Droit international général

The author of this post is Lorenzo Acconciamessa, a PhD student at the University of Palermo and a teaching assistant at the Catholic University of the Sacred Heart in Milan.

By a ruling of 4 November 2020, the Italian Constitutional Court declared that the combination of Italian rules precluding the formation of a child’s birth certificate that mentions two women as mothers is not at odds with the Italian Constitution. However, it acknowledged that the Constitution does not preclude the Parliament from reforming such rules and, therefore, from allowing the formal and direct recognition of same-sex parenthood in Italy.

The Facts

The case concerned a same-sex couple of Italian nationals who had entered into a registered civil union in Italy and had decided to have a child. However, provided that the Italian Statute on Medically Assisted Procreation precludes same-sex couples from resorting to such practice in Italy, they went abroad, where one of them conceived a child. Then, they went back to Italy, where the biological mother gave birth to the child. The Registrar of the Municipality dismissed their request to have the intended mother indicated as parent in the birth certificate and, accordingly, the latter only mentioned the biological mother.

The couple asked the Tribunal of Venezia to rectify the birth certificate, since they wanted both of them be mentioned. However, the Tribunal acknowledged that the legislation in force in Italy does not allow for such a ruling. In particular, it considered that the prohibition of direct recognition of same-sex parenthood arises from the combined application of the Italian Statute on same-sex partnerships and the Regulation concerning the Registry of births and deaths, as interpreted in the light of the above-mentioned prohibition to access to medically assisted procreation.

The Question Submitted to the Constitutional Court

According to the Tribunal, such combination of norms is at odds with the Italian Constitution and with some rules of international human rights law, namely those stipulated in Articles 8 (right to private and family life) and 14 (prohibition of discrimination) of the European Convention on Human Rights, Article 24, paragraph 3 (right to a relationship with both the child’s parents), of the Charter of Fundamental Rights of the European Union, and Article 2 (right to equality and non-discrimination) of the UN Convention on the Rights of the Child.

In a previous post in this blog I have explained that, under Article 117, paragraph 1, of the Italian Constitution, as interpreted by the Constitutional Court, international treaties in force for Italy cannot be derogated from through legislation. Thus, domestic legislation inconsistent with an international obligation of Italy must be considered to be unconstitutional and declared void.

In the Tribunal’s view, the result of the combined application of the said rules violates the parents’ and the child’s fundamental rights. As for the formers, it breaches their right to parenthood and to procreation, as well as the prohibition of discrimination on grounds of sexual orientation and financial status. As a matter of fact, if the couple had the possibility of giving birth to the child abroad, they would had the right to obtain the record of the foreign birth certificate mentioning both of them as parents, pursuant to the case-law of the Italian Supreme Court (which refers to same-sex female couples, not same-sex male couples). As for the child, the Tribunal considered that the latter’s best interests demand the parental relationship be established with the biological and the intended mother.

The Ruling

The Constitutional Court considered that the non-recognition of same-sex parenthood is not at odds with the Italian Constitution, nor with the international human rights norms invoked by the Tribunal: it does not violate the parent’s and/or the child’s fundamental rights.

Those instruments, in the Court’s view, do not guarantee a right to become parents, nor a right to same-sex parenthood. At the same time, given the natural infertility of same-sex couples, limiting their access to parenthood does not involve an illegitimate form of discrimination and falls within the State’s margin of appreciation, as established by the European Court of Human Rights (ECtHR) in the 2019 Advisory Opinion.

In this regard, it should be considered that in 2018 the ECtHR had the opportunity to rule on same-sex couples’ right to access to medically assisted procreation. It dismissed the case on admissibility grounds, given that the applicants had not exhausted the domestic remedies provided for by the French legal order (Charron and Merle-Montet v. France). Therefore, in the view of the subsidiarity principle, the ECtHR held that domestic courts should have had the possibility to rule on the matter.

The (in)admissibility decision, however, does not exclude that the ECtHR could rule in the future that Articles 8 and 14 of the ECHR do require to allow same-sex married couples to have access to medically assisted procreation at the same conditions than heterosexual couples.

It remains that, according to the Constitutional Court, the right to same-sex parenthood is not currently recognized as a fundamental right and, therefore, cannot be invoked for declaring void the domestic rules allegedly violating it. On the other hand, the Constitutional Court admitted that the Constitution and international human rights law do not preclude Italy from recognizing that right. Nevertheless, provided that it is a sensitive issue involving a delicate balancing of interests, it falls within the Parliament’s exclusive margin of appreciation.

As for the best interests of the child, the Constitutional Court recognized that it is true that Italy has a duty to recognise the relationship between the child and the intended mother. However, provided that the conditions established by the ECtHR in the above-mentioned Advisory Opinion are fulfilled (namely, (i) effective recognition of the relationship, (ii) rapidity and (iii) assessment of all the relevant circumstances in the child’s best interests), the State enjoys a wide margin of appreciation in choosing the legal instrument for establishing such relationship.

The Constitutional Court considered, again, that Article 44, paragraph 1, of the Italian Statute on Adoption allows the intended mother to adopt her partner’s child. The so-called “adoption in particular cases”, however, does not create a full parent-child relationship from a legal point of view.

In my view, the Court failed to take into consideration the recent developments in the ECtHR’s case-law, notably as expressed in its recent ruling in the D. v. France case. In that case, the ECtHR concluded that Article 8 had not been violated precisely because the French legal order allows the intended mother to apply for the full adoption of the partner’s child. Even in this regard, however, the Constitutional Court concluded that a “different and wider protection of the child’s best interest” would be constitutionally legitimate, and that therefore the Parliament could reform – in the exercise of its own political discretion – the current legislation with the view of allowing the full-establishment of the relationship between the intended mother and the child.

Conclusion

The Constitutional Court did not rule, as the Tribunal had asked, that the recognition of same-sex parenthood is required by the Italian Constitution and international human rights law. The Court merely recognized that, in any case, neither the Constitution nor international human rights law prohibit same-sex parenthood. It remains to be seen whether the Parliament, in the exercise of its political discretion will decide to reform the current legislation in Italy concerning those issues.

Despite the timid recognition of the (hypothetical) constitutional legitimacy of same-sex parenthood, the Constitutional Court opted for exercising its self-restraint in favour of the legislator. It seems that the Court is not ready to rule on such sensitive and ethical issues.

In the meantime, the Court has announced that on 27 January 2021 it will hold a public hearing in the case concerning the constitutional legitimacy of the Italian rules of private international law (currently) precluding the recognition of a foreign birth certificate attesting the existence of a parent-child relationship between a child born abroad by resorting to gestational surrogacy and his intended parent.

Will the Court continue to exercise its self-restraint approach?

This Thursday, Advocate General Campos Sánchez-Bordona presented his Opinion in the case CNP, C-913/19. In this case, a Polish court asks the Court of Justice to interpret the special jurisdictional rules in matters relating to insurance contained in Section 3 of Chapter II of the Brussels I bis Regulation, in conjunction with Article 7(2) and (5) of that Regulation.

At the request of the Court, the Opinion focuses on the interpretation of the notion of “branch, agency or other establishment” within the meaning of Article 7(5) of the Regulation. However, as it results from point 3 of the Opinion, the future judgment of the Court will supplement its case-law pertaining to the aforementioned Section 3, complementing in particular the judgment in Hofsoe.

Context of the request for a preliminary ruling

In the judgment in Hofsoe, the Court of Justice answered the question of a Polish referring court by stating, in essence, that Articles 11 and 13(2) of the Brussels I bis Regulation cannot be relied on by a natural person, whose professional activity consists, inter alia, in recovering claims for damages from insurers and who relies on a contract for the assignment of a claim concluded with the victim of a road accident, to bring before a court of the Member State in which the injured party is domiciled a civil liability action against the insurer of the person responsible for that accident.

The judgment in Hofsoe clarified the issue of great relevance (not only) for Polish legal practice and scholars. In Poland, at least since 2011, in the wake of the Supreme Court case-law, the number of disputes pertaining to the recovery of an amount corresponding to the rental payment for a replacement vehicle from the insurer covering the civil liability of the person responsible for a road accident has been increasing. This case-law clarified, in essence, that the insurance coverage provided under a compulsory motor insurance policy covers purposeful and economically justified expenses pertaining to the rental of a replacement vehicle.

The market reacted. In practice, the owner of a damaged vehicle who rented a replacement vehicle for the duration of the vehicle repair period could quite commonly, instead of making the rental payment, assign a claim against the insurer of the person responsible for the accident to a professional (automobile repair workshop, vehicle rental company or professional whose activity consists in recovering claims for damages from insurers etc.). The professional would claim an amount corresponding to the rental payment from the insurer and the owner could use the replacement vehicle without having to make any payment.

In the European Single Insurance Market it was only a question of time before the national courts had to settle similar disputes in cross-border context. In fact, the request for a preliminary ruling in the case Hofsoe originated from one of such disputes. Here, the preliminary question resulted from the fact the Section 3 (“Jurisdiction in matters relating to insurance”) aims to guarantee more protection to the weaker party (policyholder, insured, beneficiary and –  where a direct action is permitted – injured party) than the general rules of jurisdiction provide for. It was, thus, necessary to establish whether an assignee being a professional in the insurance sector can be considered as a weaker party.

Unsurprisingly, the case CNP, C-913/19 also derives from proceedings before a Polish court, where the applicant relies on a contract for the assignment to bring an action against the insurer of the person responsible for a road accident.

Facts in the main proceedings

A vehicle owned by an individual is damaged in a road accident provoked by another person insured against civil liability in respect of the use of motors vehicles under a contract concluded with an insurer established in Denmark. As we learn from point 17 of the Opinion, the road accident occurs in Poland.

For the duration of the vehicle repair period, its owner concludes a contract with an automobile repair workshop under which a replacement vehicle is rented in return for payment. Instead of making the rental payment, the owner assigns to the automobile repair workshop the future claim against the aforementioned insurer.

Subsequently, the automobile repair workshop assigns that claim to CNP, a liability limited company established in Poland.

CNP sends a request for payment of the rental amount to a limited liability company (“Polins”) established in Zychlin, Poland, which represents the interests of the Danish insurer as a foreign insurance undertaking in Poland. The adjustment of the insurance claims is supposed to be dealt with by another Polish limited liability company (“Crawford Polska”), acting on behalf of the insurer. Crawford Polska informs CNP that an action against the Danish insurer can be brought “either pursuant to provisions on general jurisdiction or before a court competent for the place of residence or seat of the policyholder, insured party, beneficiary or another person entitled under the insurance contract”.

Failing to obtain full payment of the rental amount, CNP brings an action against the Danish insurer before a Polish court. It argues that this court has jurisdiction to hear the case because, according to the information made public by the insurer, its main representative in Poland (Polins) has its seat in Zychlin.

The insurer argues that the claim should be rejected due to the lack of jurisdiction of the Polish court. This court decides to refer three question for a preliminary ruling.

Considerations of the referring court on the preliminary questions Distinguishing the present case from the case Hofsoe

The referring court indicates that some factual elements distinguish its request for a preliminary ruling from that previously referred in the case Hofsoe. It notes that, in the present case, the defendant engages in insurance activity in Poland, while the case Hofsoe concerned a German insurance undertaking which was liable for the damage caused by a German national, and the road traffic incident in question occurred in Germany. It does not explicitly state how these differences should affect the interpretation of the Brussels I bis Regulation.

Regardless, in the case Hofsoe, the owner of the damaged vehicle seemingly assigned the claim against the insurer directly to the applicant in the main proceedings, who the Court characterised as “professional in the insurance sector” (see points 42 and 43 of the judgment in Hofsoe). In the present case, the claim was first assigned to the repair workshop and then by this repair workshop to CNP. Against this background, it stems from the request for a preliminary ruling that the applicant argues that the refusal to recognise jurisdiction of the Polish courts will result in automobile repair workshops refusing to carry out repairs or in customers having to cover the costs themselves. It seems that this argument is based on the assumption that “repair” costs cover also the expenses pertaining to the rental of a replacement vehicle and that the assignment of insurance-related claims offers additional protection to the persons considered as weaker parties in matters relating to insurance. However, in the wording of the preliminary questions, this twofold assignment is not explicitly mentioned – the first question concerns “a [professional] having acquired [a claim] from an injured party”.

In its request for a preliminary ruling, the referring court also points out that while Denmark did not take part in the adoption of the Brussels I bis Regulation, it notified its decision to apply the content of the Regulation.

Interplay between first and second question

As mentioned above, in his Opinion, AG Campos Sánchez-Bordona addresses the second preliminary question pertaining to the interpretation of Article 7(5) of the Brussels I bis Regulation.

The referring court considers that the second question should be analysed only if the first question is answered in the affirmative.

By its first question, the referring court is asking, in essence, whether – taking into account Articles 10 and 13(2) of the Brussels I bis Regulation – the applicant in the main proceedings is not barred from relying on Article 7(2) and Article 7(5) of the Regulation.

It seems that, by this question, the referring court seeks to establish whether an action can, as to its substance, fall within the scope of the Section 3 (“matters relating to insurance”), yet the applicant bringing that action and being a professional could be barred from relying on the rules on jurisdiction provided for in Articles 10 and 13(2) of that Section (as he is not a “weaker party”) and also from relying on the rules on jurisdiction of the Section 2 (because an action in matters relating to insurance is covered exclusively by the Section 3).

In fact, while the referring court seems not to entertain that interpretation, it notes that wording of Article 10 of the Brussels I bis Regulation could support it (“in matters relating to insurance, jurisdiction shall be determined by the Section 3, without prejudice to Article 6 and aforementioned Article 7(5)”). This reference could be read in the light of the terms of Article 13(2), according to which Article 10 shall apply to actions brought (only) by the “injured party” directly against the insurer.

The referring court notes that its doubts are also inspired by Article 12 of the Regulation (“In respect of liability insurance or insurance of immovable property, the insurer may in addition be sued in the courts for the place where the harmful event occurred”). This court wonders whether this provision would not be superfluous if Section 2 and its Article 7(2) were applied in parallel with it.

Opinion of AG

By the second question, addressed by AG at the request of the Court, the referring court is asking whether a company operating in a Member State which adjusts losses under compulsory insurance against civil liability in respect of the use of motor vehicles pursuant to a contract with an insurer established in another Member State is this insurer’s “branch, agency or other establishment” within the meaning of Article 7(5) of the Brussels I bis Regulation.

At the outset is it worth observing that, regardless of the applicant’s position, the referring court seems to consider that Crawford Polska (and not Polins) is the relevant entity for the purposes of Article 7(5) of the Regulation. At points 53 – 58 of his Opinion, AG clarifies the issue and proceeds on that premise.

Next, at points 59 – 68, AG analyses whether the criteria established by the Court in its case-law and required to consider that the relevant entity is a “branch, agency or other establishment” are met.

Finally, at points 69 – 112, AG delves into the relation between Article 7(5) of the Regulation, on the one hand, and the Directive 2009/138/EC on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II), on the other hand.

Ultimately, at point 113, AG proposes to answer the second question by considering:

“Article 7(5) of [the Brussels I bis Regulation] must be interpreted as meaning that a commercial company established in a Member State which operates under a contract with an insurance undertaking established in another Member State may be classified as a ‘branch, agency or other establishment’ of that undertaking if, cumulatively:

it operates in a Member State by providing compensation for material damage on the basis of insurance against civil liability arising from the use of motor vehicles the risks connected with which are covered by the insurance undertaking;

it has the appearance of an extension of the insurance undertaking; and

it has a management body and material facilities such as to enable it to transact business with third parties, so that the latter, although knowing that there will if necessary be a legal link with the insurance undertaking, do not have to deal directly with that undertaking.”

Instead of presenting an extensive synthesis of the Opinion, it is best to recommend giving it an attentive lecture. As it stems from 36 of the Opinion, it provides guidance not only in the insurance-related contexts, but also in other instances where the application of Article 7(5) of the Brussels I bis Regulation comes into question.

Advocate General Campos Sánchez-Bordona delivered today his opinion in case C‑913/19 (CNP spółka z ograniczoną odpowiedzialnością v Gefion Insurance A/S), which is about Article 7.5 Brussels I bis.

The parties: “CNP [] is a limited liability company established in Poland.

[Gefion] is an insurance undertaking established in Denmark. [Crawford Polska] established in Poland, is the undertaking authorised by Gefion to ‘settle claims in full’, as well as to ‘represent Gefion in all proceedings … before the courts and other public authorities’. [Polins], a second undertaking located in Żychlin (Poland), also represents Gefion in Poland.

The facts: “On 28 February 2018 a road traffic accident occurred in Poland, involving a collision between the vehicle belonging to the injured party and the vehicle belonging to the party responsible for the accident. At that time, the latter had taken out with Gefion a contract of insurance against the civil liability of the owner of the motor vehicle. [] while the car was being repaired, the injured party concluded with the repair workshop a contract for the rental of a replacement vehicle. [] By way of payment for the rental service, that person assigned his claim against Gefion to the repair workshop. At the end of the rental, the workshop issued a VAT invoice for the service. [] CNP acquired from the repair workshop, by way of a contract for the assignment of claims, the right to pursue against Gefion the claim for reimbursement of the costs of renting the replacement vehicle. [] CNP requested Gefion to pay the amount on the invoice. It sent the request to Polins’ address.

[] Gefion instructed Crawford Polska to assume responsibility for payment of the claim. Acting for and on behalf of Gefion, Crawford Polska validated the invoice in part and accepted part of the amount claimed. []     In the same document relating to the aforementioned matters, Crawford Polska referred to the possibility of making a claim against it as the entity authorised by the insurance undertaking. It also included information on the possibility of claiming against Gefion, either under the general provisions on jurisdiction or before the court with jurisdiction for the place where the policyholder, the insured person, the beneficiary or any other person entitled under the insurance contract is resident or established”.

The proceedings: “On 20 August 2018, CNP brought an action against Gefion before the Sąd Rejonowy w Białymstoku (District Court, Białystok, Poland). With respect to the international jurisdiction [of that court], [CNP] cited the information published by Gefion to the effect that its principal representative in Poland is Polins. It asked for service of documents intended for Gefion to be effected at Polins’ address.

25.      Gefion, as defendant, opposed the grant of the application on the ground that the Polish court lacked jurisdiction. It cited, as the provision applicable to jurisdiction, Article 5(1) of the Regulation. After arguing that CNP is a business entity engaged in the purchase of claims arising from insurance contracts, it submitted that CNP is not a policyholder, insured person or beneficiary and that, consequently, it does not have the capacity to bring an action before the court of a Member State other than that where the insured person is established.

26.      CNP submitted in reply that the defendant is on the list of insurance undertakings from EU/EFTA Member States notified in Poland and supervised by the Komisja Nadzoru Finansowego (Financial Supervision Committee, Poland); that it sells policies in Polish territory; and that it is unacceptable that someone subrogated to the injured party’s claim should not be able to seek reimbursement of the repair costs in question before the court for the place where the harmful event and the repair took place”.

The opinion: “Article 7(5) of [Brussels I bis] must be interpreted as meaning that a commercial company established in a Member State which operates under a contract with an insurance undertaking established in another Member State may be classified as a ‘branch, agency or other establishment’ of that undertaking if, cumulatively:

–        it operates in a Member State by providing compensation for material damage on the basis of insurance against civil liability arising from the use of motor vehicles the risks connected with which are covered by the insurance undertaking;

–        it has the appearance of an extension of the insurance undertaking; and

–        it has a management body and material facilities such as to enable it to transact business with third parties, so that the latter, although knowing that there will if necessary be a legal link with the insurance undertaking, do not have to deal directly with that undertaking”

Source: http://curia.europa.eu/juris/document/document.jsf?docid=236431&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=22755183

This report has been prepared by Priyanka Jain, a researcher at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law, and Ph.D. candidate at the University of Luxembourg.

 

Introduction:

 

On 9-11 December 2020, ERA – the Academy of European Law – organized an online seminar on “Privacy and Data Protection: Recent ECtHR & CJEU Case Law”.  The core of the seminar was to provide an update on the case law developed by the European Court of Human Rights (ECtHR) and by the Court of Justice of the European Union (CJEU) with relevance for privacy and data protection law since 2019. The key issues discussed were the distinction between the right to privacy and data protection in the jurisprudence of the ECtHR and CJEU, the impact of the jurisprudence on international data transfers, notions of ‘essence of fundamental rights’ ‘personal data processing’, ‘valid consent’ and so on.

 

 

Day 1: Personal Data Protection and right to privacy

 

Gloria González Fuster (Research Professor, Vrije Universiteit Brussel (VUB), Brussels) presented on the essence of the fundamental rights to privacy and data protection in the existing legal framework with a specific focus on the European Convention on Human Rights (Art. 8 of ECHR) and the Charter of Fundamental Rights of the EU (Art. 7, Art. 8)

 

Article 8 of the Convention (ECHR) guarantees the right to respect private and family life. In contrast, Art 52(1) EU Charter recognizes the respect for the essence of the rights and freedoms guaranteed by the Charter. Both are similar, but not identical. This can be validated from the following points:

• As per Art 8 (2) ECHR – there shall be no interference with the exercise of this right except such as in accordance with the law, whereas Art 52 (1) states that any limitation to the exercise of right and freedoms recognized by the Charter must be provided for by law.
• The Art 8 (2) ECHR stresses the necessity in a democratic society to exercise such an interference, whereas Art 52(1) of the EU Charter is subject to the principle of proportionality.
• Respect for the essence of rights and freedoms is mentioned in Art 52 (1) but not mentioned in Art 8 (2).
• Also, Art 8 (2) states that the interference to the right must be only allowed in the interests of national security, public safety, or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or the protection of the rights and freedoms of others. At the same time, Article 52 (1) states that any limitations to rights must meet objectives of general interest recognized by the Union or the need to protect others’ rights and freedoms.

 

In the Joined Cases C?293/12 and C?594/12, Digital Rights Ireland; the Court addressed the interferences to the rights guaranteed under Articles 7 and 8 caused by the Data Retention Directive. An assessment was carried out as to whether the interferences to the Charter rights were justified as per Article 52(1) of the Charter. In order to be justified, three conditions under Article 52(1) must be fulfilled. The interference must be provided for by law, and there must be respect for the essence of the rights, and it must be subject to the principle of proportionality. Certain limitations to the exercise of such interference/ infringement must be genuinely necessary to meet objectives of general interest. The Directive does not permit the acquisition of data and requires the Member States to ensure that ‘appropriate technical and organizational measures are adopted against accidental or unlawful destruction, accidental loss or alteration of data’ and thus, respects the essence of the right to privacy and data protection. The Directive also satisfied the objective of general interest as the main aim of the Directive was to fight against serious crime, and it was also proportional to its aim of need for data retention to fight against serious crimes. However, even though the Directive satisfied these three criteria, it did not set out clear safeguards for protecting the retained data, and therefore it was held to be invalid.

 

It is pertinent to note here that the ECHR does not contain any express requirement to protect the ‘essence’ of fundamental rights, whereas the Charter does. However, with regard to Art 8 of the ECHR, it aims to prohibit interference or destruction of any rights or freedoms with respect for private and family life. This can be possibly interpreted so as to protect the essence of the fundamental right of private and family life. This is because a prohibition of the destruction of any right would mean affecting the core of the right or compromising the essence of the right.

 

Gloria, also examined Article 7 of the Charter, which guarantees a right to respect for private and family life, home and communications, and Article 8, which not only distinguishes data protection from privacy but also lays down some specific guarantees in paragraphs 2 and 3, namely that personal data must be processed fairly for specified purposes. She analyzed these Charter provisions concerning the Regulation (EU) 2016/679 (GDPR). GDPR creates three-fold provisions by imposing obligations on the data controllers, providing rights to data subjects, and creating provision for supervision by data protection authorities.

 

She also addressed the balance between the right to privacy and the processing of personal data of an individual on one hand and the right to information of the public on the other. Concerning this, she highlighted the interesting decision in C-131/12, Google Spain, wherein it was stated that an interference with a right guaranteed under Article 7 and 8 of the Charter could be justified depending on the nature and sensitivity of the information at issue and with regard to the potential interest of the internet users in having access to that information. A fair balance must be sought between the two rights. This may also depend on the role played by the data subject in public.

It was also discussed in the judgments C-507/17, Google v CNIL; and Case C-136/17 that a data subject should have a “right to be forgotten” where the retention of such data infringes the Directive 95/46 and the GDPR. However, the further retention of the personal data shall only be lawful where it is necessary for exercising the right of freedom of expression and information. The ruling was on the geographical reach of a right to be forgotten. It was held that it is not applicable beyond the EU, meaning that Google or other search engine operators are not under an obligation to apply the ‘right to be forgotten’ globally.

In the next half of the day, Roland Klages, Legal Secretary, Chambers of First Advocate General Szpunar, Court of Justice of the European Union, Luxembourg, presented on the topic: “The concept of consent to the processing of personal data”. He started with a brief introduction of GDPR and stated that there is no judgment on GDPR alone as it has been introduced and implemented recently, but there are judgments based on the interpretation of Directive 95/46 and the GDPR simultaneously.  He commented on the composition of the ECJ, which sits in the panel of 3,5, 15 (Grand Chamber), or 27 (Plenum) judges. The Grand Chamber comprises a President, vice-president, 3 presidents of a 5th chamber, rapporteur, another 9 judges, appointed based on re-established lists (see Article 27 ECJ RP).

 

He discussed the following cases in detail:

 

C – 673/17 (Planet49): Article 6(1) (a) GDPR states that the processing of data is lawful only if the data subject has given consent to the processing of personal data for one or more specific purposes. “Consent” of the data subject means any freely given, specific, informed, and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by clear affirmative action, signifies agreement to the processing of personal data relating to him or her.[1] This clearly indicates that consent is valid only if it comes from the active behavior of the user as it indicates the wishes of the data subjects. A consent given in the form of a pre-selected checkbox on a website does not amount to active behavior. It also does not fulfill the requirement of unambiguity. Another important aspect of the ruling was that it does not matter if the information stored or retrieved consists of personal data or not. Article 5(3) of Directive 2002/58/ EC (Directive on privacy and electronic communications)protects the user from interference with their private sphere, regardless of whether or not that interference involves personal or other data. Hence, in this case, the storage of cookies at issue amounts to the processing of personal data. Further, it is also important that the user is able to determine the consequence of the consent given and is well informed. However, in this case, the question of whether consent is deemed to be freely given if it is agreed to sell data as consideration for participation in a lottery is left unanswered.

 

Similarly, in case C -61/19 (Orange Romania), it was held that a data subject must, by active behavior, give his or her consent to the processing of his or her personal data, and it is upto the data controller, i.e., Orange România to prove this. The case concerns contracts containing a clause stating that the data subject has been informed about the collection and storage of a copy of his or her identification document with the identification function and has consented thereto. He also discussed other cases such as case C-496/17, Deutsche Post, and C- 507/17, Google (discussed earlier), demonstrating that consent is a central concept to GDPR.

 

 

Day 2: “Retention of personal data for law enforcement purposes.”

 

On the next day, Kirill Belogubets, Magister Juris (Oxford University), case lawyer at the Registry of the European Court of Human Rights (ECtHR), started with a presentation on the topic:

 

“Retention of personal data for combating crime.”

 

Kirill Belogubets discussed the case of PN v. Germany. No. 74440/17 regarding the processing of personal identification of data in the context of criminal proceedings. In this case, a German citizen was suspected of buying a stolen bicycle. Authorities collected an extensive amount of data such as photographs, fingerprints, palm prints, and suspect descriptions. It must be noted here that with regard to the right to respect for private life under Article 8 of the ECHR, the interference must be justified and fulfill the test of proportionality, legitimacy, and necessity. The authorities expounded on the likelihood that the offender may offend again. Therefore, in the interest of national security, public security, and prevention of disorder and criminal offenses, it is essential to collect and store data to enable tracing of future offenses and protect the rights of future potential victims. Thus, the collection and storage of data in the present case struck a fair balance between the competing public and private interests and therefore fell within the respondent State’s margin of appreciation.

 

With respect to margin of appreciation, the case of Gaughran v. The United Kingdom, no. 45245/15was also discussed. This case pertains to the period of retention of DNA profiles, fingerprints, and photographs for use in pending proceedings. The Court considered storing important data such as DNA samples only of those convicted of recordable offences, namely an offense that is punishable by a term of imprisonment. Having said that, there was a need for the State to ensure that certain safeguards were present and effective, especially in the nature of judicial review for the convicted person whose biometric data and photographs were retained indefinitely.

 

However, it has been highlighted that the legal framework on the retention of DNA material was not very precise. It does not specifically relate to data regarding DNA profiles and there is no specific time limit for the retention of DNA data. Similarly, the applicant has no avenue to seek deletion because of the absence of continued necessity, age, personality, or time elapsed. This has been laid down in the case of Trajkovski and Chipovski v. North Macedonia, nos. 53205/13 and 63320/13.

 

Mass Collection and Retention of Communications data

In the next half, Anna Buchta, Head of Unit “Policy & Consultation”, European Data Protection Supervisor, Brussels brought the discussion on Article 7 and 8 of the Charter and Article 8 of the Convention along with the concept of ‘essence’ of fundamental rights, back to the table. With regard to this discussion, she described the case C-362/14 Maximilian Schrems v DPC, which highlights that ‘any legislation permitting the public authorities to have access on a generalized basis to the content of electronic communications must be regarded as compromising the essence of the fundamental right to respect for private life, as guaranteed by Article 7 of the Charter.’ In this context, EU member states must recognize the confidentiality of communication as a distinct legal right. In this case, it was the first time where a Directive was invalidated due to non-confirmation with the ECHR. It was laid down that the safe harbor principles issued under the Commission Decision 2000/520, pursuant to Directive 95/46/EC  does not comply with its Article 25(6), which ensures a level of protection of fundamental rights essentially equivalent to that guaranteed in the EU legal order. The Decision 2000/520 does not state that the United States, infact, ‘ensures’ an adequate level of protection by reason of its domestic law or its international commitments.

 

Traffic and Location data

She also commented on the indefinite retention of data, which might lead to a feeling of constant surveillance leading to interference with freedom of expression in light of CJEU cases C-203/15 and C-698/15 Sverige and Watson. In these cases, the Court agreed that under Article 15(1) of the Directive 2002/58 / EC, data retention could be justified to combat serious crime, national security, protecting the constitutional, social, economic, or political situation of the country and preventing terrorism. However, this must only be done if it is limited to what is strictly necessary, regarding categories of data, means of communication affected, persons concerned, and retention period. Traffic data relating to subscribers and users processed and stored by the provider of a public communications network or publicly available electronic communications service must be erased or made anonymous when it is no longer needed for the transmission of a communication without prejudice to paragraphs 2, 3, and 5 of this Article 6 and Article 15(1) of the Directive. This was reiterated in C-623/17 Privacy International. It must be noted here that these data can be retained only if there is evidence that these data constitute an identifiable link, at least an indirect one, to criminal activities. Data with regard to the geographical location again requires objective factors. It must be retained if there exists a risk of criminal activities in such areas. These locations may correspond to places that are vulnerable to the commission of serious offenses, for instance, areas that receive a large number of people, such as airports, train stations, toll-booth areas, etc.

 

The Court differentiated between generalized and targeted retention of data. Real-time collection and indeterminate storage of electronic communications surveillance involving traffic and location data of specific individuals constitute targeted retention. In this context, the case of C?511/18, C?512/18 and C?520/18, La Quadrature du Net and Others were also relied upon, with a focus on the following findings:

Targeted real-time collection of traffic and location data by electronic communication providers that concerns exclusively one or more persons constitutes a serious interference that is allowed where:

• Real-time collection of traffic and location data is limited to persons in respect of whom there is a valid reason to suspect that they are directly or indirectly involved in terrorist activities. With regard to persons falling outside of that category, they may only be the subject of non-real-time access.
• A court or an administrative authority must pass an order after prior review, allowing such real-time collection. This must be authorized only within the limits of what is strictly necessary. In cases of duly justified urgency, the review must take place within a short time.
• A decision authorizing the real-time collection of traffic and location data must be based on objective criteria provided for in the national legislation, which must clearly define the circumstances and conditions under which such collection may be authorized.
• The competent national authorities undertaking real-time collection of traffic and location data must notify the persons concerned, in accordance with the applicable national procedures.

 

 

Last but not least, the EU Commission as well as the CJEU have started looking at the national laws of data retention and specifically inclined to define national security in manner so as to increase their own role in the area. However, data retention schemes are divergent across the Member States. It is essential to create clearer and more precise rules at the European level to enable the Courts to develop the best ways to strike a balance between the interactions of privacy rights with the need to tackle serious crime. The different legal rules in the area of data retention restricted cooperation between competent authorities in cross-border cases and affected law enforcement efforts. For instance, some Member States have specified retention periods, whereas some do not, a fact from which conflict-of-laws problems may arise. While some Member States for example Luxembourg precisely define ‘access to data’, there are Member States, which do not. This was pointed out by the EU Council in the conclusion of the data retention reflection process in May 2019, wherein it was emphasized that there is a need for a harmonised framework for data retention at EU level to remedy the fragmentation of national data retention practices.

 

Day 3: Data Protection in the Global Data Economy

 

The discussion of the third day started with a presentation by Professor Herwig Hofmann, Professor of European and Transnational Public Law, the University of Luxembourg on the well-known Schremscases namely, C-362/14, Schrems I; C-498/16, Schrems vs Facebook; and C-311/18, Schrems II;which involves transatlantic data transfer and violation of Article 7 and 8 of the Charter. In the clash between the right to privacy of the EU and surveillance of the US, the CJEU was convinced that any privacy agreements could not keep the personal data of EU citizens safe from surveillance in the US, so long as it is processed in the US under the country’s current laws. The guidelines in the US for mass surveillance did not fit in the EU. Therefore, privacy shield could not be maintained.

He also highlighted that international trade in today’s times involves the operation of standard contractual terms created to transfer data from one point to another. Every company uses a cloud service for the storage of data, which amounts to its processing. It is inevitable to ensure transparency from cloud services. The companies using cloud services must require transparency from cloud services and confirm how the cloud service will use the data, where would the data be stored or transferred.

 

In the last panel of the seminar Jörg Wimmers, Partner at TaylorWessing, Hamburg, spoke about the balance between Data protection and copyright.

The case discussed in detail was C-264/19 Constantin Film Verleih GmbH, which was about the prosecution of the user who unlawfully uploaded a film on YouTube, i.e., without the copyright holder’s permission. In this regard, it was held that the operator of the website is bound only to provide information about the postal address of the infringer and not the IP address, email addresses, and telephone numbers. The usual meaning of the term ‘address’ under the Directive 2004/48 (Directive on the enforcement of Intellectual Property rights) refers only to the postal address, i.e., the place of a given person’s permanent address or habitual residence. In this context, he also commented on the extent of the right to information guaranteed under Article 8 of the said Directive 2004/48. This was done by highlighting various cases, namely, C-580/13, Coty and C-516/17, Spiegel Online, noting that Article 8 does not refer to that user’s email address and phone number, or to the IP address used for uploading those files or that used when the user last accessed his account. However, Article 8 seeks to reconcile the right to information of the rightholder/ intellectual property holder and the user’s right to privacy.

 

Conclusion:

 

To conclude, the online seminar was a total package with regard to providing a compilation of recent cases of the ECtHR and CJEU on data protection and the right to privacy. A plethora of subjects, such as the balance between data protection and intellectual property rights, privacy and data retention, and respect for the essence of fundamental rights to privacy, were discussed in detail. The data retention provision established by the new Directive on Privacy and Electronic Communications may be an exception to the general rule of data protection, but in the current world of Internet Service providers and telecommunication companies, it may not be easy to ensure that these companies store all data of their subscribers. Also, it is important to ensure that data retained for the purpose of crime prevention does not fall into the hands of cybercriminals, thereby making their jobs easier.

 

[1] Article 4 No.11 GDPR

Geert van Calster has just published the third edition of the book titled “European Private International Law: Commercial Litigation in the EU” with Hart.

The blurb reads as follows:

This classic textbook provides a thorough overview of European private international law. It is essential reading for private international law students who need to study the European perspective in order to fully get to grips the subject.
Opening with foundational questions, it clearly explains the subject’s central tenets: the Brussels I, Rome I and Rome II Regulations (jurisdiction, applicable law for contracts and tort). Additional chapters explore the Succession Regulation, private international law and insolvency, freedom of establishment, and the impact of PIL on corporate social responsibility. The new edition includes a new chapter on the Hague instruments and an opening discussion on the impact of Brexit.
Drawing on the author’s rich experience, the new edition retains the book’s hallmarks of insight and clarity of expression ensuring it maintains its position as the leading textbook in the field.

 

The purpose of the book is to serve as an introductory text for students interested in EU Private International Law. The book can also be appreciated by non-EU students interested in EU Private International Law since it serves as an introductory text. It contains seven core chapters including the introduction. The full table of contents and introduction are provided free to readers and can be accessed respectively here and here

From what I have read so far in the introduction, this book is highly recommended. It brings the subject of EU Private International Law to the doorstep of the uninitiated and refreshes the knowledge of any expert on Private International Law (“PIL”). Though the core foundation of the book is on EU PIL, it contains some comparisons to other systems of PIL especially in the common law, in order to illustrate. Importantly, the introduction ends with the implications of Brexit for EU PIL and some interesting speculations.

More information on the book can be found here

Noëmie Reichling (PhD, Avocat à la Cour, France) has just published a monograph on Fundamental Principles of Civil Litigation in the European Judicial Area, based on her doctoral thesis: Les principes directeur du procès civil dans l’espace judiciaire européen. Etude à partir du procès civil transfrontalier, PUAM, 2020.

The author has provided the following abstract in English:

Since the Treaty of Amsterdam entered into force on the 1st of May 1999 and the “communitarisation” of judicial cooperation in civil matters, the European Union has adopted many legal instruments relating to cross-border litigation, to the extent that one can now refer to a distinct “European International Private Law”, the governing principles of which have yet to be defined. By comparison, the French Code of Civil Procedure includes an entire chapter devoted to the governing principles applicable to civil trials. Based on a study of the European civil justice area, four governing principles can be identified: the adversarial principle, the principle of the judge’s active role, the principle of urgency and the principle of cross-border dialogue. In prospective terms, it follows that the possibility of these four principles’ being enacted in EU law is a matter worthy of examination. Several obstacles can be identified, none of which appears to be insuperable. Having been recognised as a possibility, such a consecration also seems desirable on the grounds of its several demonstrable advantages. The legal basis and vehicle of the above-mentioned four principles’ legal enshrinement remain to be determined. In this regard, article 81 of the Treaty on the Functioning of the European Union, pertaining to judicial cooperation in civil matters, could serve as a legal basis. In terms of implementation, this study also argues in favour of regulations over directives.

More details available here.

The Public Institution for Social Security v Al Rajaan & Ors [2020] EWHC 2979 (Comm) engages in lengthy discussion anchor jurisdiction (A6) and choice of court (A23) under the Lugano Convention which of course, albeit with some important mutatis mutandis, echoes Brussels I and Brussels Ia.

Henshaw J summarises the key issues at 74:

i)                    whether the exclusive jurisdiction clauses (‘EJCs’) relied on were agreed between the parties and incorporated into their respective contracts, applying;

a)                  the formal validity requirements set out in Lugano Convention Article 23/Recast Brussels Regulation Article 25, and

b)                 if relevant, the laws governing the contracts i.e. Swiss or Luxembourg law;

ii)                  if so, whether the EJCs satisfy the requirements for material validity under Lugano Convention Article 23/Recast Brussels Regulation Article 25;

iii)                if so, how the EJCs are to be interpreted under their respective governing laws;

iv)                whether, and if so to what extent, the EJCs apply to claims against the applicants;

v)                  if and to the extent that the EJCs apply to only some claims against particular applicants, or apply to some but not all of the applicants, whether this court has jurisdiction over the remainder of the claims pursuant to Lugano Convention Article 6(1)/Recast Brussels Regulation Article 8(1); and

vi)                whether the court should decline jurisdiction over the claims against Pictet Asia and Pictet Bahamas (seeing as they are neither EU or Lugano States domiciled) on forum non conveniens grounds.

 

The judgment is lengthy. These are my highlights:

• At 107 following review of CJEU authority including Refcomp and Hoszig, the finding that the issue of validity of choice of court by incorporation are to be addressed solely by reference to the requirements of what is now A25 BIa and the corresponding provision in Lugano Convention Article 23. This requires real consent which is discussed with reference ia to Profit Investment Sim at 109 ff.
• At 127 ff Henshaw J discusses the issue obiter under Swiss cq Luxembourg law as putative leges contracti for choice of court. At 142 the judge concludes that under Swiss law, as under EU law, it is sufficient, in order to incorporate a jurisdiction agreement into the parties’ contract, that the parties have made a written agreement which incorporates by reference general terms including a jurisdiction clause. Ditto with less discussion under Luxembourg law, at 148.
• At 187 ff: the issue of material validity under EU law. This discussion kicks off with a review of what one of the parties calls the ‘proximity requirement’: per C-214/89 Powell Duffryn (CDC, too, is discussed), the fact that choice of court (only) extends to a ‘particular legal relationship’ (reference here is also made to Etihad, at the time of the judgment this had not yet benefitted from the Court of Appeal‘s judgment). At 201 ff Justice Henshaw takes a broad view:

In principle I would agree that if a jurisdiction clause is not clear, then it may be restrictively construed, consistently with the policy expressed in the relevant EU case law of promoting certainty and avoiding parties being taken by surprise.  On the other hand, I see no reason why parties cannot make a jurisdiction clause in deliberately wide-ranging terms which covers many, or indeed all, of their present and future contractual relationships.  I do not read the Opinion of the Advocate General in Refcomp as indicating the contrary.  Refcomp was essentially concerned with whether a jurisdiction clause could be relied on against a sub-purchaser of goods, and it is notable that the CoJ referred in its judgment to “the principle of freedom of choice on which Article 23(1) is based” (§ 40).  Nor do I read Powell Duffryn as restricting the parties’ ability to choose the scope of the particular legal relationships to which a jurisdiction clause is to apply.

• Whether the claims at issue meet the ‘proximity’ requirements is then discussed at length, under EU law and again, obiter, under Swiss and Luxembourg law, largely leading to a conclusion of lack of jurisdiction in England and Wales for many of the claims.
• Anchor jurisdiction is discussed for some of the claims at 403 ff, leading to a classic discussion of the (CJEU Kalfelis introduced) close connection requirement, and at 418 support for the fragile Court of Appeal finding in Privatbank, that that the word “expedient” in the context of the lis alibi pendens provision in Lugano Convention Article 28 must mean “desirable” as opposed to merely practicable or possible. At 427 the issue of fragmentation of proceedings is discussed: what should the court do where a claimant is required to sue a defendant in an overseas jurisdiction under A23 Lugano in relation to some claims, but seeks to pursue in this jurisdiction (a) connected claims against the same defendant, or (b) connected claims against another defendant, in reliance on A6? Henshaw J concludes the E&W courts should not entertain the accessory claims.
• Forum non is discussed at 480 ff, with the final conclusion being that E&W does not have jurisdiction for any of the claims.

I fully expect there is scope for appeal.

Those criticising the intensity of jurisdiction squabbles will find ammunition in this 497 para judgment.

Geert.

EU Private International Law, 3rd ed. 2021, big chunks of Chapter 2.

 

Successful jurisdictional challenge engaging both anchor and choice of court jurisdiction under Lugano.
A lengthy judgment which I shall certainly post on soon on the blog. https://t.co/9r3a7zlyxi

— Geert Van Calster (@GAVClaw) November 6, 2020

A set of seven articles on the Project IC2BE have been published in the second issue of the Zeitschrift für Vergleichende Rechtswissenschaft (ZVglRWiss 119 (2020), Heft 2), a German periodical, providing information in the area of comparative law with a focus on international business law.

The articles cover a wide array of issues on cross-border debt recovery.

The opening contribution, by Jan von Hein, provides a presentation and illustrates the results of the Project (Informierte Entscheidungen in der grenzüberschreitenden Forderungsdurchsetzung – Vorstellung und Ergebnisse eines internationalen Forschungsprojekts).

Michael Stürner discusses the field of application oft the EU Regulations relating to cross-border debt recovery (Der Anwendungsbereich der EU-Verordnungen zur grenzüberschreitenden Forderungsdurchsetzung). Christian Heinze‘s paper is about the provisional protection of claims in European Civil Procedural Law (Die Sicherung von Forderungen im europäischen Zivilprozessrecht), while Christoph Althammer’s is on the contribution of court organization to the efficiency of cross-border debt recovery (Der Beitrag der Gerichtsorganisation zur Effizienz der grenzüberschreitenden Forderungsdurchsetzung).

The article by Florian Eichel is about the contribution of modern information technology to the efficiency of of cross-border debt recovery (Der Beitrag der modernen Informationstechnologie zur Effizienz der grenzüberschreitenden Forderungsdurchsetzung). Haimo Schack’s is on the grounds for refusal of recognition and enforcement in European Civil Procedural Law (Anerkennungs- und Vollstreckungsversagungsgründe im Europäischen Zivilprozessrecht).

Finally, Caroline Meller-Hannich discusses the interface and interaction of European Civil Procedural Law and national law as regards enforcement (Schnittstellen und Wechselwirkungen zwischen dem europäischen Zivilprozessrecht und dem nationalen Vollstreckungsrecht).

The Jean Monnet Chair in European Civil Procedure, hosted by the Madrid-based IE University, is the first Chair entirely devoted to the study and dissemination of the ELI-UNIDROIT Model Rules of European Civil Procedure.

The Chair is held by Marco de Benito, Professor of Law at IE University, where he teaches comparative civil procedure and international arbitration. Prof. de Benito also fosters reflection and debate on private law and legal history through the Jean Monnet Module in European Private Law.

In its quest to become a genuine area of freedom, security and justice, the EU has developed an ambitious program of normative action in civil procedure. Judicial cooperation has been strengthened. Exequatur has been abolished. Credit has been robustly protected. Sectorial action regularly includes procedural reform. In spite of this considerable acquis, the core procedural systems of states have remained anchored in national traditions. Cutting-edge policy and scholarship have advocated a deeper harmonisation. The Principles of Transnational Civil Procedure adopted by the American Law Institute (ALI) and UNIDROIT in 2004 lighted the path forward. In 2014 the European Law Institute (ELI) and UNIDROIT launched the project ‘From Transnational Principles to European Rules of Civil Procedure’, recently completed with the European Rules of Civil Procedure. Based on that project, in 2017 the European Parliament adopted a resolution requesting the Commission to put forward a proposal for a directive on common minimum standards of civil procedure in the EU.

These projects are the last frontier of civil procedural scholarship. A European proto-civil procedure code shows on the horizon. It will no longer be possible to teach or study civil procedure without making reference to the common rules and categories. The Chair embraces the paradigm shift and offers its grain of sand nationally and internationally.

IE Law School takes inspiration in the old ius commune europæum to teach law as a common language with dialectal expressions. A transnational standpoint is applied systematically. With more than 75% international students, all programmes are taught in English, while also using the original texts in class to the best extent possible. The core course touching upon civil procedure at IE, Litigation I, is dramatically transformed by the current harmonisation endeavours. Litigation I adopts the ELI-UNIDROIT Rules as leitmotif, so that students learn the structure, principles and rules of civil proceedings by reference to the common normative, conceptual and terminological framework. The Rules thus provide the students with a point of reference from which to identify the expression of this or that principle in the law and practice of selected jurisdictions. Like a musical theme with multiple variations, a dialogue between the European Rules and the national laws is established.

Based on that experience, the Chair builds on three more levels: a Study Group (in which students do and comment readings and research); a Faculty Seminar (in which teaching experiences are shared); and the IE Civil Procedure Series, a series of roundtables where students, academics, practitioners, judges, policymakers, from Europe and beyond, can explore the Rules, together with the leaders in the field.

The third issue of the Journal of Private International Law for 2020 features the following articles:

M Teo, “Public law adjudication, international uniformity and the foreign act of state doctrine”

Should courts, when applying foreign law, assess the validity or legality of foreign legislative or executive acts therein? The foreign act of state doctrine answers that question in the negative, but is often criticised as lacking a sound theoretical basis. This article argues, however, that the doctrine remains defensible if reconceptualised as a rule of private international law, which furthers the modest goal of international uniformity within the choice-of-law process. Assessing the validity or legality of foreign legislative and executive acts necessarily requires courts to address questions of foreign public law. Given the fact-specific and flexible nature of public law adjudication, courts cannot answer these questions, and thus cannot carry out such assessments, in a manner that loyally applies foreign law. The doctrine, then, makes the best of a bad situation, by sidestepping that problem with a clear rule of refusal which, if consistently applied, furthers international uniformity.

G Laganière, “Local polluters, foreign land and climate change: the myth of the local action rule in Canada”

This article addresses the jurisdiction of Canadian courts over transboundary pollution. It argues that a tort lawsuit brought by foreign victims of climate change against local greenhouse gas emitters could overcome jurisdictional obstacles, notably the local action rule, and proceed in Canada. The local action rule provides that Canadian courts have no jurisdiction to hear a claim involving foreign land, even when the claim lies solely in tort. It is thought to be a significant jurisdictional obstacle in transboundary environmental disputes involving foreign land. This assumption is misleading. A growing corpus of soft law instruments supports the notion of equal access to the courts of the state of origin for all victims of transboundary pollution. The courts of Canadian provinces have jurisdiction over pollution originating in the province, and the case law is more divided than generally assumed over the effect of the local action rule in tort litigation. The conclusions of this article have important implications for transboundary environmental disputes in Canada and other top greenhouse gas-producing countries. They also highlight a modest but potentially meaningful role for private international law in our global response to climate change.

S Khanderia, “Practice does not make perfect: Rethinking the doctrine of “the proper law of the contract” – A case for the Indian courts”

An international contract calls for the identification of the law that would govern the transaction in the event of a dispute on the matter between the parties. Indian private international law adopts the doctrine of “the proper law of contract” to identify the legal system that will regulate an international contract. In the absence of any codification, the interpretation of the doctrine has been left to the courts. The judiciary adopts the common law tripartite hierarchy, viz., the “express choice”, “implied choice” and “the closest and most real connection” test to determine the proper law. However, the existing case law demonstrates the diverse interpretations given to each of these factors in India in the post-colonial era. The paper examines the manner in which the blind adoption of the decisions of the English courts has considerably hindered the development of Indian private international law. In this regard, the author suggests some plausible solutions to render India more amenable to international trade and commerce – such as the adoption of mechanisms similar to those formulated by its continental counterpart.

KD Voulgarakis, “Reflections on the scope of “EU res judicata” in the context of Regulation 1215/2012”

It is now established in the case law of the Court of Justice of the European Union (CJEU) that the law pursuant to which the effects of a recognised judgment are determined is that of the Member State where the judgment was rendered. In Case C-456/11 (Gothaer), however, the CJEU deviated from this rule and developed an autonomous (EU) concept of res judicata. The potential for this concept to extend to other jurisdictional determinations by Member State courts has therefore created additional layers of complexity in the area of recognition of judgments. This article seeks to shed light on this topic by drawing conclusions from the Court’s rationale in Gothaer and considering whether a more broadly applicable autonomous concept of res judicata can be consistent with the general system of Regulation 1215/2012 and the CJEU’s previous case law.

K Tan, “All that glisters is not gold? Deconstructing Rubin v Eurofinance SA and its impact on the recognition and enforcement of foreign insolvency judgments at common law”

It was Lord Hoffmann who once spoke of a “golden thread” of modified universalism running throughout English Insolvency Law since the eighteenth century. However, after the UK Supreme Court’s decision in Rubin v Eurofinance SA, that golden thread seems to have lost its lustre. This paper critiques the main premise of the Rubin decision by questioning whether the Supreme Court was correct in holding that there can be no separate sui generis rule for recognising and enforcing foreign insolvency judgments. This article also explores the possible solutions, either through statute or the common law, that could be used to remedy the post-Rubin legal lacuna for recognising and enforcing foreign insolvency judgments.

B Alghanim, “The enforcement of foreign judgments in Kuwait”

This article provides an overview of the rules in Kuwait regarding the enforcement of foreign judgments. This issue is significant due to the fact that foreign litigants still experience significant challenges in successfully enforcing foreign judgments – particularly as such parties have a limited understanding of the manner in which the Kuwaiti courts will interpret the conditions required to enforce such judgments.

An analysis of case law in this area highlights that the reciprocity condition is usually the most significant hurdle for applicants when seeking the enforcement of foreign judgments. Such difficulties have catalysed the Kuwaiti Parliament to introduce an exception to the general rule regarding the reciprocity condition; reform which this article heavily criticises.

PN Okoli, “The fragmentation of (mutual) trust in Commonwealth Africa – a foreign judgments perspective”

Mutual trust plays an important role in facilitating the recognition and enforcement of foreign judgments. The 2019 Convention on the Recognition and Enforcement of Foreign Judgments also reflects some degree of mutual trust, although not explicitly. Commonwealth African countries seem to be influenced by mutual trust but have not yet adopted any coherent approach in the conflict of laws. This incoherence has impeded the recognition and enforcement of foreign judgments especially in Africa. This article seeks to understand the principle of mutual trust in its EU context and then compare it with the subtle application of mutual trust in the recognition and enforcement of foreign judgments in Commonwealth Africa. The article illustrates this subtle and rather unarticulated application of mutual trust primarily through decided cases and relevant statutory provisions in the Commonwealth African jurisdictions considered. The article then considers how the subtle application of mutual trust has sometimes resulted in parallel efforts to promote the recognition and enforcement of foreign judgments and how a proliferation of legal regimes can undermine legal clarity, certainty and predictability. A progressive application of mutual trust will help to ensure African countries maximise the benefits of a global framework on foreign judgments.

A Moran & A Kennedy, “When considering whether to recognise and enforce a foreign money judgment, why should the domestic court accord the foreign court international jurisdiction on the basis that the judgment debtor was domiciled there? An analysis of the approach taken by courts in the Republic of South Africa”

The Roman-Dutch common law of the Republic of South Africa states that a foreign judgment is not directly enforceable there. In order to have a foreign money judgment recognised and enforced, the judgment creditor must, inter alia, demonstrate that the foreign court had jurisdiction to adjudicate the matter (ie that it had “international jurisdiction”). South African courts have held that the judgment debtor’s being domiciled, at the time of commencement of the proceedings, within the territory of the foreign court confers the said international jurisdiction on that foreign court. This position has been criticised. This paper assesses the validity of that criticism.

RF Oppong, “The dawn of the free and fair movement of foreign judgments in Africa?”

A new book on foreign judgment enforcement in Nigeria and South Africa seeks to ground their foreign judgment enforcement regimes – and perhaps other African countries – on a new theoretical foundation and inform judicial decisions in new directions. In a quest to promote the free movement of judgments, judges are urged to presumptively enforce foreign judgments subject to narrowly defined exceptions. This review article examines the new theory of qualified obligation and some selected issues arising from the discussion, recommendations, and findings of the book.

 

On a personal note, it is a delight to see three articles on the subject of Private International law in Africa published in this issue!

Iacyr de Aguilar Vieira, Gustavo Cerqueira (Eds.), The Vienna Convention in America. 40th anniversary of the United Nation Convention on Contracts for the International Sale of Goods / La Convention de Vienne en Amérique. 40eanniversaire de la Convention des Nations Unies sur les contrats de vente internationale des marchandises, Paris : Société de législation comparée, 2020, 408 p. (available in hard copy and e-book)

To celebrate the 40th anniversary of the Vienna Convention on Contracts for the International Sale of Goods, the Latin American section of the Société de législation comparée has published this book to present the Convention’s current state of application in different American countries, as well as to evaluate its influence on domestic sales laws.

This book seeks to provide a better understanding of how the Convention is being applied in American countries and by doing so, supports the efforts towards its uniform application. Concerning the more specifics private international law issues, the numerous analyses relating to the applicability of the Convention and to the subsidiary application of national law offer very interesting insights into the conflict of laws systems of Contracting States in this part of the world. A comparative approach concludes the volume.

This book offers the perfect opportunity to compare the Vienna Convention’s implementation in American States and to benefit from the view of American scholars on this universal instrument for the uniformization of sales of goods.

Among the contributors are Maria Blanca Noodt Taquela, Alejandro Garro, Franco Ferrari, Lauro Gama Jr., Jose Antonio Moreno Rodríguez, Cecilia Fresnedo de Aguirre, Ana Elizabeth Villalta Vizcarra and Claudia Madrid Martínez.

This publication is meant for both scholars and lawyers in the field of international trade.

 

 

The author of this post is Simon Laimer, professor at the Linz University.

The claimant, an airline established in Austria, and the defendant, which operates a hotel in India, concluded a written contract for the accommodation of the airline’s crew members in the defendant’s hotel as well as their transfer from the airport to the hotel.

The agreement provided, among other things, that the defendant should indemnify the claimant in respect of any damage to property or injury or death of persons, encompassing the property of the claimant and the crew members, caused by negligent or wilful misconduct of the hotel or its staff.

Furthermore, the agreement included an exclusive jurisdiction clause on behalf of a competent court in Vienna (Austria) and provided that it shall be governed by Austrian law without reference to the choice of law principles thereof. During a transfer from the airport to the hotel commissioned by the defendant a traffic accident occurred and several crew members were injured.

The claimant brought a claim to the Vienna commercial court (Handelsgericht) for payment of damages, including damage claims assigned to it by its crew members. While the Handelsgericht determined its jurisdiction based on the jurisdiction clause, the Court of Appeal rejected the claim in so far as it concerned the crew members’ claims assigned to the claimant for lack of international jurisdiction of the Austrian courts.

By a ruling of 29 June 2020, the Austrian Supreme Court (2 Ob 104/19m) confirmed the international jurisdiction of Austrian courts also with regard to that part of the claim. The Court held that a jurisdiction clause under Article 25 Brussels I bis Regulation cannot be invoked against third parties benefitting from the contract (citing the ruling of the Court of Justice in Refcomp), but they could rely on it if the interpretation of the clause leads to the conclusion that it (also) aims at protecting them, hence only the effect of prorogation but not the effect of derogation applies.

The decision may be correct in its outcome, although it remains questionable whether the Austrian Supreme Court should have referred this case to the Court of Justice for a preliminary ruling.

The CJEU recently ruled (in his – debatable – decision in Ryanair v DelayFix; see also Matthias Lehmann) that the mere assignment of a claim is not sufficient for the assignee to be bound by a choice-of-court clause (unless the assignee is the successor to all the initial contracting party’s rights and obligations under the applicable law; para 47). In the present case, however, the roles of the parties were exactly reversed: the Austrian Supreme Court found that, in accordance with the definition of responsibilities covered by the contract, a place of jurisdiction in favor of the assignors had been agreed between the contracting parties. With regard to the interpretation of the jurisdiction clause, both the law applicable to the contractual relationship and the lex fori led to Austrian law, which is why the Austrian Supreme Court found that it did not have to decide the corresponding dispute in legal literature (cf. Caterina Benini on the subject).

Well, it may be sufficiently clear in Austrian national law and as well in the field of insurance contract law according to art. 15 No. 2 Brussels I bis (see CJEU in Gerling v Amministrazione del tesoro dello Stato) that choice-of-court agreements in favor of third parties are effective (at least with regard to the effect of prorogation), but a CJEU decision going beyond this could have contributed to legal clarity.

A detailed summary of the decision is available in the latest issue (4-2020) of The European Legal Forum.

On 27 January 2021 ERA (Academy of European Law) will host an online seminar to discuss practical implications of using digital technology in family law cases that often involve vulnerable parties and will therefore need special attention within the digitalisation of justice.

Among the key topics addressed in this event are:

• Legal Tech in family law – and how it affects the lawyer’s work
• Digitalisation of family courts, paperless systems and remote hearings
• Online divorce and ODR
• e-codex and the digitalisation of justice systems
• Artificial intelligence in family matters
• Experiences abroad

Additional information about this event is available here.

Cedric Ryngaert, Professor of Public International Law at the Utrecht University, has kindly accepted to provide a presentation of his latest monograph, ‘Selfless Intervention – The Exercise of Jurisdiction in the Common Interest’ (Oxford University Press 2020). This post draws on the monograph’s concluding observations.

This monograph inquires how a cosmopolitan agenda could be implemented in the law of jurisdiction. At first sight, such an inquiry might look like an attempt at marrying fire and ice. Cosmopolitans tend to focus on the individual as the ultimate unit of moral concern, and are interested in bringing about ‘global justice’ (whether of the human or environmental variant), regardless of geographical location. They are always concerned with the negotiation and overcoming of delineated political borders. In contrast, the law of jurisdiction, given its close connection to the seminal concept of state sovereignty in international relations, has ‘borders’ written all over it.

Nevertheless, political allegiance to territorially delineated states and allegiance to an international community project based on universal human solidarity need not be mutually exclusive. Kwame Appiah, one of the leading political philosophers of cosmopolitanism, has coined the term ‘constitutional patriotism’ in his respect: ‘We cosmopolitans can be patriots, loving our homelands (not only the states where we were born but the states where we grew up and the states where we live); our loyalty to humankind so vast, so abstract, a unity does not deprive us of the capacity to care for lives nearer by.’ Accordingly, the actual existence of borders need not prove fatal to the cosmopolitan project.

Some authors have even suggested that the ‘state’ could be considered as a cosmopolitan construct in its own right. A somewhat less extreme position, taken by this monograph, is that states may perhaps have primarily been set up or conceived to serve their own citizens, but that this does not bar them from serving a global citizenship and protecting humankind’s common concerns. This cosmopolitan, global citizenship-based authority and responsibility of states has gained increased attention from political theorists disenchanted with the disconnect between moral idealism and actual international political practice, which revolves very much around states indeed. Thus, in a praiseworthy and wide-ranging volume on the cosmopolitan responsibilities of the state (2019), Beardsworth et al investigate ‘the possibility that states can become bearers of cosmopolitan responsibilities while also remaining vehicles for popular self-determination’. Along the same lines, for an international lawyer interested in jurisdictional questions, the challenge is to investigate how the law of state jurisdiction – the initial aim of which was to prevent state sovereignties from clashing with each other – is, and can be reinterpreted to serve cosmopolitan or ‘selfless’ ends, alongside parochial, national interest-based ends.

Selfless Intervention, Jurisdiction and State Sovereignty

Inevitably, the quest to conceive the notion of jurisdiction as a vehicle for selfless intervention by states is closely bound up with epistemic evolutions regarding jurisdiction’s twin concept of state sovereignty. After all, jurisdiction is the legal emanation of the political notion of state sovereignty. The state manifests its sovereign power by exercising jurisdiction, ie prescribing and enforcing its laws, and adjudicating disputes on the basis of these laws. In the monograph I argue that the concept of sovereignty is malleable and allows for novel, contemporary understandings of sovereignty being in the service of the international community. It is logical, then, that jurisdiction could fulfil the same function.

However, jurisdiction is not simply an emanation of sovereignty, ie originating or issuing from sovereignty. As Irani suggested, jurisdictional assertions

not only form, border, and construct “the state”: they are the state. The state is instantiated in its jurisdictional assertions … Changing jurisdictional assertions do not simply change what “the state” does: they further change what the state is, who and what it includes and excludes, and crucially, where it is located.

Thus, the nature of the state and of state sovereignty may change as a result of actual jurisdictional practices. This also means that jurisdictional assertions may yield the formation of new political communities that do not necessarily track the physical borders of the state. For our research object, it means that a state becomes cosmopolitan to the extent that it engages in cosmopolitan jurisdictional practices. Accordingly, to fully grasp the contemporary epistemic transformation of state sovereignty, a fine-grained analysis of actual instances of the exercise of  jurisdiction by states is imperative.

The Capaciousness of Territoriality

In the monograph I demonstrate that, regardless of the dynamics of globalization, interconnectedness, deterritorialization or international solidarity characterizing the current era, when addressing transnational or global challenges, states continue to give pride of place to the core principle of the law of jurisdiction: the principle of territoriality. While use of territoriality to capture the extraterritorial may seem somewhat incongruous, as Rajkovic has pointed out, that ‘territorial boundaries have been always, to varying degrees, in temporal flux.’ Hence, the newly minted concept of ‘territorial extension’, which has played a prominent role in this monograph, may not be a conceptual revolution in the law of jurisdiction. Still,  it does point to an expanding state praxis of states formally relying on territoriality to – in fact – reach beyond state borders.

Also to roll out a cosmopolitan agenda, the principle of territoriality has been the primary jurisdictional gateway. To be true, universality – which is triggered by the gravity of an offence rather than a (territorial) connection to the regulating state – is well-known in the law of jurisdiction, but it only has purchase in respect of a limited number of offences, and arguably only in the field of criminal law. This renders universality, as it is currently understood, ill-suited to address the range of global governance challenges confronting humanity, eg climate change, unsustainable fishing practices, or corporate human rights abuses. Territoriality then emerges as an unlikely savior for the cosmopolitan project, as its capaciousness allows states to ‘territorialize the extraterritorial’ and contribute to the realization of global justice.

There are many instances of states using a territorial hook to address essentially extraterritorial activities, both historic and more recent ones. Some of these jurisdictional assertions have a cosmopolitan dimension, in that they have the realization of global justice as their goal (deontological cosmopolitanism), or as their effect (consequentialist cosmopolitanism). In the field of criminal law, where the origins of the international law of jurisdiction lie, the long-standing ubiquity principle has enabled states to exercise territorial jurisdiction over the whole of an offence as soon as a constituent element could be located on the territory. The seminal idea that it suffices for an element of a particular offense or event to be linked to the territory for territorial jurisdiction to be validly exercised, has cast a long shadow. It has paved the way for a host of jurisdictional assertions that rely on tenuous, artificial or even fictitious territorial connections, assertions which may also serve the common interest. In the monograph I explain how territoriality has been creatively used in such diverse areas as the environment, fisheries, business and human rights litigation, and data protection, to further (sometimes only nascent) global values and common interests.

This area analysis is by no means exhaustive. Also, in other areas, which are not addressed in detail in the monograph, has territoriality been similarly instrumentalized, such as competition law, foreign corrupt practices, and secondary sanctions legislation.  In the field of competition law, US and European courts have exercised jurisdiction over foreign-origin restrictive practices that are implemented or have direct, substantial, and reasonably foreseeable anti-competitive effects on the territory. While this effects jurisdiction has traditionally been relied upon to protect the national economy, wider goals such as boosting global deterrence of anti-competitive conduct and increasing global welfare for both domestic and foreign consumers have been propounded and arguably pursued. Also as regards enforcement of foreign corrupt practices and economic sanctions legislation, which could be considered cosmopolitan insofar as this contributes to the stamping out of global corrupt practices blighting the developmental prospects of foreign populations, or to clamping down on commercial transactions with regimes violating human rights or threatening international security, have courts, especially US courts, given wide interpretations to territoriality. All this speaks to the enduring attractiveness of territoriality to address transnational and global challenges.

Territoriality and the Common Interest

In themselves, some territorial connections may be too tenuous to support successful reliance on the territoriality principle. After all, the permissive principles of jurisdiction should be interpreted in light of the substantial connection requirement undergirding the law of jurisdiction. However, one of the main arguments in this monograph is that the legality of jurisdictional assertions resting on weak territorial links may be boosted by these assertions’ very contribution to the common interest, and preferably by their embeddedness in, or relationship with international regulatory instruments. Thus, trade restrictions aimed at tackling climate change may derive their jurisdictional legality from their contribution to the goals of the Paris Climate Agreement, regardless of the diffuse character of the effects which emissions tend to have on the territory of the regulating state. By the same token, the insertion of an unqualified territorial principle in the UN Convention against Corruption and the OECD Convention against Bribery may give international backing for wide interpretations of the principle by Contracting Parties; the nature of corruption as a global scourge may compensate for the weak territorial link which certain foreign practices may have.

It could even be argued that, from a normative perspective, territoriality should more often, and more expansively be relied on when it comes to global values and common interests, in order to prevent that no state’s law applies. As it happens, some conventions require that states exercise territorial jurisdiction, not only in the field of core international crimes (eg torture), but also as regards transnational offences such as corruption. The Port State Measures Agreement, for its part, requires that states deny entry or privileges to visiting foreign-flagged vessels which engaged in IUU fishing. Also human rights treaties or fundamental rights instruments may mandate that states exercise their jurisdiction more vigorously. The human right to a remedy may require state courts to give a liberal interpretation to principles of adjudicatory jurisdiction, such as the principles of domicile, connected claims, or forum of necessity (all of which can be considered as variations of territoriality), so that victims of (corporate) human rights abuses have their day in court, even if they sustained harm outside the territory. In the same vein, the nature of data protection as a fundamental right in the EU exerts pressure on EU regulators and courts to give wide interpretations to territorial jurisdiction with a view to safeguarding the rights of EU residents.

Conversely, expansive jurisdictional assertions which do not further widely recognized common interests may, in the absence of a strong nexus with the regulating state, be more difficult to justify. For instance, the US imposition of ‘secondary’ sanctions on non-US persons engaging in commercial transactions with non-US sanctioned entities may well violate the law of jurisdiction, as the territorial or personal nexus of sanctions with the US is typically very tenuous, and such sanctions may not give effect to an international consensus on the harmful activities of the sanctioned entity. Also, expansive assertions of effects-based jurisdiction in the field of competition (antitrust) law may be problematic, insofar as such assertions are based on weak territorial connections, and insofar as an international agreement on the illegality of particular anti-competitive practices remains elusive. Jurisdictional assertions that are not based on a strong nexus to the state and do not build on international instruments recognizing particular values and common interests are likely to unjustifiably intrude on the policy space of other states and violate the principle of non-intervention.

This is not to say, however, that jurisdictional assertions of which the object is internationally recognized, pass muster with the law of jurisdiction as soon as some territorial link can be discerned, however tenuous. To prevent that territorial jurisdiction degenerates into connectionless universal jurisdiction, a quantum of (territorial) connection may still be required. This may prevent the eruption of international conflict, and the wasting of precious domestic resources. In light of loss of territoriality in an era of economic globalization and of revolutions in communication technology, the quest for this required quantum under customary international law in still on-going.

Efforts at restricting the reach of territoriality speak to a desire to safeguard the traditional role of the principle of territoriality as a principle of jurisdictional order rather than justice. In its original Westphalian incarnation, territoriality aims at delimiting spheres of competence and preventing undue intervention in other states’ affairs. As the limits of territoriality are pushed to almost breaking point in order to address global and transnational challenges, some pushback against overly loose interpretations which undermine the principle’s function as competence-delimitator is expected. At the same time, precisely because of the poor fit of the concept of territoriality and the reality of global challenges, more revolutionary jurisdictional thinking no longer focuses on territoriality as the main jurisdictional linchpin, but instead suggests reliance on other connections to the regulating state, or on the goals of regulatory intervention. As regards connections, scholars of global legal pluralism have urged increased attention to personal or community connections, whereas others have emphasized the substantiality of connections mitigated by the principle of reasonableness. Especially in the context of access to data in the ‘extraterritorial cloud’, multiple, technology-driven connecting criteria have been proposed. Yet others have advanced a broad construction of the national interest as the jurisdictional trigger, or suggested conceiving of cosmopolitan jurisdiction as a form of functional jurisdiction, the exercise of which is, in given circumstances, justified by its furthering of the common interest. At the far end of the spectrum, the link between jurisdiction and the state has been abandoned altogether, and jurisdictional empowerment of private actors in a transnational legal space has been mooted.

It is appropriate to observe, finally, that no scheme of jurisdictional (al-)location is ever politically neutral. All schemes have important distributive effects, in that it may further the interests of one actor (eg a multinational corporation) to the detriment of those of another (eg victims of human rights abuses).

Limitations

However the exercise of state jurisdiction in the common interest is doctrinally conceived (as a form of territorial, community, functional, or universal jurisdiction), care should be taken to prevent jurisdictional overreach and imperial imposition. After all, such jurisdiction is enacted unilaterally by individual states or regional organizations, even if the common interest which is (supposedly) served is international in nature. Unilateral action carries the risk that the regulating state imposes its own value conceptions and furthers its own interests, thereby impinging on foreign persons’ right to self-government. To limit this risk, in the monograph I suggest a number of techniques of restraint, such as allowing foreign affected states, communities and persons a voice in the design and enforcement of regulation with extraterritorial effect, recognition of equivalent foreign regulation, and compensation of affected persons and entities. These techniques of jurisdictional reasonableness discipline unilateralism and increase its legitimacy as a tool to further the common interest in the absence of adequate multilateral or host state regulation and enforcement.

Techniques of restraint should however not be interpreted too strictly lest states prove unwilling to exercise their jurisdiction. Bearing in mind that global public goods tend to be underprovided because of free-riding, the risk of normative conflicts among states should not be inflated. Thus, states should be offered sufficient jurisdictional leeway to assume their responsibility in respect of the common interest. To give just one example, international comity-inspired principles of adjudicatory jurisdiction may be in need of an overhaul, or at least a more liberal interpretation, so that they can be more effectively relied on to deliver justice for individuals suffering extraterritorial human rights abuses.

Selfless Intervention and the National Interest

In spite of the title of the monograph, ultimately, selfless intervention remains somewhat of a mirage. As I argue in the monograph, states are unlikely to exercise jurisdiction in the common interest if it is not also somehow in their own interests. In this respect, states may consider the existence of a jurisdictional connection as a proxy for the existence of an interest, so that framing extraterritorial as territorial conduct (‘territorializing the extraterritorial’) may have enforcement advantages. In practice, however, especially in the social, economic and environmental fields, a domestic rule integrity logic tends to inform common interest-oriented unilateralism. The danger of foreign regulatory leakage as a result of strict domestic regulation serving common interests (eg addressing climate change, combating foreign corrupt practices, protecting data) more or less compels first-moving states to extend their regulation extraterritorially. In so doing, states pursue prima facie parochial interests (safeguarding the competitive opportunities of their own businesses) alongside common interests.

In the field of human rights and international crimes, a less selfish justice logic may be expected, but also there, extra-legal incentives may be required before states exercise their jurisdiction. For instance, Germany’s vigorous prosecution of Syrian war criminals, mainly under the universality principle, may be informed by the presence of a large number of Syrian refugees, whose integration in Germany might be furthered in case their torturers (some of whom have posed as refugees themselves) are brought to justice. Alternatively, a state’s exercise of jurisdiction over gross human rights violations could be informed by a desire to brandish its liberal values and to set itself apart from an amoral world dominated by Realpolitik.

Concluding Observations: Unilateralism as Global Governance

Faced with governance deficits at international and national levels, third states’ exercise of unilateral jurisdiction has its rightful place in the international legal order, as third state legal prescription and adjudication may well be the only means to safeguard common interests. Therefore, states’ extensions of national laws into the global sphere can promote world order and justice. However, safety valves should be provided to ensure that such jurisdiction, as a tool of global governance, is exercised responsibly and reasonably. Ideally, unilateral jurisdiction with extraterritorial effects is just a temporary means of providing protection and justice. It should not displace multilateral and foreign regulation and enforcement, but rather emphasize the latter’s urgency. Obviously, this regulation and enforcement are likely to mirror the preferences of powerful first-moving states, who may only be willing to forego their unilateralism provided that international and foreign norms and practices approximate their own. Such ‘contingent unilateralism’ should not be considered as holding the multilateral process hostage, but rather as a welcome tool to overcome the tyranny of consent and address its anti-commons streak.

The topic of Brexit has been in the hearts and minds of private international lawyers ever since the Brexit referendum.

However, for reasons that are unknown, it did not make it onto the agenda of the UK-EU negotiations about a free trade agreement. The agreement that was eventually adopted in late December 2020, therefore, does not contain any substantive provisions dealing with the future EU-UK relationship in the field of judicial cooperation in civil matters (despite a confusing reference in the press release of the European Commission).

Since 1 January 2021 we are, therefore, back to “square one”, i.e. a patchwork of national, (retained) European and international law which will make the resolution of cross-border disputes more complex.

The European Association of Private International Law (EAPIL) took this (foreseeable) finding as an occasion to devote its first Virtual Seminar to the future EU-UK relationship in private international law. It gave six renowned speakers from the EU and Continental Europe occasion to present their views on the state of affairs, including the question of whether the EU and the Uk should strive for conclusion of a bespoke bilateral agreement.

The Seminar lasted roughly two hours and was attended by almost 120 academics and practitioners from all over Europe (and beyond). It more than showed that there are no easy solutions for the problems that Brexit has created – and that Brexit will be a source for discussion for years to come.

If you were not able to join us for the Seminar (or if you want to refresh your memory) you may now (re-) read some of the speakers’ statement on the EAPIL website. Just follow this link. Happy reading!

Maria Campo Comba just published a book titled: “The Law Applicable to Cross-border Contracts involving Weaker Parties in EU Private International Law” with Springer.  The abstract reads as follows:

This book provides answers to the following questions: how do traditional principles of private international law relate to the requirements of the internal market for the realisation of the EU’s objectives regarding the protection of weaker parties such as consumers and employees? When and how should private international law ensure the applicability of EU directives concerning the protection of weaker parties? Are the EU’s current private international law, rules on conflict of laws, and private international law approach sufficient to ensure the realisation of its objectives regarding weaker contracting parties, or is a different approach to private international law called for? The book concludes with several proposed amendments, mainly regarding the Rome I Regulation on the law applicable to contractual obligations, as well as suggestions on the EU’s current approach to private international law. 

This book is primarily intended for an academic audience and to help achieve better regulation in the future. It also seeks to dispel certain lingering doubts regarding the current practice of EU private international law.

 

More information on the book can be found here

TRW Ltd v Panasonic Industry Europe GmbH & Anor [2021] EWHC 19 (TCC)  adds to the slowly developing case-law on Article 34 Brussels Ia’s forum non conveniens light, on which I have reported at each occasion the Article to my knowledge has been applied (most recently in Ness Global Services).

The defendant Panasonic companies are based in Germany. Panasonic’s Group headquarters are in Japan. TRW is the English subsidiary, based in Solihull, of a German group of companies, ZF Group. The defendants say the parties agreed to German law and exclusive jurisdiction of the Hamburg court over any claim by TRW arising from supply of the resistors. TRW says the parties agreed to English law and jurisdiction.

There are related proceedings in Michigan, with judgment expected in about April 2021.

Kerr J decides at 55 ff here was valid A25 choice of court and hence jurisdiction for the courts at Hamburg, following the usual discussion on whether and if so which choice of court has been agreed in to and fro messages, purchase orders, invoices, references to general terms and conditions and the like. The kind of housekeeping complications which I discuss ia here.

Then follows obiter the Article 34 discussion. Parties agree that if jurisdiction under A25 BIa is established by neither party, TRW was at liberty to sue in England as the place of delivery of the goods, under A7(1) BIa; and that for A34 purposes there is a related lis alibi pendens in Michigan. The discussion turned on whether the word “expedient” in A34(1)(a) bears the meaning “desirable, even if not practicable” or “both practicable and desirable”, given the inconsistent case-law in JSC Commercial Privatbank v. Kolomoisky, SCOR v Barclays, Municipio de Mariana,  Federal Republic of Nigeria v. Royal Dutch Shell plc. and of course  EuroEco.

At 94 Kerr J seems to side with Kolomoisky and with not reading EuroEco as a rejection of same, however he does not take definitive sides or does not attempt to reconcile the judgments. At 95 he says he would have not exercised his discretion for a stay, for the reasons earlier listed by counsel for claimants: these were (at 92-93)

Mr Caplan strongly opposed any stay. He submitted that, assuming I have any discretion to grant a stay (contrary to his reserved position), I should not exercise it. The risk of irreconcilable judgments could not be eliminated, he argued. The Michigan case would shortly produce a judgment binding on neither party to the present claim and, probably, applying Michigan law.

There was no scope for issue estoppel or abuse of process because the parties were different and the law could be different. Neither party in this case had opted for Michigan as the chosen forum and Michigan law as the choice of law. If the outcome of the Michigan litigation helped to promote settlement of the present claim, that could happen anyway, without a stay, since this claim is still at an early stage; the first case management conference has yet to take place.

At 98 Kerr J summarises

I would refuse a stay. The first condition in article 34(1)(a) – the expediency condition – may well be met, subject to clarification of the test emerging from the case law. The second condition is met. The third is not. I am far from satisfied that a stay is necessary for the proper administration of justice.

Kerr J concludes at 99

defendants have undertaken to submit to the jurisdiction of the Hamburg court, subject to seeking a stay of proceedings in Hamburg to await the outcome of the Michigan proceedings.

The Hamburg court is likely to see A34 arguments return, lest of course the Michigan proceedings will be concluded, in which case res judicata, recognition, and irreconcilability of judgment might be a core concern.

We have fairly little, if growing (*makes a note to now really really finish that paper*) authority to work with on A34. All bits help.

Geert.

European Private International, 3rd ed. 2021, Heading 2.2.15.3.2, para 2.539 ff

Jurisdiction dismissed on the basis of A25 BIa choice of court. A7 and A34 forum non conveniens light considered obiter (A34 stay dismissed).
Hamburg court is likely to have to entertain the A34 arguments. https://t.co/dwAbpXLGun

— Geert Van Calster (@GAVClaw) January 8, 2021

Just before Christmas the Court of Appeal dismissed the appeal in Etihad Airways PJSC v Flother [2020] EWCA Civ 1707. I discussed the High Court judgment here – the only properly discussed issue under appeal (the A25 discussion on the court being ‘seized’ as I noted was not entirely acte clair, either, yet is dealt with in 3 short paras at 89-91 ) is whether Brussels Ia’s Article 31(2) anti-torpedo mechanism applies to so-called asymmetric choice of court.

The High Court focused on not treating such clauses as a whole but rather on the parties’ individual obligations, in terms of jurisdiction, vis-a-vis the specific claim brought. That effectively meant it sidestepped having to rule on whether A31(2) applies to asymmetric choice of court.

Henderson LJ first of all (at 52, following discussion of the Article’s genesis as an antidote to CJEU Gasser) holds that A31(2) (ia because of the use of ‘without prejudice’ to A31(2) in A29) is not to be construed narrowly as being an exception to A29 and (at 68, again following discussion of the authorities) that the guiding rule for the application  of A31(2) must be party autonomy. At 73 he points out that the fundamental difficulty with the opposite conclusion is that on a narrow construction of Article 31(2), the job of rendering the torpedo harmless, was left only half done.  That may be so – however I am still not convinced. It might not have reached the judgment however I think more analysis (including linguistically) could  have been of the wording of ‘exclusive’ and ‘the proceedings’, for instance. Given BIa’s DNA I do not think it is the Member States courts’ place to finish the job if clear statutory language has left it hanging. A31(2) most certainly is not the only place in BIa where intentions expressed in the travaux are not completely reflected in the final law’s provisions.

At 82 ff the discussion, equally obiter as at the High Court, turns to the Hague Convention, which has of course increased in relevance following the no-deal Brexit for judicial co-operation. Justifiably Henderson LJ suggests obiter that there is no instruction at all to apply BIa and the Hague in conformity with each other, and that the Hague neither applies to non-exclusive choice of court nor has any A29 BIa-type lis pendens rule.

The request for a CJEU reference is dismissed, with at 94 reference in support to other Member States’ courts not having done so, either.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.10.5, para 2.343 in particular.

 

Appeal (dismissed) judgment re [2019] EWHC 3107 (Comm) which I review here https://t.co/REAZQBHVYr
Held ia acte clair that A31(2) BIA applies to asymmetric choice of court (on which no #CJEU authority exists). Refers to judgments in other MSs in support. https://t.co/qAzQeVBeyh

— Geert Van Calster (@GAVClaw) December 18, 2020

The right of children to receive adequate information in civil proceedings involving them represents a cornerstone of child participation, as well as a fundamental right of the child. The contact of children with the judicial system represents one of the most delicate situations where the child’s best interests and wellbeing should be of special attention. In particular, the child should receive information before, during and after the judicial proceedings, in order to have a better understanding of the situation and to be prepared either for his or her audition by the judicial authority, or for the final decision that will be taken. This aspect – as an important component of the child’s fundamental rights – should acquire (and is acquiring) importance also within the European Union, more and more oriented towards the creation of a child-friendly justice. It is a current reality that the implementation of the fundamental rights of the child influences the correct application of the EU instruments in the field of judicial cooperation in civil matters.

However, the transposition of the principles and standards set at the international and regional level are not always easy to implement at the local level: despite the acknowledgement that the availability and accessibility of information is the crucial starting point for a child-friendly justice, more efforts are still to be done to effectively grant this right. International standards need to find their way into policies, legislation and daily practice.

The MiRI project (co-funded by the European Union Justice Programme 2014-2020, JUST-JCOO-AG-2018 JUST 83160) is undertaking a research on seven member States on children’s right to information in cross-border civil proceedings. The project consortium wishes to invite researchers in the field of private international family law to submit abstracts for an upcoming edited volume on the topic.

The abstract should focus on one or more of the following topics:

• The right of the child to receive adequate information in civil proceedings (such as parental responsibility, international child abduction, maintenance, etc.) as an autonomous and fundamental right: the reconstruction of rules, principles and standards of international law.
• The fundamental rights of the child in the European Union: the autonomous relevance of the right of the child to be informed in civil proceedings concerning him or her and its relevance for the creation of a EU child-friendly justice.
• The relevance of children’s right to information for the EU instruments in the field of judicial cooperation in civil matters (such as Regulation EC No. 2201/2003 and its recast Regulation EU No. 2019/1111, with reference to parental responsibility and international child abduction; Regulation EC No. 4/2009): how international human rights standards should influence the correct application of the aforementioned instruments? Are there common best practices in this regard among EU member States? What should be done in order to build those common best practices?
• Rules, case law and practices currently existing in EU member States as concerns the fundamental right of the child to be informed in civil proceedings.

Abstracts should be no longer than 500 words and should be submitted by 15th March 2021 to francesca.maoli@edu.unige.it

The selection criteria will be based 1) on the relevance of the analysis in the field of EU judicial cooperation in civil matters, 2) quality of the contribution and 3) its originality. Those whose abstract will be accepted, will be notified by 30th March 2021 and will be asked to submit the full draft of the chapter (approx. between 8000-12000 words) by 30th June 2021.

Contributions will be subject to blind peer-review prior publishing. Selected authors will also be invited to present their findings during the final conference of the MiRI project in June-July 2021. More information about this event will be distributed after acceptance of the abstract.

Massimo Benedettelli (University of Bari) is the author of International Arbitration in Italy, which has just been published by Wolters Kluwer.

International Arbitration in Italy is the first commentary on international arbitration in Italy ever written in English. Since centuries, arbitrating cross-border business disputes has been common practice in Italy, which makes the Italian arbitration law and jurisprudence expansive and sophisticated. Italian courts have already rendered thousands of judgments addressing complex problems hidden in the regulation of arbitration. Italian jurists have been among the outstanding members of the international arbitration community, starting from when, back in 1958, Professor Eugenio Minoli was among the promoters of the New York Convention. Italy being the third-largest economy in the European Union and the eighth-largest economy by nominal GDP in the world, it also comes as no surprise that Italian companies, and foreign companies with respect to the business they do in the Italian market, are among the leading ‘users’ of international arbitration, nor that Italy is part to a network of more than 80 treaties aimed to protect inbound and outbound foreign direct investments and being the ground for investment arbitration cases. Moreover, in recent years, Italy has risen to prominence as a neutral arbitral seat, in particular for the settlement of ‘intra-Mediterranean’ disputes, also thanks to the reputation acquired by the Milan Chamber of Arbitration which has become one of the main European arbitral institutions.  

More information available here.