Droit international général

Ralf Michaels, Veronica Ruiz Abou-Nigm and Hans van Loon have edited The Private Side of Transforming our World – UN Sustainable Development Goals 2030 and the Role of Private International Law, recently published by Intersentia.

In 2015, the United Nations formulated 17 ambitious goals towards transforming our world – the Sustainable Development Goals (SDG 2030). Their relation to public international law has been studied, but private law has received less attention in this context and private international law none at all. Yet development happens – not only through public action but also through private action, and such action is governed predominantly by private law and private international law. This book demonstrates an important, constructive role for private international law as an indispensable part of the global legal architecture needed to turn the SDGs into reality. Renowned and upcoming scholars from around the world analyse, for each of the 17 SDGs, what role private international law actually plays towards these goals and how private international law could, or should, be reformed to advance them. Together, the chapters in the book bring to the fore the hitherto lacking private side of transforming our world.

An open access online version of this book is also available, thanks to financing by the Max Planck Institute for Comparative and International Private Law. It is available here through Intersentia Online.

The book comes with a chapter for each Sustainable Development Goals, i.e.: No Poverty; Zero Hunger; Good Health and Well-Being; Quality Education; Gender Equality; Clean Water and Sanitation; Affordable and Clean Energy; Decent Work and Economic Growth; Industry, Innovation and Infrastructure; Reduced Inequalities; Sustainable Cities and Communities; Sustainable Consumption and Production; Climate Action; Life below Water; Life on Land; Peace, Justice and Strong Institutions; Partnership for the Goals.

Contributors include Eduardo Álvarez-Armas (Brunel University London), Vivienne Bath (University of Sydney), Gülüm Bayraktaroğlu-Özçelik (Bilkent University), Klaus D. Beiter (North-West University), Sabine Corneloup (University Paris II Panthéon-Assas), Klaas Hendrik Eller (University of Amsterdam), Nikitas E. Hatzimihail (University of Cyprus), Thalia Kruger (University of Antwerp), Ulla Liukkunen (University of Helsinki), Benyam Dawit Mezmur (University of the Western Cape), Ralf Michaels (Max Planck Institute for Comparative and International Private Law / Queen Mary University, London), Richard Frimpong Oppong (California Western School of Law), Fabricio B. Pasquot Polido (Universidade Federal de Minas Gerais), Verónica Ruiz Abou-Nigm (University of Edinburgh), Jay Sanderson (University of the Sunshine Coast), Tajudeen Sanni (Nelson Mandela University / One Ocean Hub), Geneviève Saumier (McGill University), Anabela Susana de Sousa Gonçalves (University of Minho School of Law), Drossos Stamboulakis (Monash University), Jeannette M.E. Tramhel (Organization of American States), Hans van Loon (Institut de droit international; former Secretary General Hague Conference) and Jinske Verhellen (Ghent University).

On 1 December 2021, the HCCH held an online event focused on contemporary issues relating to the application of the 2005 Choice of Court Convention. The recordings are available at
https://www.youtube.com/watch?v=E1pVCqvmzyM&list=PLL3fQvUXrbUH0PwGssTjuJ55qOCiEcgNW

On 8 November 2021, the HCCH Working Group on Preventing and Addressing Illicit Practices in Intercountry Adoption met with a view to developing a Toolkit aimed at preventing and addressing illicit practices in intercountry adoptions made under the 1993 Adoption Convention.
The report of the Group is available at https://assets.hcch.net/docs/35d8530a-b5bd-4330-b2fc-abda099e7f6b.pdf

In a decision of 26 October 2021 (RG 20/04526), the ICCP applies Rome II to acts of unfair competition resulting from the use by a Polish company of a forbidden product to increase the longetivity of fresh fruit salads sold in France :

« Sur la responsabilité de la société FRUCTOFRESH
Sur la loi applicable
94-Conformément à l’article 6 du Règlement CE n° 864 /2007 sur la loi applicable aux obligations non contractuelles, dit Rome II, qui s’applique dans les situations comportant un conflit de lois, aux obligations non contractuelles relevant de la matière civile et commerciale « la loi applicable à une obligation non contractuelle résultant d’un acte de concurrence déloyale est celle du pays sur le territoire duquel les relations de concurrence ou les intérêts collectifs des consommateurs sont affectés ou susceptibles de l’être. »

95- En l’espèce, les actes de concurrence déloyales allégués concernent le territoire français de telle sorte que le droit français dont l’application est commandée par les dispositions du Règlement précité est en conséquence applicable ce que les parties ne contestent pas ».

Résumé : « A judgment from the Créteil Commercial Court of the 4th February 2020, which rejected the unfair competition claim brought by Déli, a French fresh fruits salad distributor against Fructofresh, a Polish company which distributes the same kind of products in France, was partially overturned by the Paris Court of Appeal.

After ascertaining that French law was applicable to these tort claims, the Court decided, based on the exhibits produced that there were enough serious, precise and concurrent elements that Fructofresh had added in their products, between 2013 and 2016, a preservative forbidden by European regulation which is known as velcorin. This preservative allowed said company to extend the preservation period of fruit salads from 10 to 14 days.

The Court did not acknowledge Bharlev’s liability, another competitor, since there was no evidence of the product’s commercialisation. The Court acknowledged the discontinuance of Déli’s claims against the German distributor Drinkstar which sold the preservative to Fructofresh.

The court forbidden the Polish company to commercialise its products containing the prohibited preservative in France, and granted Déli’s claim for financial compensation which was calculated on the loss of profit during the dereferencing period by its client Pomona, which granted the tender to Fructofresh in 2016 ».

Source : https://www.cours-appel.justice.fr/paris/26102021-ccip-ca-rg-2004526-pratiques-anticoncurrentielles

In a decision of 19 October 2021 (RG 20/03074), the ICCP recalled Recital 13 Rome I, and applied its Article 3 in favour of French law (with URDG 758 as part of the contractual rules)

Résumé : « In this case, the ICCP-CA was seized of an appeal against a judgment of the Paris Commercial Court which had sentenced the Egyptian bank SAIB to carry out its obligation of counter-guarantee in favor of the British bank ABC. The British bank, first rank guarantor of an Egyptian importer CDCM, had paid to the French beneficiary Peugeot the amount of the unpaid invoices corresponding to the imported vehicles, and claimed the payment of said amount in execution of its counter-guarantee to the Egyptian bank.

The bank SAID refused to execute the payment, disputing the validity of the guarantee claim on the grounds that some invoices had already been paid and that the amount claimed was therefore incorrect.

The Court, in application of French law, the law chosen by the parties, and of the Uniform Rules of Guarantee on First Demand n° 758 to which the parties had referred to in their agreement, rejected SAIB bank’s exceptions of non-performance in application of the guarantee’s independence from the initial contract, which does not depend on the guarantee’s qualification of either a first demand guarantee or a stand-by letter of credit (SBLC), the Anglo-Saxon variation of the independent guarantee.

The Court held that the bank’s argument to refuse payment actually amounted to reintroduce into the debate, under the guise of the document’s conformity, the contract’s payment exceptions, which are not enforceable (§46).

The Court did not accept the exception of fraud, a new exception on appeal for which the conditions provided for in article 2321 of the French civil code were not met (§51). The decision of the first judges was therefore entirely confirmed »

Source: https://www.cours-appel.justice.fr/paris/19102021-ccip-ca-rg-2003074-jugement-du-tribunal-de-commerce-de-paris-execution-dune-contre

In a decision of 19 October 2021 (RG 20/02342), the ICCP made an interesting application of an accord procédural in favour of the lex fori, which bypasses the application of Rome I in the eyes of the Court.

Résumé : « In this case for liability due to the sudden termination of an established commercial relationship, the ICCP-CA decided that a company which executed a contract signed by its subsidiary after the latter’s liquidation had an established relationship for the entire duration of the commercial relationship. The durability of business was characterized by the continuation of a former relationship. The court ruled that, in consideration of the five year contractual relationship, the six month notice period was sufficient and therefore, there were no sudden termination.

In relation to the alleged termination of the exclusive commercial agency contract, the ICCP-CA held that the continuation of a commercial relationship established after the termination of the contract did not have as an effect to maintain the contractual exclusivity clause, unless ascertained otherwise by the parties, which was not demonstrated by them in this case, the company having terminated said clause before the term of the contract ».

Source: https://www.cours-appel.justice.fr/paris/19102021-ccip-ca-rg-2002342-contrat-distribution-exclusive

On 19 October 2021, HCCH organised an event to celebrate the 25th anniversary of the HCCH 1996 Child Protection Convention. The recordings are available here

Athena Capital Fund Sicav-Fis SCA & Ors v Secretariat of State for the Holy See [2021] EWHC 3166 (Comm) features as defendant the Secretariat of State of the Holy See  (not the Holy See itself), and relates to a fraud and embezzlement claim of property in Chelsea, London.

Defendant says that from the perspective of Claimants, the purpose and intention of bringing these proceedings is to try to influence the criminal process in Italy, and/or the publicity emanating from the criminal process.

For its jurisdictional challenge, defendant argues [81] i) The claim was not a “civil and commercial matter” within the meaning of A1(1) BIa; ii) one of the claimants was not a party to the relevant Sale and Purchase Agreement (SPA) and could not rely upon it [this was summarily dealt with [88] by suggesting an amendment of claim] and, more forcefully, (iii) Defendant was not a party to the SPA for the purposes of A25 BIa.

Salzedo J justifiably in my view held [84] that

whether the claim is a civil or commercial matter does not turn on the subjective intentions of the claimant as to the ultimate effect that a claim might have on its interests, but on an objective reading of the claim itself and the relief that it seeks from the court. On that basis, it is a claim for declarations against the Defendant concerning the Defendant’s entry into commercial transactions with the Claimants.

and that the transaction was not entered into by the Defendant in the purported exercise of public powers: [86]

The Transaction was one that any private person could have entered into if it had the requisite funds. Nothing that was essential to the Transaction required sovereign powers to enter it and nothing that the Defendant did or purported to do was in the exercise of public authority.

As for the defendant not being a party to the SPA, the context here is whether a party involved in the signing accepted the SPA and its choice of court as an agent of the defendant. The judge, confirming the parties’ consensus, points out that that agency issue befalls to be addressed by English law. It is not said why that is the case however it is of course the result of the amended A25 – as others before it, however, the court does not complete the lex fori prorogati analysis with the recital 20 in fine mandated renvoi. On the agency issue the judge holds there is a good arguable case that the relevant agent did bind the defendant.

Next [103] ff follows a CPR-heavy discussion on the amendment of the claim form, seeing as the claimants erroneously assumed [120] that BIa was not engaged as the Vatican is not party to Brussels Ia. At [123] the conclusion is that the claim form may be amended and that defendants’ time spent in dealing with the service out issues under the common law (a wasted exercise as BIa applied), may be met in the costs order.

Once the A25 point rejected, there would have been a most narrow window for any kind of stay, yet the defendants try anyways, with [129] a series of abuse and case management arguments. One particularly poignant one is that the proceedings would interfere with a criminal proceeding. After discussion the judge [159] dismisses the idea on the facts, seeing as none of the declarations sought would involve any assertion as to what does or does not amount to criminality as a matter of the law of the Vatican State.

[163] ff discusses the abuse of process issue which the defendants, I understand, presented more or less as being integrated into the criminal procedure element, discussed above. That was wise, for abuse of process, while entertained among others in Vedanta, is arguably noli sequitur in a BIa claim. [Support for the alternative view here was sought [172ff] in Messier-Dowty v Sabena SA[2000] 1 WLR 2040]

The case-management stay proper is discussed 192 ff with reference ia to Municipio, and Mad Atelier. The judge in current case is very aware of not re-introducing through the back door what CJEU Owusu shut the front door on. He summarily discussed the possibility anyway, only to reject it.

An interesting case.

Geert.

1/2 Jurisdiction. Fraud, embezzlement re investments by the Holy See.
Held claim is within scope of Brussels Ia; A25 choice of court applies despite claimants' late recourse to that ground; no stay on grounds that proceedings would interfere with foreign criminal proceeding. pic.twitter.com/7OXCsiOkUJ

— Geert Van Calster (@GAVClaw) December 1, 2021

Kazuaki Nishioka (visiting Research Fellow at the Law Faculty of the University of Zurich) and Yuko Nishitani (Professor of International Private and Business Law at Kyoto University Graduate School of Law) published a new book on Japanese Private International Law with Hart Publishing series – Studies in Private International Law – Asia.

The volume seeks to be a leading reference on Japanese private international law in English. The chapters systematically cover all the areas of Japanese private international law: commercial matters, family law, succession, cross-border insolvency, intellectual property, competition (antitrust), and environmental disputes.

The analysis does not look only into the traditional conflict of law areas of jurisdiction, applicable law (choice of law), and enforcement, but addresses also the conflict of law questions arising in arbitration and assesses Japanese involvement in the global harmonisation of private international law.

In addition to summarising relevant principles and scholarly views, the authors discuss case law whenever possible, identify deficiencies and anticipate difficulties in the existing law.

The book presents the Japanese conflict of laws through a combination of common and civil law analytical techniques and perspectives, providing readers worldwide with a more profound and comprehensive understanding of the subject.

A table of contents is available here and an extract here.

Bitar v Banque Libano-Francaise S.A.L. [2021] EWHC 2787 (QB) discusses whether a Lebanese bank could be considered to have ‘directed’ its activities at the UK under the CJEU Pammer Alphenhof criteria, thus triggering the consumer section of the (acquired) EU Brussels Ia Regulation.

Kent DJ held it had: claimant’s arguments are at [29] ff, purporting to build evidence of a chain of marketing aimed at the expat Lebanese community. They show the importance of information put on websites, often made to look more glamorous by the addition of elements such as links to England and London in particular.  The judge is on point I find where he dismisses the singular relevance of the use of English etc in a world where every Tom Dick and Harry put that on their website. However he does conclude [65]

the website pages to which I have referred which were visible from the United Kingdom do indeed give the impression to a fair-minded observer—and I would say quite a strong impression—that the Bank was interested in obtaining custom from the expatriate Lebanese community in whichever part of the world not insignificant numbers of those who can be treated as falling within that expression were gathered and that in 2014 did include England. 

Geert.

EU private international law, 3rd ed. 2021, Heading 2.2.9.2.7, 2.270 ff

Bitar v Banque Libano-Francaise [2021] EWHC 2787 (QB) (20 October 2021)
Unsuccessful application for finding of lack of jurisdiction
Application of retained EU law on consumer contracts, Brussels Ia
Whether Bank 'directed' its activities at the UKhttps://t.co/bLQ9dfI2AV

— Geert Van Calster (@GAVClaw) October 25, 2021

Chowdhury v PZU SA [2021] EWHC 3037 (QB) is worth a brief post on the determination of ‘domicile’ for the purposes of the insurance title of Brussels Ia (the very same Title and provisions which I discuss in Betty Tattersal). Ritchie J discusses whether the claimant was ‘resident’ in England and Wales for despite the insurance section talking of ‘domicile’, the Regulation refers for that notion to the residual rules of the Member States; and in England and Wales, domicile for natural persons, for private international law purposes, is determined by their ‘residence’.

The judge held, having summarised all relevant authority, that the earlier finding of residence absolutely stands [72]:

Claimant was a British citizen, with a British passport, who grew up in Worthing and was educated in England, worked in England, had his parents and family in England, had his friends in England, had rented flats in London, in Earls Court and in Putney, had his benefits paid in England, had his property by way of clothes and personal items in England and kept some of those at his parents’ house in Worthing, in his own room there.

That he gave up his rental accommodation in England was entirely due to him seeking medical treatment in Germany on account of the very tort he is suing for. Clearly that could not dislodge his English residence, despite the most likely temporary impact on physical stays in England.

Geert.

Chowdhury v PZU SA [2021] EWHC 3037 (QB) (12 November 2021)
Brussels Ia, jurisdiction under the insurance title, road accident in Poland.
Whether claimant was 'resident' in the UK (held affirmatively).#travellawhttps://t.co/238oD8hIhE

— Geert Van Calster (@GAVClaw) November 13, 2021

I am slowly getting through the in-tray with back cases, looking in this post at the UKSC judgment in Kabab-Ji SAL (Lebanon) v Kout Food Group [2021] UKSC 48. There is plenty of analysis on the case already out there, among Gilles Cuniberti and a team of CMS lawyers. I previously discussed the judgment appealed.

The SC dismissed the appeal and the judgment therefore stands: parties’ choice of English law for the underlying contract was found to also be an express choice of the law governing the arbitration agreement. I suggested that finding was optimistic on the facts of the case. Moreover it would seem at odds with the separability line previously towed by the English courts: there may be perfectly valid reasons for having a different lex causae for the underlying contract, the arbitration clause, the lex arbitri and indeed the lex curia. Identity should not be too readily assumed. The SC however would seem to have been swayed by the New York Convention’s call for straightforwardness in enforcement (here lies as the SC notes a difference with previous case-law which concerned the pre-enforcement stage).

Not only is the UKSC approach at odds with the French SC, as I noted in my review of the Court of Appeal judgment. I am also not convinced that for the enforcement stage the SC should insist one keeps things simple whilst at many other stages through its authority it encourages often convoluted argument.

Geert.

Giles Cuniberti on Kabab-Ji SAL (Lebanon) v Kout Food Group [2021] UKSC 48
For my review of the Court of Appeal judgment, and the conflicting French view, see https://t.co/xk2iONVqIt
Re governing law of an #arbitration agreement https://t.co/hnnLZzyxpt

— Geert Van Calster (@GAVClaw) October 28, 2021

On 9 December 2021, the CJEU delivered its judgment in HRVATSKE ŠUME d.o.o., Zagreb v. BP EUROPA SE (Case C-242/20).

The main issue before the Court was whether a claim for unjust enrichment fell necessarily within the scope of the jurisdictional rule for contracts (Article 5(1) Brussels I Regulation, today Article 7(1) Brussels I bis Regulation) or the jurisdictional rule for delicts and quasi-delicts (Article 5(3) Brussels I Regulation, today Article 7(2) Brussels I bis Regulation), or whether it could fall in neither and thus fall within the scope of the general rule granting jurisdiction to the courts of the defendants of the domicile.

The Court followed the Advocate-General Conclusions and ruled that a claim for unjust enrichment which was not contractual in nature would not fall necessarily within the scope of the jurisdictional rule for delicts.

The request was referred by the Visoki trgovački sud Republike Hrvatske (Cour d’appel de commerce, Croatie). The questions, still on the Brussels I Regulation, were asked in the context of a dispute between a company incorporated under Croatian law, and a company established in Hamburg (Germany), over a sum of money seized on the bank account of the first company and transferred to the assets of the second as part of an enforcement procedure. As this procedure was subsequently invalidated, the applicant in the main proceedings sought restitution of the sum in question on the basis of unjust enrichment.

The first question referred by the Croatian court was:

1. Do actions for recovery of sums unduly paid by way of unjust enrichment fall within the basic jurisdiction established in Council Regulation (EC) No 44/2001 … in respect of ‘quasi-delicts’, since Article 5(3) thereof provides inter alia:: ‘A person domiciled in a Member State may, in another Member State, be sued … in matters relating to … quasi-delict, in the courts for the place where the harmful event occurred or may occur’?

The CJEU ruled that the claim was neither contractual, nor delictual, and thus fell within the scope of the general jurisdictional rule of the domicile of the defendant.

The reasons given by the Court are essentially based on the language of the relevant provisions and, perhaps also on its structure.

First, the Court recognises that claims for unjust enrichment could be related to a contract, and thus be characterised as contractual in character.

The most interesting part of the judgment relates to those claims which are not related to a pre-existing contractual relationship. The Court rules that such claims do not fall within the scope of Article 5(3) / 7(2) either. The main reason given by the Court is that Article 5(3) / 7(2) refers to ‘harmful events’ and thus should be interpreted as applying only where such events are concerned. Yet,

55. A claim for restitution based on unjust enrichment is based on an obligation which does not originate in a harmful event. That obligation arises irrespective of the defendant’s conduct, with the result that there is no causal link that can be established between the damage and any unlawful act or omission committed by the defendant.

A widely shared view, which was defended by the Commission in this case, was that Article 5(3) / 7(2) was a residual rule, and that all claims based on obligations which would not fall within the scope of Article 5(1) / 7(1) should be considered as delictual for jurisdictional purposes. The view is clearly rejected.

The result is indeed the opposite. While it seemed before this case that most claims based on unjust enrichment would fall within the scope of Article 7(2), the Court suggests that it will amost never be the case. It explains that a claim for unjust enrichment could be related to a contract and characterised as contractual,

Another potential argument supporting the conclusion of the Court is mentioned at the outset, but it is unclear whether it genuinely considers it as important. The Court reiterates that special rules of jurisdiction should be interpreted restrictively. Thus, if a particular claim does not clearly fall within the scope of any of the special rules (e.g. Article 7(1) and (2) Brussels I bis), they should not apply.

The case was also concerned with the scope of the exclusive rule in Article 22(5) Brussels I. The Court found that:

36. In the absence of any application for enforcement, an action for restitution based on unjust enrichment does not come within the scope of Article 22(5) of Regulation No 44/2001.  

The RIDOC 2021: Rijeka Doctoral Conference will be held on Friday 10 December 2021, from 8:30 to 17:30, in 10 sessions (some running parallel), at the University of Rijeka, Faculty of Law and online. The record number of doctoral students and outstanding three-member panels will provide an internationally diverse environment for discussion of various legal topics. Among the topics many of our readers will find something along their interests in conflict of laws, arbitration law, and of course public international law, as the same day we celebrate the international day of human rights.

The special treat is the plenary lecture to be given by the First Advocate General of the CJEU Maciej Szpunar on “The Court of Justice of the European Union and Effects of Research upon its Functioning” which starts at 12:30 at this link.

The programme is available here, and next to each session there is a corresponding link.

Written by Zhen Chen, doctoral candidate at the University of Groningen, the Netherlands

The article titled ‘The Tango Between Art.17(3) Brussels Ibis and Art.6(4)(b) Rome I under the Beat of Package Travel Directive’ is published on Maastricht Journal of European and Comparative Law with open access, available at https://doi.org/10.1177%2F1023263X211048595

In the field of European private international law, Brussels Ibis Regulation and Rome I Regulation are dancing partners that work closely with different roles. When it comes to consumer protection, Brussels Ibis Regulation is the leader and Rome I Regulation is the follower, since special protective rules over consumer contracts were first introduced in Articles 13–15 Brussels Convention[1] and then followed by Article 5 Rome Convention.[2]

1. Package travel in Article 17(3) Brussels Ibis and Article 6(4)(b) Rome I

Package travel tourists are explicitly protected as consumers under Article 6(4)(b) Rome I, but not under Article 17(3) Brussels Ibis since it does not expressly mention the term ‘package travel’. Instead, the term used in Article 17(3) Brussels Ibis is the same as that in Article 5(5) Rome Convention, which has been abandoned by its successor Article 6(4)(b) Rome I. Such discrepancy is widened with the replacement of Directive 90/314 by Directive 2015/2302 with the enlarged notion of package travel. This means that when Article 6(4)(b) Rome I Regulation is dancing under the beat of Directive 2015/2302, Article 17(3) Brussels Ibis Regulation is still dancing under the beat of Article 5(5) 1980 Rome Convention.

2. A uniform concept of package travel under Directive 2015/2302

The CJEU clarified in the Pammer judgment that the concept ‘a contract which, for an inclusive price, provides for a combination of travel and accommodation’ in Article 15(3) Brussels I should be interpreted in line with Article 6(4)(b) Rome I by reference to Directive 90/314.[3] The CJEU did not follow the opinion of the Advocate General, according to which the concept prescribed in Article 15(3) Brussels I has to be interpreted in exactly the same way as the term ‘package’ enshrined in Article 2(1) Directive 90/314.[4] The court stated that the concept in Article 15(3) Brussels I is ‘close to’[5] the notion package in Directive 90/314. The wording ‘close to’, instead of ‘identical’ or ‘the same as’, indicates that the CJEU did not intend to interpret such two terms as having exactly the same meaning.

Since Article 15(3) Brussels I remains unchanged in its successor Article 17(3) Brussels Ibis, this article argues that Art.17(3) Brussels Ibis Regulation has been two steps behind Art.6(4)(b) Rome I when it comes to the protection of consumers in package travel contracts. In order to close the gap, a uniform concept of package travel should be given. It is suggested that Art.17(3) Brussels Ibis should adopt the concept of package travel provided in Directive 2015/2302.

3. Deleting package travel contracts from the exception of transport contracts

Despite the adoption of a uniform concept, Article 17(3) Brussels Ibis and Article 6 Rome I only cover packages containing transport, as an exception of transport contracts. Packages not including transport do not fall under the exception of transport contracts. Since all package travel contracts should be protected as consumer contracts, regardless of containing transport or not, it is more logical to delete package travel contracts from the exception of transport contracts in Art.6(4)(b) Rome I as well as Art.17(3) Brussels Ibis and establish a separate provision to regulate package travel contracts.

To this end, Article 17(3) Brussels Ibis and Article 6(4)(b) Rome I can be simplified as ‘This Section/article shall not apply to a contract of transport/carriage’, whereas package travel contracts are expressly regulated as consumer contracts in a separate provision. In this regard, the framework in Article 5 Rome Convention is a better solution, according to which package travel contracts can be expressly included in Article 17 Brussels Ibis/Article 6 Rome I as follows:

Notwithstanding Article 17(3) Brussels Ibis/Article 6(4)(b) Rome I, this Section/article shall apply to a contract relating to package travel within the meaning of Council Directive 2015/2302/EU of 25 November 2015 on package travel and linked travel arrangements.

[1] The predecessor of Articles 17-19 Brussels Ibis Regulation.

[2] The predecessor of Article 6 Rome I Regulation.

[3] Joined cases C-585/08 and C-144/09 Pammer and Hotel Alpenhof, ECLI:EU:C:2010:740, para. 43

[4] Joined cases C-585/08 and C-144/09 Pammer and Hotel Alpenhof, ECLI:EU:C:2010:273, opinion of advocate general, para. 49.

[5] Case C-585/08 Pammer, ECLI:EU:C:2010:740, para. 36.

Koji Takahashi from Doshisha University Law School published on SSRN an article titled Blockchain-based Negotiable Instruments (with Particular Reference to Bills of Lading and Investment Securities). The article will be included as a chapter in the book: A. Bonomi, M. Lehmann (eds), Blockchain & Private International Law to be published by Brill.

The abstract reads as follows:

This paper will consider what should be the choice-of-law rules for the issues pertaining to blockchain-based negotiable instruments.

The concept of “negotiable instruments” refers to instruments representing relative rights (namely, entitlements that may be asserted against a certain person) such as rights to claim the performance of obligations and corporate membership rights. It depends on the applicable law which instrument qualify for this description. It covers, for example, “Wertpapier” defined by the Swiss Code of Obligations (Obligationenrecht) as any document with which a right is linked in such a way that it can neither be asserted nor transferred to others without the document (Article 965). The concept of “negotiable instruments” as used in this paper is broader than the same expression as ordinarily understood in English law. Under the latter, “negotiable instruments” ordinarily mean the instruments which allows a bona fide transferee to acquire a better title than what the transferor had. In this narrow sense, bills of lading are not negotiable instruments under English law though they are under German and Japanese law. As this paper will examine negotiable instruments in the wider sense, it will cover bills of lading and investment securities within its scope of analysis.

The concept of “blockchain-based negotiable instruments” refers to tokens issued on a blockchain which are meant to serve as negotiable instruments. This paper’s main focus is on blockchain-based bills of lading and blockchain-based investment securities (called crypto-securities). This paper will not make any particular mention of promissory notes, bills of exchange or cheques since no notable trend for issuing them on blockchains is observed as of the time of writing (August 2021) but they are not excluded from its scope. Intrinsic tokens (namely, tokens of self-anchored value) such as crypto-currencies are outside the scope of this paper since they do not represent any relative rights.

This post was written by Amy Held, LL.B., LL.M., LL.M., University of Vienna.

Judgment in Silverman v Ryanair DAC [2021] EWHC 2955 (QB) (10 November 2021) was recently handed down in the Queen’s Bench Division of the English High Court of Justice.  The issue for determination was a relatively simple one: whether English or Irish law applied to a claim made under the Montreal Convention.  This, however, raised the broader issue of how the Montreal Convention interacts with the choice of law rules of the lex fori; in particular, on matters on which the Montreal Convention is silent. The case is also of significance for aviation practitioners because, in practical terms, it was a determination of whether an airline can disapply the choice of law provisions contained in its own Terms and Conditions.

This case concerned a personal injury allegedly sustained whilst embarking a flight from East Midlands Airport in England to the Berlin Schönefeld Airport, in Germany.  It was common ground between the Claimant passenger and Defendant airline that the Montreal Convention for the Unification of Certain Rules for International Carriage by Air (‘the Montreal Convention’) applied to the claim.

Nor was it in issue before the court that Article 33 of the Montreal Convention effectively overrode the jurisdiction element of the dispute resolution clause contained in the Defendant’s Terms and Conditions of Carriage (‘the T&Cs’).  Notwithstanding that Clause 2.4 of the T&Cs conferred exclusive jurisdiction on the courts of Ireland (as well as specifying Irish law for matters of interpretation and governing law), Article 33 of the Montreal Convention is a mandatory, self-contained scheme for jurisdiction conferring upon claimants a wide range of choice as to the forum in which to issue their claim.  The English courts thereby had jurisdiction pursuant to the Claimant’s choice to issue in the place of his “principal and permanent residence.”

The issue on trial before the judge, Master McCloud (‘the Master’) was, however, the law applicable to quantum.  Although Article 17 of the Montreal Convention provides for the question of whether liability is established, the type of damage in respect of which compensation may consequently be recovered is a matter on which the Montreal Convention is silent.

Accordingly, the overarching issue of principle was whether, on matters on which the Montreal Convention is silent, those matters are governed by: (i) the law chosen by the parties; (ii) the lex fori or (iii) the law identified by the forum’s own choice of law rules.

A further key issue was whether: (i) the existence of a contract of carriage between the parties meant the claim fell within the Rome I Regulation on the law applicable to contractual obligations (Rome I); or (ii) notwithstanding such contract, the claim fell within the Rome II Regulation on the law applicable to non-contractual obligations (Rome II).

The Master considered domestic, international, and CJEU decisions to conclude that silence in an international Convention on a particular matter cannot “sensibly be treated” as overriding the forum’s own choice of law rules. Rather, silence in the Convention must be treated as operating as a ‘pass through’, authorising the forum to apply the law that would govern in the absence of the Convention in question.

Furthermore, it does not make any difference if those choice of law rules apply by virtue of another international Convention: in the present case, the Montreal Convention did not override Rome I and Rome II, which were to be treated as the domestic choice of law rules of the English forum.  Under the under the case law of the CJEU itself, the rules of jurisdiction contained in the Brussels regime are only disapplied in favour of the rules of jurisdiction contained in an international Convention where two conflict.

Accordingly, the question of quantum fell to be determined by the law identified by the choice of law rules of the English forum.

The Master held at [65] that, as a matter of the English choice of law rules, Rome II, not Rome I, applied to the claim. Notwithstanding that a contract of carriage had been entered into by the parties with clear choice of Irish law, the claim did not plead a case of breach of contract, not even one in which the Montreal Convention was incorporated. Rather, the Claimant pleaded a case of breach of the Montreal Convention itself.  Given that the Montreal Convention does not require carriage by air to be pursuant to a contract, but encompasses gratuitous carriage, the Montreal Convention should be regarded as implementing its own system of law that encompasses both contractual matters and ‘classically tortious concepts’ such as strict liability for injury.  The fact that Rome I provides for claims in arising from contracts of carriage did not mean that a claim under the Convention, framed non-contractually, should invariably be treated as though it were a contractual claim.

As such, the present Montreal Convention claim was most appropriately categorised as a “claim in respect of a non-contractual obligation arising out of a tort or delict in the form of causing injury to the claimant through negligence” within the scope of Rome II.

Notwithstanding that, under Article 4(1) of Rome II, claims in tort/delict are generally governed the law of the country in which the damage occurs, the Master considered that the present claim had a ‘manifestly closer connection’ with the law of Ireland within the meaning of Article 4(3) of Rome II.  Matters to which the Master gave particular emphasis was (i) a pre-existing relationship between the Claimant and Defendant in the form of the contract of carriage; the facts that such contract of carriage not only (ii) contained a clear choice of law clause; but (iii) selected as governing law the law of the place where the airline itself was domiciled.

Drawing upon academic literature, the Master accordingly concluded at [73] that, for issues of cognisable damage and quantum, English law, as the lex fori, identified Irish law as the governing law.

This was an unusual case in that the accident occurred in England, the loss was sustained in England, the claim was issued in England…and yet the Claimant sought to apply Irish law to govern the claim.  Accordingly, it might be said that, perhaps even more unusually, the Claimant’s case succeeded.

However, it is submitted that the Master correctly applied the relevant legal provisions to reach the correct conclusion: although the accident and damage was sustained in England, the English courts were seised by chance as a matter of the Claimant’s choice under Article 33(2) of the Montreal Convention as the place of his residence.  Had the Claimant been resident in another jurisdiction and issued there, the strength of the English nexus would have been greatly reduced.  In these circumstances, the application of Irish law would appear rather less incongruous.

The case also raises the question of whether ‘contracts conquer all.’  Prima facie, the conclusion drawn by the Master that Irish law applied appears to lend support to the proposition that, in the EU, a governing law clause in a contract of carriage will ultimately prevail when assessing recoverable damages and quantum for bodily injury within the meaning of Article 17 and other matters on which the Montreal Convention is silent; it does not matter whether Rome I or Rome II applies, as the outcome is the same.

This, however, overlooks one key part of the Master’s reasoning: whether the ‘escape clause’ in Article 4(3) of Rome II applies falls to be determined on a case-by-case basis upon consideration of the issue of ‘manifest connection.’   It cannot be said, therefore, that a contract of carriage containing a choice of law clause will always, without more, displace the general rule under Article 4(1) of Rome II that torts/delicts are governed by the law of the place in which the damage is sustained.

On a practical level, the case is also a useful reminder that although claims brought under the Montreal Convention are not necessarily claims in contract, the Master did not rule out the possibility that a comparable claim could be brought as one of breach of contract.  It appears that the matter ultimately turns on the way in which the claimant elects to plead his claim.

This is closely linked to the question of whether an airline can disapply the choice of law clause contained in its own T&Cs.  Strictly speaking, the choice of law rule in the present case was not so much ‘disapplied’ as simply not having been engaged by the facts of the case.  Characterisation of the claim as a tort/delict meant that the contractual provisions did not apply.  On the other hand, had the claim been pleaded and characterised as one for breach of contract, it is highly likely that the governing law clause would have survived to apply.

Heslop v Heslop & Anor [2021] EWHC 2957 (Ch) essentially queries whether Deceased testator actually had any estate or interest in Jamaican Property which she could pass by will.

Under the Moçambique rule (after British South Africa Co v Companhia de Moçambique [1893] AC 602) an English court will not, as a matter of its own limits to jurisdiction, by and large determine matters of title to foreign land. The purpose of the rule is the maintenance of comity and the avoidance of conflict with foreign jurisdictions. The rule has been discussed on the blog before and it finds its EU equivalent of course in Article 24  Brussels Ia.

After considering the rule and the facts of the case, Dray DM holds it is not triggered here for [51-52]

the relief sought (across the two claims) is relief of an in personam nature in a dispute between the two central protagonists, the Second Defendant (the asserted trustee) and the Claimant (the asserted beneficiary) under the asserted trust. The fact that the land in question is situated in Jamaica does not preclude this court from having jurisdiction to hear the claim. The proceedings do not involve any determination of rights in rem. They do not assert a property right which is by its nature enforceable against third parties and they do not purport to bind strangers/third parties. For instance, no possession order, effective against the world at large, is sought (and none could be granted by this court). Neither is any order directed to the Jamaican Land Registry claimed (ditto). The court is only asked to resolve a dispute between those before it, the proceedings being based on an alleged personal (trust) relationship between the Claimant and the Defendants.

Obiter he then [57ff] considers forum non conveniens (argued in fact by neither parties), with the complication [63] that the two claims before the court have not been consolidated and are thus separate claims, albeit proceeding together, and that the first claim was commenced before the end of the Brexit transition period whereas the second claim was commenced afterwards. The judge holds (again: obiter) [68] (seeing also that no consolidation has been sought) that the former claim needs to be assessed viz BIa and the latter viz the post-Brexit rules, [74 ff] that under BIa A24 is not engaged for the same reason as the Moçambique rule, and [72] that if it had been, he would have been minded to follow (with all the necessary caveats  Kennedy v National Trust for Scotland‘s reflexive application.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.208.

1/2 Moçambique rule re jurisdiction for title to foreign land does not apply to in personam orders viz
trustees of a trust of foreign land
Obiter consideration of forum non, reflexive application A24 BIa, and on joining a pre-#Brexit with a post-Brexit claim under the #WA

— Geert Van Calster (@GAVClaw) November 13, 2021

Mann v Towarzystwo Ubezpieczen Inter Polska SA & Ors [2021] EWHC 2913 (QB) showcases the recalcitrance which parties can still demonstrate to object to service despite the EU Service Regulation 1393/2007, should they have the obstinance, and deep enough pockets, to do so. Daniel Matchett reviews the case here and I am happy to refer.

Master Thornett at 5 is particularly on point when he refers to the need, particularly for professional defendants, to seek advice on E&W CPR early:

I do not find Mr Grochowalski’s emphasis upon the First Defendant being a small niche company in the Polish insurance market and as had no previous experience of a claim against it brought in another jurisdiction relevant. I am satisfied that such a company could and should taken reliable advice to understand about the English proceedings from service in May 2017 if not previously upon their notification by the Claimants’ solicitors. This could have been done by a variety of means…

Of additional note to Daniel’s assessment I find is the jurisdictional challenge dismissed seemingly by Master Brown in 2017 for reasons I understand of the tardiness of the objection, and the unsuccessful current attempt to resurrect it in this later application. One assumes claimant may have argued the contract was a consumer contract, allowing her (and now that she has sadly passed away, her husband) from pursuing the case in her own domicile.  An objection to jurisdiction which, going by the little the judgment reveals of the contractual circumstances, may have had some merit had it been brought earlier (I emphasise however I do not have much to go by here).

Geert.

Ia re Service Regulation 1393/2007
Mann v Towarzystwo Ubezpieczen Inter Polska SA & Ors [2021] EWHC 2913 (QB) (01 November 2021)https://t.co/hELuzC3gkG
via @IMTravelLawyer https://t.co/zKRjQodDsZ

— Geert Van Calster (@GAVClaw) November 17, 2021

The Rijeka Doctoral Conference of 2021, organised by the Faculty of Law of the University of Rijeka features a several presentations dealing with topics within, or related to, private international law.

Session 1C, scheduled to take place on 10 December 2021 at 8.30 CET will be devoted to Private International Law & Intellectual Property Law. Chaired by Oliver Remien (Julius Maximilian University of Würzburg), Elena Alina Onţanu (Tilburg University) and Giulia Priora (NOVA School of Law, Lisbon), the session will host presentations by: Caterina Benini (Catholic University of Sacred Heart, Milan): The Law Applicable to the Choice-of-Court Agreements under the Brussels I bis Regulation; Denisa Docaj (University of Milan): Private International Law Issues Arising from Brexit: The Rule on Lis Pendens and Related Actions in Civil and Commercial Matters; Zuzana Vlachová (Masaryk University): Infringement of Copyright with a Cross-border Element – Applicable Law; Hongqian Zhou (Waseda University): Digital Exhaustion from the Perspective of Consumers and Competition.

Issues of private international law will arguably arise in other sessions, notably Session 2B, on Family & Succession Law, with a presentation by Nazeemudeen Ziyana (University of Aberdeen) on The Use of Adoption in the Context of International Surrogacy Arrangements: A Comparative Analysis, and Session 2C, on Maritime & Aviation Law, with a presentation by María Gorrochategui Polo (University of the Basque Country) on Collective Bargaining and Cross-Border Collective Actions: The Maritime Industry as a Paradigm for Other Land-Based Industries.

Session 4A, scheduled at 15.30, will be devoted to Arbitration Law & Competition Law. Franco Ferrari (NYU School of Law), Stefan Enchelmaier (University of Oxford) and Miguel Verdeguer Segarra (EDEM Escuela de Empresarios & University of Nebrija) will chair the session. Featured presentations include: Gautam Mohanty (Kozminski University, Warsaw): Joinder of Third-Party Funders in International Investment Arbitration; Yihua Chen (Erasmus University Rotterdam): Third-Party Funding in International Arbitration: A Transnational Study of Ethical Implications and Responses; and Denis Baghrizabehi (University of Maribor): Private Enforcement of State Aid Law in Civil Litigation.

Additional information, including the link to join the various sessions, may be found here.