Droit international général

Written by Xandra Kramer (Erasmus University Rotterdam/Utrecht University) & Eduardo Silva de Freitas (Erasmus University Rotterdam), members of the Vici project Affordable Access to Justice, financed by the Dutch Research Council (NWO), www.euciviljustice.eu.

Introduction

We have reported on the Dutch WAMCA procedure for collective actions in a number of previous blogposts. This collective action procedure was introduced on 1 January 2020, enabling claims for damages, and has since resulted in a stream of (interim) judgments addressing different aspects in the preliminary stages of the procedure. This includes questions on the admissibility and funding requirements, some of which are also of importance as examples for the rolling out of the Representative Action Directive for consumers in other Member States. It also poses very interesting questions of private international law, as in particular the collective actions for damages against tech giants are usually international cases. We refer in particular to earlier blogposts on international jurisdiction in the privacy case against TikTok and the referral to the CJEU regarding international jurisdiction under the Brussels I-bis Regulation in the competition case against Apple.

In this blogpost we focus on two follow-up interim judgments: one in the collective action against TikTok entities and the other against Google. The latter case is being discussed due to its striking similarity to the case against Apple.

The next steps in the TikTok collective action

The collective action against TikTok that was brought before the Amsterdam District Court under the Dutch WAMCA in 2021. Three representative organisations brought the claim against seven TikTok entities located in different countries, on the basis of violation of the Code of Conduct of the Dutch Media Act and the EU General Data Protection Regulation (GDPR). The series of claims include, among others, the destruction of unlawfully obtained personal data, the implementation of an effective system for age registration, parental permission and control, measures to ensure compliance with the Dutch Media Act and the GDPR as well as the compensation of material and immaterial damages.

In an earlier blogpost we reported that the Amsterdam District Court ruled that it had international jurisdiction under the Brussels I-bis Regulation and the GDPR. In the follow-up of this case, the court reviewed the admissibility requirements, one of which concerns the funding and securing that there is not conflict of interest (see Tzankova and Kramer, 2021). This has led to another interim judgment focusing on the assessment of the third party funding agreement as two out of the three claimant organisations had concluded such agreement, as reported on this blog here. In short, the court conditioned the admissibility of the representative claimant organisations on amendments of the agreement with the commercial funder due to concerns related to the control of the procedure and the potential excessiveness of the fee. The court provided as a guideline that the percentage should be determined in such a way that it is expected that, in total, the financers can receive a maximum of five times the amount invested.

On 10 January 2024 the latest interim judgment was rendered. Without providing further details the Amsterdam District Court concluded that the required adjustments to the funding agreement had been made and that the clauses that had raised concern had been deleted or amended. It considered that the independence of the claimants in taking procedural decisions was sufficiently guaranteed. The court declared the representative organisations admissible, appointing two of them as Exclusive Representative (one for minors and the other for adults) based on their experience, the number of represented people they represent, their collaboration and support. The court confirmed its statement made in a previous interim judgment that the claim for immaterial damages is inadmissible as that would require an assessment per victim, which it considered impossible in a collective action. This is admittedly a setback for the collective protection of privacy rights, notably similar to the one following the 2021 United Kingdom Supreme Court ruling in Lloyd v Google.

With this last interim judgment the preliminary hurdles have been overcome, and the court proceeded to provide further guidelines as to the opt-out and opt-in as the next step. The WAMCA is an opt-out procedure, but to foreign parties in principle an opt-in regime applies. The collective action was aimed representing people in the Netherlands, but was extended to people who have moved abroad during the procedure, and these are under the opt-in rule. The information on opt-out and opt-in will be widely published.

It remains to be seen how the case will progress considering the further procedural decisions and the assessment on the merits.

The claim against Google and its private international law implications

Another case with an international dimension is the collective action for damages against Google that was filed under the WAMCA, alleging anticompetitive practices concerning the handling of the app store (DC Amsterdam, 27 December 2023, ECLI:NL:RBAMS:2023:8425; in Dutch). This development comes amidst a landscape marked by high-profile antitrust collective actions with international dimensions, such as the one filed against Apple, in which there is an ongoing legal battle regarding Apple’s alleged anticompetitive behavior in the market for app distribution and in-app products on iOS devices. Cases like these are either pending before courts or under investigation by competition authorities worldwide, reflecting a broader global trend towards increased scrutiny of antitrust practices in the digital marketplace.

In the present case, the claimant organisation argues that the anticompetitive nature of Google’s business stems from a collection of practices rather than an isolated practice. Such a collection of practices would shield Google from nearly all possible competition and allow it to charge excessive fees due to its dominance in the market. The practices that, taken together, form this anticompetitive behaviour are essentially:

(i) The bundling of pre-installed apps, including Google’s Play Store, with the licensing of the Android operating system to the manufacturers of smartphones;

(ii) The imposition that transactions related to the Play Store be undertaken only within Google’s own payment system;

(iii) The charging of a fee of 30% from the app’s developer, which the claimant organisation deems abusive and only possible due to Google’s dominant position created by the abovementioned practices.

Based on these allegations, the claimant organisation accuses Google of engaging in mutually exclusive and exploitative practices, thereby abusing a dominant position in a manner contrary to Article 102 TFEU. This case unfolds within a broader global context where antitrust actions against Google’s Play Store, its payment system, and the bundling with the Android operating system have gained significant momentum. Just last December, Google reached a settlement in a multidistrict litigation involving all 50 states of the United States, the District of Columbia, Puerto Rico, and the Virgin Islands. The settlement addressed issues very similar to those raised in this case, as explicitly outlined in the agreement. The Competition and Markets Authority in the United Kingdom is also conducting an antitrust investigation into these aspects of Google’s operations. Furthermore, the practice of pre-installing Google apps as a requirement for obtaining a license to use their app store is under investigation by the Brazilian Competition Authority.

From a private international law perspective, this case closely resembles another one against Apple referred to the CJEU by the District Court of Amsterdam and discussed earlier in this blog, in which similar antitrust claims were raised due to the handling of the app store and the exclusionary design of the respective payment system. However, unlike the collective action against Apple, in this case the District Court of Amsterdam clearly did not refer the case to the CJEU and instead decided by itself whether it had jurisdiction to hear the claim. And again, like the Apple case, the court was called upon to decide on both international jurisdiction and its territorial jurisdiction within the Netherlands.

International jurisdiction

The collective action under the Dutch WAMCA in the Google case was filed against a total of eight defendants. Two of the defendants (Google Netherlands B.V. and Google Netherlands Holdings B.V.) against whom the claim was filed are established in the Netherlands, and for them the standard rule of Article 4 Brussels I-bis Regulation applies. There are also three other defendants (Google Ireland Limited, Google Commerce Limited, and Google Payment Ireland Limited) established in another EU Member State, namely Ireland. With regards to these defendants, the court also assessed whether it had jurisdiction based on the Brussels I-bis Regulation. Finally, there are three defendants based outside of the EU – Alphabet Inc. and Google LLC in the United States and Google Payment Limited in the United Kingdom. Jurisdiction with regards to these defendants based outside of the EU was established under the pertinent rules contained in the Dutch Code of Civil Procedure (DCCP).

The court initiated its assessment by recognizing that, due to the lack of jurisdiction rules specifically addressing collective actions in both the Brussels I-bis Regulation and the Dutch Code of Civil Procedure, the standard rules within these frameworks should be applied. The court’s reasoning was based on the established principle that no differentiation exists between individual and collective actions when determining jurisdiction. The court primarily conducted its assessment regarding whether the Netherlands could be considered the Erfolgsort under Article 7(2) of the Brussels I-bis Regulation, mostly ex officio, as this was not a point of contention between the parties.

The court’s view is that the criteria from Case C-27/17 flyLAL-Lithuanian Airlines (ECLI:EU:C:2018:533) should be applied, according to which the location of the market affected by the anticompetitive practice is the Erfolgsort. The location of the damage is where the initial and direct harm occurred, which primarily involves users overpaying for purchases made on the Play Store. In the present case the court, applying such criteria, decided that the Netherlands can be considered the Erfolgsort, given that the claimant organisation represents users that make purchases and reside in the Netherlands. This reasoning is very similar to the one used by the District Court of Amsterdam in deciding to refer the Apple case to the CJEU.

Territorial jurisdiction within the Netherlands

With regards to the jurisdiction of the District Court of Amsterdam to hear this collective action in which the claimant organisation sues on behalf of all the users residing in the Netherlands, the decision contains an assessment starting from the CJEU ruling in Case C-30/20 Volvo (ECLI:EU:C:2021:604). Such ruling states that Article 7(2) Brussels I-bis Regulation grants jurisdiction over claims for damages due to infringement of Article 101 TFEU to the court where the goods were purchased. If purchases were made in multiple locations, jurisdiction lies with the court where the alleged victim’s registered office is located.

In the case at hand, given the mobile nature of the purchases, it is not possible to pinpoint a specific location. However, under the criteria just mentioned, the District Court of Amsterdam has jurisdiction over the victims’ registered offices for those residing in Amsterdam in accordance with both Article 7(2) Brussels I-bis Regulation (Google Ireland Limited, Google Commerce Limited, and Google Payment Ireland Limited) and the similar provision in Article 102 DCCP (Alphabet Inc., Google LLC, and Google Payment Limited).

For users residing elsewhere in the Netherlands, the parties agreed that the District Court of Amsterdam would serve as the chosen forum for users who are not based in Amsterdam. The court decided that, with regards to Alphabet Inc., Google LLC, and Google Payment Limited, this is possible under Article 108(1) DCCP on choice of court. As to Google Ireland Limited, Google Commerce Limited, and Google Payment Ireland Limited, the court interpreted Article 7(2) Brussels I-bis Regulation in light of the principle of party autonomy (see Kramer and Themeli, 2016) as enshrined in Recitals 15 and 19, as well as Article 25 Brussels I-bis Regulation. The court also noted that no issues concerning exclusive jurisdiction arise in the present case and made a reference to the rule contained in Article 19(1) Brussels I-bis Regulation according to which the protective rule of Article 18 Brussels I-bis Regulation can be set aside by mutual agreement during pending proceedings.

Finally, the court decided that centralising this claim under its jurisdiction is justified under the principle of sound administration of justice and the prevention of parallel proceedings. In the court’s understanding, the goal of Article 7 Brussels I-bis Regulation is to place the claim before the court that is better suited to process it given the connection between the two and, given that the mobile nature of the purchases gives rise to damages all over the Netherlands, such a court would be difficult to designate. Hence the need for respecting the choice of court agreement.

Applicable law

The court established the law applicable to the present dispute under Article 6(3)(a) Rome II Regulation. The court used the same reasoning it had laid out to establish jurisdiction in the Netherlands as the Erfolgsort, since it is the market affected by the alleged anticompetitive practices where the users concerned reside and made their purchases. The court also considered the claimant organization’s argument that, according to Article 10(1) of the Rome II Regulation, the Dutch law of unjust enrichment could govern the claim. Although the court did not provide extensive elaboration, it agreed with this view.

Funding aspects of the claim against Google

Lastly, in a naturally similar way as regarding the TikTok claim explained above, the court assessed the funding arrangements of the claim against Google under the requirements set by the WAMCA. The court took issue with the fact that the funding arrangement entered by the claimant organisation is somewhat indirect, since it is apparent that the funder itself relies on another funder which is not a part of the agreement presented to the court. Under these circumstances, the court deems itself unable to properly assess the claimant organisation’s independence from the “actual” funder and its relationship with the remuneration structure.

For this reason, the court ordered the claimant organisation to resubmit the agreement, which it is allowed to do in two versions. One version of the agreement will be presented in full and will be available to the court only, to assess it in its entirety. The other version, also available to Google, will have the parts concerning the overall budget for the claim concealed. However, the parts concerning the funder’s compensation share must remain legible for discussion around the organisation’s independence from the funder, and confirmation that such agreement reflects the whole funding arrangement of the claim was also required.

I am currently trying to have the Leuven conflict of laws students appreciate Article 7(1) Brussels Ia’s looking over the fence aka conflicts method. On Thursday we shall be reviewing CJEU Tessili v Dunlop and I wonder how many of the students will have seen this post (I am guessing perhaps 2 or 3 out of the 540 in class) for it might help them appreciate the exercise.

For contracts not caught by one of the passe-partout contracts listed in Article 7(1)b, per inter alia Jaaskinen AG (as he then was) in Cormans Collins, the CJEU Tessili v Dunlop formula still applies:  in the 4th ed of the Handbook 4.424 I put it like this

“For each specific obligation (later, as noted, subject to the Shenavai ‘principal obligation’ correction) the court(s) seised would establish ‘place of performance’ and hence jurisdiction on the basis of its own, residual private international law rules for applicable law. It applies its choice of law rules to determine which law governs the contract, and then uses that law to specify the place of performance, ultimately ruling whether it itself has or does not have jurisdiction, or has jurisdiction over only part of the claims. This is referred to as the ‘conflicts (of laws)’ method for deciding jurisdiction, also known as ‘looking over the fence’, seeing as the court looks over the fence between jurisdiction and applicable law in order to decide jurisdiction on the basis of applicable law. Per Tessili v Dunlop (para 13):

[the national court] must determine in accordance with its own rules of conflict of laws what is the law applicable to the legal relationship in question and define in accordance with that law the place of performance of the contractual obligation in question.

Prior to the 1980 Rome Convention, later the Rome I Regulation (see chapter three on applicable law for contracts), there was no harmonisation on deciding applicable law for contracts. This meant that, depending on which court is seised, the result of the looking over the fence exercise could and did have very different outcomes. (Even the Rome I Regulation, however (even more so under the Rome Convention), has gaps in its harmonising approach to the applicable law identification exercise, as I discuss in chapter three.)”

In current case, the agreement is one for the loan of a sum of money between a father and a son, albeit for an interest rate of 5% pa. Repayment of amounts due is now being pursued by a sibling, following the death of the father.

While loan agreements in the professional context arguably are services within A7(1)(b), in a family or friendship context arguably they are not. The Dutch court in current case [2.8] without expressing the family context issue follows Butcher J in Winslet & Ors v Gisel [2021] EWHC 1308 (Comm). As in Winslet, the court here then invited the parties (in an interlocutory judgment) to clarify their position on the conflicts method.

A first stop is Article 3 Rome I because the pursuing sibling argues [2.10] implicit choice of law was made for Dutch law.

The judge further points parties to Article 4(2) (the agreement not being covered by any of the default categories of Article 4(1) Rome I) Rome I’s

Where the contract is not covered by paragraph 1 or where the elements of the contract would be covered by more than one of points (a) to (h) of paragraph 1, the contract shall be governed by the law of the country where the party required to effect the characteristic performance of the contract has his habitual residence.

and holds [2.11] that the characteristic performance in a loan agreement is carried out by the party loaning the sums. Defendant then argues that the father’s habitual residence at the time of the loan was in Sweden, making Swedish law the lex causae and leading to that law having to determine the place of performance for the purposes of A7(1). Claimant argues the father had already moved to The Netherlands.

In the later judgment once the further arguments of parties received, the judge refuses to entertain the question of implicit choice of court, seeing as the validity of a crucial document is uncertain, but does hold that the father was habitually resident in The Netherlands. Under Dutch law, the retained lex contractus, the payment of a sum of money owed to another, needs to be carried out at the creditor’s domicile at the time the payment is due. Claimant’s domicile (like the defendant’s) being in Sweden, that is where the forum solutionis is located.

Fun with conflicts….

Geert.

EU Private International Law, 4th ed. 2024, 2.424.

Gr8 example of looking over the fence, CJEU Tessili v Dunlop to determine forum contractus, loan agreement
Interlocutory ruling inviting parties' arguments on implicit choice of law A3 I and /or default lex contractus A4 Rome I
1st instance Den Haag, X v Y https://t.co/q850EHBjEe

— Geert Van Calster (@GAVClaw) March 12, 2024

The author of this post is Sara De Vido, Associate Professor of International Law at the Ca’ Foscari University of Venice. This post, drawn from a broader article (S. De Vido, ‘The Privatisation of Climate Change Litigation: Current Developments in Conflict of Laws‘ Jus Cogens 6, 65–88 (2024)), explores the promise of ecofeminism as a […]

On 20 and 21 June 2024, Gralf-Peter Calliess and Nicholas Mouttotos (Institute for Commercial Law, University of Bremen) will convene a conference on ‘Informed Consent to Dispute Resolution Dispute Agreements’ in Bremen. They have shared the following announcement with us:

Dispute Resolution Agreements (DRA) are a very special kind of contract. They allow parties to make a choice on the rights (applicable law) and remedies (competent forum, including procedural rules), which govern their relationship. Party autonomy, i.e. the freedom to enter into DRA, enables international merchants to provide for legal certainty and to bargain on the ‘law market’ for the most efficient institutional framework for their transactions. However, where DRA are included in the fine print of standard form contracts with less sophisticated contract parties, the question of legitimacy arises. For instance, where mandatory consumer rights or constitutional rights to a remedy are waived, a higher quality of consent might be required, one that is informed, instead of a simple manifestation of assent to the transaction. However, ‘informed’ consent has been criticized as a legal fiction.

DRA are regulated by diverse instruments on the national, supra-, and international level. Despite their similarities they are rarely discussed in a consistent fashion. The conference convenes leading scholars of private international law, international civil procedure, international arbitration, and standard form contracts from both sides of the Atlantic in an effort to develop a coherent framework.

In addition to the organizers, the conference will feature Symeon C. Symeonides, Daniel D. Barnhizer, Hannah Buxbaum, John F. Coyle, Nikitas Hatzimihail, Nancy S. Kim, Laura Little, Peter McColgan, Marta Pertegás Sender, Frederick Rieländer, Kermit Roosevelt, Stefan Thönissen, Camelia Toader, and Stephen J. Ware as speakers.

Further information can be found here.

A curious judgment has been rendered recently by the highest court of Germany in civil matters. The Federal Court (BGH) considers a long-term rental agreement for an apartment in Germany as a ‘purely domestic matter’ (reiner Binnensachverhalt) – even though it was concluded between a foreign state and one of its nationals, who still had […]

As announced on this blog a few days ago, the website of the European Association of Private International Law has a new look and some new contents. Take a tour of the new website and learn about who we are, what we do, and how members can contribute to the Association’s goals, including by launching […]

This post is written by Guodong Du and Meng Yu and published at China Justice Observer. It is reproduced here by kind permission of the authors. 

 

Key takeaways:

• In September 2023, the Shanghai Third Intermediate People’s Court ruled to recognize the Tokyo District Court’s decision to commence civil rehabilitation proceedings and the order appointing the supervisor ((2021) Hu 03 Xie Wai Ren No.1).
• This marks not only the first time that China has recognized a Japanese court’s decision in a bankruptcy procedure, but also the first time that China has recognized a Japanese judgment.
• The case establishes a legal precedent for cross-border bankruptcy decisions, demonstrating that prior non-recognition patterns between China and Japan in civil and commercial judgments may not apply in such cross-border scenarios.
• While not resolving the broader recognition challenges between the two nations, this acknowledgment sends a positive signal from the Chinese court, hinting at potential future breakthroughs and fostering hope for improved legal cooperation.

This marks not only the first time that China has recognized a Japanese court’s decision in a bankruptcy procedure, but also the first time that China has recognized a Japanese judgment (See the Chinese Court Ruling (2021) Hu 03 Xie Wai Ren No.1 ( (2021)?03???1)).

Related Posts:

• China Recognizes Another German Bankruptcy Judgment in 2023
• How Chinese Judges Recognize Foreign Bankruptcy Judgments
• The First Time Chinese Court Recognizes Singapore Bankruptcy Judgment

The Japanese law firm Nagashima Ohno & Tsunematsu, representing a Japanese company, applied to the Tokyo District Court to initiate civil rehabilitation proceedings (a type of restructuring-type bankruptcy procedure under Japanese bankruptcy law). According to the application, the Tokyo District Court decided to commence civil rehabilitation proceedings and appointed a supervisor to monitor the debtor’s activities.

As the Japanese company had certain assets in Shanghai, to facilitate the smooth progress of the civil rehabilitation proceedings in Japan, the company filed an application with the Shanghai Third Intermediate People’s Court (the “Shanghai Court”), requesting recognition of the Tokyo District Court’s to commence civil rehabilitation proceedings and the order appointing the supervisor. Nagashima Ohno & Tsunematsu provided legal opinions on relevant Japanese laws during the recognition process.

On 6 Sept. 2023, the Shanghai Court made a ruling recognizing the Japanese company’s civil rehabilitation proceedings and the identity of the supervisor, and allowing the supervisor to monitor the company’s self-management of property and business affairs within China under certain conditions.

In reviewing whether there was a reciprocal relationship between China and Japan in recognizing bankruptcy decisions, the Shanghai Court found that:

(1) Both sides have precedents of refusing to recognize each other’s civil and commercial judgments, but these precedents do not necessarily apply to cross-border bankruptcy cases;

(2) According to Japanese laws, there are no legal obstacles to the recognition of Chinese bankruptcy decisions by Japanese courts, which confirms the existence of a reciprocal relationship between China and Japan in the recognition of cross-border bankruptcy cases.

This is the first time that China has recognized a decision made by a Japanese court in bankruptcy proceedings.

China and Japan have been at an impasse regarding the mutual recognition and enforcement of judgments. For more details, please read our earlier post How to Start the Recognition and Enforcement of Court Judgments between China and Japan?.

Related Posts:

• Some Thoughts on the Sino-Japanese Reciprocal Recognition Dilemma in Light of the Recent Developments in the Recognition and Enforcement of Foreign Judgments in China
• How to Start the Recognition and Enforcement of Court Judgments between China and Japan?

According to the Shanghai Court’s statement, this case does not mean that the impasse between China and Japan has been broken, but it does send a positive signal from the Chinese court regarding Japanese judgments. We look forward to further breakthroughs between the two sides.

We have not yet obtained the original text of the judgment made by the Shanghai Court in this case. The above case information is from the website of Fangda Partners, the Chinese law firm representing the Japanese company in this case.

Another case commentary can be found here on the website of the Asian Business Law Institute (ABLI).

Written by Muhammad Zubair Abbasi, Lecturer at School of Law, Oxford Brookes University (mabbasi@brookes.ac.uk)

Introduction:

 

In a recent judgment Tousi v Gaydukova [2024] EWCA Civ 203, the Court of Appeal dealt with the issue of the relevance of foreign law to the remedy available under English law in respect of an overseas ceremony of marriage. Earlier the High Court had held that the foreign law determines not only the validity or invalidity of the ceremony of marriage but also the ramifications of the validity or invalidity of the ceremony. The Court of Appeal disagreed and reiterated the rule that lex loci celebrationis is limited to the determination of the validity or invalidity of the ceremony of marriage. Therefore, English law will apply to provide a remedy or relief upon the breakdown of the relationship of the parties to a marriage ceremony that took place abroad.

In this comment, I argue that the judgment of the Court of Appeal conflates the distinction between the formal recognition of the relationship under the foreign law and the relief available thereto. The judgment of the Court of Appeal does not appreciate this distinction along with the distinction between the void marriage and ‘non-qualifying ceremony’ of marriage, which does not entitle the parties to any remedy or financial relief under the law in England and Wales.

 

The Facts:

The ceremony of marriage between the parties, an Iranian husband and a Ukrainian wife, took place at the Iranian Embassy in Kyiv on 12 December 1997 in the presence of two official witnesses. The marriage was not registered with the state authorities in Ukraine. The parties knew about the requirement of the registration of their marriage for its validity, but the husband refused to cooperate with the wife when she attempted to register the marriage. In 2000, the parties moved to the UK for the husband to study for a PhD. The Home Office granted entry clearance to the wife as the spouse of the husband. In 2010, the parties were granted the tenancy of a property in their joint names, but they separated in December 2019. In April 2020, the wife applied for non-molestation and occupation orders. The court granted a non-molestation order ex parte but refused an occupation order and observed that the wife could apply for the transfer of the tenancy. Therefore, the wife applied for the transfer of tenancy of the former matrimonial home into her sole name.

The wife made the application under section 53 and Schedule 7 of the Family Law Act 1996 which empowers the court to transfer a tenancy to cohabitants. Paragraph 3 of Schedule 7 of the Act authorises the court to make such orders when cohabitants cease to cohabit. It is a curious aspect of this Act, that it puts a cohabitant applicant in a better position than a married applicant, who must wait until the court terminates their marriage, before their application can be heard. The court granted a transfer of tenancy to the wife by regarding her as a cohabitee because the marriage of the parties was not registered under Ukrainian law and hence it was not recognised under English law, not even as a void marriage.

The husband filed an appeal on the ground that the parties had entered into a marriage which was capable of recognition under English law. The wife argued that the court should regard the unregistered marriage as a ‘non-marriage’ which does not entitle the parties even to a nullity order under the Matrimonial Causes Act 1973 (MCA). Mostyn J addressed this single point of appeal in his detailed judgment at the High Court Family Division. He rejected the appeal after holding that the marriage ceremony did not qualify even as a void marriage and therefore, the couple were unmarried cohabitants because Ukrainian law did not recognise their marriage ceremony.

In his judgment, Mostyn J criticised the judicial creation of ‘non-qualifying ceremony’ (NQC) by the Court of Appeal in AG v Akhter and Others [2020] EWCA Civ 122 for its direct conflict with that statute [s. 11 of the MCA 1973]’ which extends financial relief even to void marriages to protect the rights of spouse. In highlighting the impact of the category of the NQC on the legal recognition of foreign marriages under English law, he held that foreign law determines not only the validity of a ceremony of marriage, but also the ramifications of the validity or invalidity of the ceremony.

 

Ruling and Comments:

Earlier, Mostyn J had observed that it is “well established under our rules of private international law that the formal validity of a marriage celebrated overseas (forma) is governed by the lex loci celebrationis” [para 65]. He held that “If the foreign law not only determines the question of validity, but also determines the ramifications of invalidity (if found), then in my judgment that corollary should also be binding, provided that it is not obviously contrary to justice.” [para 68]

At the Court of Appeal, Moylan LJ observed, “The effect of the judge’s approach … was that the relief available under the foreign law should determine … the relief available under English law.” [para 29]. This, according to Moylan LJ was wrong because “the relief available, or not available, is determined by the law governing the dissolution and annulment of marriages, not the law governing the formation of marriages.” [para 35]. In this case however the issue was not related to “the dissolution and annulment of marriages” because both Mostyn J and Moylan LJ agreed that the ceremony of marriage of the parties did not “qualify” as a marriage and hence did not require to be dissolved or annulled because it did not have any legal effect at all. Therefore, the main issue in this case was whether Ukrainian law recognised the marriage ceremony that took place at the Iranian embassy in Kyiv. Both judges found that Ukrainian law did not recognise the marriage ceremony, not even as a void marriage and hence did not provide any remedy or relief.

It is important to note that the judges of the Court of Appeal did not appreciate that there is a third stage between the validity of marriage and relief on breakdown of marriage, and it is the stage of legal recognition or non-recognition of a marriage as valid, void or non-marriage. For instance, in Hudson v Leigh [2009] EWHC 1306, South African law recognised the ceremony as a void marriage; and in Asaad v Kurter [2013] EWHC 3852, the ceremony could be subsequently ratified, but a similar option was not available under Ukrainian law. Ukrainian law however recognised since 2002 a “so-called in-fact marriage relations” which provided the parties with rights and remedies in respect of property acquired during their cohabitation. Similar provisions are available for the transfer of tenancy but not for the provision of other financial relief under English law.

Moylan LJ highlighted that “there is a fundamental distinction between the law governing the formation of marriages and the law governing the dissolution and annulment of marriages. The remedies or relief which might be available under the latter are distinct from former.” [para 73]. This binary distinction however does not cater to the situations where “the law governing the formation of marriages” regards the marriage ceremony as “non-qualifying ceremony” and hence “the law governing the dissolution and annulment of marriages” does not provide any “remedies or relief”. In Hudson v Leigh, the former category of the law regarded the marriage as void and the latter category provided financial relief. In the case at hand, “the law governing the formation of marriages” regarded the marriage ceremony as “non-marriage” and hence “the law governing the dissolution and annulment of marriages” did not apply and could not provide any remedy or relief.

As the category of “non-qualifying ceremony” which was previously described as “non-marriage” is relatively new under English law, the case law is unclear about their treatment especially in cases involving conflict of laws. Mostyn J argued that the category of “non-qualifying ceremony” would be treated under the foreign law as the governing law both for the determination of such ceremonies and their consequent legal ramifications while Moylan LJ has favoured limiting the foreign law to the question of validity or invalidity of marriage ceremonies. I submit that the tension between these two conflicting views can be resolved by appreciating a third stage between the formation and dissolution/annulment of marriage, which is the legal recognition or non-recognition of the marital relationship by taking into account the possibilities of subsequent ratification or registration of marriages. In this way, the governing law of marriage regulates both the formation of the marriage and its subsequent treatment as legally recognised or not while the remedy or relief is determined under lex fori when the relationship breaks down.

 

A call for papers has recently been issued by Michiel Poesen and Patricia Živković (University of Aberdeen), co-convenors of the Society of Legal Scholars Conflict of Laws section, for the Conflicts section of the SLS Annual Conference 2024 at Bristol University from 3 to 4 September 2024. The theme of the conference is Learning from Others: Lessons for Legal Scholars?.

The call is reproduced below, as received by the promoters.

As scholars, we interact with others – students; fellow academics; legal practitioners; the wider public – and the 2024 conference will reflect on the gains we can achieve from such interaction in a global academic environment.  The conference will examine this theme in two ways.  First, as scholars attending the SLS conference, we benefit greatly from meeting colleagues from different backgrounds and disciplines and, notably, from other legal jurisdictions (both within and outside the common law world).  What can we gain from taking an international or comparative perspective to our work?  To what extent do different perspectives, such as socio-legal, interdisciplinary or historical viewpoints, assist our research? Secondly, one of the significant elements of the conference is the inclusion of papers from both junior and senior scholars. What lessons can we gain from each other, both in terms of mentoring and in recognising the need to promote the interests of early career legal scholars and offering support for those entering the academy? No scholar is an island. The SLS provides a positive inclusive environment for legal academics at whatever stage of their career to engage with each other and learn valuable lessons from a diverse and inclusive community of legal scholars. Doctoral students are very welcome and are encouraged to submit papers for consideration in the Subject Sections Programme.

Conference Information 

The 2024 conference will be primarily in person with a virtual element.  ECR and EDI sessions, together with the AGM and Council meeting, will be available virtually free of charge.  A small charge will be made for virtual attendance at the plenary sessions. Council members who are not attending the 2024 Conference will still be able to attend the Council meeting and AGM virtually and, consistent with our EDI priorities, speakers who cannot attend may, on sufficient notice, be able to present virtually.  We will also endeavour to allow speakers unable to attend at the last minute due to ill-health or travel restrictions to present virtually. This decision reflects a move globally to resume in person conferences, the significant costs of virtual attendance which would require a rise in price due to the absence of suitable facilities at Bristol University and evidence of a significant drop in numbers for virtual attendance at the 2023 conference. We will also continue to offer support for attendance via our Annual Conference Additional Support Fund (ASF) to support those with special circumstances warranting additional support. Priority for support will be given to applicants who have no other source of funding.

If you are interested in delivering a paper or organising a panel, please submit your paper abstract or panel details by 11:59pm UK time on 22 March 2024. All abstracts and panel details must be submitted through the Oxford Abstracts conference system which can be accessed here – and following the instructions (select ‘Track’ for the relevant subject section). If you registered for Oxford Abstracts for last year’s conference, please ensure that you use the same e-mail address this year if that address remains current. For those whose papers are accepted, the original submission offers the facility to upload a full paper nearer the time. If you experience any issues in using Oxford Abstracts, please contact slsconference@mosaicevents.co.uk. If you are submitting as part of the Gesellschaft für Rechtsvergleichung there will be a tick box option for you to select as you complete the form.

This is the second year we will be running first blind peer review, with a subsequent non-blind review once initial decisions have been made to consider profile diversity before final decisions are made and communicated. The feedback from convenors on this process was overwhelmingly positive.

Decisions will be communicated by 26 April 2024.

Submission Format

We welcome proposals for papers and panels on any issue relating to “Learning from Others: Lessons for Legal Scholars?.” We welcome proposals representing a full range of intellectual perspectives and methodological approaches in the subject section, and from those at all stages of their careers.

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

As the SLS is keen to ensure that as many members with good quality papers as possible can present, speakers should not present twice at the conference at the expense of another credible paper.  When you submit an abstract via Oxford Abstracts you will be asked to note if you are also responding to calls for papers or panels from other sections.

The Best Paper Prize

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

•  speakers must be fully paid-up members of the SLS (Where a paper has more than one author, all authors eligible for membership of the Society under its rule 3 must be members. The decision as to eligibility of any co-authors will be taken by the Membership Secretary, whose decision will be final.)
• papers must not exceed 12,000 words including footnotes (as counted in Word; figures and tables are not included in the word count);
• papers must be uploaded to the paperbank by 11:59pm UK time on 23 August 2024;
• papers must not have been published previously or have been accepted or be under consideration for publication; and
• papers must have been accepted by a convenor in a subject section and an oral version of the paper must be presented at the Annual Conference.

The Best Paper by a Doctoral Student Prize 

In 2020 the Society launched the Best Paper by a Doctoral Student Prize, which is open to currently registered doctoral students who are members of the Society. The Prize is £300. There is no link to publication in Legal Studies arising from this award, but any winner would be welcome to submit their paper for consideration by the Society’s journal. To be eligible:

• speakers must be fully paid-up members of the SLS who are Doctoral students. (Where a paper has more than one author, all authors eligible for membership of the Society under its rule 3 must be members and all authors must be Doctoral students, whatever their discipline). The decision as to eligibility of any co-authors will be taken by the Membership Secretary, whose decision will be final;
• papers must not exceed 12,000 words including footnotes (as counted in Word; figures and tables are not included in the word count);
• papers must be uploaded to the paperbank by 11:59pm UK time on 23 August 2024;
• papers must not have been published previously or have been accepted or be under consideration for publication; and
• papers must have been accepted by a convenor in a subject section and an oral version of the paper must be presented at the Annual Conference.
• Where a paper eligible for this prize wins the Best Paper Prize, the judges may at their discretion award the prize for Best Paper by a Doctoral Student to a different nominated paper
• The judges may announce a shortlist at their discretion with the winner to be announced by the first week in August.

Registration and Paying for the Conference 

We have also been asked to remind you that all speakers will need to book and pay to attend the conference and that they will need to register for the conference by 14 June 2024 to secure their place within the programme, though please do let us know if this deadline is likely to pose any problems for you. Booking information will be circulated in due course and will open after the decisions on the response to the calls are made.

Due to massive strikes in Germany’s public transport sector, we have made the decision to move the conference on “Who’s Afraid of Punitive Damages?”, to take place in Augsburg on 8/9 March (originally announced here), to a hybrid format.

Accordingly, everyone interested in the topic is welcome to join some (or all) presentations via this Zoom link (ID: 624 2497 5622; password: &ZB&%1).

The latest version of the conference programme can be found here.

The third edition of Paul Torremans‘ Intellectual Property and Private International Law has just been published by Oxford University Press in its Private International Law series.

The blurb reads:

The rapidly developing field of intellectual property and private international law could be difficult to navigate for practitioners and researchers because of the complex interface of the two legal disciplines. Intellectual Property and Private International Law sets out the main concepts with a comprehensive analysis of issues arising from the relationship between the two disciplines from common law, European Union and international perspectives.

This highly regarded work examines how jurisdiction is established in intellectual property disputes, how one identifies the applicable law and how to secure the recognition and enforcement of foreign judgments. This new edition encompasses the numerous, and in some cases major, legal developments seen over the past twelve years. It deals with the private international law aspects of the introduction of mandatory exemptions to the Directive on Copyright in the Digital Single Market; discusses the new Court of Justice of the European Union case law on article 7.2 Brussels I Regulations and its divergent approach to European Union intellectual property rights; covers recent EU directives and national case law, including the fundamental change in patent law that will result from the introduction of the European Patent with Unitary Effect and the Unified Patent Court; as well as elucidating the implications of Britain’s departure from the European Union.

New to this Edition:

• Analyses the fundamental change in patent law that will result from the introduction of the European Patent with Unitary Effect and the Unified Patent Court
• Discusses the private international law side of the introduction of mandatory exemptions to copyright in the DSM Directive
• Clarifies the impact of Brexit and other EU directives and case law
• Covers the Court of Justice of the European Union case law on article 7.2 Brussels I Regulation and its divergent approach to Eurasian Economic Union (EEU) intellectual
• Property rights

A corrigendum to Regulation (EU) 2020/1784 of 25 November 2020 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (the Recast Service Regulation) has been published on the Official Journal of the European Union of 2 February 2023 (L 405).

It concerns Article 33, which is about the information that Member States must share with the Commission so that the latter can make it available to the public at large.

Article 33(1) refers to such information as is required under Articles 3, 7, 12, 14, 17, 19, 20 and 22 of the Regulation. This includes, for example, the names and addresses of receiving agencies, the professions or competent persons that are permitted under national law to effect the direct service of documents, whether national law requires a document to be served within a particular period, etc.

The correction is, specifically, about Article 33(3). As originally published, the latter provision read as follows:

The Commission shall publish the information communicated in accordance with paragraph 1 in the Official Journal of the European Union, with the exception of the addresses and other contact details of the agencies and of the central bodies and the geographical areas in which they have jurisdiction.

According to the corrigendum, Article 33(3) should read instead:

The Commission shall publish the information communicated in accordance with paragraph 1 through appropriate means, including through the European e-Justice Portal.

As this is presented as a corrigendum, rather than an amendment to the Regulation, the revised text is meant to apply as of the date of application of the Regulation, that is, 1 July 2022. In fact, the information referred to in Article 33(3) has never been published on the Official Journal, and appears to be already available on the European Judicial Atlas in Civil Matters, which can be reached through the e-Justice Portal.

On 25 April, Fleur Johns (University of New South Wales) will deliver the 9th Annual T.M.C. Asser Lecture at the Peace Palace in The Hague, Netherlands. The organizers have kindly shared the following abstract (and this invitation) with us.

The concept of ‘community’ (as in the ‘international community’ or the ‘community of nations’) has been a cornerstone of international law, sometimes aiding the articulation and promotion of public interests. For example, recent attempts to forge international agreement on pandemic prevention, preparedness, and response have been spurred by governments acknowledging ‘the catastrophic failure of the international community’ to ensure solidarity and equity in response to the COVID-19 pandemic.

And lately, international legal litigants have invoked ‘community interest’ in seeking to hold states accountable for alleged violations of international law. Such claims have been central to recent proceedings brought before the International Court of Justice (ICJ) alleging genocide or torture: by The Gambia against Myanmar; by Canada and the Netherlands against the Syrian Republic; and by South Africa against Israel.

Nonetheless, international legal notions of ‘community’ have also served racist, exclusionary purposes. The 19th century international lawyer James Lorimer famously argued that some religious and racialised peoples could never be full members of a community of nations under international law. Current international legal vocabularies, such as the ICJ Statute’s reference to the ‘law recognized by civilized nations’ for example, remain redolent of this racist idea of community-as-privilege.

In view of their ambivalence, claims about ‘international community’ should be made with caution. They often imply commonality of experience and shared value on a global scale when the experiences and values at issue may, in fact, be partial or contested, perhaps increasingly so. Digital technologies have changed how nations and peoples are brought together or connect, creating new disparities between those made more vulnerable to violence and injustice by digital connectivity, and those who benefit from the uneven global spread of computation.

This lecture will examine the concept of ‘community’ in today’s international law, especially in the context of humanitarianism and the growing use of technology. We will revisit key texts such as Georges Abi-Saab’s 1998 article, ‘Whither the International Community?‘. Ideas of ‘community’ have long played a role in making insiders and outsiders in international law, and continue to do so. Yet techniques of community-making in international law may nevertheless present egalitarian possibilities—or so this lecture will show.

Seats can be booked via this link.

On 6 December 2024, Yuliya Chernykh (Norway University of Applied Sciences) is going to host a workshop on international investment contracts in Lillehammer, Norway. She has kindly shared the Call for Abstracts with us.

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on Thursday 14 March 2024 at 13:00 (Mexico City time – CST), 20:00 (CET time). The topic of the webinar is the Inter-American Court of Human Rights’ judgment in Córdoba v. Paraguay, a case relating to international child abduction, and will be presented by a panel of experts in different fields (in Spanish, see poster). This judgment will be discussed from the following perspectives: State responsibility, Private International Law, human rights law and legal argumentation.

The judgment is currently available only in Spanish: I/A Court H.R., Case of Córdoba v. Paraguay. Merits, Reparations and Costs. Judgment of September 5, 2023. Series C No. 505. Press release is available here (in Spanish only).

The details of the webinar are:

https://us02web.zoom.us/j/87214914850?pwd=UStJWnRZc2wvZUplWUx5VkZUSm9FQT09

Meeting ID: 872 1491 4850

Password: AMEDIP

Participation is free of charge.

This event will also be streamed live: https://www.facebook.com/AmedipMX

The author of this post is Lydia Lundstedt, who is an Associate Professor and Senior Lecturer at Stockholm University. In the interest of transparency, author notes that she previously wrote an expert legal opinion on behalf of BSH Hausgeräte.

On 22 February 2024, Advocate General (AG) Emiliou’s Opinion on the interpretation of Article 24(4) Regulation (EU) No 1215/2012 (Brussels I bis) in BSH Hausgeräte (C-339/22) was published.

Article 24(4) confers exclusive jurisdiction “in proceedings concerned with the registration or validity of patents” upon “the courts of the Member State in which the … registration has been applied for, [or] has taken place …”.

AG Emiliou opines that Article 24(4) 1) does not encompass infringement proceedings even after an alleged infringer pleads the invalidity of the foreign patent; and 2) does not apply to proceedings concerning patents registered in third states, but that a Member State court may give Article 24(4) reflexive effect on the basis of national law. See here for a brief synopsis of the facts and the questions referred and GAVC LAW for a good review of the opinion.

Article 24(4) Does Not Apply to Infringement Proceedings Even After Invalidity is Pleaded

Prior to the CJEU ruling in GAT (C-4/03), there were three possible interpretations of what is now Article 24(4). GAT ruled out the first interpretation, i.e., that the provision does not apply to preliminary questions, by holding that what is now Article 24(4) applied to “all proceedings relating to the registration or validity of a patent, irrespective of whether the issue is raised by way of an action or a plea in objection”. In describing this background, the AG calls GAT an “unfortunate decision” because it goes beyond what is necessary to fulfil the raison d’être of Article 24(4), which in the AG’s view, is deference to national sovereignty. He explains that because an invalidity finding in an infringement proceeding has only inter partes effects, it does not encroach upon the sovereignty of the state of patent registration. He states that if the EU legislator had not codified GAT when it amended the Regulation, he would have advised the CJEU to overturn GAT.

Even after GAT and its codification, uncertainty remained concerning which of the remaining two interpretations of Article 24(4) were correct, namely, 1) that once invalidity is raised, infringement proceedings fall within Article 24(4) and the infringement court loses its jurisdiction (broad reading) or 2) that while validity falls within Article 24(4), infringement does not. Thus, a court having jurisdiction over an infringement dispute based on the rules in the Regulation retains its jurisdiction over the infringement claim but may not determine validity (narrow reading).

The AG finds that the narrow reading is the “lesser evil” because it better aligns with the system and objectives of the Regulation. Specifically, he finds that it better respects the relationship between the general rule in Article 4 and the exception in Article 24(4), and also better ensures legal certainty as the defendant will not be able to undermine the plaintiff’s choice of jurisdiction by raising a validity defence.

Moreover, the AG notes that a narrow reading ensures that a defendant cannot “torpedo” the proceedings and deny the patent holder its right to intellectual property and to an effective remedy (see Article 17(2) and Article 47 of the EU Charter and 41(2) TRIPS) by raising invalidity so late in the proceedings that the statute of limitations has expired so the patent holder cannot initiate new proceedings before the court of registration.

That said, the AG argues that Article 47 of the Charter requires the infringement court to take the invalidity defence into account and he offers practical guidelines on how a Member State court should procced. He suggests that if an invalidity defence has been properly raised, the infringement court should make a preliminary analysis of how a court in the state of registration would decide the matter (compare Solvay (C‑616/10), where such an analysis is done before granting a preliminary injunction) and balance the patent holder’s right to an effective remedy as well as the requirement of efficiency of procedure with the alleged infringer’s right of defence and the sound administration of justice. If the invalidity defence is serious, the Member State court having jurisdiction over the infringement claim should instruct the defendant to initiate invalidity proceedings in the state of patent registration within a set deadline and stay the infringement case in accordance with its procedural rules until the validity question has been decided by the courts/authorities of the state of registration.

Member State Courts May Give Article 24(4) Reflexive Effect

The AG notes that the reflexive effect of Article 24(4) has implications for the interpretation of the other rules in Article 24 and for Article 25 on prorogation agreements. The starting point for the AG’s analysis is that the Regulation has a “design flaw” in that while it applies to disputes where the defendant is domiciled in a Member State and the subject matter is closely connected to a third state, it was not designed for such disputes. Thus, the AG opines that the gap needs to be filled in by one of three ways.

The AG rejects the first way, i.e., applying Articles 24/25 by analogy to such situations, because it goes against the clear wording of these articles which refer to a “Member State” and also because previous CJEU case law had already held that the Articles did not apply (see IRnova (C-399/21) concerning patents registered in third states and Coreck Maritime (C-387/98) concerning prorogation agreements in favour of third states). The AG also notes that such a solution would be inconsistent with the system of the Regulation.

The AG also rejects a second way whereby Member States courts having jurisdiction over such disputes based on a rule in the Regulation, are bound to exercise that jurisdiction. Referring to the “design flaw” mentioned above, the AG first opines that an absence of specific provisions addressing these situations cannot be interpreted to mean that Member State courts must exercise jurisdiction. The AG notes that there is nothing in the wording or recitals of Articles 33 and 34 that suggests that these provisions are exhaustive. Articles 33 and 34 allow a Member State court to stay proceedings under certain circumstances if proceedings are already pending in a third state court. The AG also rejects the argument that Owusu (C-281/02) supports this interpretation. In that decision, the CJEU stated “Article 2 of the Brussels Convention [now Article 4 of the Regulation] is mandatory in nature and that, according to its terms, there can be no derogation from the principle it lays down except in the cases expressly provided for by the Convention”. The AG notes that in Owusu the CJEU declined to answer the second question which dealt with the specific situation here. The AG also notes that Coreck Maritime and Mahamdia (C‑154/11) suggests that Member State courts are permitted to give effect to prorogation agreements in favour of third state courts.

Second, the AG opines that such an interpretation (i.e. the second way) would be at a variance with the raison d’êtreof Article 24 to give deference to sovereignty and of Article 25 to respect party autonomy. Moreover, he states that this interpretation would not contribute to legal certainty because a resulting Member state judgment would not be valid in the third state and the issue may be relitigated there resulting in irreconcilable judgments.

Third, the AG notes that the Lugano Convention and the 2005 Hague Convention do not remedy these problems because they only bind a few states and therefore unilateral solutions within the framework of the Regulation are needed.

Lastly, the AG rejects the argument that this interpretation was the clear intention of the EU legislator noting that it was not expressed in the text of Regulation, the travaux preparatoires are generally not clear, and in any case, must be understood in the context whereby the EU legislator abandoned the idea of achieving a comprehensive solution to disputes connected to third states.

The AG suggests therefore a third way of filling the gap, i.e. that the Regulation permits Member State courts that have jurisdiction over such disputes pursuant to a rule of the Regulation, to decline jurisdiction on the basis of national law. That said, the AG opines that the Member State courts’ discretion is limited by EU law in that 1) a Member State court may refuse to exercise jurisdiction over a dispute connected to a third State only where the matter in dispute (i.e. patent invalidity) would fall within the scope of Article 24 had the matter been located in a Member State, or where a choice-of-court agreement in favour of a third state otherwise fulfils the requirements laid down in Article 25; and 2) a Member State court must respect the rules on the protection of weaker parties and the exclusive jurisdiction of the courts of another Member State. However, even when these conditions are fulfilled, the AG opines that a Member State court is not required to decline jurisdiction if there is a risk for denial of justice. The AG rejects the argument that this creates a risk for legal uncertainty because this way gives narrow discretion to the Member state courts under specific circumstances.

Comment

I heartily agree with the AG opinion concerning the scope of Article 24(4) so I will limit my comments to his opinion on the reflexive effect of Article 24(4). It seems a bit odd to start off with the premise that there is a design flaw in the Regulation that the CJEU needs to fix instead of accepting the Regulation as it is and interpreting it accordance to the CJEU’s methods of interpretation. The wording of the provisions and the system of the Regulation suggest that Member State courts may not give Articles 24 and 25 reflexive effect under national law.

Indeed, Articles 24 and 25 expressly apply only to Member State courts and Articles 33-34 expressly apply to third state courts. Articles 33-34 are the only rules in the Regulation that permit a Member State court to decline or stay jurisdiction in favour of a third state court. In particular, recital 24 instructs that when applying Articles 33-34, a Member State court may take into consideration

whether the court of the third State has exclusive jurisdiction in the particular case in circumstances where a court of a Member State would have exclusive jurisdiction.

An e contrario interpretation suggests that a Member State may not decline jurisdiction in other situations (except where a higher norm demands this). Moreover, if the Member States already had discretion to give Article 24 and 25 reflexive effect, then Articles 33-34 are superfluous. Lastly, Article 6 exhaustively informs when the Member State courts may apply national rules.

With regard to the objective of Article 24 of giving deference to sovereignty, an argument can be made that, in the absence of an international obligation, the EU does not give third state sovereign interests the same weight as Member State interests. A similar argument can be made with respect to Article 25, i.e., that the EU intentionally refuses to give effect to third state prorogation agreements outside of its treaty obligations, e.g. 2005 Hague Convention on Choice of Court Agreements. That said, the situations involved in Articles 24 and 25 are not completely congruent as Article 25 raises the issue of party autonomy, which is arguably a fundamental right. Also, introducing a discretionary reflexive effect does not further the objective of legal certainty including strengthening the legal protection of persons established in the European Community as it will be less easy to identify in which court one can sue and be sued.

Curiously, the AG’s solution has the unfortunate result that it extends to third states the very solution that the AG criticizes. On the one hand, the AG is critical of GAT and its codification in Article 24(4) because it goes beyond what is necessary to fulfil Article 24(4)’s objective of giving deference to the sovereignty interests of the state of patent registration. On the other hand, the AG suggests that deference to sovereignty interests of the state of patent registration requires that the Member State courts give Article 24(4) reflexive effect when a matter would have fallen under Article 24(4) had the patent been registered in another Member State instead of a third state.

When it comes to the application of Article 24(4), as the AG notes, the CJEU is now “trapped in the solution that it initially adopted”. This is not the case however when giving Article 24(4) reflexive effect. There is no reason why the rule cannot be adapted to better serve its objective without going beyond what is necessary. As noted, deference to the sovereignty interests of a third state does not require a Member State court that is exercising jurisdiction on the basis of a rule in the Regulation to decline jurisdiction over a question concerning a third state patent’s invalidity when the question is raised in infringement action. Thus, there is no reason to “reflexively” apply Article 24(4) to these situations. In contrast, if an alleged infringer sued a patent holder in a Member State on the basis of a rule in the Regulation asking the court to invalidate with erga omnes effect a patent registered in a third state, Article 24(4) should “reflexively” apply as a matter of EU law giving effect to a recognised rule of public international law that one state will not invalidate the public law acts of another state.

The website you’re visiting has been on-line since December 2019. It has undergone only minor changes since.

The time has come to offer readers some new features and a new design.

Between 7 and 10 March 2024 a newly designed website will replace the existing one. Information on the European Association of Private International Law and its activities will prove easier to retrieve, and members will benefit from improved opportunities for exchange and cooperation.

One notable innovation of the new website consists in the creation of a reserved area for the members of the Association (“MyEAPIL”). Through MyEAPIL, members will be able to update their profile and browse the members’ database. They will also be able to check whether the Association has received their fees (by the way, fellow members, if you haven’t paid your fees for 2024, please take a moment to do so as soon as practical: just fill in this form).

EAPIL members will be receiving their login credentials on 11 March 2024 by e-mail (the sender’s address is noreply@eapilapp.org).

The redesign of the new website will also offer an opportunity to fix some technical issues. We’re aware that some of those who have subscribed to be notified of the publication of new posts on the EAPIL blog have not been receiving such notifications recently. Sincere apologies to those affected. We’re working on the problem and trust it’ll disappear once the new website is on-line.

In order to facilitate the transition towards the new website, the EAPIL blog will take a break for a couple of days. No new posts will be published on 7 and 8 March. Posting will resume with the usual pace on 11 March 2024.

The contents of the website will remain accessible at all times during this passage. The display of some pages, however, may occasionally be problematic in the meanwhile. Many thanks in advance for your understanding.

In case of doubts, feel free to get in touch with us at blog@eapil.org.

Curious about how the new website will look like? Please find below the screenshots of the new home page and some other pages.

Thank you very much confrère Lucian Ilie for sharing copy of the hitherto unreported Thomas Hilton Matthews v Mutuelle Assurance des Commercants et Industriels de France [2023] EWHC 2175 (KB) – Matthews v MACIF for short.

Maître Ilie successfully secured a High Court judgment (Ritchie J sitting on appeal) overturning registration with a view to enforcement under Brussels I (old: Regulation 44/2001) of a Paris Court of Appeal 2 April 2013 judgment, as his chambers report here.

The summons for the Court of Appeal proceedings (as Justice Ritchie’s judgment sets out in detail) had not reached Mr Matthews due to his return to England and the subsequent judgment, reducing an earlier pay-out (which had already been transferred to Mr Matthews) by insurance company MACIF for his injuries etc following collision with a car whilst cycling, was issued in his absence. MACIF unsuccessfully attempted to serve the Court of Appeal judgment on Mr Matthews at his previous location in France, and for 9 years no contact with the Matthews’ in England was made. (From the witness statements Ritchie J accepted that the fact that a copy of the judgment was left with Mrs Matthews’ father in France was not mentioned to the couple, let alone received). MACIF in June 2022 then obtained an Annex V Brussels I certificate of the judgment (which only mentioned that the amount to be paid out to Mr Matthews was now ‘less favourable’, without mentioning numbers) and waited another 9 months before seeking ex parte (judged by Ritchie J [34] to be ‘not right or fair’ in the circumstances) registration of the judgment in England, in language [34] not reflecting any of the background to the case and unlike the Annex V certificate, mentioning an exact amount. The application was granted.

Upon appeal the questions agreed [9] by parties were summarised by the judge as follows [10]

(1) Service: Was the Appellant sufficiently served with notice of (1.1) the start of the appeal and (1.2) the Paris Judgment, such that he could defend the appeal from the Tribunal Judgment and/or appeal the Paris Judgment?

(2) The EC Regulation: Is the Order made by the Master one which he was entitled to make in the light of the assertions that:

(2.1) it does not match the wording of the Annex V certificate summarising the Paris Judgment, the words of which made the Respondent the judgment debtor, not the Appellant and did not order any sum to be paid by the Appellant to the Respondent;

(2.2) the Appellant has recently appealed against the Paris Judgment so is it currently enforceable? The Appellant asserts that the Paris Judgment is a default judgment and not enforceable due to non-service;

(2.3) the Appellant asserts that the Respondent does not have an interest in the Paris Judgment as a creditor and that the Appellant was not ordered to pay anything;

(2.3) (sic) for public policy reasons due to the behaviour of MACIF it should not have been registered.

On the issue of service Ritchie J refers to first instance English judgments which however are backed up by continental scholarship and some indications in CJEU authority: the procedural rules of the lex fori are an indication of valid service but not decisive, and taking into account other points of departure listed [43], he holds that service was not valid, hence triggering Article 34 Brussels I, now Article 45 Brussels Ia (not materially different for the case at issue): lack of service in the Member State of origin shall (not just may) lead to refusal of recognition.

Obiter, the judge also refuses recognition on four more grounds

on form: the presentation of the foreign judgment was obiter held [49] to have amounted to re-writing;

seeing as the Paris Court of Appeal judgment is no longer enforceable in France pending the Mathews’ now launched appeal, it cannot be enforceable in the UK either [50];

[51] MACIF is not a judgment creditor under the Paris judgment: that judgment reduces the amount which Mr Matthews is to receive however it does not directly at least hold title for MACIF to receive payment from Mr Matthews;

[52] the delay in seeking enforcement causing substantial prejudice to Mr Matthews, the unfaithful transcription of the Annex V certificate, the insufficient efforts to locate Mr Matthews; the registration proceedings in E&W which really should have been conducted inter partes  also would have led to a refusal on ordre public grounds.

A rare and extensive Article 34 BI/45 BIa discussion and for that alone, of much note.

Geert.

EU Private International Law, 4th ed. 2024, 2.600 ff.

As regards private international law, March 2024 starts at the Court with the delivery of AG N. Emiliou’s opinion on C-774/22, FTI Touristik, on Thursday 7 – an opinion previously scheduled for February.

By its single question, the Amtsgericht Nürnberg (Germany) asks the CJEU whether Article 18(1) of the Brussels I bis Regulation determines, not only international judicial jurisdiction, but also internal territorial jurisdiction. In addition, this court questions the foreign element required for the application of the Brussels I bis regulation.

In the dispute in the main proceedings, a consumer filed a claim against FTI, a professional providing tourist services, in relation to a package trip. Both parties to the dispute are domiciled in the same Member State, namely Germany; the only cross-border element is constituted by the destination of the trip outside that Member State. The consumer sued before the court of his domicile. FTI relies on the rules of German territorial jurisdiction to argue lack of jurisdiction, in that these rules designate as territorially competent jurisdiction that of the headquarters of FTI Touristik.

According to the referring court, under national rules it does not have territorial jurisdiction to hear the dispute. Venue could only be deduced from the application of the Brussels I bis Regulation, more specifically its Article 18, paragraph 1. Thus the question:

Is Article 18(1) of [the Brussels I bis Regulation] to be interpreted as meaning that, in addition to providing for international jurisdiction, the rule also concerns a provision on the territorial jurisdiction of national courts in matters relating to a travel contract where both the consumer, as a traveller, and the other party to the contract, the tour operator[,] have their seat in the same Member State, but the travel destination is situated not in that Member State but abroad (so-called ‘false internal cases’) with the consequence that the consumer can make contractual claims against the tour operator supplementing national provisions on jurisdiction at the court of his or her place of residence?

The case has been allocated to a chamber of five judges (S. Prechal, N. Wahl, J. Passer, L. Arastey Sahún, and F. Biltgen acting as reporting judge).

One week later, on Thursday 14, AG M. Szpunar will communicate his opinion on C-86/23, HUK-COBURG-Allgemeine Versicherung II. The Varhoven kasatsionen sad (Bulgaria) asks :

Must Article 16 of Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II Regulation) be interpreted as meaning that a rule of national law, such as that at issue in the main proceedings, which provides for the application of a fundamental principle of the law of the Member State, such as the principle of fairness, in the determination of compensation for non-material damage in cases where the death of a close person has occurred as a result of a tort or delict, may be regarded as an overriding mandatory provision within the meaning of that article?

This question is raised in the context of an action for compensation against the insurance company HUK-COBURG, for the moral damage suffered by the parents of the deceased on a traffic accident. The accident took place in Germany; at the time it happened, there was a valid civil liability insurance contract between the driver and the German insurance company HUK-COBURG-Allgemeine Versicherung AG.

The parents of the deceased are Bulgarian nationals permanently resident in Bulgaria. In 2017 they filed claims with the Sofiyski gradski sad (Sofia City Court) against the German insurer for payment of insurance compensation for each parent as compensation for non-material damage suffered as a result of the death of their daughter. The request was declared partially founded at first instance; the appeal court overruled, finding the claimants had not demonstrated that the pain and suffering suffered had caused damage to their health, which, under German law applicable under Article 4(1) of the Rome II Regulation, would constitute a prerequisite for compensation for non-pecuniary damage. The court also rejected the argument put forward by the parents according to which Bulgarian law should be applied under Article 16 of the Rome II Regulation.

On cassation, the Varhoven kasatsionen sad (Supreme Court of Cassation), noted that there is contradictory case law from the Bulgarian courts on the question of whether the Bulgarian provision at stake constitutes a mandatory provision derogating within the meaning of Article 16 of the Rome II Regulation, leading, in the main dispute, to the exclusion of German law.

The preliminary reference will be addressed by judges C., Lycourgos,  J.C. Bonichot, S. Rodin, L.S. Rossi, and O. Spineanu-Matei acting as reporting judge.

Next event with interest for PIL readers is the hearing of March 20, regarding case C-227/23, Kwantum Nederland et Kwantum België. The questions by the Hoge Raad der Nederlanden (Netherlands) are:

1. Does the situation at issue in these proceedings fall within the material scope of EU law?

Should the preceding question be answered in the affirmative, the following questions are also submitted:

2. Does the fact that copyright on a work of applied art forms an integral part of the right to protection of intellectual property enshrined in Article 17(2) of the Charter mean that EU law, in particular Article 52(1) of the Charter, in order to limit the exercise of copyright (within the meaning of Directive 2001/29/EC) on a work of applied art by application of the material reciprocity test of Article 2(7) Berne Convention for the Protection of Literary and Artistic Works requires this limitation to be provided for by law?

3. Must Articles 2, 3 and 4 of Directive 2001/29/EC and Articles 17(2) and 52(1) of the Charter, read in the light of Article 2(7) BC, be interpreted as meaning that it is solely for the EU legislature (and not for national legislatures) to determine whether the exercise of copyright (within the meaning of Directive 2001/29/EC) in the European Union can be limited by application of the material reciprocity test provided for in Article 2(7) BC in respect of a work of applied art whose country of origin within the meaning of the Berne Convention is a third country and whose author is not a national of an EU Member State and, if so, to define that limitation clearly and precisely (see judgment of 8 September 2020, Recorded Artists Actors Performers, C 265/19, EU:C:2020:677)?

4. Must Articles 2, 3 and 4 of Directive 2001/29/EC, read in conjunction with Articles 17(2) and 52(1) of the Charter, be interpreted as meaning that as long as the EU legislature has not provided for a limitation of the exercise of copyright (within the meaning of Directive 2001/29/EC) on a work of applied art by application of the material reciprocity test of Article 2(7) BC, EU Member States may not apply that test in respect of a work of applied art whose country of origin within the meaning of the Berne Convention is a third country and whose author is not a national of an EU Member State?

5. In the circumstances at issue in the present proceedings and given the time of the establishment of (the predecessor of) Article 2(7) BC, are the conditions of the first paragraph of Article 351 TFEU satisfied for Belgium, meaning that Belgium is therefore free to apply the material reciprocity test provided for in Article 2(7) BC, taking into account the fact that in the present case the country of origin acceded to the Berne Convention on 1 May 1989?

The case revolves around the question whether an object of applied art, namely a chair designed in the United States of America, enjoys, in the Netherlands and in Belgium, copyright protection as a “work of applied arts”. The main dispute confronts Vitra, which holds the rights to the chair, and Kwantum, which operates a chain of interior design stores in the Netherlands and Belgium, on the grounds that the latter has marketed a chair which, according to Vitra, would infringe its copyright.

Before the referring court, Kwantum notes that the chair has, in more than 70 years of existence, never benefited from copyright protection in its country of origin – the United States of America. She argues in particular that Vitra cannot invoke such protection in Belgium and the Netherlands, having regard to the criterion of material reciprocity contained in Article 2(7) of the Berne Convention, which constitutes an exception to the principle of national treatment provided for in Article 5, paragraph 1, of this convention.

The deciding judges will be A. Arabadjiev, T. von Danwitz, P.G. Xuereb, A. Kumin, plus I. Ziemele as reporting judge. AG M. Szpunar will announce the date of delivery of the opinion at the end of the hearing.

Finally, on March 21, the same chamber, this time with A. Kumin reporting, will publish the decision in C-90/22, Gjensidige. I reported briefly on facts and questions here. AG N. Emiliou’s opinion was published on December 14, 2024. The Lietuvos Aukščiausiasis Teismas (Lithuania) asks:

1. Can Article 71 of Regulation No 1215/2012 [the Brussels I bis Regulation], having regard to Articles 25, 29 and 31 and recitals 21 and 22 thereof, be interpreted as permitting the application of Article 31 of [the CMR] also in cases where a dispute falling within the scope of both those legal instruments is the subject of an agreement conferring jurisdiction?

2. Having regard to the legislature’s intention to strengthen the protection of agreements conferring jurisdiction in the European Union, can Article 45(1)(e)(ii) of [the Brussels I bis Regulation] be interpreted more broadly, as covering not only Section 6 of Chapter II of that regulation but also Section 7 thereof?

3. After assessment of the specific features of the situation and the resulting legal consequences, can the term “public policy” used in [the Brussels I bis Regulation] be interpreted as covering the ground for deciding not to recognise a judgment of another Member State where the application of a specialised convention, such as [the CMR], creates a legal situation in which both the agreement conferring jurisdiction and the agreement on the applicable law are not observed in the same case?

AG Emiliou did not consider it necessary to answer to the first question in light of what he deemed the correct answer to the following ones. He proposes the Court to interpret Article 45(1)(a) and (e)(ii) of the Brussels I bis regulation as meaning:

that the grounds for the refusal of recognition set out therein do not apply to a situation in which the court of origin established its jurisdiction on the basis of one of several rules contained in a specialised convention, within the meaning of Article 71 of Regulation No 1215/2012, which include – but do not classify as exclusive – a choice-of-court agreement, and when the court of origin was not the court designated by the choice-of-court agreement concluded by the parties concerned.

And also

as meaning that an error, when established, as to the determination of the applicable law cannot, per se, lead to the recognition of a judgment being refused on the ground that it is contrary to the public policy of the State addressed.

I . Introduction

Egypt and its legal system occupy a unique position within the MENA region. Egyptian law and scholarship exert a significant influence on many countries in the region. Scholars, lawyers, and judges from Egypt are actively involved in teaching and practicing law in many countries in the region, particularly in the Gulf States. Consequently, it is no exaggeration to say that developments in Egyptian law are likely to have a profound impact on neighboring countries and beyond, and warrant special attention.

The cases presented here were recently released by the Egyptian Supreme Court (mahkamat al-naqdh). They are of particular interest because they illustrate the complex nature of legal sources, particularly with respect to the enforcement of foreign judgments (on this topic, see Béligh Elbalti, “Perspective of Arab Countries”, in M. Weller et al. (eds.), The 2019 HCCH Judgments Convention – Cornerstones, Prospects, Outlook (Hart, 2023), pp. 195 ff). These cases also provide a good opportunity to elucidate the basic principles regarding the service requirement, which, as the cases discussed here and the comments that follow show, can pose particular challenges.

 

II. Facts

Two cases are presented here. Both involve the enforcement of judgments from neighboring countries (Kuwait in the first case and Saudi Arabia in the second) with which Egypt has concluded conventions on the enforcement of foreign judgments. In both cases, enforcement was granted by lower courts.  The parties challenging the enforcement then appealed to the Supreme Court. The main grounds of appeal in both cases revolve around the issue of proper service of process. Ultimately, the Supreme Court ruled in favor of the appellants in both cases.

 

III. Summary of the Rulings

• Case 1: Appeal No. 2765 of 25 June 2023 (Enforcement of a Kuwaiti Monetary Judgment)

 Proper service is a prerequisite to be verified by the enforcing court before declaring a foreign judgment enforceable, as stipulated in Article 298 of the Code of Civil Procedure (hereinafter CCP). Enforcement should be refused unless it is established that the parties were duly served and represented. This is in line with the provisions of the Convention on the Enforcement of Judgments concluded between States of the Arab League, in particular Article 2(b), as well as Article 30 of the Riyadh Convention on Judicial Cooperation, which was ratified by Egypt by Presidential Decree No. 278 of 2014, and according to which foreign default judgments rendered in a contracting state shall not be recognized if the defendant has not been properly served with the proceedings or the judgment. […] [The record indicates that the appellant challenged the enforcement of the foreign judgment on the basis of insufficient service. The enforcing court admitted the regularity of the service, but without stating the basis for its conclusion. As a result, the appealed decision is flawed and requires reversal with remand].

 

• Case 2: Appeal No. 17383 of 14 November 2023 (Enforcement of a Saudi custody judgment)

 According to Article 301 of the CCP, conventions signed by Egypt take precedence over domestic law. Egypt ratified the Convention on the Enforcement of Judgments issued by the Council of the League of Arab States by Law No. 29 of 1954 and deposited the instruments of ratification with the General Secretariat of the League on July 25, 1954. The Kingdom of Saudi Arabia also signed the Convention on May 23, 1953. Consequently, the provisions of this Convention are applicable to the present case. […] The appellant argued that he had not been properly served with the summons because he had left the Kingdom of Saudi Arabia before the trial, which led to the foreign judgment. However, the judgment under appeal did not contain any valid response to the appellant’s defense or any indication that the enforcing court had reviewed the procedures for serving the appellant. Furthermore, it did not examine whether the service of the appellant was in accordance with the procedures laid down by the law of the rendering State. Consequently, the appealed decision is vitiated by an error of law which requires it to be quashed.

 

Comments

The enforcement of foreign judgments in Egypt is regulated by Articles 296 to 301 of the CCP (for an English translation of these provisions, see J. Basedow et al. (eds.), Encyclopedia of Private International Law – Vol. IV (Elgar Editions, 2017), pages 3163-4). It is also governed by the conventions on the enforcement of foreign judgments ratified by Egypt (for a detailed overview in English of the enforcement of foreign judgments in Egypt under the applicable conventions and domestic law, see Karim El Chazli, “Recognition and Enforcement of Foreign Decisions in Egypt”, Yearbook of Private International Law, Vol. 15 (2013/2014), pp. 387). The two cases presented above concern enforcement under these conventions.

In this regard, it is noteworthy that Egypt has established an extensive network of bilateral and regional multilateral conventions (for a detailed list, see Elbalti, op. cit. pp. 196, 199). With regard to multilateral conventions, Egypt has ratified two conventions adopted under the auspices of the League of Arab States: (1) The Arab League Convention on the Enforcement of Foreign Judgments and Arbitral Award of 1952 (hereinafter referred to as the “1952 Arab Judgments Convention”. On this Convention, see eg, El Chazli, op. cit. pp. 395-399) and (2) The Riyadh Convention on Judicial Cooperation of 1983 (hereinafter referred to as the “1983 Riyadh Convention”. On this Convention, see eg, Elbalti, op. cit. pp. 197-198). It is important to note that the 1983 Riyadh Convention is intended to replace the 1952 Arab Judgments Convention in relations between the States Parties to both Conventions (see Article 72).

Bilateral conventions include a convention concluded with Kuwait in 1977. This convention was replaced by a new one in 2017.

 

1. With regard to the first case, the following observations can be made:

a. This case appears to be the first case in which the Supreme Court has referred to the 1983 Riyadh Convention since its ratification in 2014. This is noteworthy in light of the numerous missed opportunities for the Court to apply the Convention (see eg., Supreme Court Appeal No. 5182 of 16 September 2018. In the Appeal No. 16894 of June 6, 2015, the Riyadh Convention was invoked by the parties, but the Court did not refer to it. See also 2(b) below).

b. It is also noteworthy, and somewhat surprising, that the Supreme Court referred to the 1983 Riyadh Convention in a case concerning the enforcement of a Kuwaiti judgment. This is because, contrary to what is widely acknowledged, Kuwait has only signed but did not ratify the Riyadh Convention (on this point see Elbalti, op. cit., page 197 fn (118)). Since Kuwait is a party only to the 1952 Arab Judgments Convention, the Supreme Court’s reference to the 1983 Riyadh Convention was inaccurate. Moreover, if the 1983 Riyadh Convention had been applicable, there would have been no need to refer to the 1952 Arab Judgments Convention, since the former is intended to replace the latter (Article 72 of the Riyadh Convention).

c. Conversely, the Supreme Court completely overlooked the application of the 2017 bilateral convention with Kuwait, which, as noted above, superseded the 1977 bilateral convention between the two countries. This case provided another missed opportunity for the Court to address the so-called problem of conflict of conventions, as both the 1952 Arab Convention and the 2017 bilateral convention were applicable with overlapping scopes. In the absence of special guidance in the text of the conventions, such a conflict could have been solved on the basis of one of the two generally admitted principles: lex posteriori derogat priori or lex specialis derogat generali (for an example of a case adopting the latter solution from the UAE, see Abu Dhabi Supreme Court, Appeal No. 950 of 26 December 2022).

d. This is not the first time the Egyptian Supreme Court has dealt with the enforcement of Kuwaiti judgments (there are 10 cases, by my count). In all of these cases, the court referred to the 1952 Arab Judgments Convention in addition to domestic law. It is only in two cases that the Court referred to the 1977 Kuwait-Egypt bilateral convention in addition to the 1952 Arab Judgments Convention (Supreme Court Appeal No. 3804 of 23 June 2010 and Appeal No. 15207 of 11 April 2017). In the majority of cases (8 out of 10), the Court refused to enforce Kuwaiti judgments. The main ground of refusal was mainly due to, or including, lack of proper service.

 

2. With regard to the second case, the following observations can be made:

a. Egypt does not have a bilateral convention with Saudi Arabia. However, both Egypt and Saudi Arabia are parties to the 1952 Arab Judgments Convention and the 1983 Riyadh Convention. As noted above, the 1983 Riyadh Convention replaces the 1952 Arab Judgments Convention for all States that have ratified it (Article 72). Therefore, the Supreme Court’s affirmation that “the provisions of the [1952 Arab Judgments] Convention are therefore applicable to the present case” is incorrect. It is also surprising that the court made such a statement, especially considering that the party seeking enforcement relied on the 1983 Riyadh Convention, and given its erroneous application in Case 1.

b. This is not the first time that the Supreme Court has overlooked the application of the 1983 Riyadh Convention in a case involving the enforcement of a Saudi judgment. In a case decided in 2016, almost two years after the Convention entered into force in Egypt, the Supreme Court referred to the 1952 Arab Judgments Convention to reject the enforceability of a Saudi judgment, again citing the lack of proper service (Supreme Court, Appeal No. 11540 of 24 February 2016).

 

3. Enforcement of Foreign Judgments and Service Requirement in Egypt

As a general rule, service of process under Egyptian law is considered a procedural matter that should be governed by the lex fori (Article 22 of the Civil Code. For an English translation, see Basedow et al, op. cit.; see also El Chazli, pp. 397, 402). In the context of foreign judgments, this means that the service of process or judgment is, in principle, governed by the law of the state of origin, subject, however, to considerations of public policy (see eg., Supreme Court, Appeal No. 2014 of 20 March 2003). Based on the case law of the Supreme Court, the following features are noteworthy:

• Service by publication was considered sufficient for enforcement purposes if the court could confirm that it had been duly carried out in accordance with the law of the State of origin (Supreme Court, Appeal No. 232 of 2 July 1964).
• However, if it appears that the service by publication did not comply with the requirements of the foreign law, the regularity of the service will be denied (Supreme Court of, Appeal No. 14777 of 15 December 2016 [service of summons]; Appeal No. 1441 of 20 April 1999 [notification of judgment]).
• Conversely, the Court held that the service irregularities may be cured if the defendant voluntarily appears before the foreign court and presents arguments on the merits of the case (Supreme Court, Appeal No. 18249 of April 13, 2008).
• Merely asserting that service was made in accordance with the law of the country of origin is not sufficient. Egyptian courts are required to verify that the judgment debtor has been properly served in accordance with the law of the country of origin and that such service is not contrary to Egyptian public policy (Supreme Court of Cassation, Appeal No. 558 of 29 June 1988). This aspect can be particularly important when it appears that the judgment debtor had permanently left the State of origin at the time when the service was made (Supreme Court, Appeal No. 8376 of 4 March 2010; Appeal No. 14235 of 1 January 2014; Appeal No. 1671 of 18 February 2016).
• With regard to ensuring that the defendant has been duly served, the courts are not bound by any specific method imposed by Egyptian law; therefore, the conclusions made by the enforcing court as to the regularity of the service based on the findings of the foreign judgment and not disputed by the appellant may be accepted (Supreme Court, Appeal No. 1136 of 28 November 1990).
• Where an international convention applies, the rules for service set out in the convention must be complied with, even if they differ from the rules of domestic law. Failure to comply with the methods of service prescribed by the applicable convention would render the foreign judgment unenforceable (Supreme Court, Appeal No. 137 of 8 March 1952).
• The rules provided for by the conventions prevail, including the method of determining whether proper service has been made (eg., the submission of a certificate that the parties were duly served with summons to appear before the proper authorities). Therefore, failure to comply with this rule would result in the rejection of the application for enforcement by the party seeking enforcement (Supreme Court, Appeal No. 5039 of 15 November 2001; Appeal No. 3804 of 23 June 2010).

 

4. Service under Conventions

Most of the bilateral and regional conventions ratified by Egypt contain provisions on the service of judicial documents. The Riyadh Convention is particularly noteworthy in this regard, as 18 of the 22 members of the League of Arab States are parties to it (see Elbalti, op. cit., pp. 196-197). In addition, Egypt has been a party to the HCCH 1965 Service Convention since 1968.

The proliferation of these international instruments inevitably leads to the problem of conflict of conventions. This problem can be particularly acute in some cases, where as many as three competing instruments may come into play. This scenario often arises with some Arab countries, such as Tunisia or Morocco, with which Egypt is bound by (1) bilateral conventions, (2) a regional convention (namely the Riyadh Convention), and (3) a global convention (namely the HCCH Hague Service Convention).

In this context, the solution adopted by the Hague Convention deserves attention. Article 25 of the Convention provides that “[…] this Convention shall not derogate from conventions containing provisions on matters governed by this Convention to which the Contracting States are or will become Parties“. However, the evaluation of this solution deserves a separate comment (for analyses on a similar issue regarding the HCCH 2019 Judgments Convention, see Elbalti, op. cit., p. 206).