national court relies: at present, it is the Rome I Regulation at stake (point 34).

In essence, the requests for a preliminary ruling raise three intertwined issues, namely: first, the interplay between the law chosen by the parties and the law that would be applicable in the lack of that choice, next, the qualification of the provisions on minimum wage as the “provisions that cannot be derogated from by agreement” within the meaning of Article 8(1) of the Regulation and finally, the admissibility of a compulsory (ex lege and de facto) choice of law clause in an individual employment contract.

 

1)    Interplay between the law chosen by the parties and the law that would be applicable in the lack of that choice

The first question as phrased by the referring court reads: “does the choice of law applicable to an individual employment contract exclude the application of the law of the country in which the employee has habitually carried out his or her work or does the fact that a choice of law has been made exclude the application of the second sentence of Article 8(1) of [the Rome I Regulation]?”

At first glance, the intention of the referring court may not seem perfectly clear. At least since the Rome Convention, the choice of law for the employment contract may not have the result of depriving the employee of the protection afforded to him (her) by provisions that cannot be derogated from by agreement under the law that would have been applicable in the absence of choice.

Indeed, as the referring court puts it in the requests for a preliminary ruling where it adopts a different perspective, by its first question it asks, in essence, whether Article 8(1) of the Rome I Regulation implies that a national court may override the parties’ choice of law where it appears from all the circumstances that the contract is more closely connected with a different country. It is not clear whether the reference to a ‘more closely connected’ country implies that the referring court is envisaging the application of Article 8(4) of the Regulation instead of Article 8(2) of the Regulation. This seems however to be irrelevant in the context of the issue at stake.

In his Opinion, mirroring the first question as phrased by the referring court, AG considers that the law chosen by the parties applies also with respect to “the protection afforded to [employee] by provisions that cannot be derogated from by agreement”, as long as the chosen law offers equal or higher standard of protection (point 107, first indent).

In actuality, AG seems to identify in a precise manner the point of hesitation that inspired the specific wording of the first question. For the referring court, the law applicable in the absence of choice seems to be starting point and the law chosen by the parties is seen as a subsequent intervening factor.

Regardless where such starting point is set, the law that would have been applicable in the absence of choice applies insofar as the law chosen by the parties is less protective towards the employee. This is arguably also the case under Article 6 of the Rome I Regulation.

 

2)    Qualification of the provisions on minimum wage as the “provisions that cannot be derogated from by agreement”

By its second question, the referring courts seeks to establish whether the provisions on minimum wage may be qualified as the “provisions that cannot be derogated from by agreement” within the meaning of Article 8(1) of the Rome I Regulation.

In this context, AG clarifies that the notion of “provisions that cannot be derogated from by agreement” is not equivalent to the notion of “overriding mandatory provisions” in the sense of Article 9 of the Regulation (points 64 to 68).

Answering the second question, he considers that the provisions on minimum wage of the country where the employee has habitually carried out his (her) work may in principle be qualified as “provisions that cannot be derogated from by agreement under the law that, in the absence of choice, would have been applicable”. This consideration is accompanied by a caveat. The prevalence of these provisions depends on their “configuration” in the national legal system in question, which it is for the referring court to verify (point 107, second indent).

 

3)    Admissibility of a compulsory (ex lege and de facto) choice of law clause in an individual employment contract

The third question contains some nuance. In essence, the referring courts is attempting to determine whether a compulsory (ex lege in the case C-152/20 and de facto in the case C-218/20) choice of law clause in an individual employment contract is admissible under Article 3 of the Rome I Regulation.

On the one hand, in the case C-152/20, the third questions reads: “[does] the specification, in an individual employment contract, of the provisions of the Romanian Labour Code does not equate to a choice of Romanian law, in so far as, in Romania, it is well-known that there is a legal obligation to include such a choice-of-law clause in individual employment contracts? In other words, is Article 3 of [of the Rome I Regulation] to be interpreted as precluding national rules and practices pursuant to which a clause specifying the choice of Romanian law must necessarily be included in individual employment contracts?”

On the other hand, in the case C-218/20, the third question is phrased as follows: “does the specification, in an individual employment contract, of the provisions of the Romanian Labour Code equate to a choice of Romanian law, in so far as, in Romania, it is well-known that the employer predetermines the content of the individual employment contract?”.

In his assessment of the third questions, AG distinguishes these two scenarios but evaluates them in the light of single core question: if a choice of law clause is compulsory, may one still consider that the parties have exercised their freedom of choice of the law applicable to their contract? (see, in that vein, points 98 and 104).

Ultimately, the proposed answer to the third question in the two cases is that Articles 3 and Article 8 of the Rome I Regulation are to be interpreted to the effect that a choice of the law applicable to an individual employment contract, explicit or implicit, “must be free for both parties” (“ha de ser libre para ambas partes”), which is not the case where a national provision requires a choice of law clause to be inserted in that contract. However, Articles 3 and 8 of the Regulation do not prevent such a clause from being drafted in the contract in advance by decision of the employer, to which the employee gives his consent (point 107, third indent).

The Opinion can be consulted here (the English version is not available).

Symeon C Symeonides recently published his regular piece with American Journal of Comparative Law  titled “Private International Law Bibliography 2020: U.S. and Foreign Sources in English.”

The European Commission published yesterday its assessment of the UK application to accede to the 2007 Lugano Convention (the document is only available in two EU official languages, as well as in English). Its conclusion:

“the Commission takes the view that the European Union should not give its consent to the accession of the United Kingdom to the 2007 Lugano Convention. For the European Union, the Lugano Convention is a flanking measure of the internal market and relates to the EU-EFTA/EEA context. In relation to all other third countries the consistent policy of the European Union is to promote cooperation within the framework of the multilateral Hague Conventions. The United Kingdom is a third country without a special link to the internal market. Therefore, there is no reason for the European Union to depart from its general approach in relation to the United Kingdom. Consequently, the Hague Conventions should provide the framework for future cooperation between the European Union and the United Kingdom in the field of civil judicial cooperation”.

Source: https://ec.europa.eu/info/files/communication-assessment-application-united-kingdom-great-britain-and-northern-ireland-accede-2007-lugano-convention_en

On May 4th, 2021, the European Commission issued a Communication offering its Assessment on the application of the United Kingdom of Great Britain and Northern Ireland to accede to the 2007 Lugano Convention.

The Communication offers the Commission’s analysis on the application and explains why it considers that the EU should not give its consent to the accession of the United Kingdom to the Lugano Convention.

Nature of the Lugano Convention

The Communication explains that the Lugano Convention represents an essential feature of a common area of justice and is a flanking measure for the EU’s economic relations with the EFTA/EEA countries.  Thus, the Lugano Convention supports the EU’s relationship with third countries which have a particularly close regulatory integration with the EU, including by aligning with (parts of) the EU acquis. Though the Convention is, in principle, open to accession of “any other State” upon invitation from the Depositary upon unanimous agreement of the Contracting Parties, it is not the appropriate general framework for judicial cooperation with any given third country. The Convention is based on a high level of mutual trust among the Contracting Parties and represents an essential feature of a common area of justice commensurate to the high degree of economic interconnection based on the applicability of the four freedoms.

International framework for the EU’s civil justice cooperation with third countries

As a consequence, the European Commission argues that the appropriate framework for cooperation with third countries in the field of civil judicial cooperation is provided by the multilateral Hague Conventions, i.e. the 2005 Hague Choice of Court Convention and the 2019 Hague Judgments Convention.

Conclusion

The Commission concludes:

In view of the above, the Commission takes the view that the European Union should not give its consent to the accession of the United Kingdom to the 2007 Lugano Convention. For the European Union, the Lugano Convention is a flanking measure of the internal market and relates to the EU-EFTA/EEA context. In relation to all other third countries the consistent policy of the European Union is to promote cooperation within the framework of the multilateral Hague Conventions. The United Kingdom is a third country without a special link to the internal market. Therefore, there is no reason for the European Union to depart from its general approach in relation to the United Kingdom. Consequently, the Hague Conventions should provide the framework for future cooperation between the European Union and the United Kingdom in the field of civil judicial cooperation.

The Commission then advises:

Stakeholders concerned, and in particular practitioners engaged in cross-border contractual matters involving the European Union, should take this into account when making a choice of international jurisdiction.

Arthur Poon recently published an article with International and Comparative Law Quarterly titled: “Determining the Place of Performance under Article 7(1) of the Brussels I Recast.”

The abstract reads as follows:

“This article calls for a reassessment of the methodology in determining the place of contractual performance under Article 7(1) of the Brussels I Regulation Recast. The first part of the article deals with Article 7(1)(a). It argues that in light of the adoption of autonomous linking factors under Article 7(1)(b), more types of contracts presently not covered within the ambits of Article 7(1)(b) should centralise jurisdiction at the places of performance of their characteristic obligations. The second part of the article considers the way Article 7(1) operates when there are multiple places of performance under the contract. The test devised by the Court of Justice of the European Union in this regard is not only difficult to apply, but the application of the test also often does not guarantee a close connection between the claim and the court taking jurisdiction. This article argues that when a claim is made in respect of a contractual obligation to be performed in more than one Member State, Article 4 should be applied instead of Article 7(1).”

The new issue of the AJ Contrat (12/2020) offers a series of articles (in French) compiled by Gustavo Cerqueira (University of Nîmes, France), concerning the CISG on the occasion of its 40th anniversary. 

The dossier contains the following articles:

The challenge of uniform interpretation, by Claude Witz (Saarland University) 

The CISG’s articulation with the European Union Law, by Cyril Nourissat (University of Lyon 3)

Back on the parties’ silence about the GISG’s application, by Gustavo Cerqueira (University of Nîmes) and Nicolas Nord (University of Strasbourg)

The Vienna Convention and the action directe: back on dangerous liaisons, by Etienne Farnoux (University of Strasbourg)

The links between the foreclosure period and the deadline prescription period (about CISG’s Article 39), by Marc Mignot (University of Strasbourg)

The issue of interest rates on arrears, by Franco Ferrari (New York University)

For a reinterpretation of the concept of impediment to perform, by Ludovic Pailler (University of Lyon 3)

The full table of contents is available here.

EFFORTS (Towards more EFfective enFORcemenT of claimS in civil and commercial matters within the EU) is an EU-funded Project conducted by the University of Milan (coord.), the Max Planck Institute Luxembourg for Procedural Law, the University of Heidelberg, the Free University of Brussels, the University of Zagreb, and the University of Vilnius.

The EFFORTS Project tackles, notably, the Brussels Ibis Regulation and the Regulations on the European Enforcement Order, the European Small Claims Procedure, the European Payment Order, and the European Account Preservation Order. By investigating the implementation of these Regulations in the national procedural law of, respectively, Belgium, Croatia, France, Germany, Italy, Lithuania, and Luxembourg, the Project aims at enhancing the enforcement of claims through more efficient procedures, case management, and cooperation in cross-border disputes.

The second EFFORTS Newsletter has just been released, giving access to up-to-date information about the Project, save-the-dates on forthcoming events, conferences and webinars, and news from the area of international and comparative civil procedural law.

Regular updates are also available via the Project’s LinkedIn and Facebook pages.

Project JUST-JCOO-AG-2019-881802
With financial support from the Civil Justice Programme of the European Union

The European Group of Private International Law (EGPIL-GEDIP) has published the minutes (in French) of its 2020 Meeting.

The topics discussed during the meeting included a proposal for a regulation concerning the applicable law to in rem rights, the codification of the general part of EU private international law and the accession of the European Union to the Hague Judgments Convention.

The EGPIL has also published separately a draft proposal for a regulation on the law applicable to rights in rem in tangible assets and Observations on the possible accession of the European Union to the Hague Convention of 2 July 2019 on the Recognition of Foreign Judgments.

Coming up tomorrow – Book Launch: Choice of Law in International Commercial Contracts – 4 May 2021

 

The global PIL community is invited to celebrate the launch of the book “Choice of Law in International Commercial Contracts” (Oxford University Press, 2021). This study provides a definitive reference guide to the key choice of law principles on international contracts, including 60 national and regional reports written by experts from all parts of the world, and a dedicated commentary on the Hague Principles as applied to international commercial arbitration.

When: May 4, 2021 02:00 PM CEST

Where: Online (Zoom-Webinar)

Register here:

https://unilu.zoom.us/webinar/register/WN_ivzYmgFQQkSdUKZCEDRriQ

After registering, you will receive a confirmation email containing information about joining the webinar. The event will also be live streamed via YouTube; the link will be posted five minutes before the start time here.

 

The programme reads as follows:

 

14:00-14:10 – Welcome and acknowledgments | Daniel Girsberger

14:10-14:35 – Overview of the process | Daniel Girsberger and Marta Pertegás

14:35-15:00 – General Comparative Report, with a focus on Art. 3 | Thomas Kadner Graziano

15:00-15:10 – Further general matters | Jan L Neels

15:10-15:15 – Publisher’s address | Andrew Dickinson

15:15-15:20 – Regional perspective: Africa | Jan L Neels and Eesa A Fredericks

15:20-15:30 – Regional perspective: Asia | Yuko Nishitani and Béligh Elbalti

15:30-15:35 – Regional perspective: Australasia | Brooke Marshall

15:35-15:40 – Regional perspective: Europe | Thomas Kadner Graziano

15:40-15:50 – Regional perspective: Latin America | José A Moreno Rodríguez and Lauro Gama

15:50-15:55 – Regional perspective: North America | Geneviève Saumier

15:55-16:05 – HCCH, UNCITRAL and UNIDROIT perspectives | João Ribeiro-Bidaoui, Luca Castellani, and Anna Veneziano

16:05-16:15 – Future plans and concluding remarks | Agatha Brandão and Daniel Girsberger

16:15-16:45 – Q&A

 

More information about the book:

https://global.oup.com/academic/product/choice-of-law-in-international-commercial-contracts-9780198840107?cc=ch&lang=en&#

A 30% discount code will be available for all attendees.

 

In May 2021 the activity of the CJEU regarding PIL will focus on insolvency and civil and commercial matters.

The decision in C- 709/19, Vereniging van Effectenbezitters (first chamber: J.L. Bonichot, L. Bay Larsen, C. Toader, N. Jääskinen, and M. Safjan as reporting judge) will be delivered on May 12th. AG Campos Sánchez-Bordona’s Opinion was published last December. To the first question, once again on Article 7(2) Brussels Ibis Regulation and the Erfolgsort in a case of purely financial damage, he had proposed to drop the approach holding the location of an investment account as the place of the damage, and requiring particular circumstances to concur for jurisdiction to be established at that place. Moreover, he had provided a separate analysis of the fact that the claim had been filed by a Stichting under Article 3:305a Dutch civil code for merely declaratory purposes (the only possibility open at the time). NoA: A similar request for a preliminary judgment is currently pending before the Court, see C-498/20. Recent examples of claim-bundling strategy following the Dutch model, apt to raise (should they get to court) doubts relating to jurisdiction, can be found in the press: see, recently, FAZ.

A second PIL-related decision will be published on May 20. In Case C-913/19, CNP, the referring court asked several questions to the CJEU on section 3 of Chapter II of the Brussels Ibis Regulation and Articles 7(2) and 7(5) of said Regulation. AG Campos Sánchez-Bordona’s Opinion, delivered last January, follows closely the case law of the CJEU on Article 7(5); it additionally analyses its relationship to Articles 145 and 152 of the Directive 2009/138/EC, on the taking-up and pursuit of the business of insurance and reinsurance. The case has been allocated to the third chamber (S. Prechal, N. Wahl, F. Biltgen, J. Passer, L.S. Rossi as reporting judge).

On the same day, the Opinion of AG Campos’s in C-25/20, Alpine Bau, will also be published. Here, the Višje sodišče v Ljubljani (Slovenia) asks the CJEU whether Article 32(2) of Regulation 1346/2000 is to be interpreted as meaning that the rules on the time limits for lodging creditors’ claims, and the consequences of lodging claims out of time under the law of the State in which the secondary proceedings are being conducted, apply to the lodgement of claims in secondary proceedings by the liquidator in the main insolvency proceeding.

No other PIL-related decisions, conclusions or hearings are scheduled so far. Case C-124/20, Bank Melli Iran, might nevertheless be of interest, in that it relates to commercial policies and the protection against the effects of the extraterritorial application of a third State legislation. AG Hogan’s Opinion will be published on May 12th.

The official version of the different agreements concluded in December 2020 between the European Union and the United Kingdom has been published yesterday (30 April 2021) at the Official Journal of the European Union. This version replaces retroactively the one used until now. The official version is available in all official languages of the European Union as well as in English. Please find the English version attached (with the Trade and Cooperation Agreement starting page 12 of the pdf).

brexit-final-version-of-agreeements-and-related-documentsDownload

On 14 April, the Working Group on the Practical Handbook on the Operation of the 2000 Protection of Adults Convention met for the first time. Comprised of experts with experience in the operation or implementation of the 2000 Protection of Adults Convention, the Working Group will meet via videoconference every two weeks, between 14 April and 23 June, in order to continue the development of a draft Practical Handbook on the operation of the Convention. More information on the 2000 Protection of Adults Convention is available here.

On 20 April, the Permanent Bureau announced the launch of the Legal Guide to Uniform Instruments in the Area of International Commercial Contracts, with a Focus on Sales, a joint publication of the Secretariats of UNCITRAL, UNIDROIT and the HCCH. The Legal Guide offers an overview of the principal legislative texts prepared by each organisation and illustrates how these texts interact to achieve the shared goals of predictability and flexibility. It is intended as a user-friendly resource for those interested in the adoption, application, and interpretation of uniform contract law. More information is available here.

On 22 April, the HCCH participated in the online international seminar “The Practical Operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction“, organised by the German Foundation for International Legal Cooperation (IRZ) and the Ministry of Education and Science of the Republic of Kazakhstan. The seminar was attended by more than 100 participants from Germany, Kazakhstan and Turkey. This event was a follow-up to the seminar on the HCCH 1980 Child Abduction Convention held on 9 December 2020. The recording of the seminar is available here.

On 29 April, Professor William Duncan, former Deputy Secretary General of the HCCH, received an honorary doctorate from Trinity College Dublin, the highest form of recognition from the College. This honour follows his Presidential Distinguished Service Award for the Irish Abroad in November 2020 and is a further tribute to Professor Duncan’s life-long contribution to academic research, law reform, and children’s rights both in Ireland and abroad. On behalf of the HCCH, the Permanent Bureau congratulates Professor Duncan on being awarded this prestigious honour.

 

Vacancy: The HCCH is currently seeking a(n) (Assistant) Legal Officer. The deadline for the submission of applications is this Sunday, 2 May 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.

Professor Yeo Tiong Min, SC (honoris causa) will be delivering the Yong Pung How Professorship of Law Lecture 2021 on Thursday, 6 May 2021, 5:00 to 6:00 pm (Singapore time). The title of the talk is ‘The Changing Global Landscape for Foreign Judgments.’ The synopsis is as follows:

There have been significant advances in the global landscape for the recognition and enforcement of foreign judgments in recent years. The two most significant international developments have been the coming into force in 2015 of the 2005 Hague Convention on Choice of Court Agreements, and the completion in 2019 of the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters. Singapore has responded to the global environment, in bringing the former Convention into force under Singapore law in 2016, and in making extensive amendments to the Reciprocal Enforcement of Foreign Judgments Act in 2019. 2020 also saw the publication of the second edition of the Multilateral Memorandum on Enforcement of Commercial Judgments for Money by the Standing International Forum of Commercial Courts and the Asian Principles for the Recognition and Enforcement of Foreign Judgments by the Asian Business Law Institute. The lecture will review these and other developments and their implications for Singapore law.

The webinar is free of charge. Further details and the link for registration may be found here.

Monika Zalnieriute (University of New South Wales) has posted Data Transfers after Schrems II: The EU-US Disagreements Over Data Privacy and National Security on SSRN.

In the long-awaited Schrems II decision, the Court of Justice of the European Union (CJEU) took a radical, although not an unexpected, step in invalidating the Privacy Shield Agreement which facilitated the European Union – United States data transfers. Schrems II illuminates the long-lasting international disagreements between the EU and USA over data protection, national security, and the fundamental differences between the public and private approaches to protection of human rights in data-driven economy and modern state. This article approaches the decision via an interdisciplinary lens of international law and international relations and situates it in a broader historical context. In particular, I rely on the historical institutionalist approach which emphasizes the importance of time and timing (also called sequencing) as well as institutional preferences of different actors to demonstrate that Schrems II decision further solidifies and cements CJEU’s principled approach to data protection, rejecting data securitization and surveillance in the post-Snowden era. Schrems II aims to re-balance the terms of international cooperation in data-sharing across the Atlantic and beyond. It is the outcome that the US tech companies and the government feared. Yet, they are not the only actors displeased with the decision. An institutionalist emphasis enables us to see that the EU is not a monolithic block, and Schrems II outcome is also contrary to the strategy and preferences of the EU Commission. The invalidation of the Privacy Shield will now (again) require either a reorientation of EU policy and priorities, or accommodation of the institutional preferences of its powerful political ally – the USA. The CJEU decision goes against the European Data Strategy, and places a $7.1 trillion transatlantic economic relationship at risk. Historical institutional analysis suggests the structural changes in the US legal system to address the inadequacies in the Schrems II judgment are unlikely. Therefore, the EU Commission will act quick to create a solution – another quick contractual ‘fix’ – to accommodate US exceptionalism and gloss over the decades of disagreement between the EU and USA over data protection, national security and privacy. When two powerful actors are unwilling to change their institutional preferences, ‘contracting out’ the protection of human rights in international law is the most convenient option.

The paper is forthcoming in the Vanderbilt Journal of Transnational Law.

Advocate General Campos Sánchez-Bordona delivered today his opinion in case C‑301/20 (UE, HC v Vorarlberger Landes- und Hypotheken-Bank AG), which is about the Succession Regulation. The opinion is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version):

« L’article 69 du règlement (UE) no 650/2012 […], lu conjointement avec l’article 70, paragraphe 3, de ce règlement, doit être interprété en ce sens qu’il y a lieu de reconnaître les effets de la copie certifiée conforme d’un certificat successoral européen qui était valable lorsqu’elle a été présentée la première fois, mais qui a expiré avant que l’autorité compétente prenne la décision sollicitée.
À titre d’exception, en cas d’indices raisonnables que le certificat successoral européen a été rectifié, modifié, retiré ou suspendu dans ses effets avant la décision de cette autorité, celle‑ci peut exiger la production d’une nouvelle copie ou d’une copie prorogée ».

Source : https://curia.europa.eu/juris/document/document.jsf?docid=240556&text=&dir=&doclang=FR&part=1&occ=first&mode=DOC&pageIndex=0&cid=12509605

Posted at the request of Sahil Verma, Managing Editor, Trade, Law and Development

Special Issue on Trade and Technology: Rebooting Global Trade for the Digital
Millennium
Issue 13.1 | Summer’21

Founded in 2009, the philosophy of Trade, Law and Development has been to generate and
sustain a constructive and democratic debate on emergent issues in international economic law
and to serve as a forum for the discussion and distribution of ideas. In keeping with these ideals,
the Board of Editors is pleased to announce “Trade and Technology: Rebooting Global Trade for the
Digital Millennium” as the theme for its next Special Issue (Vol. XIII, No. 1).

The WTO framework emerged out of the requirement to promote comparative advantages of
countries in the post-Industrial Revolution era. However, the developments that followed via
Ministerial Conferences, Council discussions and Appellate Body Reports have not moved away
from the traditional methods of trading involving brick-and-mortar factories, recognised fiat
currency, etc. With the unstoppable growth in digital innovation and dense proliferation of the
Internet and ICTs, International Economic Law and its framers must go back to the negotiating
table to chalk out a novel framework relevant for the new digital millennium.

E-Commerce emerged as the virtual marketplace connecting consumers to sellers across borders.
Artificial Intelligence (AI) holds enormous potential to solve efficiency deficits in manufacturing,
public health and education. 3D Printing is expected to meet demand shortages of essentials like
hearing aids. Blockchain and Digital Currencies could change payments and banking services as
we know it along with possible implications for trade finance opportunities. This Issue aims to
foster stimulating discussions on what these developments mean for trade as we know it.

In addition to these developments, the COVID-19 outbreak provides strong impetus for
countries to relook their digital trade and investment policies as reliance on digital resources
increase. While some steps have been taken to include digital technologies in regional trade
agreements, a more comprehensive and cohesive framework is yet to emerge in this regard.

Moreover, given the significance of these issues, governments across the world have begun
implementing rules and regulations for data privacy, cyber security, etc. The differences across
regulatory regimes could cause problems as to their interoperability across countries. The impact
of these regulations on the international trade level is yet to be seen.

An illustrative list of areas under the theme that authors could write upon are:

E-commerce
Artificial Intelligence Summer, 2021
Vol. XIII, No. 1
Implications for Trade Facilitation
Blockchain
Data Protection and Security
Competitiveness and Digital Taxation
Digital Divide between Advanced Economies and Developing World
Impact on Investment
Trade Policy
Implications for Gender Equality

These sub-issues are not exhaustive, and the Journal is open to receiving submissions on all
aspects related to Trade and Technology and its impact on the global trading system. This special
issue, currently scheduled for publication in Summer 2021, will provide an ideal platform to
deliberate on such issues related to trade and technology. Accordingly, the Board of Editors
of Trade, Law and Development is pleased to invite original, unpublished manuscripts for the
Special Issue on Trade and Technology: Rebooting Global Trade for the Digital Millennium for publication
as ‘Articles’, ‘Notes’, ‘Comments’ and ‘Book Reviews’.

Manuscripts may be submitted via e-mail or ExpressO.

In case of any queries, please feel free to contact us at: editors[at]tradelawdevelopment[dot]com.

This Thursday AG Campos Sánchez-Bordona delivered his Opinion in an Austrian case pertaining to the interpretation of the Succession Regulation and in particular to its Articles 69 (Effects of the European Certificate of Succession)  and 70 (Certified copies of the Certificate), namely in the case Vorarlberger Landes- und Hypotheken-Bank, C-301/20.

As the Opinion itself clarifies it at its point 2, the Court asked its AG to elaborate only on the third preliminary question, which reads as follows:

Must Article 69 read in conjunction with Article 70(3) of the EU Succession Regulation be interpreted as meaning that the legitimising effect of the certified copy of [an ECS] must be recognised if it was still valid when it was first submitted but expired before the requested decision of the authority, or does that provision not preclude national law if the latter requires the certificate to be valid even at the time of the decision?

According to Article 70(3) of the Regulation, the certified copies issued shall be valid for a limited period of six months, to be indicated in the certified copy by way of an expiry date.

As AG clarifies, the preliminary question seeks to determine the precise moment in relation to which the authority to which the certified copy is presented must verify the validity of this copy (point 25). In principle, two solutions already hinted in the preliminary question seem to be possible for AG: the certified copy has to be valid at the time of its submission to the authority or it has to be valid at the time of the decision (point 26).

However, as AG acknowledges, it has to be first decided whether the Succession Regulation determines itself the moment relevant for the validity of a certified copy or this issue is left for the Member States to decide (point 44).

Ultimately, he concludes that it is the Regulation itself that determines such relevant moment (point 46) and that the legitimising effect of the certified copy of an ECS must be recognized if it was still valid when it was first submitted to an authority, even where subsequently the validity of this certificate has expired (point 63).

This interpretation is accompanied by a caveat to the effect that, by way of exception, if there are reasonable grounds for considering that the ECS has been rectified, modified, withdrawn or suspended as to its effectiveness prior to the adoption of the requested decision, the authority may call for the production of a new certified copy or a certified copy with an extended period of its validity (point 76).

The Opinion can be consulted here (no English version yet).

Cressida Mawdesley-Thomas has overview of the facts and issues in Johnson v Berentzen & Anor [2021] EWHC 1042 (QB) here. Stacey J essentially confirms the conclusions of Tipples J in Pandya.

The case concerns the extent of the ‘evidence and procedure’ exclusion from the Rome II Regulation on applicable law in the event of non-contractual obligations.  For the reasons I outlined in my review of the latter (readers please refer to same), I continue to disagree. With counsel for claimant I would suggest Pandya wrongly interpreted A15(h) Rome II in concluding that the provisions of A15 (‘scope of the law applicable) are to be construed widely , and the evidence and procedure exclusion (not: ‘exception’), narrowly.

Something for the Court of Appeal to look into, I would suggest.

Geert.

EU Private International Law, 3rd ed. 2021, para 4.79 ff.

 

Benedikt Windau, the editor of a fabulous German blog on civil procedural law, www.zpoblog.de, recently interviewed Federal Judge Dr Harmut Rensen, Member of the Tenth Panel of the division for civil and commercial matters at the German Federal Court of Justice (Bundesgerichtshof) on the experiences with video hearings in national an international patent matters in the pandemic. I allow myself to pick up a few elements from this fascinating interview in the following for our international audience:

The Tenth Panel functions as a court of first appeal (Berufungsgericht) in patent nullity proceedings and as a court of second appeal for legal review only (Revisionsgericht) in patent infringement proceedings. In both functions, particularly in its function as court of first appeal, actors from all over the world may be involved, and indeed, Judge Rensen reported about parties and their respective representatives and teams from the USA, Japan, South Korea, the UK, France, Italy and Spain during the last year.

Obviously, the start of the pandemic raised the question how to proceed, once physical hearings on site could no longer take place as before, since particularly in the appeal proceedings parties had usually appeared with several lawyers, patent lawyers, technical experts, interpreters etc., i.e. a large number of people had gathered in rather small court rooms, to say nothing of the general public and media. Staying all proceedings until an expected end of the pandemic (for which we are still waiting) would indeed have infringed the parties‘ fundamental procedural right to effective justice, abstaining from oral hearings and resorting to submission and exchange of written documents instead, as theoretically provided as an option under section 128 (2) German Code of Civil Procedure, would evidently not have been satisfying in matters as complex as patent matters (as well as probably in most other matters).

German civil procedural law allows for video hearings under section 128a (1) German Code of Civil Procedure. It reads (in the Governments official, yet may be not entirely perfect translation): „The court may permit the parties, their attorneys-in-fact, and advisers, upon their filing a corresponding application or ex officio, to stay at another location in the course of a hearing for oral argument, and to take actions in the proceedings from there. In this event, the images and sound of the hearing shall be broadcast in real time to this location and to the courtroom.“ The key word is „permit“. If the court „permits“ the parties etc. to proceed as described, it does not mean that the parties are required to do so. And indeed, parties applied for postponing scheduled hearings instead of going into video hearings. The presiding judge of the court has to decide on such a motion according to section 227 on „changes of date for scheduled hearings“. Section 227 (1) Sentence 1 reads: „Should substantial grounds so require, a hearing may be cancelled or deferred, or a hearing for oral argument may be postponed“. Sentence 2 reads: „The following are not substantial grounds: No. 1: The failure of a party to appear, or its announcement that it will not appear, unless the court is of the opinion that the party was prevented from appearing through no fault of its own“. Is this enough ground to reject the motion in light of the offer to go into video hearings? The Tenth Panel was brave enough to answer this question positively. Further, it was brave enough to overcome the friction between section 128a – permission for video hearings to be decided by the entire bench of the court at the opening of the first hearing – and section 227 (1) – decision about the motion to postpone a scheduled hearing by the presiding judge prior to that hearing. In the interest of progress in e-justice and effective access to justice in times of the pandemic, this is to be applauded firmly, all the more because the Panel worked hard, partly on its own initiative (as the general administration of the court would have been far too slow), to equip the court room with the necessary video technology: several cameras showing each judge and the entire bench, at the same time making sure that no camera reveals internal notes, the same for each party and team. The video conference tool that is currently used is MS Teams (despite all obvious concerns) as being the most reliable one in terms of broadcasting image and sound. The Panel invited to technical rehearsals the day before the hearing and for feed-backs afterwards, in order to improve itself and in order to build up trust, which seemed to have been quite successful. The specific nature of patent proceedings resulted in the insight that the function „screen sharing“ is one of the most helpful tools which will probably continue to be used in post-pandemic times. Sounds to me like examples of best practice. In sometimes rather „traditional“ environments of the German administration of justice, this is not a matter of course.

In relation to sovereignty issues when foreign parties are involved, the Panel takes the view that the territorial sovereignty of a foreign jurisdiction is not affected by a mere permission in the sence of section 128a because the place of the hearings can be considered still as being the locus of the court, i.e. Karlsruhe, Germany. Judge Rensen reported about talks between the Federal Ministry of Justice and its counterparts on the level of the states to the opposite, but as Judge Rensen pointed out, these are ongoing talks amongst ministerial officers, no court decisions or specific legislations that would bind the Panel. Things are cetainly more difficult when it comes to the taking of evidence. The Panel has done this only once so far, apparently within the scope of application of the EU Taking of Evidence Regulation. This case was specific, insofar as the testimony appeared to be entirely in line with and supported by undisputed facts and other testimonies, and these circumstances established a particularly solid overall picture about the point. This is why the Panel held the video testimony to be sufficient, which might mean that in mixed pictures the Panel might tend towards insisting on testimony in physical presence. In general, Judge Rensen supported judge-made progress, as opposed to specific legislation on legal assistance, as such legislation (like the EU legislation, including its latest recast on the matter) might lead to the misconception that such legislation would be required as a matter of principle in all cases to allow video hearings with foreign participants. For this reason, he pleaded for taking this factor into account before reforming section 128a (if at all), as such legislation would not be in sight in relation to a number of third states. At the same time the work of e.g. the HCCH on improving and modernising legal assistance under the HCCH 1970 Convention on the Taking of Evidence may be helpful nevertheless to promote and support video hearings in legal certainty, see e.g. the HCCH 2020 Guide to good practice on the use of video-link under the Hague Evidence Convention, but indeed the approach towards states staying outside these legal frameworks must be considered likewise.