Droit international général

In Benkel v East-West German Real Estate Holding & Anor [2021] EWHC 188 (Ch), Morgan J was asked to join a party on the basis of Article 8(1) Brussels Ia’s anchor defendant mechanism, and obliged. Mr Dikautschitsch (domiciled in either Spain or Germany) is to be one of a number of defendants. One of the existing defendants, East-West UK, is domiciled in England and Wales.

Casio Computer Co Ltd v Sayo & Ors [2001] EWCA Civ 661 was the authority mostly relied on, as was, via the link with Article 30, Sarrio SA v Kuwait Investment Authority. Expediency to add the second defendant to the proceedings was found to be present given the possibility of conflicting findings of fact [59]. Morgan J rejected [64] a rather novel argument that given the possibility of the E&W courts’ findings of fact clashing with potential future proceedings elsewhere, he should refrain from exercising his discretion to consolidate.

Geert.

European Private International Law, 3rd ed. 2021, Heading 2.2.13.1.

On 5 February 2021, the Universities of Amsterdam, Maastricht and Tilburg, in collaboration with the Open University, organized an online seminar on The Netherlands, a forum conveniens for collective redress?

A group of experts in the field addressed both procedural and private international law aspects of collective actions under the Dutch and European frameworks. The first panel of the seminar discussed whether the current private international law instruments need specific rules on collective actions and settlements. Burkhard Hess and Alexia Pato drafted some preliminary statements that sparked interesting discussions. The questions related to standing to sue under the Directive on representative actions (2020/1828), which where discussed in the third panel of the day, will also be published on the EAPIL blog. Finally, a brief account of the whole seminar will be published in the Dutch journal on PIL, NIPR.

 

Panel 1. Statement: The instruments of European private international law (Brussels I, Rome II) are in need of specific rules for collective action and collective settlements. 

AP: The proposed statement for the present panel is that EU instruments on Private International Law need specific rules on collective redress. I believe that this statement is true as far as the Brussels I bis Regulation is concerned.

BH:  First, I would like to thank the organizers of this webinar for the thorough preparation of today’s event. The explanation of the Dutch case law and the small films on the structural issues of jurisdiction, pendency and applicable law are very much appealing. I assume that the audience expects this panel to be a little bit controversial. In this respect, I would like to state that I am less optimistic regarding the enactment of a specific EU instrument on cross-border collective redress. However, we will come back to this issue in the course of our common reflections.

1. AP: Let us start with Article 4 of Regulation Brussels I bis, the general head for international jurisdiction. One might question whether litigation in the defendant’s domicile should be promoted in all cases. In that sense, it is interesting to note that the Directive on representative actions implements the mutual recognition of representative entities’ standing to sue, so that access to courts of other Member States is facilitated. Coupled with the fact that the Directive leaves Private International Law questions to the Regulations already in force, one cannot help but conclude that litigation in the domicile of the defendant should remain the general rule, according to the European legislator. Nevertheless, that forum might not be always accessible, especially where small-value claims are involved. In consumer law cases, for example, consumer associations have tried to use the alternative forum of Article 7(2) of Regulation Brussels I bis, which opens a forum on the market they are active in. This could be a mere strategic move or the evidence that cross-border litigation is uneasy. Either way, I believe that this question should be further examined.

BH: The basic principle of the Brussels I bis Regime is actor sequitur forum rei. It corresponds to the basic idea that a party should primarily defend against the lawsuit brought against her or him at home. There might be a home advantage, especially when a large enterprise is facing a high value lawsuit and the compensation sought may impact on employment. However, as collective redress usually empowers the plaintiff(s), at first sight there is no (compelling) need to further privilege collective redress with regard to jurisdiction. Article 79(2) GDPR is an example where the EU lawmaker enlarged the grounds of jurisdiction in favour of the plaintiffs. However, I have the impression that this provision shall strengthen the extraterritorial application of EU data protection law vis à vis third state defendants.

2. AP: Second, even though the Dutch case law on collective actions involving environmental harms recalls that the mandatory nature of Article 4 of Regulation Brussels I bis must be respected, this idea has been challenged before the English courts. In particular, in Vedanta, the UK Supreme Court seemed to admit that an exception to Article 4 of Regulation Brussels I bis is conceivable, when “the claimant has no genuine intention to seek a remedy against the anchor defendant”. Additionally, cases such as Trafigura and Petrobras pose the question whether party autonomy could supplant the application of Article 4 of Regulation Brussels I bis.

BH: This issue seems to me to be more related to Article 8(1) of Regulation Brussels I bis. This provision was generously interpreted when the CJEU in case C-352/13, CDC, permitted actions against co-defendants to move on. In this case, the plaintiff and the anchor defendant had settled the case even before the lawsuits against the co-defendants had been served. However, the CJEU held that a control of abuse might be possible in the realm of Article 8(1) of Regulation Brussels I bis.

3. AP: In cases such as Milieudefensie v. Shell, the Dutch courts had to assess whether jurisdiction could be asserted over the foreign subsidiary of a Dutch mother company, based on Article 7 of the Dutch Code of Civil Procedure, which corresponds to Article 8(1) of Regulation Brussels I bis at the EU level. This kind of scenario obliges us to determine whether jurisdiction should be exercised when the dispute involves foreign plaintiffs, a foreign co-defendant, a foreign harm, and the application of a foreign law. The tension between access to justice and the private international law principles, according to which jurisdiction is allocated where some relevant connecting factors link the court to the dispute is particularly visible in those kinds of cases. Having a look at the case law of other jurisdictions, such as the US, one observes that the tendency is to restrict the assertion of jurisdiction in foreign-cubed cases. In all cases, a redefinition of our policy objectives (e.g. avoid the risk of irreconcilable judgments, provide access to justice, etc.) might be necessary in order to better frame what the general rule on the attraction of co-defendants and its exception should be.

BH: Objectively, jurisdiction over co-defendants may amount to an exorbitant head of jurisdiction when the relationship between the main defendant and the co-defendant appears to be superficial and loose. However, when it comes to tortious behaviour, the decision-making in the board of a mother company related to the foreign subsidiary may amount to tortious conduct. Yet, these are facts easy to assert but very difficult to prove. In the context of Article 7(2) of Regulation Brussels I bis, the CJEU has been very reluctant with regard to co-perpetrators (cf. case C-228/11, Melzer).

4. AP: As regards the WCAM procedure, asserting international jurisdiction to declare collective settlement agreements binding has been controversial as well. In Shell and Converium, the Amsterdam Court of Appeal considered that the victims located in the Netherlands were the defendants and declared that it had jurisdiction according to Article 4 of Regulation Brussels I bis. Victims domiciled in other EU Member States were included within the collective settlement thanks to Article 8(1) of Regulation Brussels I bis. This means that the presence of one shareholder in the Netherlands allocates jurisdiction to Dutch courts. Of course, this has to be mitigated by the fact that both petitioners freely chose to submit to the jurisdictional power of those courts. However, would that situation be sustainable if all Member States had a WCAM mechanism and hence, the ability to declare EU-wide settlements binding? Put differently, the question is whether Private International Laws rules on jurisdiction should adapt (and if so, how?) or remain unchanged.

BH: The problem related to WCAM relates to the applicability of the Brussels I bis Regulation: Does the “homologation” of an out of court settlement really amount to a dispute litigated in courts? (here, I would like to add that the same concerns relate to schemes of arrangement). Just to put it differently: Are non-contentious proceedings in the material scope of the jurisdictional regime of Brussels I bis? The difficulties start with the determination of the role of the parties: who is the plaintiff, who is the defendant? To my opinion, jurisdiction in these cases should be based on articles 25 or 26 in case one agrees that the Brussels I bis Regulation applies to this constellation.

5. AP: As regards the application of the special and protective fora of Regulation Brussels I bis, it is commonly acknowledged that collective redress actions, which protect a general interest, such as the environment or the market as a whole, may be brought in the place where the damage occurred, as case C-167/00, Henkel, shows. When the collective redress action bundles many individual claims, the centralisation of those claims in a place other than the defendant’s domicile is trickier. As the CJEU ruled in C- 498/16, Schrems, multiple claims cannot be bundled in the forum of one consumer’s habitual residence (section IV of the Regulation Brussels Ibis). Even though such a result is bad news for access to justice, I believe that the current text of the Regulation would not have allowed the CJEU to come up with another solution. The centralisation of claims at the place where the damage occurred is difficult as well, as Article 7(2) of the Regulation Brussels I bis allocates not only international but also territorial jurisdiction, and the place of the damage will hardly ever be exactly the same for all victims. In the case C-709/19, VEB, the AG seems to open the door to the centralisation of claims for victims who are located within the same Member State. He says (I quote) ‘the problems of territorial fragmentation arising from a strict application of Article 7(2) Brussels I bis could be solved by arguments in support of a specialised court in a particular local jurisdiction’. However, I doubt that Article 7(2) of Regulation Brussels I bis actually allows domestic procedural law to modify the venue designated by the Regulation.

BH.: As far as consumer claims are concerned, Articles 16 and 17 of Regulation Brussels I bis only apply to contractual claims – but this may be the case when private shareholders sue the company. In his Opinion on case C-498/16 AG Bobek clearly and correctly stated that the introduction of a new head of jurisdiction for consumer collective claims is a matter for the EU lawmaker, the argument has been taken up by AG Campos Sánchez-Bordona in case C-709/19, VEB.

According to the case law of the CJEU as it stands today, the application of Article 7(2) requires more than a pure pecuniary loss to fix the locus damni. In this regard, the Opinion in case C-709/19, VEB, clearly (and correctly) indicate that neither the location of an investment account, nor the status as consumers of some of the investors establish a sufficient connection with the Netherlands. In the case of a declaratory action, followed by (individual) actions for damages, the place of the damage is difficult to assess when there is no clear indication of the place of the damage in the first phase of the proceedings.

On the other hand, I do not see a problem in setting up a specialised court in a Member State having particular jurisdiction for a specific type of claims. In case C-400/13, Huber and Sander, the CJEU has already decided that the concentration of venue in one court by the MS is not excluded by the specific heads of jurisdiction of the Maintenance Regulation which equally address both: international jurisdiction and venue. A good example could be follow-on actions related to cartel law violations; let’s see what is decided in the pending case C-30/20, Volvo.

6. AP: My last point concerns parallel litigation. The emergence of multiple proceedings in several states may give rise to potential ‘overlaps’ between actions. Those overlaps represent a waste of judicial resources and may generate inconsistent judgments, as well as overcompensation. At the same time, we have to accept that parallel litigation is a by-product of our jurisdictional system, which provides for alternative fora. To some degree, parallel litigation will therefore take place. Within the Brussels regime, the lis pendens rule of Article 29 of the Regulation Brussels Ibis should hardly ever apply in collective redress cases as the formal (or even material) identity of parties in parallel proceedings will usually not be met. As for Article 30 of the Regulation, on related actions, this provision could theoretically apply to parallel proceedings in collective actions. However, potential delays in the resolution of the dispute and possible disparities between the claims will more often than not militate against the stay of proceedings. Both the Steinhoff and Libor cases illustrate the difficulties that parallel ligation generates.

In all cases, a clear-cut rule on stay of proceedings does not seem to be an option, as collective redress mechanisms vary from state to state. As regards the difficulty to determine which court is seised first, one could imagine implementing a communication channel between courts in the manner of Article 29(2) of Regulation Brussels I bis or setting up an EU-wide register of collective redress actions, as the Commission’s Recommendations of 2013 suggest. These proposals are no panacea, but they might nevertheless bring more clarity to this complex legal landscape.

BH: As long as collective actions are based on opt in, the problems of pendency and relatedness are manageable. The moment, a person opts in a collective lawsuit should be the moment of pendency for this person as he or she becomes by registration a party to the (collective) proceedings. I am happy to see that the new Directive on Collective Redress for Consumers is based on the basic idea that in cross-border settings only opt in is possible, see Article 9(3) of Directive (EU) 2020/1828. However, the Directive addresses problems of cross-border litigation rather randomly and Article 3(7) provides for a strange definition of a cross-border representative action, whereby a cross-border situation is present ‘where a qualified entity in another EU Member State brings an action in another EU Member State than that in which the qualified entity was designated.’ This definition is not in line with the concept of the Brussels regime and demonstrates that the Directive primarily provides for the mutual (but limited) recognition of the standing of qualified entities in the courts of other EU Member States. I addressed these issues in my book on Europäisches Zivilprozessrecht (2nd ed., 2021) ch. 11, at paras 11.78 -11.87.

However, the Directive only intends to achieve procedural minimum harmonisation. Consequently, Member States may go further and expand collective redress mechanisms based on opt out also to cross-border settings. In these constellations only Article 30 of Regulation Brussels I bis applies to parallel proceedings. As Alexia has explained, this provision is based on judicial discretion and, therefore, is not suited to effectively coordinate overlapping opt out proceedings pending in several EU Member States. An additional weakness is that this provision only permits the first proceedings to move forward – this might not be an optimal solution in the case of competing, overlapping collective actions.

When it comes to the certification of the class, Article 32 of the Brussels I bis Regulation is difficult to apply. This is well explained in the video of Ianika Tzankova. To my opinion, the decisive moment should be either the filing of the lawsuit or the filing of the application to permit the collective case to proceed. This flexibility corresponds to the aims of Article 32 of Regulation Brussels I bis.

7. AP: To conclude, the application of Private International rules on jurisdiction to collective redress cases is uneasy and forces us to reconsider what kind of policy objectives should be promoted. On the one hand, we could encourage litigation at the defendant’s domicile, which would limit parallel litigation to a certain extent. However, we would probably have to think about creating extra-incentives for representative entities to be able to reach that forum. We would also have to think about potential exceptions to the application of this general rule in light of the case-law involving environmental matters. On the other hand, if a closer forum is to be offered and promoted, access to justice would be fostered, but parallel litigation would probably increase, and more coordination measures would be required. In all cases, recent mass harm situations have stretched the interpretative limits of the Brussels I bis provisions and we have been forced to create extravagant interpretations, so that the system could hold. I believe that now is a good time for a change and I support the enactment of a truly appropriate regulatory regime for cross-border collective redress.

BH: Should the EU lawmaker intervene? To my opinion, this would be a considerable political challenge, as there is currently a clear competition among Member States either to promote their judicial systems to attract collective litigation (as in the Netherlands) or to protect their industries from collective redress (as it is still the case in Germany). Against this background, the chances of a binding EU instrument on the coordination of the different cross-border collective redress instruments in the EU Member States appear to be limited. Member States might strongly oppose to such a zealous project. They already did it when the Recast of the Brussels I Regulation was negotiated.

When enacting Directive 2020/1828, the EU lawmaker intentionally avoided to set a clear framework for the different instruments on collective litigation in the Member States (cf. Article 1(2)). The Directive only requires that Member States provide for an instrument of collective redress corresponding to the main features of the Directive. However, it is worth noting that most of the mandatory provisions of the Directive apply to cross-border settings and require an opting in. Nevertheless, it remains to be seen whether the CJEU will interpret the Regulation Brussels I bis and the Directive in a systematic way. This might finally entail that only opt in instruments will be included into the Brussels regime.

Burkhard Hess, Europäisches Zivilprozessrecht, De Gruyter 2021.

Just over ten years after the first edition of Europäisches Zivilprozessrecht (European Civil Procedure) by Burkhard Hess (director Max Planck Institute for Procedural Law, Luxembourg) a second –  even more voluminous and impressive – edition was published early 2021. While updating this book after a decade that marks not only the further expansion  but perhaps also the coming of age of European Civil Procedure is an immense task in itself, this new addition also expands in breadth. Particularly noteworthy is the new part on the interaction between European law and national civil procedure, including out-of-court procedures.

A must-read or even must-have for German readers having an interest in European Civil Procedure!

 

The blurb on the publisher’s website reads:

This book explores the European law of civil procedure from a systematic and dogmatic perspective by comprehensively assessing and providing a detailed explanation of all the instruments adopted in this area of the law. Based on the case law of the Court of Justice of the European Union, it expounds on the legislative powers of the Union, the different regulatory levels of European procedural law, its underlying concepts and legislative techniques. Against this background, it addresses the interfaces of the European law of civil procedure with the civil procedures of the EU Member States and the judicial cooperation with third States. The 2nd edition of this treatise also focusses on latest developments such as the protection the independence of the judiciary and of the rule of law in the Member States of the European Union. Moreover, it tackles alternative dispute resolution and arbitration, as well as the latest policy of the EU Commission in the digitization of national justice systems. To further contextualize the development of the European law of civil procedure, it also provides the reader with a thorough understanding of preliminary reference procedures before the Court of Justice. In its final chapter, it addresses the current policy debate towards a European code of civil procedure.

This reference book is an essential reading for academics, regulators, and practitioners seeking reliable and comprehensive information about the European law of civil procedure. It also addresses trainee lawyers and students interested in cross-border litigation and dispute resolution, as well as those who wish to specialize in European business law.

The post below was provided by Catherine Shen, Project Manager at the Asian Business Law Institute.

Readers of the EAPIL blog are well aware that in Europe, harmonisation in the field of private international law has been enormously successful with efforts encompassing both the civil and commercial, as well as family, spheres. In relation to foreign judgments in civil and commercial matters, the Brussels I bis Regulation is a double convention comprising of rules on both jurisdiction and foreign judgments. Apart from harmonising the rules under which a court in one European Union (“EU”) Member State would assume jurisdiction, it enables the free circulation of judgments from one EU Member State within the EU.

In Asia, however, harmonisation efforts in this field have been relatively lacking. That was until recently. The Asian Business Law Institute (“ABLI”), set up in 2016 with the aim of promoting the convergence of business laws in Asia, identified among its first batch of projects an undertaking to advance the convergence of foreign judgments recognition and enforcement rules in Asia (“Foreign Judgments Project”).

ABLI released its first publication, Recognition and Enforcement of Foreign Judgments in Asia (“Judgments Compendium”) in the beginning of 2018. This compendium contains 15 short and concise country reports which provide lawyers and businesses with an overview of how foreign judgments in civil and commercial matters are recognised in different jurisdictions in Asia and the requirements which would need to be met for a foreign judgment to be enforced in those jurisdictions. The jurisdictions studied are all ten member states of the Association of Southeast Asian Nations or ASEAN (i.e., Brunei, Cambodia, Indonesia, Lao, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam) and their major trading partners, including Australia, China, India, Japan and South Korea.

In fact, the Judgments Compendium marks the first time when the rules of several ASEAN member states on the recognition and enforcement of foreign judgments are made available in the English language. Its release concluded the first phase of ABLI’s Foreign Judgments Project and set the stage for the second phase where both the similarities and the differences of the rules of these 15 jurisdictions are distilled to formulate a set of common principles.

That set of principles has now been released under the title of Asian Principles for the Recognition and Enforcement of Foreign Judgments (“Asian Principles”). This ambitious piece of work is a sequel to the Judgments Compendium and includes a total of 13 principles that among other things, cover the rules on international (or “indirect”) jurisdiction, reciprocity, the enforcement of non-monetary judgments, public policy, due process and inconsistent judgments. Each principle is accompanied by a commentary which fleshes out how the various countries apply that principle and also includes a way forward section, where applicable, to suggest the desired directions of law development.

A detailed write-up on the Asian Principles and the Foreign Judgments Project in general can be found at Adeline Chong, “Moving towards harmonisation in the recognition and enforcement of foreign judgment rules in Asia” (2020) 16 Journal of Private International Law 31-68. Associate Professor Chong is the general editor of both the Judgments Compendium and the Asian Principles.

ABLI is delighted to offer all members of EAPIL and all readers of this blog an exclusive discount to purchase both the Judgments Compendium and the Asian Principles. Interested members and readers can enjoy 10% off by following the steps listed at the end of this post.

Both the Judgments Compendium and the Asian Principles are available in PDF softcopies. Three hardcopies remain in stock for the Judgments Compendium. Please contact Catherine Shen, Project Manager of ABLI, for any query at catherine_shen@abli.asia.

How to enjoy your 10% discount as an EAPIL member or EAPIL blog reader (offer ends on 1 March 2021): (1) Go to https://payhip.com/b/e0md (for Judgments Compendium) or https://payhip.com/b/hACJ (for Asian Principles); (2) Click on the purple icon “buy now”; (3) After entering your name and email address, click on “Have a coupon code? Add coupon“ (right below the data protection terms) and enter promo code “EAPIL”, and then proceed to check out; (4) Once payment is processed by PayPal, an email will be sent to your indicated address for you to download the purchased copy instantly.

Please contact Catherine Shen if you wish to pay by credit card instead of PayPal.

A webinar event on “Corporate Due Diligence and Private International Law” organized by the NOVA Centre for Business, Human Rights and the Environment, will hold on February 25, 2021 at 15:00 – 17:30 CET. For more information on the event and how to register see here

by Professor Dr Eva-Maria Kieninger, Chair for German and European Private Law and Private International Law, University of Würzburg, Germany

The Supreme Court’s decision in Okpabi v Royal Dutch Shell (2021 UKSC 3) concerns the preliminary question whether English courts have jurisdiction over a joint claim brought by two Nigerian communities against Royal Dutch Shell (RSD), a UK parent company, as anchor defendant, and a Nigerian oil company (SPDC) in which RSD held 30 % of the shares. The jurisdictional decision depended (among other issues that still need to be resolved) on a question of substantive law: Was it “reasonably arguable” that RSD owed a common law duty of care to the Nigerian inhabitants whose health and property was damaged by the operations of the subsidiary in Nigeria?

In the lower instance, the Court of Appeal had not clearly differentiated between jurisdiction over the parent company and the Nigerian sub and had treated the “arguable case”-requirement as a prerequisite both for jurisdiction over the Nigerian sub (under English autonomous law) and for jurisdiction over RSD, although clearly, under Art. 4 (1) Brussels Ia Reg., there can be no such additional requirement pursuant to the CJEU’s jurisprudence in Owusu. In Vedanta, a case with large similarities to the present one, Lord Briggs, handing down the judgment for the Supreme Court,  had unhesitatingly acknowledged the unlimited jurisdiction of the courts at the domicile of the defendant company under the Brussels Regulation. In Okpabi, Lord Hamblen, with whom the other Justices concurred, did not come back to this issue. However, given that from a UK point of view, the Brussels model will soon become practically obsolete (unless the UK will still be able to join the Lugano Convention),  this may be a pardonable omission. It is to be expected that the English courts will return to the traditional common law restrictions on jurisdiction such as the “arguable case”-criterion and “forum non conveniens”.

Although the Supreme Court’s decision relates to jurisdiction, its importance lies in the potential consequences for a parent company’s liability on the level of substantive law: The Supreme Court affirms its previous considerations in Vedanta (2019) and rejects the majority opinion of the CoA which in 2018 still flatly ruled out the possibility of RDS owing a duty of care towards the Nigerian inhabitants. Following the appellants’ submissions, Lord Hamblen minutely sets out where the approach of the CoA deviated from Vedanta and therefore “erred in law”. The majority in the CoA started from the assumption that a duty of care can only arise where the parent company effectively “controls” the material operations of the sub, and furthermore, that the issuance of group wide policies or standards could never in itself give rise to a duty of care. These propositions have now been clearly rejected by the Supreme Court as not being a reliable limiting principle (para 145). In the present judgment, the SC affirms its view that “control” is not in itself a meaningful test, since in practice, it can take many different forms: Lord Hamblen cites with approval Lord Briggs’s statement in Vedanta, that “there is no limit to the models of management and control which may  be put in place within a multinational group of companies” (para 150). He equally approves of Lord Briggs’s considerations according to which “the parent  may incur the relevant responsibility to third parties if, in published materials, it holds itself out as exercising that degree of supervision and control of its subsidiaries, even if in fact it does not do so. In such circumstances its very omission may constitute the abdication of a responsibility which it has publicly undertaken” (para 148).

Whether or not the English courts will ultimately find a duty of care to have existed in either or both of the Vedanta and Okpabi sets of facts remains to be seen when the law suits have been moved to the trial of the substantive issues. Much will depend on the degree of influence that was either really exercised on the sub or publicly pretended to be exercised.

On the same day on which the SC’s judgment was given (12 February 2021), the German Federal Government publicly announced the key features of a future piece of legislation on corporate social resonsibility in supply chains (Sorgfaltspflichtengesetz) that is soon to be enacted. The government wants to pass legislation before the summer break and the general elections in September 2021, not the least because three years ago, it promised binding legislation if voluntary self-regulation according to the National Action Plan should fail. Yet, contrary to claims from civil society (see foremost the German “Initiative Lieferkettengesetz”) the government no longer plans to sanction infringements by tortious liability towards victims. Given the applicability of the law at the place where the damage occurred under Art. 4 (1) Rome II Regulation, and the fact that the UK Supreme Court in Vedanta and Okpabi held the law of Sambia and Nigeria to be identical with that of England, this could have the surprising effect that the German act, which the government proudly announced as being the strictest and most far-reaching supply chain legislation in Europe and the world (!!), would risk to fall behind the law in anglophone Africa or on the Indian sub-continent. This example demonstrates that an addition to the Rome II Regulation, as proposed by the European Parliament, which would give victims of human rights’ violations a choice between the law at the place of injury and that at the place of action, is in fact badly needed.

The judgment of the Court of Justice of the European Union (CJEU) in Supreme Site Services v. Shape (Case C‑186/19) did not only raise the issue of the impact of the immunity of enforcement of international organisations on the definition of civil and commercial matters in the meaning of the Brussels I bis Regulation. The main question asked to the CJEU was that of the jurisdiction to lift cross-border provisional attachments under the Brussels I bis Regulation.

Background

The case was concerned with a dispute relating to the supply of fuel by a group of private companies to the headquarters of NATO in Europe (the Supreme Headquarters Allied Powers Europe, or SHAPE), for the purpose of a mission in Afghanistan. SHAPE is established in Belgium, but it has a regional headquarter in the Netherlands, the Allied Joint Force Command Brunssum (‘JFCB’). In order to guarantee the payment of all the costs related to the supply contracts, JFCB and the private companies signed an escrow agreement, whereby funds were deposited in a bank in Brussels.

After a dispute arose between the parties, the private companies sued JFCB and SHAPE on the merits in a Dutch court in 2015.

In 2016, the plaintiffs applied ex parte to the same Dutch court for an authorisation to carry out a provisional attachment on the monies held by the bank in Brussels. The application was granted and, two days later, was carried out in Brussels by a Belgian enforcement officer (huissier de justice) on the basis of a certificate issued on the ground of Art 53 of the Brussels I bis Regulation. In other words, the Dutch order was directly enforced under the Brussels I bis Regulation.

Jurisdiction to Issue a Cross-Border Attachment

After SHAPE was notified, it challenged the order before the court of origin. Interestingly enough, it does not seem that JFCB was notified, and that it was a party to the interim proceedings. The debate essentially revolved around the immunities of NATO, but there was also an issue of jurisdiction. On which ground could a Dutch court authorise the attachment of monies in Belgium? When the Dutch court of appeal considered the issue, it referred to Article 35 of the Regulation. Is that because, in the absence of JFCB, it considered that it did not have jurisdiction on the merits? If so, its jurisdiction should have been restricted to Dutch territory (see Recital 33 of the Preamble to the Regulation).

Enforcement in Belgium

In addition to the jurisdictional issue, there was an obstacle for enforcing the Dutch order in Belgium. It had been issued ex parte. It was therefore not a decision in the meaning of Article 2 of the Regulation, and it could not benefit from the enforcement regime of the Regulation.

But after the abolition of exequatur, the enforcement of foreign judgments is only to be challenged ex post for grounds listed in Art 45. Violation of the scope of Art 35 is not one of them. Issuance of protective measures ex parte is not either. Was there a remedy for SHAPE in Belgium? Maybe Adrian Briggs is right when he writes that Art 45 should not be read literally, and that other grounds for opposing enforcement should be admissible.

It must be underscored that ex parte provisional measures may not benefit from the Brussels regime, but the Brussels I bis Regulation expressly recognises that national law might allow their enforcement. In this case, after Dutch courts lifted the authorisation on the ground that NATO benefited from an immunity, SHAPE sought a declaration of enforceability of the Dutch judgment on the ground of a 1925 bilateral treaty between Belgium and the Netherlands (that the Brussels instruments have replaced, but not terminated – rings a bell?), because the argument of SHAPE was that its immunity excluded the application of the entire regulation (the argument was rightly rejected by the CJEU).

Jurisdiction to Lift the Provisional Attachment

SHAPE applied to the Dutch court, and the Dutch court of appeal set aside the authorisation and lifted the attachment on the ground of the immunity of SHAPE. The creditors appealed, and, although the issue of jurisdiction was not raised, the Dutch supreme court wondered whether Belgian courts had exclusive jurisdiction to lift an attachment over assets situated in Belgium on the grounds of Article 24(5) (“enforcement of decisions”), and thus referred the case to the CJEU.

The question was framed narrowly, and the CJEU only answered that Article 24(5) did not apply, because the proceedings did “not concern per se the enforcement of judgements in the meaning of Article 24(5)”. The court had just insisted that the provision applies to “proceedings relating to recourse to force, constraint or distrain on movable or immovable property”, so it seems that it considered that an application to lift a provisional attachment could not be considered to relate to use of force.

One must also say that Article 24(5) applies to the enforcement “of decisions”, and that it is unclear which decision would have been enforced in this case, since the proceedings on the merits were pending.

Most unfortunately, the CJEU only answered the question as it had been framed and did not elaborate on the court which would have jurisdiction under the Regulation.

It is submitted that, for a number of reasons, it should be the court which issued the order in the first place. A first reason is that the process of lifting a provisional attachment requires to reconsider and, as the case may, set aside, a judicial order. Under the Regulation, it is hard to see how any other court than the court of origin could be entitled to do so. Another reason is that the court of origin will apply the same rules to decide whether the decision was rightly granted.

Luís de Lima Pinheiro, Professor of Law at the University of Lisbon, has given his so-called “Last Class” earlier this week, thus putting an end to his activity as a Professor at the graduate level in this Law School (while remaining active in post-graduate courses).

The online lecture, in Portuguese, is available here.

The University of Silesia in Katowice hosted in 2019 a conference on the the Application of the Succession Regulation in the EU Member States.

The papers presented at the conference have recently been published, under the editorship of Maciej Szpunar, in Problemy Prawa Prywatnego Międzynarodowego, a periodical specifically devoted to private international law.Below are the abstracts of (and the links to) the various contributions.

After the conference GEDIP held its meeting in Katowice and celebrated honorary doctorate awarded to Professor Paul Lagarde. The report from the conference is available here and from GEDIP’s meeting here.

Maciej Szpunar, Foreword

The current volume of “Problemy Prawa Prywatnego Międzynarodowego” — the leading Polish periodical in the field of private international law — is primarily devoted to the Regulation No 650/2012 of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (“the Succession Regulation”).

Paul Lagarde, La réserve héréditaire dans le règlement 650/2012 sur les successions

The article addresses the issues relating to the protection of forced heirs in international context with a particular focus on the provisions of the EU Succession Regulation pertaining thereto. It contrasts common law tradition with the solutions adopted in French law, whereby certain relatives are entitled to the hereditary reserve (la réserve héréditaire). The author discusses selected examples taken from a body of French case-law dealing with the issue in question. Amongst the cases touched upon by the author are those concerning the successions of Johnny Hallyday and Maurice Jarre, which were two cases widely discussed in the recent French jurisprudence.

Jürgen Basedow, “Member States” and “Third States” in the Succession Regulation

The author advocates a flexible approach with respect to the interpretation of the term “Member State” as employed in the Succession Regulation, allowing the differentiation between “participating” and “non-participating” States. It does not mean that the term “Member State” should always be interpreted in a wide sense including the three non-participating States: Denmark, the Republic of Ireland, and the United Kingdom. Whether a wide or a narrow interpretation is appropriate depends on the context and the purpose of the single provision. Most provisions contained in the chapter on jurisdiction refer to participating Member States only. But some articles such as the Article 13 of the Regulation, provide a counter-example. A uniform interpretation of the concept of Member State in all provisions of the Succession Regulation seems far too sweeping. It reminds of Begriffsjurisprudenz and does not take account of the purpose of the single provisions. In particular, it disregards the need for the cross-border protection of individual rights in a Union with open frontiers.

Christian Kohler, Application of the Succession Regulation by German courts — Selected Issues

The article concerns the notion of “court” in the Succession Regulation. This notion is used in the Brussels I and Brussels Ia Regulations, where it does not necessarily have the same scope. The author attempts to interpret the concept in the light of the recitals to the Succession Regulation (in particular Recital 20) and of the case law of the Court of Justice. The very general description of the concept contained in Article 3(2) of the Regulation might potentially embrace other authorities and legal professionals, where they exercise judicial functions by way of delegation of power from the court. In the author’s view, the European Court, especially in Oberle and WB v Notariusz Przemysława Bac correctly navigated its way through the Succession Regulation and ruled in a way which is both coherent as regards the operation of the Regulation and consistent with the intentions of the legislator. The above judgments are analysed also with regard to Poland’s omission to notify notaries as “courts” under Article 79 of the Succession Regulation. The European Court found that the criteria for determining whether an authority or a legal professional, in particular a notary public, constitutes a “court” are determined by Article 3(2) and not by Article 79. Consequently, Poland’s omission to notify was not conclusive, but was in any event correct in substance. The author expresses the opinion that the judgment is accurate on this point.

Michael Wilderspin, The Notion of “Court” under the Succession Regulation

The article concerns the notion of “court” in the Succession Regulation. This notion is used in the Brussels I and Brussels Ia Regulations, where it does not necessarily have the same scope. The author attempts to interpret the concept in the light of the recitals to the Succession Regulation (in particular Recital 20) and of the case law of the Court of Justice. The very general description of the concept contained in Article 3(2) of the Regulation might potentially embrace other authorities and legal professionals, where they exercise judicial functions by way of delegation of power from the court. In the author’s view, the European Court, especially in Oberle and WB v Notariusz Przemysława Bac correctly navigated its way through the Succession Regulation and ruled in a way which is both coherent as regards the operation of the Regulation and consistent with the intentions of the legislator. The above judgments are analysed also with regard to Poland’s omission to notify notaries as “courts” under Article 79 of the Succession Regulation. The European Court found that the criteria for determining whether an authority or a legal professional, in particular a notary public, constitutes a “court” are determined by Article 3(2) and not by Article 79. Consequently, Poland’s omission to notify was not conclusive, but was in any event correct in substance. The author expresses the opinion that the judgment is accurate on this point.

Stefania Bariatti, The Capacity and the Quality of Heir. Possible Interaction with Preliminary Questions

The article contains an overview of the rules relating to the scope of application of the EU private international law regulations. It addresses the treatment of the relevant preliminary questions, with special reference to the Succession Regulation. The issues are discussed in three steps. The first is connected with the way of interpreting the notions and concepts, such as marriage, adoption, legal capacity etc., where such matters as personal status, legal capacity or family relationship may come to the foreground as a preliminary question. The second is dealing with the law applicable to the preliminary question. The author compares pros and cons of the “independent reference” (lex fori) and the “dependent reference” (lex causae) solutions, considering the latter as less effective, producing more negative consequences. The third step embraces questions relating to the jurisdiction with respect to preliminary question.

Andrea Bonomi, The Regulation on Matrimonial Property and Its Operation in Succession Cases — Its Interaction with the Succession Regulation and Its Impact on Non-participating Member States

The Regulations on Matrimonial Property (No 2016/1103) and on the Property Consequences of Registered Partnerships (No 2016/1104) are new important pieces in the “puzzle” of European private international law. This article particularly focuses on the relationship between the Matrimonial Property Regulations and the Succession Regulation, two instruments which will often be applied in parallel because of the close connection between the two areas they govern. The author examines in particular the scope of those instruments as well as their interaction with respect to jurisdiction and applicable law. At the same time, an attempt is also made to assess the position of Poland and of those other Member States that are bound by the Succession Regulation, but not by the Matrimonial Property Regulation.

Piotr Rylski, The Influence of Bilateral Treaties with Third States on Jurisdiction and Recognition of Decisions in Matters on Succession — Polish Perspective

The aim of the study is to discuss the impact of bilateral international treaties concluded by EU Member States with third countries on jurisdiction and recognition of judgments in matters of succession from Polish perspective. The author discusses the main problems in the interpretation of Article 75 of Regulation 650/2012 and the possible conflict of this solution with the Treaty on the Functioning of the EU. The article indicates also practical problems related to the collision of bilateral treaties and Regulation No 650/2012 regarding, for example, the possibility of concluding choice-of-court agreements, recognition of foreign judgments in matters of succession and the possibility of issuing the European Certificates of Succession.

Krzysztof Pacuła, The Principle of a Single Estate and Its Role in Delimiting the Applicable Laws

This paper argues that the principle of unity of succession is one of the key concepts of the Succession Regulation. By operation of this principle on the jurisdictional level, the Regulation tends to favor a perspective of a single Member State when it comes to all issues related to succession. The principle of unity of succession does not of course eliminate the need to proceed to the characterization and to delimitate the scopes of conflict of laws rules at stake. However, this principle — aiming to promote a unitary vision of a single estate in all the Member States bound by the Regulation — sets a tone for some interpretative techniques that tend to favor succession-related characterization of the issues having some importance in the context of succession with cross-border implications. According to the Author, effet utile-driven characterization, on the one hand, and succession-friendly characterization of the issues falling within ‘gray areas’ created by the operation of Article 1(2) of the Succession Regulation, on the other hand, are among them.

Maksymilian Pazdan, Maciej Zachariasiewicz, Highlights and Pitfalls of the EU Succession Regulation

The EU Succession Regulation constitutes a remarkable achievement of unification of conflict of law rules at the European level. It has importantly changed the landscape for all those interested in succession law, in particular, the notaries and the estate planning practitioners. The present article takes up a number of selected issues that arise under the Regulation. The paper first identifies certain general difficulties that result either from the complex nature of the matters addressed or from a somewhat ambiguous wording of the rules adopted by the EU legislator. The attention is devoted to the exceptions to the principle of the unity of legis successionis, the dispositions upon death, and the intertemporal questions resulting from the change of the conflict of laws rules in the Member States which occurred on 17th August 2015 when the Regulation started to be applied. The paper then moves to some of the more specific issues arising under the Regulation. To that effect, it first looks at the Polish Act of 2018 governing the ”succession administration” of the enterprise, which forms part of the estate. The argument is made that the rules contained in the 2018 Act should be applied by virtue of Article 30 of the Succession Regulation because they constitute “special rules” in the meaning of this provision. Second, the notion of a “court” under Article 3(2) of the Regulation is discussed in light of the recent judgment of the CJEU in case C-658/17 WB, where the European Court found that a Polish notary issuing the deed of certification of succession is not a “court” for purposes of Article 3(2). The paper provides a critical account of the Court’s decision.

In a landmark decision in the case of Okpabi and others v Royal Dutch Shell Plc and Another, the United Kingdom Supreme Court (“UKSC”) ruled on a jurisdictional issue on whether the claimants/appellants have an arguable case that the defendants/respondents – Royal Dutch Shell (an English domiciled company) – owed them a common law duty of care so as properly to found jurisdiction against a foreign subsidiary company (Shell Petroleum Development Corporation Limited, domiciled in Nigeria) as a necessary and proper party to the proceedings. This jurisdictional aspect was concerned with whether there was a real issue to be tried against the anchor defendant – Royal Dutch Shell (an English domiciled company).

The facts of the case was that the claimants/appellants, who are Nigerian citizens alleged that as a result of the negligence of  Shell Petroleum Development Corporation Limited, numerous oil spills have occurred from oil pipelines and associated infrastructure operated in the vicinity of the claimants’/appellants’ communities. It is said that these oil spills have caused widespread environmental damage, including serious water and ground contamination, and have not been adequately cleaned up or remediated. It is also alleged that as a result of the spills, the natural water sources in the claimants’/appellants’ communities cannot safely be used for drinking, fishing, agricultural, washing or recreational purposes.

The High Court and Court of Appeal resolved this jurisdictional issue against the claimants/appellants, but the UKSC found merit in their appeal.

 

Brexit has dealt a major blow to judicial cooperation in Europe. With the end of the transition period, the Brussels I bis Regulation became inapplicable in the relation between the UK and the EU. Some authors, however, took the view that the Regulation’s predecessor, the Brussels Convention of 1968, would continue to apply (see e.g. here and here). The main argument was that the Brussels Convention is an international treaty and not an instrument of EU law. Moreover, and contrary to the Rome Convention on the law applicable to contractual obligations, the Brussels Convention had not been fully replaced by a regulation and continued to apply with regard to some overseas territories.

This debate seems now to come to a close. On 29 January 2021, the British government informed the European Council of its view that the Convention has ceased to apply to the UK and Gibraltar with the expiry of the transition period on 1 January 2021. The unofficial document was posted on Twitter by Steven (“Steve”) Peers from the University of Essex (thanks to Felix Krysa for sharing the tweet with me). It reads in relevant part:

The Government of the United Kingdom hereby notifies the Secretary-General of the Council of the European Union that it considers that the Brussels Convention 1968 and the 1971 Protocol, including subsequent amendments and accessions, ceased to apply to the United Kingdom and Gibraltar from 1 January 2021, as a consequence of the United Kingdom ceasing to be a Member State of the European Union and of the end of the Transition Period.

Does this finally close the argument? Not for sure. The communication merely reflects an opinion by the British government, which as such is of no legal consequence. The Vienna Convention on the Law of Treaties enumerates the cases in which an international convention is terminated. A unilateral denunciation is not among them. Absent an impossibility of performance, a fundamental change of circumstances or a breach by one party, an agreement by the parties is required to suspend the operation of a treaty.

Since the Brussels Convention bound the UK to no less than 14 EU Member States, it may take some time and effort to reach agreement that the Brussels Convention is all over. The mere information of the European Council by the British government is certainly not sufficient. Of course, the EU and the UK could also enter into a new treaty. The British government has lodged an application to join the Lugano Convention, but it is still awaiting an answer from the EU.

The new issue of International & Comparative Law Quarterly (Volume 70, Issue 1) is out. Some of the articles relate to private international law. Their abstracts are provided below. The whole issue is available here.

Roy Goode, Creativity and Transnational Commercial Law: From Carchemish to Cap Town

This article examines the creative aspects of a range of international commercial law instruments which have in common that they seek to bypass traditional doctrine in order to increase commercial efficiency and ease of transacting. In short, the purpose of the harmonising measure is functional in that it seeks to overcome a serious obstacle to cross-border trade by providing commercially sensible solutions to typical problems regardless whether this disturbs established legal theory, which should always the servant of the law, not its master. Creativity applies not only to the formulation of an instrument but also to its interpretation. Those entrusted with preparing a commentary on the detail of such an instrument are likely to face difficult issues of interpretation which may take years to surface and may only be resolved by a willingness to risk error in order to provide the reader with clear guidance rather than sheltering behind the presentation of alternative interpretations, while at the same time resisting the temptation to ascribe to words in a convention the meaning they would have under one’s own national law.

At least one of the instruments examined was conceptually flawed; it is mentioned to highlight the danger of over-ambition in delineating the sphere of application of the convention concerned. Undisciplined creativity comes at a cost. Another convention, and a highly successful one, is referred to only to demonstrate the value of creative ambiguity.

Enrico Partiti, Polycentricity and Polyphony in International Law: Interpreting the Corporate Responsibility to Respect Human Rights

Complex multi-actors and multi-level governance structures have emerged in areas that were traditionally exclusively the preserve of the State and treaty-making. The adoption of the United Nations Guiding Principles on Business and Human Rights (UNGP) affirmed a corporate responsibility to respect human rights to be implemented through human rights due diligence (HRDD), ie via management processes. The open-ended character of the UNGP generated the emergence of other soft instruments offering guidance to corporations in structuring HRDD. This contribution conceptualises the UNGP from the perspective of regulation as a principles-based exercise in polycentric governance reliant on regulatory intermediaries for interpretation. It then assesses the role of various sui generis normative instruments in providing interpretation to the UNGP and, how the presence of an additional layer of interpretative material contributes to the institutionalisation of responsible corporate conduct. The analysis of instruments drafted by international, non-governmental and business organisations reveals both a decentralising tension between different intermediaries due to disagreements and divergence concerning the precise extent of corporate human rights responsibilities, as well as attempts to centralise the interpretation of the UNGP. The article concludes by recommending some caution towards the employment of polycentric governance regimes and their lack of centralised interpretive authority in this domain of international law and suggests possible ways to formally establish centralised interpretation.

Vid Prislan, Judicial Expropriation in International Investment Law

This article examines the notion of judicial takings in international law and its reflection in the practice of investment tribunals. It takes stock of the already significant body of arbitral jurisprudence dealing with expropriation claims grounded in, or relating to, the acts or omissions of courts, with a view to developing a coherent theory of judicial expropriations. It is suggested that, due to the courts’ specific role in the determination of the underlying proprietary rights that are the very object of international legal protection, judicial measures warrant different conceptual treatment from measures by other State organs. Traditional approaches to expropriation analysis do not take this sufficiently into account and therefore do not provide adequate tools for distinguishing legitimate judicial measures from undue interferences with investors’ rights. It is argued that a sui generisapproach is hence needed: where proprietary rights are primarily affected by the impugned judicial action, it is first necessary to determine whether such action is itself wrongful under international law, for only then can it be treated as an act of expropriation. However, the proper analytical approach will ultimately depend on the circumstances of each case and traditional approaches, such as the sole effects doctrine, may still be appropriate where the judicial injury actually flows from wrongful legislative or executive conduct.

Mmiselo Freedom Qumba, Assessing African Regional Investment Instruments and Investor-State Dispute Settlement

This article examines the rejection of the International Investor–State dispute (ISDS) system across the African continent and its replacement with a range of domestic and regional alternatives. It assesses the advantages of the two principal options for African countries: retaining the current ISDS system, or using local courts and regional tribunals. To this end, the dispute resolution mechanisms proposed in the Pan-African Investment Code, the 2016 Southern African Development Community Finance and Investment Protocol, the SADC model BIT, the Common Market for Eastern and Southern Africa, Economic Community of West African States and East African Community investment agreements and domestic approaches are critically examined. The argument is then advanced that African countries should not abandon ISDS because replacing it with isolated domestic or regional mechanisms does not reduce any of the risks. In particular, for foreign investors, the risk associated with the adjudication of investment disputes in potentially biased, politically influenced domestic courts may prove too high. African host nations, in turn, risk sending out the wrong message concerning their commitment to the protection of foreign investments. Instead of veering off course, perhaps the time has come for African States to display the political will to remain within the ISDS system and contribute to its reform from within.

The issue also contains review, by Nahel Asfour, of Contract Law in Contemporary International Commerce: Considerations on the Complex Relationship between Legal Process and Market Process in the New Era of Globalisation by Gianluigi Passarelli, Nomos: Baden-Baden 2019. Other views on the book have been expressed by Chukwuma Okoli on the Conflictoflaws blog.

By Maria Hook (University of Otago, New Zealand) and Jack Wass (Stout Street Chambers, New Zealand)

When a couple divorce or separate, and the court is tasked with identifying what property is to be allocated between the parties, calculation of the net pool of assets usually takes into account certain debts. This includes matrimonial debts that that are in the sole name of one spouse, and even certain personal debts, ensuring that the debtor spouse receives credit for that liability in the division of matrimonial property.  However, where a spouse owes a liability that may not, in practice, be repaid, deduction of the debt from the pool of the couple’s property may result in the other spouse  receiving a lower share of the property than would be fair in the circumstances. For example, a spouse owes a debt to the Inland Revenue that is, in principle, deductible from the value of that spouse’s assets to be allocated between the parties. But the debtor spouse has no intention of repaying the debt and has rendered themselves judgment-proof. In such a case, deduction of the debt from the debtor spouse’s matrimonial property would leave the other spouse sharing the burden of a debt that will not be repaid.

This result is patently unfair, and courts have found a way to avoid it by concluding that, in order to be deductible, the debt must be one that is likely to be paid or recovered (see, eg, Livingstone v Livingstone (1980) 4 MPC 129 (NZHC)). This enquiry can give rise to conflict of laws issues: for example, there may be questions about the enforceability of a foreign judgment debt or the actionability of a foreign claim. Ultimately, the focus of the inquiry should be on the creditor’s practical chances of recovery.

In the relatively recent Cook Islands case of Webb v Webb, the Privy Council ([2020] UKPC 22) considered the relevance of a New Zealand tax debt to matrimonial property proceedings in the Cook Islands. The Board adopted a surprisingly narrow approach to this task. It concluded that the term “debts” only included debts that were enforceable against matrimonial property (which in this case was located in the Cook Islands), and that the debts in question were not so enforceable because they would be barred by the “foreign tax principle”.  Lord Wilson dissented on both points.

Background

The parties – Mr and Mrs Webb – lived in the Cook Islands when they separated. Upon separation, Mr Webb returned to New Zealand. Mrs Webb commenced proceedings against Mr Webb in the Cook Islands under the Matrimonial Property Act 1976 (a New Zealand statute incorporated into Cook Islands law), claiming her share of the couple’s matrimonial property that was located in the Cook Islands.

Mr Webb, however, owed a judgment debt of NZ$ 26m to the New Zealand Inland Revenue. He argued that, under s 20(5) of the Act, this debt had to be deducted from any matrimonial property owned by him. Under s 20(5)(b), (unsecured) personal debts had to be deducted from “the value of the matrimonial property owned by” the debtor spouse to the extent that they “exceed the value of any separate property of that spouse”. Given the size of Mr Webb’s debt, the effect of s 20(5)(b) would have been to leave Mrs Webb with nothing.  She argued that the debt fell outside of s 20(5)(b) because it was not enforceable in the Cook Islands and Mr Webb was unlikely to pay it voluntarily.

Whether the debt had to be enforceable against the matrimonial property in the Cook Islands

Lord Kitchin, with whom the majority agreed, concluded that s 20(5)(b) only applied to debts that were either enforceable against the matrimonial assets or likely to be paid out of those assets. Debts that were not so enforceable were not to be taken into account when dividing the matrimonial assets (unless the debtor spouse intended to pay them by using those assets in his name). A different interpretation would lead to “manifest injustice”, because if the Inland Revenue “cannot enforce its judgment against those assets, Mr Webb can keep them all for himself” (at [41]). If the Inland Revenue could not execute its judgment against the assets, and Mr Webb did not pay the debt, the reason for applying s 20(5)(b) – which was to protect a debtor spouse’s unsecured creditors – disappeared.

Lord Kitchin considered that this conclusion found support in Government of India v Taylor, where Viscount Simonds (at 508) had explained that the meaning of “liabilities” in s 302 of the Companies Act 1948 excluded obligations that were not enforceable in the English courts. The result in that case was that a foreign government could not prove in the liquidation of an English company in respect of tax owed by that company (at [42]).

In Webb, the judgment debt in question was a personal debt incurred by Mr Webb. However, Lord Kitchin seemed to suggest that the outcome would have been no different if the debt had been a debt incurred in the course of the relationship under s 20(5)(a) (at [46]). The word “debts” had the same meaning in s 20(5)(a) and (b), as referring to debts which are enforceable against the matrimonial property or which the debtor spouse intends to pay.

Lord Wilson did not agree with the Board’s interpretation. He considered that it put a gloss on the word “debts” (at [118]), and that it had “the curious and inconvenient consequence of requiring a court … to determine … whether the debt is enforceable against specified assets” (at [120]). Rather, a debt was a liability that was “likely to be satisfied by the debtor-spouse” or that was “actionable with a real prospect of recovery on the part of the creditor” (citing Fisher on Matrimonial Property (2nd ed, 1984) at para 15.6) – regardless of whether recovery would be against matrimonial or other assets (at [123]).

Applying this interpretation to the tax liability in question, Lord Wilson concluded that the liability was clearly actionable (because it had already been the subject of proceedings) and that the Inland Revenue did have a real prospect of recovery in New Zealand (at [126]-[127]). Mr Webb was living in New Zealand and was presumably generating income there, and the Commissioner had applied for the appointment of receivers of his property. This was sufficient to conclude that the debt was enforceable in New Zealand, “including on a practical level” (at [131]).  The facts were different from the case of Livingstone v Livingstone (1980) 4 MPC 129, where the New Zealand Court had concluded that a Canadian tax debt could “for practical purposes” be disregarded because the debtor had already left the country at the time the demand was issued, he had no intention of returning and he had removed his assets from the jurisdiction. In such a case, if the debtor spouse were permitted to deduct the foreign tax debt without ever actually repaying it, they could take the benefit of the entire pool of matrimonial assets and thus undermine the policy and operation of the whole regime.

In our view, Lord Wilson’s interpretation is to be preferred. The relevant question should be whether the debt is one that will be practically recoverable (whether in the forum or overseas). A debt may still be practically recoverable even if it is not enforceable against the matrimonial assets and is unlikely to be paid out of those assets. It is true that, in many cases under s 25(1)(b), the chances of recovery would be slim if the matrimonial assets are out of reach and the debtor spouse has no intention of paying the debt voluntarily (which seemed to be the case for Mr Webb: at [62]). By definition, personal debts are only relevant “to the extent that they exceed the value of any separate property of that spouse”, so in practice their recoverability would depend on future or matrimonial assets. Lord Wilson’s assessment of the evidence – as allowing a finding that there was a real likelihood that Mr Webb would have to repay the debt in New Zealand – is open to question on that basis. But that doesn’t mean that the debts must be enforceable against the matrimonial assets. While this interpretation would lead to fairer outcomes under s 25(1)(b) – because it avoids the situation of the debtor spouse not having to share their matrimonial assets even though the debt is recoverable elsewhere – it could lead to strange results under s 25(1)(a), which provides for the deduction of matrimonial debts that are owed by a spouse individually. It would be unfair, under s 25(1)(a), if such debts were not deductible from the value of matrimonial property owned by the spouse by virtue of being unenforceable against that property, in circumstances where the debts are enforceable against the spouse’s personal property.

The Board’s reliance on Government of India v Taylor [1955] AC 491 (HL) in this context is unhelpful. The question before the House of Lords was whether a creditor could claim in a liquidation for a debt that would not be enforceable in the English courts (regardless of whether the debt would be enforceable over certain – or any – assets). Under the Matrimonial Property Act, on the other hand, the court is not directly engaged in satisfying the claims of creditors, so the debt need not be an obligation enforceable in the forum court.  Neither need it be an obligation enforceable against matrimonial property, wherever located. It simply needs to be practically recoverable.

Whether the debt was enforceable against the matrimonial property in the Cook Islands

As we have noted, Lord Wilson argued that there was a real prospect of the debt being paid – the implication being that this was not a case about a foreign tax debt at all. Mr and Mrs Webb were New Zealanders, and Mr Webb had relocated to New Zealand before the proceedings were commenced in 2016 and had stayed there. The practical reality was that unless he found a way to meet his revenue obligations he would be bankrupted again. Lord Kitchin noted Mr Webb’s apparent determination to avoid satisfying his liabilities to the IRD. Nevertheless, there was no suggestion that Mr Webb would leave New Zealand permanently to live in the Cook Islands and there enjoy the benefits of the matrimonial property.

Nevertheless, the majority’s analytical framework required it to consider whether the tax debt was enforceable against the matrimonial property in the Cook Islands. The majority found that for the purpose of the foreign tax principle, the Cook Islands should be treated relative to New Zealand as a foreign sovereign state, despite their close historical and constitutional ties (and found that the statutory mechanism for the enforcement of judgments by lodging a memorial, cognate to the historical mechanism for the enforcement of Commonwealth judgments, did not exclude the foreign tax principle).

It was obvious that bankruptcy was a serious prospect, the IRD having appointed a receiver over Mr Webb’s assets shortly before the hearing before the Board. That begged the question whether the IRD could have recourse to the Cook Islands assets, but on this point the case proceeded in a peculiar way. The Board observed that it had been given no details of the steps that a receiver or the Official Assignee might be able to take to collect Cook Islands assets, going so far as to doubt whether the Official Assignee would even be recognized in the Cook Islands “for the Board was informed that there was no personal bankruptcy in the Cook Islands and the position of Official Assignee does not exist in that jurisdiction.” Section 655(1) of the Cook Islands Act 1915 states that “Bankruptcy in New Zealand shall have the same effect in respect to property situated in the Cook Islands as if that property was situated in New Zealand”, but the Board was not prepared to take any account of it, the provision having been introduced for the first time at the final appeal and there being some doubt about whether it was even in force.

The unfortunate consequence was that the Board gave no detailed consideration to the question of how the foreign tax principle operates in the context of cross-border insolvency, a point of considerable interest and practical significance.

The common law courts have been prepared to recognise (and in appropriate cases, defer to) foreign insolvency procedures for over 250 years, since at least the time of Solomons v Ross (1764) 1 H Bl 131, 126 ER 79 where the Court of Chancery allowed funds to be paid over to the curators of a debtor who had been adjudicated bankrupt in the Netherlands. But the relationship between this principle and the foreign tax principle has never been clear.

The UNCITRAL Model Law on Cross-Border Insolvency 1997 preserves states’ ability to exclude foreign tax claims from an insolvency proceeding. As to the common law, the New Zealand Law Commission (expressing what may be the best guide to the content of Cook Islands law) observed in 1999 that the policy justification for refusing enforcement of foreign tax judgments may not apply in the same way in the context of cross-border insolvency where the collective interests of debtors are concerned. It noted that a number of countries (including Australia, the Isle of Man and South Africa) had moved past an absolute forbidding of foreign tax claims where such claims form part of the debts of an insolvent debtor subject to an insolvency regime. It thus concluded that “foreign taxation claims may sometimes be admitted to proof in a New Zealand bankruptcy or liquidation.” While the Privy Council had a number of difficult issues to confront, it is perhaps unfortunate that they did not take the opportunity to bring clarity to this important issue.

 

 

 

The first issue of Lloyd’s Maritime and Commercial Law Quarterly for 2021 features the following private international law articles:

Adrian Briggs, “A Conflict of Comity in the Enforcement of Judgments”

Patrick Dunn-Walsh “Insurance Litigation under the Recast Brussels Regulation”

Anthony Kennedy “A Place to Start”

Myron Phua and Serena Seo Yeon Lee “Taxonomising “Quasi-Contractual” Anti-suit Injunctions” 

Steve Peers (University of Essex) has just published a series of Brexit-related documents on Twitter, two of which appear to confirm that by leaving the European Union, the UK also (believes to have) ceased to be a party to the 1968 Brussels Convention and the 1980 Rome Convention – which many have argued might revive between the UK and those EU Member States who are parties to them.

The two letters, sent by the UK Government to the Council of the EU, both contain the following paragraph:

The Government of the United Kingdom hereby notifies the Secretary-General of the Council of the European Union that it considers that the [Brussels Convention] / [Rome Convention] ceased to apply to the United Kingdom and Gibraltar from 1 January 2021, as a consequence of the United Kingdom to be a Member State of the European Union and of the end of the Transition Period.

 

Gustavo Cerqueira, Nicolas Nord (dir.), La connaissance du droit étranger: À la recherche d’instruments de coopération adaptés. Études de droit international privé comparé, Préface : Hélène Gaudemet-Tallon, Paris : Société de législation comparée, coll. “Colloques”, vol. 46, 2020, 268 p. Click here.

The authors’ foreword reads as follows (English translation):

“On November 28, 2019, jurists from various backgrounds met at the french Cour de cassation in Paris to reflect on suitable instruments for international cooperation in establishing the content of foreign law.

This conference is in line with the work previously carried out within the Société de législation comparée on the subject of foreign law. In particular, it continues the reflections started at the conference concerning the controls on constitutionality and conventionality of foreign law, which was held on September 23, 2016 at the Cour de cassation. This event brought together academics and practitioners from several European, North and South American countries and resulted in the publication of a book in 2017 by the Society.

This approach is also part of the continuity of research carried out in other learned societies at the global or regional level.

The conference of November 28, 2019 confirmed the need for such reflection. On the one hand, all of the contributors affirmed the important place now given to foreign law in the settlement of disputes. This is due, among other things, to the growth of international family and business relationships, the growing demand for recognition of situations established abroad and the possibilities for those concerned to choose the applicable law. On the other hand, the participants attested to the increased role of different legal professions in the application of foreign law. While judges and civil registrars were more traditionally exposed to such a burden, notaries and lawyers in their dual mission of advice and drafting of acts are currently called upon to take into account or implement foreign law.

In this context, while it appears that European Union law is often at the origin of the involvement of these different actors in the application of foreign law, another, more recent phenomenon seems to increase occurrences of dealing with such a law: the extensive jurisdictional competition to which the European States are engaged because of Brexit. Indeed, Paris, Amsterdam, Brussels and other capitals are establishing courts and chambers specialized in international litigation and in the application of foreign law. This phenomenon is also spreading to major cities, either international, such as Frankfurt am Main or Hamburg, or regional, such as Saarbrücken, in Germany.

The stakes are crucial. The search for suitable instruments for a good knowledge of foreign law is essential for national laws in full legislative and jurisprudential evolution. Indeed, these changes specific to each system reinforce the need for access to reliable content of foreign law in order to guarantee the legal certainty of litigants, as well as to avoid civil liability of legal service providers or even fraud in manipulation of foreign solutions.

The research envisaged in this colloquium is unfolding, of course, in an environment in which there are formal and informal cooperation mechanisms, the effectiveness of which is only partial in the face of the complexity of the phenomena that cover the application of foreign law. Indeed, they were conceived to deal with a foreign law that supposed to be stable and simple and not shifting and plural in its sources. These mechanisms, not very visible, are also unknown to the practitioners themselves. Current discussions at European (EU) and international (Hague Conference) level attest to the urgency of thinking about responses in this area, using one or more relevant and effective instruments.

This is what the conference on knowledge of foreign law: in search of suitable cooperation instruments meant to answer. To this end, based on an indicative and non-exhaustive questionnaire, the issue of establishing an inventory was first raised, and then discussions ensued on the solutions adapted to the various requirements revealed both by the type of situation to be treated and by the category of professional involved. In this last respect, the needs of the judge and the notary were different, as were those of the registrar and the lawyer.

The adaptation was also considered in the light of the various questions specific to the original system. While the objective may a priori be to achieve the adoption of a general instrument with the widest possible geographical scope, it quickly appeared vain to try to favor such an approach at present. On the one hand, each profession has different needs, on the other hand, the level of development of the different systems compared is not the same. While some countries lag behind and struggle to adopt satisfactory rules in this area, others are at the forefront and therefore are not really in demand for a cooperation instrument whose usefulness does not seem obvious to them.

In this perspective, different paths for reflection have been explored. They range from the revitalization of old instruments to the creation of specialized institutions at internal, international or European level, including the establishment of specific mechanisms or the use of artificial intelligence. Such abundance shows the crucial nature of the issue and the vitality of the reflections carried out, but also the relevance of having debated it and the need to continue doing so.

In this sense, the next stage of this debate could be that of the opportunity of adopting a European regulation on the matter. In addition to the interest of such an instrument at the European level, it could serve as an impetus for other regional groups, such as Mercosur.” (our emphasis)

 

Prefaced by Professor emeritus Hélène Gaudemet-Tallon (Paris II Panthéon Assas), the book contains the following contributions (most of them in French).

Préface

Hélène GAUDEMET-TALLON

Avant-propos

Gustavo CERQUEIRA and Nicolas NORD

Introduction

Cyril NOURISSAT, Connaissance du droit étranger et coopération internationale : entre nécessité impérieuse et difficultés à surmonter

 

 I. État des lieux

En France

La magistrature

François ANCEL, La connaissance du droit étranger. État des lieux – La magistrature

Cyril ROTH, Le droit étranger, irréductiblement inconnaissable : leçons tirées de la création d’une collection de lois exotiques

L’avocature

Dominique FOUSSARD, Le point de vue d’un avocat au Conseil d’État et à la Cour de cassation

Olivier BERG, L’avocat et le droit étranger : entre connaissance et représentation

L’état civil

Nicolas NORD, Le droit étranger devant l’officier de l’état civil. État des lieux

Dans le voisinage

Jochen BAUERREIS, La connaissance du droit étranger en Allemagne

Guillermo PALAO MORENO, La connaissance du droit étranger en Espagne

Pietro FRANZINA, La connaissance du droit étranger : cadre juridique et moyens disponibles en Italie

Lukas HECKENDORN URSCHELER, La connaissance du droit étranger en Suisse. Une multitude de moyens

En Amérique Latine

Gustavo Ferraz DE CAMPOS MONACO, La connaissance du droit étranger en Amérique

 

 II. Solutions envisageables

Du point de vue des universitaires

Patrick KINSCH, La preuve de la loi étrangère par renvoi préjudiciel

Gustavo CERQUEIRA, Fondamentalisation du droit et justice prédictive. Deux phénomènes à prendre en compte pour la connaissance du droit étranger

Guillermo PALAO MORENO, La connaissance du droit étranger : évaluation de la situation en Espagne et propositions dans une perspective européenne

Maria Rosa LOULA, The challenges in accessing applicable foreign law and international cooperation in Brazil

 

Du point de vue des praticiens

Le magistrat

Jean-Noël ACQUAVIVA, Connaissance du droit étranger et coopération internationale. Solutions prospectives : l’opinion d’un juge

Le notaire

Jean-Louis VAN BOXSTAEL, La connaissance du droit étranger. Le point de vue d’un notaire

 

Du point de vue des institutions

Marie VAUTRAVERS, Le point de vue du Bureau du droit de l’Union, du droit international privé et de l’entraide civile, direction des affaires civiles et du Sceau, France

Rodrigo RODRIGUEZ, Knowledge of Foreign Law and the London Convention of 1968 – Council of Europe’s CDCJ

Wolfgang ROSCH, La connaissance du droit étranger et la Cour de justice de l’Union européenne

Nicolas NORD, La Commission Internationale de l’État Civil

 

Propos conclusifs

Françoise Monéger

 

Annexes

Questionnaire envoyé aux contributeurs

Programme du Colloque

Liste des contributeurs (auteurs, orateurs, et présidents des séances)

 

The full table of contents, the preface and the forewords are available here (in French).

More information: https://legiscompare.fr/ecommerce/fr/197-la-connaissance-du-droit-etranger-a-la-recherche-d-instruments-de-cooperation-adaptes

 

The author of this post is Estelle Gallant, professor of private law at the University of Toulouse 1 Capitole.

On 30 September 2020, the French Supreme Court for civil and criminal matters ruled on the respective scopes of the Brussels II bis Regulation and the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children in a parental conflict between France and Switzerland (Cass. 1st Civil Chamber, 30 Sept. 2020, no. 19-14.761). The difficulty arose following a change in the habitual residence of the child while proceedings concerning his custody were pending before French courts.

Facts and Legal Issues 

The dispute concerned the divorce proceedings of a multinational couple: the husband was of French-Swiss national while the wife was of Swiss, Irish and Danish national. They lived in Switzerland before separating and setting up a cross-border alternating residence between Switzerland and France for their children. It was at that time that a petition for divorce was filed in France. However, after the father’s imprisonment, and with his agreement, the children’s residence was transferred exclusively to the mother’s home in Switzerland. This created an issue with respect to the international jurisdiction of French court.

Judgment of the French Supreme Court

French lower courts had concluded that they had jurisdiction on the basis of the Brussels II bis Regulation. But, before the Supreme Court, the mother invoked the jurisdiction of the Swiss authorities on the basis of the 1996 Hague Convention applicable in both Switzerland and France. In accordance with Article 5 of the 1996 Hague Convention and Article 61 of the Brussels II bis Regulation, the Supreme Court set aside the decision of the Court of Appeal which had retained jurisdiction on the basis of the Brussels II bis Regulation. According to the Supreme Court, since habitual residence had been lawfully transferred to a third State of the European Union but a Contracting State to the 1996 Convention, only that Convention was applicable and French courts therefore had no jurisdiction.

Assessment

How can this conflict between the Brussels II bis Regulation and the 1996 Hague Convention be resolved?

The 1996 Hague Convention has been in force in France since 1 February 2011. The Brussels II bis Regulation has been applicable since 1 March 2005. The two competing instruments have a common material scope of application since they both deal with conflicts of jurisdiction in matters of parental responsibility and child protection. Since both are applicable in France, it is necessary to find out which one should be preferred over the other: a rule of compatibility is therefore necessary.

Article 61 of the Brussels II bis Regulation provides a specific rule on the respective scopes of the Regulation and the 1996 Hague Convention. The Regulation provides that it prevails over the Convention “where the child concerned has his or her habitual residence on the territory of a Member State”.

In this case, the whole question was therefore where the children resided and then to determine the applicable instrument. If the habitual residence was in Switzerland – a third State to the European Union but a party to the Hague Convention –, the 1996 Hague Convention applied; if it were in France, however, the Brussels II bis Regulation applied.

However, the determination of the children’s habitual residence in this case was complicated by the change of habitual residence during the proceedings. At the time of the divorce petition filed in France in January 2016, the habitual residence was a cross-border alternating residence between Switzerland and France. But, when the French Court of Appeal ruled, the habitual residence had been exclusively and lawfully transferred to Switzerland. This new residence was not under discussion. The discussion in this case is therefore not about the location of the children’s habitual residence (initially alternating between France and Switzerland and then transferred exclusively to Switzerland), but about the time at which it should be assessed.

Thus, while the distributive criterion used in Article 61 of the Regulation is perfectly clear – habitual residence in or outside a Member State of the European Union – it does not offer any temporal rule, which would have been eminently useful in this case.

The only area where temporal details can be found is that of the rules of jurisdiction. The latter, based in both texts on the criterion of the child’s habitual residence, resolve the change in the connecting factor.  In this respect, two situations must be distinguished, depending on whether the change of habitual residence occurs outside any pending proceedings or, conversely during the proceedings.

In the event of a “classic” change of habitual residence, outside of any pending proceedings, the two texts resolve the difficulty in favour of the child’s new habitual residence (explicit solution in the Hague Convention ; resulting from a combined reading of Articles 8, 9 and 10 of the Regulation).

If, on the other hand, there is a change of habitual residence in the course of proceedings, the solution is not identical. While the Regulation states that the habitual residence must be assessed “at the time the court is seised” (Article 8(1)), the 1996 Hague Convention provides for the jurisdiction of the authorities of the “new habitual residence”. The difference in wording means that under the Brussels II bis Regulation, once seised, the court retains jurisdiction, even if the child is subsequently lawfully moved to another Member State, whereas under the 1996 Hague Convention, a change of habitual residence during the course of proceedings entails an immediate transfer of jurisdiction to the authorities of the new habitual residence.

The temptation might have been great, in order to resolve the question of the location of the habitual residence in the context of Article 61, i.e. for the purposes of determining the applicable instrument, to use the temporal criterion contained in the rules of jurisdiction. This seems to have been the reasoning of the Court of Appeal, which ruled that although the children’s habitual residence has since been transferred to Switzerland, the habitual residence was in France at the time the first court was seised, thus maintaining the jurisdiction of French courts on the basis of the Brussels II bis Regulation. However, while the reasoning is strictly correct from the point of view of jurisdiction based on the Brussels II bis Regulation, it is not correct from the point of view of the implementation of Article 61.

The Supreme Court does not go down this road. The solution it favours can be summarised as follows: admittedly, under the Brussels II bis Regulation, the French court had jurisdiction, since the children’s habitual residence was in France at the time the French court was seised. However, at the time when the court ruled, the Brussels II bis Regulation was no longer applicable under Article 61 of the Regulation, since the children’s habitual residence was in Switzerland, a third State of the European Union but a Contracting State of the Hague Convention. Under that Convention, and on the basis of Article 5 thereof, French courts therefore no longer had jurisdiction; Swiss courts did.

At last, in order for the change of habitual residence to be effective, both in terms of the relationship between the Regulation and the Convention and in terms of jurisdiction, the judgment suggests that there are two conditions.

Firstly, the new habitual residence must of course be in a Contracting State to the Hague Convention, which is the case of Switzerland. If not, it is not certain that the Brussels II bis Regulation would have ‘lost’ its applicability, but the situation would certainly have led to a conflict of proceedings. The solution provided by the French Supreme Court thus illustrates one of the benefits of judicial cooperation between states.

Secondly, the change of habitual residence must be lawful. In the event of a wrongful change of habitual residence to Switzerland, the Brussels II bis Regulation would have remained applicable and thus led to the French authorities retaining jurisdiction (Article 10). If the abductor brought the case before a Swiss court, the Swiss court could have adopted the same solution and declined jurisdiction on the basis of Article 7 of the 1996 Hague Convention.

Finally, it may be objected that, by reasoning in this way, the Court added criteria to Article 61, which does not contain any: a temporal criterion and a criterion of lawfulness of the change of habitual residence. The solution must, however, be approved, as it is both the most pragmatic and the most consistent with the spirit of the compatibility clause contained in Article 61 of the Regulation. It avoids the – undesirable – diversion through the rules of jurisdiction and allows account to be taken of the reality of the children’s actual situation, to which the criterion of habitual residence adopted by all the texts, undoubtedly aspires.

As has now become tradition, the Annual Conference of the Society of Legal Scholars (SLS) will feature a section dedicated to Conflict of Laws. In 2021, the conference will take place between 31 August and 3 September at the University of Durham and virtually (further information on the conference can be found here). The new conveners of the Conflict of Laws section, Lauren Clayton-Helm and Bobby Lindsay, have kindly provided the following Call for Papers.

SLS Conflict of Laws Section: Call for Papers/Panels for 2021 SLS Annual Conference at Durham University and virtually

This is a call for papers and panels for the Conflict of Laws section of the 2021 Society of Legal Scholars Annual Conference to be held at the University of Durham, from Tuesday 31st August – Friday 3rd September.  The Conflict of Laws section will meet in the first half of the conference on 31st August – 1st September and will have four sessions, each lasting 90 minutes.

If you are interested in delivering a paper or organising a panel, please submit your paper abstract or panel details by 11:59pm UK time on Friday 26th March 2021.  All abstracts and panel details must be submitted through the Oxford Abstracts conference system which can be accessed using the following link – https://app.oxfordabstracts.com/stages/2483/submitter – and following the instructions (select ‘Track’ for the relevant subject section). If you registered for Oxford Abstracts for last year’s conference, please ensure that you use the same e-mail address this year if that address remains current. For those whose papers are accepted, the original submission offers the facility to upload a full paper nearer the time. If you experience any issues in using Oxford Abstracts, please contact http://slsconference@mosaicevents.co.uk.

We intend to host the 2021 conference in person, with an online option for those who would prefer to participate virtually. The precise format of the conference will be confirmed by the end of April. When submitting an abstract you will be asked to indicate whether you would wish to present in person or virtually. Please note that this indication is not binding and it is merely to assist with conference planning.

Decisions will be communicated by the end of April.

We welcome proposals for papers and panels on any issue relating to the conflict of laws/private international law. We welcome proposals representing a full range of intellectual perspectives and methodological approaches in the subject section, and from those at all stages of their careers.

Those wishing to present a paper should submit a title and abstract of around 300 words. Those wishing to propose a panel should submit a document outlining the theme and rationale for the panel and the names of the proposed speakers (who must have agreed to participate) and their abstracts.  Sessions are 90 minutes in length and so we recommend panels of three to four speakers, though the conference organisers reserve the right to add speakers to panels in the interests of balance and diversity.

As the SLS is keen to ensure that as many members with good quality papers as possible are able to present, we discourage speakers from presenting more than one paper at the conference.  With this in mind, when you submit an abstract via Oxford Abstracts you will be asked to note if you are also responding to calls for papers or panels from other sections.

Please also note that the SLS offers two prizes. First, The Best Paper Prize, which can be awarded to academics at any stage of their career and which is open to those presenting papers individually or within a panel.  The Prize carries a £300 monetary award and the winning paper will, subject to the usual process of review and publisher’s conditions, appear in Legal Studies.  To be eligible:

• speakers must be fully paid-up members of the SLS (Where a paper has more than one author, all authors eligible for membership of the Society under its rule 3 must be members. The decision as to eligibility of any co-authors will be taken by the Membership Secretary, whose decision will be final.)
• papers must not exceed 12,000 words including footnotes (as counted in Word);
• papers must be uploaded to the paperbank by 11:59pm UK time on Monday 23rd August;
• papers must not have been published previously or have been accepted or be under consideration for publication; and
• papers must have been accepted by a convenor in a subject section and an oral version of the paper must be presented at the Annual Conference.

Last year the Society launched the Best Paper by a Doctoral Student Prize, which is open to currently registered doctoral students who are members of the Society. The Prize is £300. There is no link to publication in Legal Studies arising from this award, but any winner would be welcome to submit their paper for consideration by the Society’s journal. To be eligible:

• speakers must be fully paid-up members of the SLS who are Doctoral students. (Where a paper has more than one author, all authors eligible for membership of the Society under its rule 3 must be members and all authors must be Doctoral students, whatever their discipline). The decision as to eligibility of any co-authors will be taken by the Membership Secretary, whose decision will be final;
• papers must not exceed 12,000 words including footnotes (as counted in Word);
• papers must be uploaded to the paperbank by 11:59pm UK time on Monday 23rd August;
• papers must not have been published previously or have been accepted or be under consideration for publication; and
• papers must have been accepted by a convenor in a subject section and an oral version of the paper must be presented at the Annual Conference.

We have also been asked to remind you that all speakers will need to book and pay to attend the conference and that they will need to register for the conference by Friday 18th June 2021 in order to secure their place within the programme, though please do let us know if this deadline is likely to pose any problems for you. Booking information will be circulated in due course, and will open after the decisions on the response to the calls are made.

With best wishes,

Dr Lauren Clayton-Helm (l.clayton-helm@northumbria.ac.uk)

Dr Bobby Lindsay (bobby.lindsay@glasgow.ac.uk)

Co-convenors, Conflict of Laws Section

I am busy on many fronts and not complaining, yet I am sorry if some posts are therefore a little later than planned. A quick flag of Duffy v Centraal Beheer Achmea [2020] EWHC 3341 (QB) in which Coe J noted parties agreed that interim payments are included in the Rome II exemption of evidence and procedure: at 8:

The claim is brought in the English Court against a Dutch motor insurer and it is agreed that the law of the Netherlands applies to this claim in tort. The claimant, as a result of Dutch law has a direct right of action against the insurer and, following the decision in FBTO v Odenbreit [2007] C 463-06, the jurisdiction of the English Court is not an issue. The law of the Netherlands applies (pursuant to Article 41(1) of the Rome II Regulation on applicable law in tort (Regulation 864/2007)). Dutch law will govern limitation, breach of duty and causation as well as the existence of, the nature of and the assessment of damages to which the claimant might be entitled. Matters of procedure and evidence are nonetheless reserved to the forum court (see Article 15 (c) of the Rome II Regulation and Article 1(3)). This is an application for an interim payment which is a procedural application and thus governed by English law. However, when it comes to any assessment of the damages to which the claimant might be entitled on which to base the interim payment decision, Dutch law has to be applied.

Coe J has little reason to disagree however I imagine she would have entertained the issues more had the distinction between Dutch and English law on the interim payment issue been materially different, hence had counsel made diverging noise. For as I have signalled before, the extent of the evidence and procedure exemption is not clear at all.

Geert.

EU Private International Law. 3rd ed. 2021, Chapter 4, Heading 4.8.

 

Application for interim payment.
Parties agree it is a procedural application under Rome II, governed by English law, lex fori.
To the assessment of damages to which claimant might be entitled on which to base the interim payment decision, Dutch law applies as lex causae. https://t.co/QztZJzSKyy

— Geert Van Calster (@GAVClaw) December 4, 2020