Droit international général

As reported in a recent post, Germany has on 29 April 2022 instituted proceedings against Italy before the International Court of Justice in relation with the fact that Italy is allowing civil claims to be brought against Germany in connection with violations of international humanitarian law committed by the German Reich between 1943 and 1945, in breach of Germany’s jurisdictional immunity as a sovereign State.

A webinar in English, organised by the Department of Law of the University of Ferrara and the Institute of International Studies of the Catholic University of Milan, will take place on 11 May 2022, between 10.30 am and 12.30 pm, via GoogleMeet, to discuss the issues surrounding both the German application and the Italian decree-law of 30 April 2022, whereby the Italian Government addressed at least part of the concerns underlying the initiative of Germany.

The discussion will also revolve around the views that the two States are expected to put forward during the public hearings that are scheduled to take place on 9 and 10 May regarding the request made by Germany for the indication of provisional measures.

The following, among others, will speak at the webinar: Giorgia Berrino (University of Modena and Reggio Emilia), Serena Forlati (University of Ferrara), Karin Oellers-Frahm (Max Planck Institute for Comparative Public Law  and International Law, Heidelberg), Riccardo Pavoni (University of Siena), and Pierfrancesco Rossi (LUISS Guido Carli, Rome).

Attendance is free. See here for further details.

On Tuesday, May 10, 2022, the Hamburg Max Planck Institute will host its 22nd monthly virtual workshop Current Research in Private International Law at 17:00-18:30 CEST. Kermit Roosevelt (University of Pennsylvania) will speak, in English, about the topic

“The Third Restatement of Conflict of Laws: Origins and Aspirations“.

During the middle of the twentieth century, American judges and law professors reacted against the territorialist rigidity of the First Restatement of Conflict of Laws, ushering in the chaos of the choice-of-law revolution. The Second Restatement, completed in 1971, won wide acceptance by courts but found less favor with law professors and has not brought order to the field. In 2014, the American Law Institute decided to try again, beginning work on the Third Restatement. What lessons can be learned from the history of American choice of law, and how can those lessons inform the drafting of a new Restatement? Kermit Roosevelt, the Reporter for the Third Restatement, will offer an overview of the current draft that seeks to situate it within the history of American choice of law and suggest the reasons that it takes the form it does.

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

As announced on this blog, the VIII Congress of Private International Law of the University Carlos III of Madrid will take place in dual mode on 12 and 13 May 2022.

It will be devoted to Regulation (EU) 2019/1111 on jurisdiction, recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction.

Under the direction of Juliana Rodríguez Rodrigo, the speakers include: Esperanza Castellanos Ruiz, Javier Carrascosa González, Beatriz Campuzano Díaz, Nuria Marchal Escalona, Giacomo Biagioni, Elena Rodríguez Pineau, Celia Caamiña Domínguez, Mónica Herranz, Ilaria Pretelli, Teresa Peramato Martín, Alfonso-Luis Calvo Caravaca.

The Congress programme and information to attend it are available here.

The Early Bird Registration for the 80th Biennial Conference of the International Law Association in Lisbon (19–23 June 2022) will close on 13th May 2022.

The programme includes sessions of the ILA Committees and Study Groups and a set of parallel panels where the main issues affecting the current status of International Law will be discussed. Information on the programme is available here. Kindly register as soon as possible to secure your place. Online registration is available here.

On behalf of the European Commission (DG JUST), Milieu Consulting is conducting a study on the application of Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I bis Regulation). The aim of the study is to provide solid evidence and analysis of legal and practical issues to assist the European Commission in preparing a report on the application of the Brussels I bis Regulation. To this end, the study will analyse the application of the Brussels I bis Regulation in the Member States and identify the main legal difficulties and practical challenges encountered in practice.

As part of this study, Milieu Consulting is conducting a stakeholder consultation, which includes a series of targeted surveys with key stakeholder individuals and organisations involved in or confronted with the application of the Brussels I bis Regulation. In particular, Milieu developed a technical survey that targets legal practitioners (i.e., judges; lawyers; notaries; bailiffs), academia (i.e., scholars in private international law and relevant sectors, such as consumer protection or business and human rights), and national authorities (i.e., ministries of justice, ministries in charge with consumer protection, ministries of economy) in each Member State. Stakeholders’ views are an important source of information for gaining a concrete understanding of the difficulties in applying rules on jurisdiction, as well as the recognition and enforcement of judgments, in cross-border civil and commercial cases in the EU.

The survey is available here. For more information on the study, please refer to the accreditation letter here.

On 29 April 2022, Germany instituted proceedings before the International Court of Justice against Italy for allegedly failing to respect its jurisdictional immunity as a sovereign State by allowing civil claims to be brought against Germany based on violations of international humanitarian law committed by the German Reich between 1943 and 1945.

The First Jurisdictional Immunities Case (2008-2012)

More than ten years have passed since the International Court of Justice rendered its judgment in the case of the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening). The Court was asked then to determine whether, in civil proceedings against Germany relating to acts committed by the Third Reich during the Second World War (such as deportation and forced labour), the Italian courts were obliged to accord Germany immunity.

In its judgment of 3 February 2012, the Court held that the action of the Italian courts in denying Germany immunity constituted a breach of Italy’s international obligations.

The International Court of Justice explained that, under customary international law as it presently stood, a State was not deprived of immunity by reason of the fact that it was accused of serious violations of international human rights law or the international law of armed conflict.

The New Proceedings

The 2022 proceedings, as stated in the application filed by Germany, arise from the fact that Italian domestic courts, notwithstanding the 2012 judgment, “have entertained a significant number of new claims against Germany in violation of Germany’s sovereign immunity”.

Germany refers in particular to Judgment No. 238/2014 of 22 October 2014 of the Italian Constitutional Court, whereby the latter acknowledged the duty of Italy to comply with the 2012 ruling of the International Court of Justice but subjected that duty to the “fundamental principle of judicial protection of fundamental rights” under Italian constitutional law (the judgment has been the object of numerous comments: among those in English, see the contributions to this book edited by Valentina Volpe, Anne Peters and Stefano Battini, the remarks by Robert Kolb, Paolo Palchetti, Pasquale De Sena and others here, this paper by Marco Longobardo, and this one by Oreste Pollicino, to name a few).

In its application, Germany argues that Judgment No. 238/2014 of the Italian Constitutional Court, “adopted in conscious violation of international law and of Italy’s duty to comply with a judgment of the principal judicial organ of the United Nations, had wide-ranging consequences”. It adds that, since the delivery of the Judgment, “at least 25 new cases have been brought against Germany [before Italian courts]” and that “in at least 15 proceedings, Italian domestic courts … have entertained and decided upon claims against Germany in relation to conduct of the German Reich during World War II” (Giorgia Berrino discusses in this article a recent judgment of the Italian Court of Cassation which illustrates the approach decried by Germany).

Germany asks the International Court of Justice to adjudge and declare that Italy has violated, and continues to violate, its obligation to respect Germany’s sovereign immunity, and its obligation to respect Germany’s sovereign immunity by taking, or threatening to take, measures of constraint against German State-owned properties situated in Italy. Germany further asks the Court to declare that Italy is required to ensure that the existing decisions of its courts and those of other judicial authorities infringing Germany’s right to sovereign immunity cease to have effect, and immediately to take effective steps to ensure that Italian courts no longer entertain civil claims brought against Germany based on violations of international humanitarian law committed by the German Reich between 1943 and 1945.

Additionally, the Court is asked to adjudge that Italy is required to make full reparation for any injury caused through violations of Germany’s right to sovereign immunity, and to offer Germany concrete and effective assurances and guarantees that violations of Germany’s sovereign immunity will not be repeated.

The application of Germany contains a request for the indication of provisional measures. In fact, Germany asks the Court to order Italy to ensure that German properties indicated in the application “are not subjected to a public auction pending a judgment by the Court on the merits” and that “no further measures of constraint are taken by [Italian] courts against German property”.

The Italian Decree-Law of 30 April 2022

On 30 April 2022, i.e., the day after Germany instituted the proceedings before the International Court of Justice, a decree-law was published in the Italian Official Journal which appears to address, at least to some extent, the concerns raised by Germany.

Article 43 of Decree-Law No 36/2022 of 30 April 2022 creates a fund, financed by Italy, for the reparation of the prejudice suffered by the victims of war crimes and crimes against humanity, as a result of the violation of fundamental rights of persons by the the Third Reich’s Army (hereinafter, the Fund).

As stated in Article 43(1) of the decree-law, the purpose of the Fund is to provide reparation for the prejudice suffered for acts perpetrated on the Italian territory or otherwise harming Italian citizens between 1 September 1939 and 8 May 1945.

Article 43(2) stipulates that the Fund is available to those who obtained a final judgment whereby their right to damages has been ascertained and assessed. Such a final judgment must have been given in the framework of proceedings instituted either before the entry into force of the decree-law (i.e., 30 April 2022) or before the 30-day time-limit, starting from the entry into force of the decree, established under Article 43(6). Later requests will be rejected.

According to Article 43(3), “no new enforcement proceedings based on titles awarding damages shall be brought or pursued”. Pending enforcement proceedings, for their part, “shall be discontinued”.

The Italian Minister of Economy and Finance, as indicated in Article 43(4) shall adopt a decree, no later than 180 days following the entry into force of the decree-law, to determine: (a) the procedure for accessing the Fund; (b) the terms and the manner whereby payments will be made to those entitled to benefit from the Fund; (c) such additional provisions as may be necessary for the implementation of the above provisions.

Pursuant to Article 43(5), “any and all rights in connection with claims for damages based on the facts referred to in Article 43(1) shall cease to exist as soon as payment pursuant to the procedures under Article 43(4) is made”.

In short, the decree-law aims to shield Germany from the institution or the continuation of new and pending proceedings (including enforcement proceedings) in connection with acts perpetrated by the German Reich’s forces during the German occupation of Italy. Those entitled to claim damages for the prejudice suffered will be provided satisfaction through the Fund, following a dedicated procedure.

Apparently, this course of action is understood by the Italian Government to be consistent, at once, with the constitutional requirement that the victims of egregious violation of human rights be given access to justice and obtain reparation, and the expectation of Germany that its jurisdictional immunity, as provided for under international customary law, is preserved.

The Impact of the Decree-Law on the Proceedings Instituted by Germany

The implications of the Italian decree-law for the proceedings brought by Germany before the International Court of Justice remain to be seen.

As observed above, Germany asks the Court to adjudge, inter alia, that Italy should make “full reparation for any injury caused through violations of Germany’s right to sovereign immunity”. This is something the decree-law is not concerned with.

Germany also insists that Italy should “offer Germany concrete and effective assurances and guarantees that violations of Germany’s sovereign immunity will not be repeated”. Whether the adoption of a decree-law amounts, as such, to an appropriate insurance can arguably be challenged. Pursuant to Article 77 of the Italian Constitution, decree-laws are temporary measures that the Government may adopt “in case of necessity and urgency”. As soon as a decree-law is adopted, the measure is submitted to the Parliament for transposition into law, with the indication that it shall lose effect from the beginning if it is not transposed into law by Parliament within sixty days of its publication.

The Court of Justice of the EU has recently handed down another judgement interpreting the Succession Regulation. The judgement in VA, ZA v TP (C-645/20) of 7 April 2022 followed the view presented earlier in the opinion of AG Sánchez-Bordona. It concerns duties of the courts of Member States in verification of their jurisdiction resulting from Article 10(1)(a) Succession Regulation.

Background

The background of the case is as follows.

A French national XA died in France leaving wife TP and children from the first marriage. XA used to live in the UK, however shortly before his death has moved to France to be taken care of by one of his children. XA was on owner of a real property located in France. XA’s children have initiated a succession proceeding (namely, applied for an administrator to be appointed) in France indicating that XA was habitually resident there at the time of his death. Such view was shared by the court of the first instance, however the court of the second instance found that XA has not changed his habitual residence and at the time of death it was still located in the UK, and therefore, France lacked jurisdiction in the case.

Preliminary Question

As the case reached the Cour de Cassation, it decided to clarify with the CJEU whether the Succession Regulation requires a court of a Member State to raise of its own motion its jurisdiction under the rule of subsidiary jurisdiction provided for in its Article 10(1)(a) where, having been seised on the basis of the rule of general jurisdiction established in its Article 4, it finds that it has no jurisdiction as the deceased was not habitually resident at the time of death in the forum.

Jurisditional Rules of the Succession Regulation

It might be reminded that jurisdictional rules of the Succession Regulation are of exclusive character, meaning that there is no space left for the residual jurisdiction resulting from domestic laws of Member States (as opposed to, for example, rule provided for in Article 6(1) Brussels I bis Regulation). Recital 30 makes it clear that ‘in relation to the succession of persons not habitually resident in a Member State at the time of death, this Regulation should list exhaustively, in a hierarchical order, the grounds on which such subsidiary jurisdiction may be exercised’. Hence, if the case is covered by the material and temporal scope of the Succession Regulation, a court of a Member State may assume jurisdiction only in accordance with it, irrespective of the nationality or habitual residence of the deceased.

In accordance with Article 4 Succession Regulation courts of the Member State of the deceased’s habitual residence have jurisdiction. If the deceased was habitually resident outside of the EU, then pursuant to Article 10 jurisdiction is based in other factors. The jurisdiction is based on nationality or previous habitual residence and location of assets (Article 10(1)(a) or (b)) or location of assets only (Article 10(2) Succession Regulation). In this last case, where the only link with the forum is the location of assets, the jurisdiction covers not ‘succession as a whole’, meaning all assets irrespective of their location, but is limited to the assets located within the forum only.

It might also be added that the Succession Regulation provides for certain mechanisms (in Articles 5-9) allowing for the transfer of jurisdiction from the Member State having jurisdiction pursuant to Article 4 or Article 10 to the Member State, whose law was chosen by the deceased as applicable.

Reasoning of the Court of Justice

As nicely underlined by the AG when juxtaposing Article 4 and Article 10

each caters for a different factual situation: either the deceased was last habitually resident in a Member State of the European Union (the assumption informing Article 4) or he or she wasn’t (the assumption informing Article 10)’ [para. 47 opinion].

Sharing this view, the Court of Justice, explained that:

there is no hierarchical relationship between the forum established in Article 4 of Regulation No 650/2012 and the forum established in Article 10 thereof (…) Likewise, the fact that the jurisdiction provided for in Article 10 of that regulation is described as ‘subsidiary’ does not mean that that provision is less binding than Article 4 of that regulation, relating to general jurisdiction [para. 33].

As a result, it concluded that a court of a Member State must raise of its own motion its jurisdiction under the rule of subsidiary jurisdiction where, having been seised on the basis of the rule of general jurisdiction, it finds that it has no jurisdiction under that latter provision.

Other comments of the Court of Justice also merit attention. For example, it admits that the application of Article 10 might lead to the frustration of the so desired ius and forum, but it must be made clear that the Succession Regulation neither requires nor guarantees this coincidence.

It also made clear that Member States which do not apply the Succession Regulation, namely Ireland, Denmark and the UK (before Brexit) should be treated as third states when applying this regulation.

Conclusion

The Court of Justice rightly concluded that jurisdictional rules of both Article 4 and Article 10 of the Succession Regulation should be applied ex officio. To that end, AG has proposed what seems to be a very reasonable solution not only when it comes to the application of the Succession Regulation, but any jurisdictional or conflict of law rule, namely that the court is not obliged

to look actively for a factual basis on which to rule on its jurisdiction in a particular dispute, but they do compel it to find, by reference exclusively to the uncontested facts, a basis for its jurisdiction which may be different from that invoked by the applicant [para. 87 opinion].

This book presents a new explanation as to the conflict-of-law rule in the field of intellectual property. In addition, it also provides new insights into the history of the conflict-of-laws, aliens law and their relationship.

The book focusses on the difficult question whether the Berne Convention (on copyright) and the Paris Convention (on industrial property) contain a conflict-of-law rule. Opinions differ widely on this matter today. However, in the past, for the nineteenth-century authors of these treaties, it was perfectly self-evident that these treaties contain a conflict-of-law rule, namely in the ‘principle of national treatment’ as it is called. How is that possible? These are the fundamental questions at the heart of this book: does the principle of national treatment in the Berne Convention (article 5(1)) and the Paris Convention (Article 2(1)) contain a conflict-of-law rule? And if so, why do we no longer understand this conflict-of-law rule today?

The study reveals a ground-breaking new explanation why the principle of national treatment in these treaties contains a conflict-of-law rule: the lex loci protectionis.

Key to understanding is a paradigm shift. The principle of national treatment was developed as a doctrine-of-statute solution addressing a doctrine-of-statute problem. In that way of thinking, it is self-evident that the principle of national treatment contains a conflict-of-law rule. However, today we have started to think differently, i.e. within the paradigm of Von Savigny. This causes a problem: we look at an old, statutist solution through Savignian glasses, and as a result the conflict-of-law rule in the principle of national treatment is out of the picture. Meanwhile, we are not even aware that we are looking through Savignian glasses and that these glasses narrow our field of vision – and as a result, this conflict-of-law rule is beyond our reach. The explanation in this book results in a comprehensive and consistent interpretation of the respective provisions in these treaties, and it explains why we no longer understand this conflict-of-law rule today (see especially paragraph 5.1.2).

The search for this new explanation has, in addition, generated several new insights into the history of the conflict of laws in general (see especially paragraph 5.2.3), aliens law, and the relationship between these two fields of law.

Finally, the book is also detailed and authoritative explanation of the intersection of the conflicts of law and intellectual property law, providing a full and detailed analysis of the current state of affairs of the intersection of these fields of law. It also deals with less common themes such as material reciprocity (Chapter 6).

This book is an English translation of Sierd J. Schaafsma’s book, which appeared in Dutch in 2009, and is now updated with the most significant case law and legislation.

Elgar, 2022; see Elgar website.

Krzysztof Pacula reported end of March on CJEU C-723/20 Galapagos Bidco v DE and justifiably highlighted the Brexit issue. The case concerns a move of COMI – centre of main interest within the context of the Insolvency Regulation 2015/848 and it is on the element of impromptu move that my post will focus.

Galapagos SA is a Luxembourg holding company whose centre of administration (‘effective place of management‘ according to the former directors) was moved in June 2019, at least so contend previous directors, to England. At the end of August 2019, they apply to the High Court in England and Wales to have insolvency proceedings opened.

Echos of the tussle are here and of course also in Galapagos Bidco SARL v Kebekus & ors [2021] EWHC 68 (Ch). The day after the move of centre of administration, the former directors were replaced with one other, who moved centre of administration to Dusseldorf and issued relevant market regulation statements to that effect. This move was subsequently recognised  by the Courts at Dusseldorf as having established COMI there. The High Court action in London was never withdrawn and would seem to have been dormant since.

Applicant in the proceedings is Galapagos BIDCO Sarl, a creditor of Galapagos SA. It is I understand (but I am happy to be corrected by those in the know) Luxembourg based. As Krzysztof reports, it contests that the German move has effected move of COMI which it argues lies in England (although I fail to see how its reasoning should not also apply to the earlier instant move from presumably Luxembourg to England).

The question that arises is whether, in the determination of the centre of a debtor company’s main interests, specific requirements must be imposed to prevent abusive conduct. Specifically, in the light of the Regulation’s stated aim of preventing forum shopping, whether ‘on a regular basis’ in the second sentence of the first subparagraph of Article 3(1) Insolvency Regulation 2015, presupposes an adequate degree of permanence and is not present if the establishment of a centre of administration is pursued at the same time as a request to have insolvency proceedings opened. Respondents in the appeal, which include the insolvency administrator (trustee) contend that the requirement of administration ‘on a regular basis’ is fulfilled if the administration is permanent.

The CJEU unfortunately fails to answer that question, choosing to reply instead with a hierarchical answer which encourages race to court: [36]

the court of a Member State with which a request to open main insolvency proceedings has been lodged retains exclusive jurisdiction to open such proceedings where the centre of the debtor’s main interests is moved to another Member State after that request is lodged, but before that court has delivered a decision on that request, and that, consequently, where a request is lodged subsequently for the same purpose before a court of another Member State, that court cannot, in principle, declare that it has jurisdiction to open such proceedings until the first court has delivered its decision and declined jurisdiction.

However in the case at issue, the Withdrawal Agreement has the effect that if the High Court has not, as it would seem, taken its decision on the opening of proceedings prior to the end of Brexit Implementation Day 1 January 2021 (CET), the German courts need no longer apply that consequence of mutual trust and are at liberty to determine the existence of COMI.

The CJEU ends by suggesting Q1 no longer needs answering. Yet I think it does. Perhaps not so much for the case at issue (which explains why the judicially economical CJEU does not offer a reply). The German courts, as Zacaroli J notes in his decision [14], held in October 2019 that COMI for GAS has successfully moved to Germany as from 25 August 2019, the day the capital market and bondholders were informed that the centre of administration had been moved to Düsseldorf. Yet the file does not suggest that COMI prior to the attempted move, existed in Germany: it was established there following the new director’s decision. In accordance with the Regulation’s presumptions, it would have previously existed in Luxembourg. The element of ‘on a regular basis’ therefore still matters. Is the CJEU suggesting that a mere information of the capital markets suffices to move COMI?

Geert.

EU Private International Law, 3rd ed. 2021, Heading 5.6.1.

 

The author of this post is Jachin Van Doninck, Lecturer in civil procedure, private international law and ADR at the Vrije Universiteit Brussel.

At the final conference of the Judgtrust project in The Hague, some ten days ago, two decisions of the ECJ on the Brussels I bis Regulation took flak from more than one speaker: Wikingerhof and Toto.

Both of these decisions have already received their fair share of attention in these columns: here (by the late Peter Mankowski, including links to the other contributions dedicated to the same judgment) and here.

The writing of a recently published casenote on the Wikingerhof judgment has nonetheless left me wondering whether the criticism directed at said judgment isn’t missing the mark.

As a reminder, through Wikingerhof, the ECJ attempted to clarify its earlier Brogsitter ruling on delineating matters relating to contract and matters relating to tort for the purpose of applying the heads of jurisdiction under art. 7 point 1 and 7 point 2 of the Brussels I bis Regulation respectively.

Where Brogsitter could be interpreted as considering it sufficient for a claim made in tort under national law to be contractual for the purpose of Brussels I where the conduct complained of may be considered a breach of the terms of the contract (ECJ, para 29, my emphasis), the ECJ held in Wikingerhof that where it does not appear indispensable to examine the content of the contract in order to assess whether the conduct is lawful or unlawful, the cause of the action is a matter relating to tort within the meaning of art. 7.2 Brussels I Recast (ECJ, at para 33, again with my emphasis).

In retrospect it always seemed unlikely that the ECJ would have accepted a full and complete absorption of the forum delicti by the forum contractus in cases of concurrent causes of action, i.e. when a contracting party invokes the infringement of a general legal obligation under competition law as was the case in Wikingerhof. Through Wikingerhof, the ECJ restores the balance between forum contractus and forum delicti in the case of concurrent obligations by setting out a clear criterion, namely whether the contract is the yardstick for review (forum contractus) or merely the subject of review (forum delicti). No surprise either in seeing the potential fora being multiplied then: that has been the steady flow of the ECJ case law on art. 7.2 since the Bier-stance was adopted more than 40 years ago (E. Farnoux, ‘Delendum est Forum Delicti? Towards the jurisdictional protection of the alleged victim in cross-border torts’ in B. Hess, K. Lenaerts en V. Richard (red.), The 50th anniversary of the European law of civil procedure, Baden-Baden: Nomos 2020, (259) p. 263 et seq.).

But most interesting, and least appreciated in my opinion, is the Court’s method in reaching that result. It shouldn’t have come as a surprise though. Less than a year before, in its VKI v. TVP judgment, the ECJ had been asked whether article 1(2)(f) of the Rome I Regulation should be interpreted as excluding from the scope of that regulation contractual obligations based on a trust agreement for the purposes of administering shares in a limited partnership. Was this a corporate matter beyond the reach of Rome I?

In addressing the issue, the ECJ, following its advocate-general Saugmandsgaard Øe, focused on the cause of action of the proceedings:

The action for an injunction brought by the VKI concerns the unfairness and therefore the validity of certain terms of the trust agreements at issue. Therefore, the questions arising from the case in the main proceedings fall within the field of lex contractus and therefore of the Rome I Regulation (ECJ, at para 37).

When asked whether Brussels I Recast provides a forum delicti when the plaintiff seeks an injunction against the use of contractual terms because they are allegedly based on an abuse of a dominant position by the defendant, the ECJ and its advocate-general Saugmandsgaard Øe adopted that same reasoning.

The test again lies in the cause of action:

In particular, as the Advocate General observed in point 90 of his Opinion, the court hearing the action must decide whether a claim between contracting parties is connected to matters relating to a contract, within the meaning of point 1 of Article 7 of Regulation No 1215/2012, or to matters relating to tort or delict, within the meaning of point 2 of Article 7 of that regulation, by reference to the obligation, whether contractual or a matter relating to tort, delict or quasi-delict, which constitutes the cause of action (ECJ, at para 31).

Asked to interpret sources of European private international law, the ECJ’s answer has time and again revolved around the word ‘autonomous’. Through Wikingerhof, the ECJ has now demonstrated that such autonomous interpretation of EU instruments is no mere recipe for haphazard case by case reasoning but also involves an exercise in qualification, thereby addressing the following question: which law imposes itself through the subject matter of the claim and the legally relevant facts underlying it, i.e. the case of action? That approach warrants more credit than is currently being granted.

On 19 April 2022, the European Commission has launched a new page on the e-Justice Portal concerning children from Ukraine (available here in all EU languages).

It is an operational extension, in a dramatic context, of the work undertaken by the Commission to strengthen the protection of migrant children.

Background

According to the European Commission:

Russia’s military aggression against Ukraine raises questions about the situation of refugee children who are displaced in the European Union from Ukraine. The issue becomes even more complex when these children are separated from their families, either because they have remained in Ukraine or because they are refugees in another Member State.

It is now urgent to be able to ensure that these children are protected against the risk of violence, exploitation, illegal adoption, abduction, sale or child trafficking. For this reason, it is essential to use the instruments that protect the rights of these children.

There are instruments in European and international law to ensure the protection of children, with special provisions for the protection of and assistance to children temporarily or permanently deprived of their family environment, including in emergency situations, such as an armed conflict.

EU and International Rules on Civil Judicial Cooperation 

The new webpage contains clear and practical information on the rules applicable to judicial cooperation in cross-border cases involving Ukrainian children, including issues of jurisdiction, applicable law, recognition of decisions, and cooperation between authorities, in particular via the European Judicial Network in civil and commercial matters (EJN-civil).

It provides for many useful links to key legal instruments and information on Ukrainian law provided directly by the Ukrainian Ministry of Justice.

This page is intended for judges, lawyers, notaries, central authorities, but also for social workers in charge of child protection and staff in charge of registering minors arriving from Ukraine.

More information here.

Conventions & Instruments

On 8 April 2022, the Kingdom of Saudi Arabia deposited its instrument of accession to the HCCH Apostille Convention. The Convention will enter into force for Saudi Arabia on 7 December 2022. With this accession, the Apostille Convention now has 122 Contracting Parties. More information is available here.

Meetings & Events

From 28 March to 1 April 2022, the Experts’ Group on Parentage / Surrogacy met for the eleventh time. The Group discussed the content of the final report that is to be presented to the Council on General Affairs and Policy (CGAP) at its 2023 meeting. More information is available here.

The Permanent Bureau has announced that the inaugural CODIFI Conference will be held online from 12 to 16 September 2022. CODIFI will examine issues of private international law in the Commercial, Digital, and Financial (CODIFI) sectors, highlighting developments in the digital economy and fintech industries as well as clarifying the roles of core HCCH instruments: the 1985 Trusts Convention, the 2006 Securities Convention, and the 2015 Choice of Law Principles. More information is available here.

 

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

May 2022 starts with the hearing in C-354/21 Registrų centras, on Regulation n° 650/2012, next Wednesday. In the case at hand, R.J.R., the appellant, holds Lithuanian and German nationality and is resident in Germany. Her mother died on 6 December 2015; at the time of her death, she had her place of habitual residence in Germany; her estate consisted on property owned in Germany and in Lithuania. The appellant, the sole heir of his mother, accepted her entire estate in Germany without reservation in accordance with the procedure and time limits laid down in German law.

R.J.R. filed an application for a European Certificate of Succession in accordance with Regulation (EU) No 650/2012 with the competent German court; it was issued on 24 September 2018. On 15 March 2019, the appellant submitted to the VĮ Registrų centras (State Enterprise Centre of Registers) an application for registration of his ownership rights to the immovable property registered in the name of his mother. Together with the application, the appellant submitted the Certificate of Succession and European Certificate of Succession issued on 24 September 2018, copies of translations of those documents, and copies of passports of the Republic of Lithuania issued to J.M. R., G. R. and R.J. R. On 20 March 2019, the appellant’s request was refused, on the grounds that European Certificate of Succession No 1 VI 175/18 did not contain the data provided for in the Law of the Republic of Lithuania on the Real Property Register which were necessary to identify the immovable property, that is to say, that that certificate did not indicate the property inherited by the appellant.

The decision was appealed but upheld. A further appeal was dismissed as unfounded. The case is now before the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania), who has referred to following question to the Court of Justice of the European Union for a preliminary ruling:

Must point (l) of Article 1(2) and Article 69(5) of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession be interpreted as not precluding legal rules of the Member State in which the immovable property is situated under which the rights of ownership can be recorded in the Real Property Register on the basis of a European Certificate of Succession only in the case where all of the details necessary for registration are set out in that European Certificate of Succession?

The opinions on C-646/20 Senatsverwaltung für Inneres und Sport, and C-700/20 London Steam-Ship Owners’ Mutual Insurance Association, both from AG Collins, will be published on Thursday. Not surprisingly, both cases will be addressed by the Grand Chamber.

C-646/20 is a request from the German Bundesgerichtshof on Brussels II bis:

1. Is the dissolution of a marriage on the basis of Article 12 of Decreto Legge (Italian Decree-Law) No 132 of 12 September 2014 (‘DL No 132/2014’) a divorce within the meaning of the Brussels IIa Regulation?
2. If Question 1 is answered in the negative: Is the dissolution of a marriage on the basis of Article 12 of DL No 132/2014 to be treated in accordance with the rule in Article 46 of the Brussels IIa Regulation on authentic instruments and agreements?

For the record, according to the referring court, the legal situation is as follows in Italy: under Decreto Legge (Italian Decree-Law) No 132 of 12 September 2014 (‘DL No 132/2014’), converted into Law No 162 of 10 November 2014, spouses no longer need to petition the court for divorce and may opt for divorce by way of a simple agreement. Subject to specific requirements detailed in the law, spouses may either agree to divorce in the presence of their lawyers (Article 6 of DL No 132/2014) or, as in the case at hand, they may enter into a divorce agreement under Article 12 of DL No 132/2014, before the mayor with territorial jurisdiction, acting as supreme civil registrar, even without the assistance of a lawyer, provided they have no underage children or adult children who have no legal capacity or are seriously disabled or economically dependent. The civil registrar takes receipt of the spouses’ personal statements, which cannot include any asset transfers, and asks them to return before him or her no earlier than 30 days after receipt of the statements to confirm the agreement. In the period between submission of the statements and confirmation of the agreement, the civil registrar is able to verify the veracity of the spouses’ statements (e.g. that they do not have any dependent children) and the spouses have the opportunity to reflect on their decision and, if they wish, to change it. If they confirm the agreement, it applies in lieu of a judicial decision.

C-700/20 comes from the High Court of Justice Business and Property Courts of England and Wales, United Kingdom ; it was filed just a couple of days before the end of the transitional period. The question referred concerns the interpretation of the Brussels I Regulation. The main proceedings are based on a dispute between London Steam-Ship Owners’ Mutual Insurance Association Limited (‘the Insurer’), having its registered office in the United Kingdom, and the Kingdom of Spain concerning claims for damages arising from the sinking off the coast of Spain of a vessel carrying fuel oil – the Prestige. The insurance contract contained, inter alia, an arbitration agreement governed by English law.

The Kingdom of Spain asserted its rights to receive compensation from the Insurer under the insurance contract, in the context of criminal proceedings instituted in Spain in 2002. Following a first-instance decision in 2013 and several appeals, the Spanish proceedings culminated in a finding that the Insurer was liable for the loss caused by the shipping accident subject to the limitation of liability provided for in the insurance contract. The Spanish court issued an execution order on 1 March 2019. On 25 March 2019, the Kingdom of Spain applied for recognition and enforcement of that order in the United Kingdom in accordance with Article 33 of the Brussels I Regulation. That application was granted. The Insurer appealed against that decision in accordance with Article 43 of the Brussels I Regulation.

The Insurer, for its part, initiated arbitration proceedings in London in 2012. In the resulting award it was established that the Kingdom of Spain would have to initiate arbitration proceedings in London in order to assert claims under the insurance contract. The Commercial Court of the High Court of Justice of England and Wales, before which enforcement of the award was sought under section 66 of the Arbitration Act 1996, entered a judgment in the terms of the award against the Kingdom of Spain in October 2013, which was confirmed on appeal. The Kingdom of Spain took part neither in the arbitration proceedings nor in the judicial proceedings in the United Kingdom.

The referring court asks the following questions:

(1) Given the nature of the issues which the national court is required to determine in deciding whether to enter judgment in the terms of an award under Section 66 of the Arbitration Act 1996, is a judgment granted pursuant to that provision capable of constituting a relevant “judgment” of the Member State in which recognition is sought for the purposes of Article 34(3) of EC Regulation No 44/2001?

(2) Given that a judgment entered in the terms of an award, such as a judgment under Section 66 of the Arbitration Act 1996, is a judgment falling outside the material scope of Regulation No 44/2001 by reason of the Article 1(2)(d) arbitration exception, is such a judgment capable of constituting a relevant “judgment” of the Member State in which recognition is sought for the purposes of Article 34(3) of the Regulation?

(3) On the hypothesis that Article 34(3) of Regulation No 44/2001 does not apply, if recognition and enforcement of a judgment of another Member State would be contrary to domestic public policy on the grounds that it would violate the principle of res judicata by reason of a prior domestic arbitration award or a prior judgment entered in the terms of the award granted by the court of the Member State in which recognition is sought, is it permissible to rely on Article 34(1) of Regulation No 44/2001 as a ground of refusing recognition and enforcement or do Articles 34(3) and (4) of the Regulation provide the exhaustive grounds by which res judicata and/or irreconcilability can prevent recognition and enforcement of a Regulation judgment?

Finally, the judment on C-644/20, W.J. (Changement de résidence habituelle du créancier d’aliments), referred by the Sąd Okręgowy w Poznaniu (Regional Court in Poznań, Poland), is expected on Thursday 12th. The question for interpretation is the following :

‘Must Article 3(1) and (2) of the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations, approved on behalf of the European Community by Council Decision 2009/941/EC of 30 November 2009 (OJ 2009 L 331, p. 17), be interpreted as meaning that a creditor who is a child may acquire a new habitual residence in the State in which he or she was wrongfully retained if a court orders the return of the creditor to the State in which he or she habitually resided immediately prior to the wrongful retention?’

No opinion was deemed necessary.

Abu Dhabi Commercial Bank Pjsc v Shetty & Ors [2022] EWHC 529 (Comm) engages Rome II by way of the applicable law to the claim playing a role in the forum non conveniens challenge. (Compare BRG Noal v Kowski for a similar discussion under Rome I). The case confirms the importance of retained Rome I and II discussion. The stage is set at [7]

at the heart of the jurisdiction challenge is an assertion that England is manifestly not the most suitable forum for the resolution of this dispute which all defendants maintain should be resolved by the UAE courts. Unsurprisingly, ADCB places significant reliance for its case that England is the most suitable forum for resolution of this dispute on the fact that Plc was a FTSE 100 quoted company, that the contracts by which the two most important of the Core Facilities were given contractual effect (the Syndicated Facility Agreement and the Club Facility Agreement) were drafted and completed in London by a prominent London law firm and were subject to London arbitration clauses and on its contention that England is the governing law of the dispute. Equally unsurprisingly the defendants emphasise that Plc was a holding company that carried on no active business activity, that the activity in London was essentially administrative in nature, that the lending which it is alleged lies at the heart of the scheme was lending by ADCB (a UAE registered entity trading in the UAE) to entities within the Group including principally Healthcare, all of which were based elsewhere than England and Wales. They maintain that if what is alleged is true then this was from first to last a conspiracy that was conceived and carried into effect in the UAE. They maintain that the governing law is beyond argument UAE law.

I shall limit the post to the Rome II element: Pelling J discusses this [64] ff, with the core element [68-69]:

the damage occurred when a UAE based company drew down against or otherwise benefitted from the Core Facilities offered by a UAE based bank. …ADCB … ultimately acted upon the representations in Abu Dhabi, from where the relevant loan funds were drawn down by NMC Healthcare“.

In the case of a misrepresentation or fraud, the locus damni is held to be the place where that misrepresentation is acted upon. UAE law as lex causae is in fact also and primarily confirmed by A4(2) Rome II: joint place of habitual residence, held [71] to be the UAE. Application of the A4(3) escape clause is dismissed [77], and a passing reference to a potential for A12 Rome II’s culpa in contrahendo leading to English law as the lex contractus, is summarily dismissed [78].

A stay is granted.

Geert.

Forum non conveniens
UAE clearly and distinctly more appropriate forum
Consideration ia of UAE law as applicable law under Rome II

Abu Dhabi Commercial Bank Pjsc v Shetty & Ors [2022] EWHC 529 (Comm)https://t.co/P0o1I2YbZL

— Geert Van Calster (@GAVClaw) April 1, 2022

In Chep Equipment Pooling BV v ITS Ltd & Ors [2022] EWHC 741 (Comm), Salter DJ untangles a myriad of jurisdictional gateways, partially tortious (with reference to UKSC Brownlie, and to CJEU Bier etc where relevant), partially contractual and subject to choice of court. A forum non challenge is rejected.

The choice of court discussion is interesting in particular for at 48 the judge mixes the forum prorogati rule of Article 25 BIa juncto its recital 20. One of the defendants claims the privilege of an A25 choice of court to establish compulsory Belgian jurisdiction. The judge notes that the agreement of which the clause is part, is governed by Belgian law and

The Audit Agreement, although in the English language, is governed by Belgian law. Rightly, neither party had tendered evidence of the principles of interpretation of jurisdiction clauses under Belgian law. At this stage of the proceedings, reliance on the presumption of similarity with English law is sufficient: see Brownlie (supra) at [157], per Lord Leggatt. In those circumstances, I must simply apply to this provision the principles of interpretation articulated in Fiona Trust and Holding Corpn v Privalov [2007] UKHL 40, [2007] Bus LR 1719.

This is a touch incorrectly formulated. Per BIa, the existence of consent and its expression are governed by A25, not by reference to any national law. The validity of consent by contrast does rely on national law however it is not the lex contractus of the underlying agreement which is relevant but rather the lex fori prorogati (also Belgian law), with renvoi. The judge in my view cannot rely on English law to judge the validity of choice of court at good arguable case level: once jurisdiction settled, it will not be allowed to be revisited. Even at this stage, therefore, per BIa the enquiry arguably must be made under Belgian law. Whether there was actually any suggestion that under Belgian (and subject to renvoi) law consent may not have been given, is not clear from the judgment.

Claimants tried to argue that the claim does not arise ‘out of or in connection with’ the Audit Agreement that contains choice of court however the judge disagrees. This part of the claim therefore must be litigated in Belgium (and an A8(1) anchor would of course not assist to keep the proceedings in England).

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.10.4.

Mix of jurisdictional arguments, partially related to Brussels Ia, partially English gateways and forum non conveniens

Chep Equipment Pooling BV v ITS Ltd & Ors [2022] EWHC 741 (Comm)https://t.co/HInLrba4IF

— Geert Van Calster (@GAVClaw) April 1, 2022

Milieu Consulting is conducting a study on the application of Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Ia Regulation) on behalf of the European Commission (DG JUST).

As part of this study, Milieu developed a technical survey that targets legal practitioners (i.e. judges; lawyers; notaries; bailiffs), academia (i.e., scholars in private international law and relevant sectors, such as consumer protection or business and human rights), and national authorities (i.e., ministries of justice, ministries in charge with consumer protection, ministries of economy) in EU Member States.

Readers are invited to participate (by 22 May) at https://ec.europa.eu/eusurvey/runner/BrusselsIatechnicalsurvey

 

Samsung Electronics Co. Ltd & Ors v LG Display Co Ltd & Anor [2022] EWCA Civ 423 concerns follow-on damages claimed against non-EU based defendants. The European Commission had earlier found the existence of a cartel. The Court of Appeal confirms the refusal of service out of the jurisdiction on forum non conveniens grounds, holding, like the first instance judge, that England & Wales are clearly not the appropriate forum (Taiwan and /or South Korea are).

I report the case for it contains an interesting Ps on the confidentiality of the EC finding: Males LJ:

The parties were united in urging upon us that the Commission Decision is confidential and that reference to its recitals should not be made in open court. I have to say that, as a general proposition, this seems paradoxical. I find it hard to see how a Decision can at the same time be both confidential and binding in public follow-on proceedings. To that extent it appears that any requirement of confidentiality may be in tension with the fundamental constitutional principle of open justice. Moreover, this particular Commission Decision deals with events which are now in the distant past and has been extensively litigated in the years since it was made. It is hard to think that there is any real confidentiality left.

Nevertheless I have been careful to confine my citation from the Decision to what is necessary to explain the submissions made to us and the conclusions which I have reached. I have referred only to recitals which were alleged to explain and support the operative part of the Decision (cf. Emerald Supplies Ltd v British Airways Plc [2015] EWCA Civ, [2016] Bus LR 145 at [68]) and have omitted any reference to other participants in the cartel who were not represented before us.

This invites interesting reflections on the principles of open justice in EU competition law findings – a discussion I shall leave to others.

Geert.

Follow-on damages action re EC finding of cartel, viz non-EU defendants.
Refusal of service out confirmed, E&W clearly not the appropriate forum.
Interesting ps on confidentiality of EU decision

Samsung Electronics ea v LG Display ea [2022] EWCA Civ 423https://t.co/vmDSR5OvCC

— Geert Van Calster (@GAVClaw) April 1, 2022

A brief post on the judgment of the CJEU in C-561/20 United Airlines. The CJEU held that the EU flight delay compensation rules of Regulation 261/2004 apply to a flight operated by non-EU airline on behalf of EU airline, even when  the delay relates to flight segment outside the EU. On the issue of international jurisdiction, the Court engages with customary international law questions, referring ia to its C-366/10 ATAA judgment which I discussed here.

The CJEU firstly [51] repeats that since

a principle of customary international law does not have the same degree of precision as a provision of an international agreement, judicial review must necessarily be limited to the question whether, in adopting the act in question, the institutions of the European Union made manifest errors of assessment concerning the conditions for applying such a principle

I do not think its poor view on the lucidity of customary international law is justified, however its finding that only manifest errors may lead to illegality does of course mean the CJEU does not have to worry about all the nuts and bolts of territorial jurisdiction. It suffices [52] that there is a close connection with the territory of the EU since the Regulation specifies that connecting flights fall within the scope of that regulation on the ground that the passengers have started their journey from an airport located in a Member State. [53]:

The regulation applies to a long delay caused in a leg of a flight operated in a third country only in limited and clearly defined circumstances in which the flight concerned, taken as a whole, is operated from an airport located in the territory of a Member State. Such a flight and its passengers thus retain a close connection with the territory of the European Union, including for the leg of the flight operated outside the European Union.

Flights which are wholly operated in a third country or between two third countries, without any connection with EU territory [55].

Geert.

#CJEU: EU #flightdelay rules apply to flight operated by non-EU airline on behalf of EU airline, even when delay relates to flight segment outside the EU.

Once text of full judgment available, we can see how much the Court engages with AG discussion of territoriality, int law. https://t.co/rGqA1n2idi

— Geert Van Calster (@GAVClaw) April 7, 2022

BRG NOAL GP SARL & Anor v Kowski & Anor [2022] EWHC 867 (Ch) continues the current trend of forum non conveniens applications galore, following Brexit. In the case at issue, with Luxembourg suggested as the appropriate forum, applicable law determination, under (retained) Rome I’s ‘characteristic performance’ rule plays a core role.

Applicable law needs to be determined essentially viz an undertaking as I understand it, by a, validly removed, investment fund General Partner, not to torpedo the subsequent orderly continuation of the fund. The core commitment reads

“I, [name], hereby acknowledge that [NOAL GP] is the managing general partner (“General partner”) of [the Fund] with effect from 27 August 2021 and unconditionally and irrevocably undertake (a) not to assert otherwise, or to induce or procure an assertion to the contrary or otherwise challenge or question the validity of its appointment or induce or produce such challenge or question, in any applicable forum and (b) to cooperate with and assist the General Partner in completing a full, orderly and timely transfer of the control of the Partnership and all of its assets and any obligations to the General Partner”.

Claimant [57] suggests the specific Undertaking in and of itself meets the CJEU Handte definition of a stand alone contractual obligation, however Smith J does not specifically hold on this for in her view even if this were correct, the overall contractual construction would have an impact on the applicable law consideration, seeing as in her view:

no choice of law was made; no default ‘passe partout’ contract as listed in A4(1) Rome I applies; A4(2) Rome I’s ‘characteristic performance’ test does not lead to an answer ([61]: there is no ‘characteristic performance’] and at any rate even if there were, the judge would have applied A4(3)’s escape clause to lead to Luxembourg law; and the ‘proper law of the contract’ per A4(4) Rome I ‘clearly’ [63-64] leads to Luxembourgish law.

In conclusion, a stay is ordered and the forum non application is successful. In my view the judge jumped too easily to Articles 4(3) and (4), denying Article 4(2)’s or even Article 3 choice of law’s effet utile. It is not unusual for judges to let their predetermination to apply A4(3) and /or (4) determine their A4(2) search for a lex contractus. Yet that frequency does not make the judgment right.

Geert.

EU Private International Law, 3rd ed, 2021, Heading 3.2.6.2.

Another extensively litigated forum non conveniens jurisdictional challenge, with core role for applicable law determination, retained A4 Rome I 'characteristic performance'
Stay in favour of Luxembourg proceedings

BRG NOAL v Kowski [2022] EWHC 867 (Ch) https://t.co/j3jAekQVXG

— Geert Van Calster (@GAVClaw) April 12, 2022

[contact-form]

When CJEU Bolagsupplysningen was held, I flagged immediately (I was not alone) that the judgment would necessarily create follow-up litigation.

At the level of the CJEU itself, Mittelbayerischer Verlag somewhat reigned in the consequences of Bier and Shevill, albeit not directly related to the discussions in Bolagsupplysningen. In Gtflix, the Court confirmed that each Member State where damage has occurred, will continue to have locus damni jurisdiction even if the claimant requests rectification of the information and the removal of the content placed online in another jurisdiction: one with full jurisdiction as either the Handlungsort or the place of the claimant’s centre of interests.

In England and Wales, Saïd v L’Express (a first instance case) held that it follows from Bolagsupplysningen that so far as internet publications are concerned, a claimant who is seeking injunctive relief (removal, correction in particular) may do so only in the places with full jurisdiction. This was implicitly confirmed in Napag, also a first instance case.

This conclusion has now been overturned by the Court of Appeal in Mincione v Gedi Gruppo Editoriale SPA [2022] EWCA Civ 557. This is a libel case brought by an Italian national with acquired British citizenship who is resident in Switzerland. He sues the Italian-domiciled publisher of a daily newspaper and weekly magazine, both of which are published predominantly in Italy and in the Italian language.

The first instance judge, Mincione v Gedi Gruppo Editoriale SpA [2021] EWHC 2006 (QB) had followed Said and Napag. The Court of Appeal notes that as a result of the Withdrawal Agreement it is bound by Bolagsupplysningen, it having been held before Brexit, and that it  ‘can have regard to’ ([65]) Gtlfix.

Warby J, seeking support in Gtflix, holds injunctive jurisdiction to restrain a harmful internet publication that has either occurred or “may occur”, does exist for the locus damni court yet only in respect of publication that may occur within the territorial jurisdiction of the court concerned. It can justify a domestic internet injunction, even for a ‘mosaic’ (locus damni) court, yet not to grant an injunctive remedy that would inevitably take effect extraterritorially.

The first instance judgment therefore is overturned on legal substance but  largely confirmed in practical reality: [72]. Current proceedings are largely held in substance, albeit not in form, to be a claim for a single and indivisible remedy. That is because a domestic internet injunction, prohibiting further publication, in this case however limited it might be in form, would, on the undisputed evidence, inevitably have extraterritorial effect. In future, technology might mean that an order framed as a domestic internet injunction would or could take territorial effect only. Yet in current technological reality, it is said that ordering removal would immediately have extraterritorial substantive effect. Those with knowledge of the technology may have more to say about this. Update 29 04 4:50 PM: the first instance judgment suggests this is related to the limited E&W jurisdiction, while the order would impact other parts of the UK, too: [98]: geo-blocking can only be done at a UK level, and the removal of a YouTube video can also be only done at a UK level (not: the E&W level).

The only part of the claim where jurisdiction for injunctive relief, if claimant is found at trial to have been libelled, will be possible, is for a so-called ‘section 12’ internet injunction: an order to publish a summary of the eventual judgment. That is because in the view of the the Court of Appeal, this relief can be targeted to the current subscriber basis of the publication outlets in England and Wales only.

Per Soriano, post Brexit a claimant will have to show that England and Wales is clearly the most appropriate place to bring an action, with locus damni per  SC Brownlie the tort gateway. Bolagsupplysningen will therefore not echo for much longer in E&W, and I doubt therefore that the SC will hear an appeal if it were sought.

Geert.

EU private international law, 3rd ed. 2021, 2.439 ff.

Court of Appeal overturns on the implications of #CJEU Bolagsupplysningen – jurisdiction to remove offensive articles published on the internet
Review on the blog shortly

Mincione v Gedi Gruppo Editoriale SPA [2022] EWCA Civ 557 https://t.co/UEZHfsSyy0

— Geert Van Calster (@GAVClaw) April 29, 2022