EAPIL blog

Litigating in England is expensive. That is why the number of international family law cases is relatively small in this country. However, when an international family law dispute does end up before an English court, it tends to involve very wealthy individuals and can be quite spectacular. One such case is Potanina v Potanin, which concerns a maintenance claim brought by Natalia Potanina against her ex-husband, Vladimir Potanin, “Russia’s richest man” according to Bloomberg.

On 31 January 2024, the UK Supreme Court (Lord Leggatt, Lord Lloyd-Jones and Lady Rose; Lord Briggs and Lord Stephens dissenting) gave a judgment in this case, essentially removing an obscure procedure that had previously precluded respondents from properly arguing their case at the initial stage of deciding whether the applicant should be permitted to make an application for financial relief.

Facts

The parties were born in Russia and are both Russian citizens. They married in Russia in 1983 and lived there throughout their marriage. In the 1990s, the husband accumulated vast wealth, estimated to amount to USD20 billion, primarily comprising an ultimate beneficial interest in the shares of a Russian metal and mining company. The parties divorced in 2014, prompting extensive litigation in Russia, the USA and Cyprus, in which the wife unsuccessfully sought to obtain half of the assets beneficially owned by the husband. Following the divorce, the wife relocated to London, becoming habitually resident in England in 2017. In 2018, she applied for permission to seek maintenance.

Legal Framework

Part III of the Matrimonial and Family Proceedings Act 1984 gives English courts the power to order financial relief after an overseas divorce. The court has jurisdiction to do so if either party was habitually resident in England throughout the period of one year before the commencement of proceedings or before the overseas divorce. Before making an order for financial relief, the court must consider whether it would be appropriate for an English court to do so, taking account various factors such as the parties’ connections with England, the country in which they were divorced and any other country. If the court is satisfied that it would be appropriate for it to make an order for financial relief, it has the power to make any order it could make in cases of divorce in England. Section 13 of the Act protects respondents by providing that no application under Part III may be made without the court’s permission, obtained in accordance with rules of court. The court may only grant permission if it considers that there is a “substantial ground” for making an application for financial relief.

Issue

The judge initially granted permission at a without notice (previously called ex parte) hearing. However, the judge subsequently allowed the husband’s application to set aside the order granting permission on the basis that he had been materially misled. The Court of Appeal allowed the wife’s appeal adopting a strict test for when the power to set aside an order granting permission could be exercised: there had to be some “compelling reason” to do so and in practice only where a decisive authority had been overlooked or the court had been misled; furthermore, it had to be be possible to demonstrate such a compelling reason by a “knockout blow”. This test was derived from Lord Collins’s obiter dictum at [33] of Agbaje v Agbaje.

Judgment

The Supreme Court held that “If this is indeed how the law presently stands, then I would feel bound to say that, in the eloquent words of Mr Bumble, “the law is an ass.” [30].

This is because the test for when the power to set aside an order granting permission could be exercised violated fundamental principles of procedural fairness. If the husband could not demonstrate by a “knockout blow” that the judge had been misled at the initial without notice hearing, the judge was not entitled to hear any argument from the husband regarding whether the test for granting permission under Section 13 was met or to set aside the permission granted after the without notice hearing. In Potanina, this led to what the court described as a “dystopian” [5], “patently unfair” [31] and “foolish” [32] result that the judge’s initial order granting permission was restored, despite the judge’s later conclusion, after hearing argument from both parties, that the test for granting permission had not been met.

The Supreme Court clarified that there was no requirement to demonstrate a “compelling reason” or that the court had been misled or to deliver a “knockout blow”.

The correct position is that if a court makes an order granting permission under Section 13 after a without notice hearing, the respondent has an absolute unfettered right to apply to set aside the order. At the hearing of such an application, the burden still lies on the applicant to demonstrate a “substantial ground” for making the application for financial relief in England. In this context, the word “substantial” means “solid”.

Because of its conclusion that the judge had not been entitled to reconsider his initial decision, the Court of Appeal failed to address certain grounds of appeal raised by the wife, including the question of applicability and effect of the Maintenance Regulation No 4/2009. As a result, the case was remitted to the Court of Appeal.

Comment

Wealthy individuals like Mrs Potanina bring maintenance claims in England because English courts may be more inclined than those of other countries to equally divide the assets, including those beneficially owned by the spouses. Before the Supreme Court judgment, obtaining permission to seek financial relief was relatively easy, as the initial order granting permission was typically granted without notice and the strict test for setting it aside was usually not met. However, the Supreme Court has now decided that this test was wrong in law. The court addressed a procedural issue, not the merits of the claim, in its judgment. While the judgment cannot put an end to “divorce tourism” in England on its own, it will lead to future cases facing greater scrutiny, allowing respondents to properly argue their case at the initial stage of deciding whether the applicant should be permitted to make an application for financial relief.

The latest issue of Lex & Forum, the Greek law review on Private International Law, has been published recently. Paris Arvanitakis, the scientific director of the review, has prepared the following editorial:

Private International Law is fundamental in resolving environmental claims that cross national borders, offering vital legal mechanisms for determining jurisdiction, applicable law, and the recognition and enforcement of judgments. This relationship is particularly significant in an increasingly interconnected world, where environmental issues often transcend geographical boundaries, necessitating a cohesive and robust legal approach to address and resolve such multi-faced transnational disputes effectively. These complicated problems, which constitute the main body of the present issue (Focus), were discussed at a workshop, organized by Lex & Forum on 21.9.2023, chaired and introduced (‘Private international law and environmental disputes’) by Professor at the University of Athens and Director of the Hellenic Institute of International and Foreign Law Mr. Mr. Charis Pamboukis, where presentations were made on ‘Climate justice litigation and private international law’, by Mr. Geert Van Calster , Professor at the Catholic University of Leuven, ‘Collective redress in environmental matters’,  by Lecturer at the University of Malta, Mr. Ioannis Revolidis, ‘Climate litigation: procedural issues’, by Assoc. Professor at the International Hellenic University and member of the the Regulatory Authority for Energy, Mr. Komninos Komnios, ‘Environmental claims in cross-border insolvency’, by Professor at the University of Athens, Ms. Elina Moustaira,  and ‘The impact of third party funding in climate change arbitration: a potential game-changer or too much ado for nothing?’ Ms. by Vasiliki Marazopoulou, Dr.Jur.

Τhis issue includes the Preafatio by Mr. Gilles Cuniberti, Professor at the University of Luxembourg and President of EAPIL, on ‘Mutual Trust Excludes Damages for Suing in other Member States in Breach of Jurisdiction Clause’, which refers to the judgment of the CJEU in the Charles Taylor Adjusting decision case, published also here (commented by Dr. jur. K. Voulgarakis, and Dr. jur. S. Karameros).  The case law section also presents the judgments of the CJEU, 30.3.2023, C-34/21, on the non-infringement of personal data through teaching by videoconferencing due to COVID-19 without the consent of teachers (commented by Dr. jur. R. Tsersidou), CJEU, 30.3.2023, M.Y.M., on the possibility of registering a declaration of renunciation of inheritance in a Bulgarian court before the Registrar of the Athens Magistrate’s Court (commented by Dr. jur. N. Zaprianos), the decision of the Austrian Supreme Court of Cassation, 25.2.2021, on the non-violation of public policy when applying a foreign law of succession that does not provide for a reserved portion on legal succession (commented by Dr. jur. N. Zaprianos), and the domestic decisions Court of Appeal Piraeus 682/2022 on international jurisdiction by joinder of parties of companies that have signed successive shipping contracts (commented by Prof. P. Arvanitakis), and Court of First Instance Athens 922/203 on international jurisdiction and applicable law over the submission of a mentally disabled person under guardianship (commented by Ass. Prof. G.-A. Georgiadis). The issue closes with a special feature on “EU & Global Trade Law”, which features the studies of Professor at Columbia University, Mr. Petros Mavroidis, on “The WTO at Crossroads”, and Professors at the Universities of Gedik/Turkey and Rouen, respectively, K. Bozkurt and Ph. Lombaerde, on “The Cause and Consequences of the Hybrid EU-Turkey Trade Regime”.

Lex & Forum renews its scientific appointment with its readers for the next, 12th issue, with the central theme “Cross-border insolvency”.

The Rovira i Virgili University of Tarragona will host on 4 and 5 April 2024 a conference titled Conflict of Laws on Rights in Rem in the EU: Status Quo and Proposals for the Future.

The event is part of a research project titled Regime of Rights in Rem over Tangible Property in European Private International Law: Issues of International Jurisdiction and Applicable Law, with Georgina Garriga Suau and Maria Font i Mas as principal investigators.

The conference will feature five panels.

The first four, in English, will be respectively devoted to: Private international law of rights in rem in the U.S. and the European Union (with Christofer A. Whytock and Marta Pertegás Sender as speakers); Proposals for an EU Regulation on applicable law in the field of rights in rem (Francisco J. Garcimartín Alférez and Eva-Maria Kieninger); Questions on the law applicable to rights in rem (Gilles Cuniberti, Afonso Patrâo, Pietro Franzina and Ivana Kunda); Challenges of the rights in rem in the digital era (Ilaria Pretelli, Silvana Canales Gutiérrez and Guillermo Palao Moreno).

The fifth panel, in Spanish, will address a selection of issues relating to cryptoassets, goods in transit and in rem securities in connection with cross-border insolvency proceedings, land registries and cultural property, the speakers being Vésela Andreeva, Josep Maria Fontanellas Morell, Iván Heredia Cervantes, Carmen Parra Rodríguez and Rosa Miquel Sala. The full programe van be found here.

The organisers of the conference have issued a call for presentations on any of the thematic areas covered by the panels. Speakers selected based on the call will be invited to make presentations in person during the conference for approximately ten minutes each. The deadline for submission of communications is open until 4 March 2024. Further information is available here.

Those interested in attending the conference are invited to register by e-mail at pilrightsinrem@urv.cat, specifying whether they plan to attend in person or on-line.

On 8 and 9 March 2024 a conference will be held at the University of Augsburg, organized by Tobias Lutzi, to discuss current developments in connection with punitive damages.

In particular, the event aims to critically discuss whether and to what extent the German courts‘ strict refusal to recognize foreign punitive damage awards is still tenable in light of developments both in legal systems that award punitive damages and in legal systems that do not (but may still recognize such awards).

Speakers include Tobias Lutzi, Lukas Rademacher, Jan Lüttringhaus, Phillip Hellwege, Catherine Sharkey, Rachael Mulheron, Eleni Katsampouka, Cedric Vanleenhove, Marko Jovanovic, Leonhard Hübner, André Janssen, Beligh Elbalti, Johannes Ungerer, Wolfgang Wurmnest, Samuel Fulli-Lemaire, Marta Requejo Isidro, Caterina Benini and Min Kyung Kim.

The full programme is available here.

Registration is possible via this link; attendance is free of charge.

Those interested in attending the conference on-line may get in touch with the organisers (tobias.lutzi@jura.uni-augsburg.de) and ask for a video-link.

It has already been announced on this blog that the next EAPIL conference will take place in Wrocław (Poland) between 6 and 8 June 2024, and will be devoted to Private International Law and Global Crises.

Those willing to join the conference may now register for the event through the dedicated conference website. Please note attendance is in person (on-site) only.

The full programme of the conference, together with practical information on travel and accommodation, are also found in the website.

Huge thanks to Agnieszka Frąckowiak-Adamska, Vice-President of the European Association of Private International Law, and her team, for taking care of the event!

The conference speakers include: Raffaele Sabato (European Court of Human Rights), Vincent Kronenberger (Court of Justice of the European Union), Andreas Stein (European Commission), Patrick Kinsch (University of Luxembourg), Veronica Ruiz Abou-Nigm (University of Edinburgh), Iryna Dikovska (Taras Shevchenko National University Kyiv), Tamasz Szabados (ELTE Eötvös Loránd University), Alex Mills (University College London), Matthias Weller (University of Bonn), Eduardo Alvarez Armas (Universidad Pontificia Comillas), Olivera Boskovic (Université Paris Cité), Rui Dias (University of Coimbra), Klaas Eller (University of Amsterdam), and Laura Carpaneto (University of Genova).

For further information: 2024.EAPIL.Wroclaw@uwr.edu.pl.

Geert De Baere (judge at the General Court of the EU and professor at KU Leuven) and Johan Meeusen (professor at the University of Antwerp) have just published with Larcier-Intersentia a new edition of their handbook, in Dutch, on the law of the European Union: Grondbeginselen van het recht van de Europese Unie.

The book provides an overview of the core elements of EU law, including the Union’s institutional organization and judicial protection, its fundamental principles, sources and decision-making procedures, the internal market, Union citizenship, competition law and external relations.

New in this second edition is a chapter on the European Union’s area of freedom, security and justice, which inter alia covers its historical development, the TFEU’s “general provisions” concerning the area and the specific Treaty provisions concerning its respective subfields. Readers are introduced to, inter alia, the institutional and substantive aspects of the judicial cooperation in civil matters and the Union’s action with respect to private international law.

Further information on the book, and on the simultaneous publication of new editions of Johan Meeusen’s books on the case law of the Court of Justice of the European Union and other sources of EU law, can be found here.

Regulation (EU) 2023/2844 on the digitalisation of judicial cooperation and access to justice in cross-border civil, commercial and criminal matters, and amending certain acts in the field of judicial cooperation, also knowns as the “Digital Justice” Regulation, was adopted on 13 December 2023 (see already here on the Regulation proposal, here on the text negotiations and here on the new text).

General Background

This Regulation constitutes an important step in the EU commitment to modernise cross-border proceedings in the European judicial area, in accordance with the “digital by default” principle. For the record, this principle means that delivering services digitally is the preferred option through a single contact point. In the judicial context, it applies to digital communication between authorities and litigants. It aims to improve the efficiency of exchanges and reduce costs and administrative burden. At the same time, this digital shift implies that all the necessary safeguards must be put in place to prevent social exclusion of certain litigants, while ensuring mutual trust between authorities, interoperability and the security of processes and data.

The “Digital Justice” Regulation seeks to find this difficult balance by establishing a uniform legal framework for the use of electronic communications between, on the one hand, the competent authorities in cross-border legal proceedings and, on the other, between these authorities and the parties. The Regulation also provides for harmonised provisions relating to the use of videoconferencing, the application of electronic signatures, the legal effects of electronic documents and the electronic payment of fees.

The Regulation builds on the increasingly  dense “digital acquis” in EU law, starting with the protection of personal data (i.e. GDPR and its extension to EU bodies), the eDIAS Regulation on electronic identification and trust services for electronic transactions and, more specifically in the area of judicial cooperation, the deployment of the e-CODEX system in the field of judicial cooperation in civil and criminal matters, the management of which has just been transferred to eu-LISA. This complex “regulatory web” dealing with the digitalisation of human and economic exchanges in the Union can no longer be ignored by legal practitioners and will have to be articulated with the e-Justice Regulation.

Scope of the Regulation Cross-border Cooperation in Civil and Criminal Matters

The Regulation lays down provisions on the digital exchanges of information which are intended to apply to cross-border proceedings in civil, commercial and criminal matters.

This material scope is quite remarkable, since until now the regulatory framework of judicial cooperation in the Union has developed in a differentiated and even hermetic manner between its civil component (Article 81 TFEU) and its criminal component (Article 82 seq. TFEU). Digitalisation marks a turning point in favour of the unification of the European judicial area, initiated with the e-CODEX Regulation, which is meant to constitute one of its structural (digital) dimensions. Indeed, digitalisation is a common issue relevant for the various forms of justice (and, more broadly, for public services and administrations). It is therefore welcome that the EU legislator has adopted a unified regulatory framework in this area. From an academic perspective, it should encourage scholars to look beyond their discipline – (EU) civil or criminal justice – to enhance cross-cutting analyses of the EU judicial area as a whole.

As far as private international law is concerned, Annex I of the Regulation includes most of the instruments adopted in the field of judicial cooperation in civil matters, with the exception of the “Rome” (I, II, III) Regulations dedicated to conflicts of laws and the Service of Documents and Taking of Evidence Regulations, which were already modernised in 2020 to incorporate the digital procedural dimension (see here and here).

Interplay Between EU Judicial Cooperation Acquis and e-Justice Regulation

The “Digital Justice” Regulation shall be understood as an instrument for “upgrading” the legal framework of EU judicial cooperation in its digital dimension. How does it work? Among all instruments adopted as part of EU policy on judicial cooperation in civil and in criminal matters, the implementation of those relating to cross-border proceedings triggers the “complementary” application of the new Regulation. In that respect, the Annex to the Regulation contains a list of the instruments concerned (Annex I in civil matters and Annex II in criminal matters). This means that the tools and channels for digitalising judicial cooperation provided for in the Regulation are intended to apply in the context of cross-border proceedings based on one or more of these listed instruments. The internationality criterion of the judicial proceedings in question will thus depend on the definition adopted by each instrument concerned.

By contrast, more recent (and future) EU instruments in civil and criminal matters do not (will not) fall within the scope of the e-Justice Regulation since they (will) develop their own digital-related provisions – as illustrated by the Taking of Evidence Regulations in civil matters and in criminal matters or de lege ferenda by the Regulation Proposal on the Protection of Adults –Eventually, the long-term objective of the EU legislator is to establish a judicial cooperation digitalised “by design” in the European area; and that will require strong commitment and concrete changes – in particular at the technical and administrative level – for the judicial systems of Member States.

Temporal implementation

It will certainly comfort legal practitioners and judicial actors to briefly mention the timeframe for implementing the new Regulation: this will be very gradual and will take several years. In principle, the Regulation will be applicable in spring 2025. However, as far as the provisions on electronic communications are concerned, the date of application of the new provisions depends on the implementing Acts that the European Commission will adopt to organise the future structural channels of digital interactivity between authorities and between authorities and litigants. To this end, a staggered timetable (from n+2 years to n+5 years) has been set for the adoption of several successive implementing Acts aimed respectively at one or other of the texts listed in the Annex. All in all, it will take until 2031 (according to a rough calculation) for the entire legal framework to be fully operational.

Main Innovations for Cross-border e-Justice Electronic Communication Networks

In terms of technical innovations, the Regulation sets up a uniform legal framework for digital exchanges of information via the Internet or another electronic communications network. The Regulation establishes two information channels for such electronic communications: first, a decentralised IT system to handle exchanges between the competent authorities (including relevant EU bodies) and, second, a European electronic access point for litigants to interact with the competent authorities. It is for the European Commission to specify, through implementing acts, the content of these two information channels. In addition, the Commission is in charge of developing “reference implementation software” so that Member States can adopt it, on a voluntary basis, as their back-end system, in place of a national IT system. It will also be responsible for maintaining the software as well as the European electronic access point. These are major technical and legal responsibilities for the Commission vis-à-vis national judicial systems; they may invite to reflect on the strategic positioning of this institution in the EU institutional architecture.

Decentralised IT system — The first channel for electronic communications will consist of national IT systems with interoperable access points, interconnected via the pan-European computerised communication system e-CODEX. The decentralised IT system should be used “as a matter of principle” for all exchanges between competent authorities in different Member States and between a competent national authority and an EU body or agency. This could be a court (e.g. for small claims procedures), a central authority (e.g. under the Brussels II ter Regulation) or an EU body or agency involved in judicial cooperation procedures in criminal matters, such as Eurojust. The decentralised computer system will in particular have to be used for the exchange of standard forms established by the instruments listed in the Annex.

Other means of electronic communication may be used by way of derogation only, in the event of disruption of the decentralised system, force majeure or because of the nature of the documents to be transmitted.

European electronic access point — The second digital communication channel is an innovation for civil litigants: the European electronic access point. It will be accessible from the European e-Justice portal and may be seen as a counterpart to the Single Digital Gateway for cross-border administrative procedures (including the cross-border circulation of public documents). It should in theory govern electronic exchanges between litigants and the competent authorities in all the cases provided for by the instruments listed in Annex I to the Regulation. This could involve making requests, sending and receiving information relevant to proceedings or being served with procedural documents. In that respect, Article 4 of the Regulation should be of particular interest to legal practitioners, as it offers a “systematic mapping” of the different scenarios for cross-border communication in the light of the instruments of judicial cooperation in civil matters listed in Annex I. In those scenarios, the competent authorities may have to accept electronic communication.

In order to make this work in practice, the Regulation requires Member States to train legal staff in these new digital channels. This is essential and will require an excellent understanding of the issues of accessibility, personal data protection and cyber security, both by practitioners and, more broadly, by public authorities.

Unlike the decentralised IT system, which responds to the digital by default principle, litigants will have to give their prior consent to enter into a dematerialised communication exchange with the national authorities of a Member State. In case of refusal, this should mean that the exchange will take place via “traditional” communication channels. Nothing is specified by the Regulation, as this is a matter for national law. In the long term, however, it is questionable whether this choice will always be possible, particularly in those Member States that have already made or well advanced the digital transition of their justice system. As a matter of fact, there are major disparities between Member States, including in terms of local territories and population, which could create gaps between the (requesting and requested) authorities for cross-border judicial cooperation.

Legal Effects of Electronic Communications and Documents

The Regulation makes several references on the legal effects of the digitalisation of judicial cooperation and, more specifically, of its communications aspect. The sensitive point here relates to the potential influence of the digital format on the legal value of the document as “data flow”. The Regulation recalls that the rules governing cross-border judicial procedures established by the legal acts listed in the Annex are not affected, apart from the digital communication dimension of the new framework. In particular, the national law of the Member States continues to govern questions relating to the authenticity, accuracy and appropriate legal form of documents or information that will transit through the new digital channels.

A contrario, digitised exchanges must not deprive electronic documents of legal effects. This is provided for in Article 8 of the Regulation, which is a well-known provision as it already appears in other European instruments in digital matters: “Documents transmitted by electronic means shall not be deprived of legal effect and shall not be considered inadmissible in cross-border legal proceedings concerning the legal acts listed in Annexes I and II solely on the ground that they are in electronic form”.

Cross-border Justice by Videoconference

The Regulation also organises the use of videoconferencing for hearings of persons in cross-border judicial proceedings listed in the Annex. The European legal acquis already contains provisions on the use of videoconferencing on an optional basis or subject to the existence of technical tools within the authorities concerned. The same rationale is followed by the Regulation, so there is no obligation. The promoters of digital justice may regret this, but the Regulation nevertheless provides that the use of videoconferencing may not be refused by the authorities of a Member State “solely on account of the non-existence of national rules governing the use of distance communication technology. In such a case, the most appropriate rules applicable under national law, such as rules on the taking of evidence, should apply mutatis mutandis” (Rec. 33). This voluntary and incentive-based approach is certainly justified, in order to take account of the disparities between national legal systems in terms of their level of digitalisation and, in the case of criminal proceedings, because of the great vulnerability of the individuals concerned by the proceedings, which digital communications may increase.

Concluding Remarks

 The “Digital Justice” Regulation is an important step in the structuring of cross-border digital justice in the Union and paves the way for a (new) European “digital judicial culture”. In that respect, the Regulation leaves the Member States room for manoeuvre by allowing them to extend its scope to purely domestic judicial procedures – i.e. outside the EU competence based on Articles 81 and 82 TFEU –. This is of great significance since digitalisation blurs the boundaries between internal and international proceedings. The EU cross-border digital Justice should therefore have a long-term impact on national judicial systems of the Member States. But to succeed, major changes will be needed in national justice systems (as recently highlighted by the new e-Justice Strategy). In this context, a solid dialogue with legal and judicial practitioners will be central as well as keeping the “big picture” of digitalisation in mind, starting with the crucial issues of the digital divide, the protection of personal data and cybersecurity in relation to Article 47 of the EU Charter.

February 2024 will be a busy month at the Court of Justice.

A hearing took already place on 1 February in case C-394/22, Oilchart International, a request for a preliminary ruling on the delimitation of Regulation Brussels I bis and Regulation 1346/2000, as well as on the compatibility with the latter of specific Dutch provisions. The Hof van beroep te Antwerpen (Belgium) is asking the Court:

(a) Must Article 1(2)(b) of the Brussels Ia Regulation in conjunction with Article 3(1) of the Insolvency Regulation be interpreted as meaning that the term ‘bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings’ in Article 1(2)(b) of the Brussels Ia Regulation includes also proceedings in which the claim is described in the summons as a pure trade receivable, without any mention of the respondent’s previously declared bankruptcy, whereas the actual legal basis of that claim is the specific derogating provisions of Netherlands bankruptcy law (Article 25(2) of the Wet van 30 september 1893, op het faillissement en de surséance van betaling (Law of 30 September 1893 on bankruptcy and suspension of payment; ‘NFW’) and whereby:

– it must be determined whether such a claim must be considered a verifiable claim (Article 26 NFW in conjunction with Article 110 thereof) or an unverifiable claim (Article 25(2) NFW),

– it appears that the question whether both claims can be brought simultaneously and whether one claim does not appear to exclude the other, taking into account the specific legal consequences of each of those claims (inter alia, in terms of the possibilities of calling for a bank guarantee deferred after the bankruptcy), may be determined in accordance with the rules specific to Netherlands bankruptcy law?

And further

(b) Can the provisions of Article 25(2) [NFW] be regarded as compatible with Article 3(1) of the Insolvency Regulation, in so far as that legislative provision would allow such a claim (Article 25(2) NFW) to be brought before the court of another Member State instead of before the insolvency court of the Member State in which the bankruptcy was declared?

The national proceedings concern a claim for the payment of an invoice still pending when the debtor became insolvent. Due to the provisions contained in bank guarantees, the claim was brought before a Belgian court. The case has been assigned to a chamber of five judges (A. Prechal, N. Wahl, J. Passer, L. Arastey Sahún, and F. Biltgen reporting). AG L. Medina will provide an opinion in due course.

On 8 February AG M. Szpunar will deliver his opinion in C-633/22, Real Madrid Club de Fútbol. I reported on this Grand Chamber case and on the hearing held in October 2023 here. At stake is the interpretation of the Brussels I Regulation in relation to the Charter of Fundamental Rights of the EU.

The opinion of AG M. Campos Sánchez-Bordona in case C-35/23, Greislzel, will be read as well on 8 February 2024. The request, from the Oberlandesgericht Frankfurt am Main (Higher Regional Court, Frankfurt am Main, Germany), focuses on the interpretation of Articles 10 and 11 of the Brussels II bis Regulation:

To what extent is the regulatory mechanism provided for in Article 10 and Article 11 of the Brussels IIa Regulation limited to proceedings conducted in the context of relations between EU Member States?

More specifically:

1. Does Article 10 of the Brussels IIa Regulation apply, with the effect that the jurisdiction of the courts in the former State of residence is retained, if the child had his or her habitual residence in an EU Member State (Germany) before his or her removal and the return proceedings under the Hague Convention on the Civil Aspects of International Child Abduction (‘the HCAC’) were conducted between an EU Member State (Poland) and a third State (Switzerland) and, in those proceedings, the return of the child was refused?

If question 1 is answered in the affirmative:

2. In the context of Article 10(b)(i) of the Brussels IIa Regulation, what requirements are to be imposed for the purposes of establishing continuing jurisdiction?

3. Does Article 11 (6) to (8) of the Brussels IIa Regulation also apply in the case of return proceedings implemented under the HCAC in the context of relations between a third State and an EU Member State, as a State of refuge, in so far as the child had his or her habitual residence in another EU member state before the removal?

Like in many child abduction settings, the facts of the case are convoluted and not easy to summarize. In a nutshell, the problem revolves around the (allegedly wrongful) removal of a child from Germany to Poland by her mother. The father has lodged a request for return under the 1980 Hague Convention on Child Abduction, first, and then in the framework of a claim for the transfer of the sole parental custody under the Brussels II bis Regulation . The peculiarity of the case lies with the fact that, because he lives in Switzerland, both attempts focus in an order that would send the child to that country, and not to the Member State where she was habitually resident immediately before the wrongful removal.

The case will be solved by judges C. Lycourgos, O. Spineanu-Matei, J.C. Bonichot, S. Rodin, and L.S. Rossi (reporting).

The opinion of AG N. Emiliou on C-425/22, MOL, will be published as well on 8 February. The referring court is the Kúria (Hungary). The questions are:

1.   Where a parent company brings an action for damages in respect of the anti-competitive conduct of another company in order to obtain compensation for the damage suffered as a result of that conduct solely by its subsidiaries, does the registered office of the parent company determine the forum of jurisdiction, as the place where the harmful event occurred for the purposes of Article 7(2) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (‘the Brussels Ia Regulation’)?

2. Is the fact that, at the time of the purchases at issue in the proceedings, not all the subsidiaries belonged to the parent company’s group of companies relevant for the purposes of the application of Article 7(2) of the Brussels Ia Regulation?

The main proceedings are a follow-on action based on a final decision of the European Commission, where it is established that, by colluding on gross list pricing for medium and heavy trucks in the European Economic Area, the defendant, established in Germany, together with other companies, had participated in a cartel in continuous infringement of the prohibitions laid down in Article 101 TFUE and Article 53 of the Agreement on the European Economic Area. The claimant requests the reimbursement of the additional cost paid by its subsidiaries for the indirect purchase of 71 trucks from the defendant, in different Member States. The case raises the question of whether, in the context of Article 7 (2), of the Brussels I bis Regulation, a parent company can invoke the theory of economic unity for the purposes of determining the competent court for an action for the damage suffered by its subsidiaries.

M. Ilešič is the reporting judge in a chamber comprising as well E. Regan, K. Lenaerts, I. Jarukaitis and D. Gratsias.

Finally, the decision of the 1st Chamber (composed by judges A. Arabadjiev, T. von Danwitz, P.G. Xuereb, I. Ziemele and A. Kumin, with the latter reporting) in case C-566/22, Inkreal will be published on the same day. The requests addresses the interpretation of the Brussels Ibis Regulation and its scope of application. AG J. Richard de la Tour had delivered his opinion October last year: see here.

Two further opinions and a decision will be delivered on Thursday 22 February, thus after the ‘semaine blanche’.

AG N. Emiliou is the author of the opinion in case C-774/22, FTI Touristik, a request from the Amtsgericht Nürnberg (Germany) on Article 18 of the Brussels Ibis Regulation:

Is Article 18(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Article 18(1) of the Brussels I Regulation) to be interpreted as meaning that, in addition to providing for international jurisdiction, the rule also concerns a provision on the territorial jurisdiction of national courts in matters relating to a travel contract where both the consumer, as a traveller, and the other party to the contract, the tour operator[,] have their seat in the same Member State, but the travel destination is situated not in that Member State but abroad (so-called ‘false internal cases’) with the consequence that the consumer can make contractual claims against the tour operator supplementing national provisions on jurisdiction at the court of his or her place of residence?

The applicant is a traveler, domiciled in Nuremberg at all relevant times, who had booked a package tour with the defendant, a tour operator established in Munich, through a travel agency. The travel agent acted as an intermediary in the conclusion of the contract and it is undisputed that it is not itself a contracting partner; it is also not a branch of the defendant. The applicant claims from the defendant payment of compensation amounting to EUR 1,499.86 on account of the fact that he was not adequately informed of the necessary entry and visa requirements.

The case will be solved by a chamber of five judges – A. Prechal, N. Wahl, J. Passer, L. Arastey Sahún, and F. Biltgen reporting.

Another AG N. Emiliou’s opinion is expected on the same day, this time in case C-339/22, BSH Hausgeräte, on Article 24 (4) of the Brussels Ibis Regulation. It was originally scheduled for November 2023 and I already reported about the case then.

Finally, the 9th Chamber (J.C. Bonichot, L.S. Rossi, and  O. Spineanu-Matei reporting) will render its decision on C-81/23, FCA Italy et FPT Industrial also on 22 February. The referring court is requesting the interpretation of Article 7 of the Brussels I bis Regulation in a clear follow-up on case C‑343/19, VKI. In the Austrian proceedings the applicant, whose domicile is in Krems an der Donau (Austria) purchased a camper van from the dealer established in Germany. The written sale contract was signed at the seller’s seat in Germany. In accordance with the agreement concluded, the vehicle was transferred to the applicant and his wife by the Austrian seller’s distribution centre in Salzburg (Austria). The first respondent, established in Italy, is the manufacturer of the basic vehicle; the second respondent, also established in Italy, developed the engine, which, according to the applicant’s claims in the main proceedings, is equipped with a prohibited defeat device within the meaning of Article 5(2) of Regulation (EC) No 715/2007 on type approval.

The Oberster Gerichtshof (Austria) asks the Court in Luxembourg:

Must point 2 of Article 7 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (‘Regulation (EU) No 1215/2012’) be interpreted as meaning that, in an action for tortious liability against the developer of a diesel engine with a prohibited defeat device within the meaning of Article 5(2) of Regulation (EC) No 715/2007 on type approval, the place where the harmful event occurred in a case where the vehicle was bought by the applicant domiciled in Member State B (in this case: Austria) from a third party established in Member State C (in this case: Germany) is

a) the place where the contract was concluded;

b) the place where the vehicle was delivered, or

c) the place where the physical defect constituting the damage occurred and, therefore, the place where the vehicle is normally used?

The Law Faculty of Humboldt University is inviting applications for a four-year PostDoc position in European law. The position is fully paid  and funded by the graduate research programme DynamInt (Dynamic Integration Order) which itself is funded by the German Research Foundation (Deutsche Forschungsgemeinschaft).

The selected researcher is supposed to pursue her/his research project in the field of European Law (including European Private International Law and  International Civil Procedure). She/he is also expected to interact with  the group of young researchers, who all work on their dissertation  projects within the thematic framework of harmonization and plurality  tendencies in the EU.

The position is targeting German-speaking researchers. More information available here.

René Jansen (former PhD Candidate at Tilburg University) has accepted the invitation of the editors of the blog to present his book, titled ‘Legal Privilege and Transnational Evidence-Taking – A Comparative Study on Cross-Border Disclosure, Evidence-Shopping and Legal Privilege’, published by Intersentia. The study is available in open access here. For the (revised) commercial edition, see here.

Nowadays, lawyers also represent foreign clients. They can, for instance, do so by telephone or e-mail, or during a short visit abroad. Furthermore, a lawyer can choose to work in a foreign country for a longer period of time, for instance as a legal adviser or an in-house counsel. Finally, a lawyer – who has been already admitted to the bar of his home state – could obtain the required qualifications for representing his clients in a foreign court.

In this study, the following research question is centralised: “To what extent may courts order the disclosure of information that is privileged according to a foreign state’s rules on legal privilege, and should they apply a different conflict rule for determining the applicable privilege law when making this assessment?”.

This study touches upon a problem that has also been witnessed in case law. At the same time, literature nor case law clarifies how courts should respond in reaction to a litigant’s request for disclosing information that has been shared between an opponent and her foreign lawyer during civil proceedings. This may cause legal uncertainty. For example, may the court grant the request? If so, which state’s rules on legal privilege should it apply, that of the forum state or a foreign state? And does it make a difference whether the disclosure-request is made during commenced proceedings, or in light of a contemplated procedure?

In this study, I argue in the second chapter that the Hague Evidence Convention and the EU Evidence Regulation do not prevent a court from compelling a litigant to disclose a document in violation of a foreign state’s laws. In  the third chapter, I describe how in each of the examined legal systems (Dutch, English, French, German and U.S. federal) the court in principle has the authority to grant such a disclosure order. In the fourth chapter, I discuss the extent to which the courts of the examined legal systems may grant a disclosure order in the context of a foreign civil procedure, whilst also addressing Article 35 of the Brussels I bis Regulation. In the fifth chapter the differences that exist between the rules on legal privilege of the examined legal systems are presented, whereas the sixth chapter explores the possibility of constructing a new conflict rule for the type of cases that this study examines.

The most important findings are the following. There are various methods for taking evidence during transnational civil proceedings. Litigants could make use of differences that exist between these methods for circumventing restrictions on disclosing information under foreign law. For instance, a litigant could initiate proceedings in a state which laws offers the lowest level of legal privilege protection. If a court in that state subsequently applies the forum state’s rules on legal privilege, information could be obtained that is protected against disclosure according to foreign law.

I therefore plead that courts should apply a newly-constructed conflict rule for determining the applicable law on legal privilege during transnational civil litigation, in case a litigant attempts to obtain information that has been shared between an opponent and the latter’s foreign lawyer. In principle, the conflict rule aligns with the state’s laws where the lawyer habitually works. The conflict rule also contains a number of alternative rules for certain situations, such as when the lawyer has operated within an international team of lawyers.

The University of Antwerp has opened a vacancy for PhD research, which inter alia relates to EU private international law, under the supervision of Johan Meeusen and Mathieu Leloup.

It concerns a four year doctoral scholarship, sponsored by the Research Foundation – Flanders (FWO), to write a PhD on mutual trust and rule of law requirements in the field of judicial cooperation in civil and criminal matters. The researcher will have to examine, inter alia, the enforcement of the European Union’s rule of law requirements by courts applying EU private international law instruments.

All information on this position, and how to apply for it, can be found at Doctoral scholarship holder the law of the European Union, with particular attention for the rule of law, mutual trust and the area of freedom, security and justice | University of Antwerp (uantwerpen.be).

The Paris-Saclay University and the law firm Linklaters LLP, in collaboration with Saint-Joseph University in Beirut, are organizing a competition on private international law  – Concours de Droit international privé (CDIP).

CDIP is designed for students of the first year of the master degree. The language of the competition is French.

The timetable of the 2024 edition is as follows:

• Beginning of February 2024 – publication of the case;
• Early May 2024 – deadline for responses from French students and selection of teams to take part in the oral part of the competition;
• July 2024 – deadline for the response from Lebanese students;
• Early September 2024 – deadline for the reply from French students;
• end of September 2024 – finals in the international chamber of the Paris Court of Appeal (to be confirmed).

Apart from enriching experiences, the prizes include a three-month internship at Linklaters LLP.

For the history of the competition and its previous editions please consult CDIP website. The webpage will be updated soon to provide further information about 2024 edition.

On 19 January 2024, the High Court of England and Wales (Dias J) gave a judgment in Border Timbers Ltd v Zimbabwe, which concerned an application to set aside an order granting registration of an ICSID award. The court dismissed the application while holding that the execution of the award was precluded by state immunity.

To reach this conclusion, the court dealt with interesting questions of private international law and international arbitration, namely the distinction between recognition, enforcement and execution of awards and the application of state immunity to the execution of ICSID awards.

Facts

Zimbabwe lost an ICSID arbitration (Border Timbers Limited, Timber Products International (Private) Limited, and Hangani Development Co (Private) Limited v Republic of Zimbabwe (ICSID Case No. ARB/10/25)). The award was not satisfied. The award-creditor successfully applied for registration and entry of judgment on the award in England pursuant to the Arbitration (International Investment Disputes) Act 1966 (“1966 Act”) and section 62.21 of the Civil Procedure Rules. The award-debtor applied to set aside the registration of the award on the basis that it was immune from the jurisdiction of the UK courts under the State Immunity Act 1978 (“1978 Act”).

Legal Framework

Articles 53-55 of the ICSID Convention deal with the recognition and enforcement of ICSID awards in the Contracting States. The first sentence of Article 54(1) states that “Each Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State.” Article 54(3) specifies that the execution of ICSID awards is governed by the laws concerning the execution of judgments of the requested state. Article 55 preserves the application of the requested state’s law of state immunity from execution.

The 1966 Act implements the ICSID Convention in UK law. Section 1 of the Act provides for the registration of ICSID awards. Section 2(1) of the Act specifies that the effects of registration are that a registered award “shall, as respects the pecuniary obligations which it imposes, be of the same force and effect for the purposes of execution as if it had been a judgment of the High Court”. The Act does not address foreign states’ immunity from execution.

The 1978 Act provides for general immunity from jurisdiction except insofar as one of the stipulated exceptions can be established. The award-creditor argued that the exceptions in sections 2 (“submission to jurisdiction”) and 9 (“arbitrations”) of the Act applied. Section 2 specifies that a state is not immune as respects proceedings in respect of which it has submitted to the jurisdiction of the UK courts. Section 9 states that where a state has entered into a written arbitration agreement, it is not immune as respects proceedings in the UK courts which relate to the arbitration, subject to any contrary provision in the arbitration agreement.

Judgment

The court held that Articles 53-55 of the ICSID Convention stipulated that every Contracting State undertook to recognise an ICSID award as binding for the purposes of res judicata and to enforce any pecuniary obligations it imposed by giving it the same status as a final judgment of its own courts. The requested court cannot re-examine the award on its merits or refuse recognition or enforcement on grounds of public policy. Questions of execution were left to national courts and laws. In particular, Article 54(1) amounted to a waiver of state immunity in respect of recognition and enforcement, but not in relation to processes of execution against assets.

The exception to state immunity in section 2 of the 1978 Act was drafted with reference to specific proceedings before a specific court, thus requiring any submission to be in respect of the jurisdiction actually being exercised in those proceedings. A waiver of immunity unrelated to any identifiable proceedings was therefore not synonymous with a submission to the jurisdiction under section 2. Article 54 of the ICSID Convention was not a sufficiently clear and unequivocal submission to the jurisdiction of the English courts for the purposes of recognising and enforcing the award against the award-debtor. The award-debtor, therefore, had not submitted to the jurisdiction of the English courts within the meaning of section 2 for the purposes of obtaining recognition and enforcement of the award.

Unfortunately, the court’s discussion of the exception to state immunity in section 9 of the 1978 Act is somewhat unclear. After finding that section 9 required or permitted the English courts to re-examine the jurisdiction of the tribunal (whether an ICSID or non-ICSID tribunal) and that ICSID awards did not fall to be treated differently from other awards in this respect, the court concluded, at [89], that:

The position under section 9 is therefore different from that which pertains under section 2 in relation to Article 54. The enquiry which the court has to conduct under section 2 is whether there was a submission to the jurisdiction. On my analysis, the existence of a valid award is a given in that context, and the only question is whether it was rendered pursuant to Convention procedures. Questions of jurisdiction simply do not arise.

Therefore, according to the court, the award-creditor did not establish the applicability of the section 9 exception.

The remaining question was whether state immunity was engaged at all in relation to an application for registration of an ICSID award. The court held that the procedure for registration of ICSID awards set out in section 62.21 of the Civil Procedure Rules did not require service of any originating process or involved any exercise of discretion or adjudication. This was because the award-creditor had a statutory entitlement to have the award registered, subject only to proof of authenticity and other evidential requirements. The foreign state was not impleaded unless and until the order granting registration was served on it. The doctrine of state immunity had no application at the anterior stage of registration. It was the service of process on a state that involved an exercise of sovereignty. This contrasted with the mere notification of the application for registration. The opportunity of a state to assert immunity before any attempt was made to execute against its assets was adequately secured by requiring service of the order for registration. Consequently, the award-debtor could not apply to set aside the registration of the award on the basis that it was immune from the jurisdiction of the UK courts. However, it could claim immunity in relation to any further steps towards execution.

Interestingly, the court further stated that this approach enabled a principled distinction to be drawn between applications to enforce ICSID awards, which were not served and where the award could not be reviewed, and applications to enforce awards under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958. The NYC potentially required service and expressly required the court to exercise its adjudicative jurisdiction in determining that no defences applied.

Comment

The judgment is of interest for private international law for three reasons. First, it illustrates, in very clear terms, the difference between recognition, enforcement and execution of an award. Second, it confirms the conceptual distinction between a general waiver of immunity and a submission to jurisdiction. Third, it clarifies the ministerial (and not adjudicative) nature of the act that the court is asked to perform on an application for registration of an ICSID award.

However, the reasoning of the court is not entirely satisfactory. After repeatedly reading paragraph 89 of the judgment, I still do not understand why the court concluded that the award-creditor did not establish the applicability of the section 9 exception. A more persuasive line of reasoning would have been to point out that the award-debtor’s offer of ICSID arbitration, as contained in Article 10(2) of the Switzerland-Zimbabwe BIT, incorporated the ICSID Convention, including Article 55, which provides that questions of execution are left to national courts and laws – this could have amounted to a “contrary provision in the arbitration agreement” within the meaning of section 9(2) of the 1978 Act.

The fourth edition of European Private International Law – Commercial Litigation in the EU, authored by Geert van Calster (KU Leuven), is out. The book is published by Bloomsbury.

This classic textbook provides a thorough overview of European private international law. It is essential reading for both practitioners and students of private international law and transnational litigation, wherever they may be located: the European rules extend beyond European shores.

Opening with foundational questions, the book clearly explains the subject’s central tenets: the Brussels I, Rome I and Rome II Regulations (jurisdiction, applicable law for contracts and tort). Additional chapters explore private international law and insolvency, freedom of establishment, and the impact of private international law on corporate social responsibility. The relevant Hague instruments, and the impact of Brexit, are fully integrated in the various chapters.

Drawing on the author’s rich experience, the new edition retains the book’s hallmarks of insight and clarity of expression ensuring it maintains its position as the leading textbook in the field.

The graduate resesarch programme DynamInt (Dynamic Integration Order) of Humboldt University is inviting international PostDocs to apply for a short-term (3 to 6 months), fully paid research stay in Berlin.

The PostDoc is supposed to pursue her/his research project in the field of European Law. She/he is also expected to interact with the group of young researchers, who all work on their dissertation projects within
the  thematic framework of harmonization and plurality tendencies in the
EU.

More information are available here.

The latest issue of the International & Comparative Law Quarterly (Volume 73, Issue I) is now available. This issue features one article and one book review that focus on private international law.

Toni Marzal, The Territorial Reach of European Union Law: A Private International Law Enquiry into the European Union’s Spatial Identity, 29-63

This article offers a reconstruction of how the Court of Justice of the European Union (EU) justifies the territorial scope of application of EU law. Scholarship on this issue tends to advocate for an expansive projection of EU norms in the pursuit of global values, subject to the external limits of public international law. This article will develop a critique of this approach by pointing to its underlying assumptions as to the territorial dimension of the EU’s rule, the insoluble practical issues that it leads to, and the need to consider differently the EU’s spatial identity and relation to the wider world. It will also be argued that, in fact, other case law sometimes already reflects an alternative vision, by imagining the EU implicitly, not as a ‘global actor’ promoting universal values, but as a concretely situated and spatially bounded community. It will be shown that this is so with the methodological help of private international law, and in particular three doctrines that are traditional to this discipline—the localisation of cross-border relations, international imperativeness, and the public policy exception. This will ultimately allow for a more sophisticated understanding of the EU’s territory to emerge—irreducible to the physical coordinates of its acts of intervention, or the mere sum of the physical spaces under Member State sovereignty, but as a distinct space of social relations, informed and delineated by the particular axiology and structure of the EU legal system.

Chukwuma Okoli, Jurisdiction Over Non-EU Defendants: Should the Brussels Ia Regulation be Extended? by Tobias Lutzi, Ennio Piovesani and Dora Zgrabljić Rotar (eds) [Hart Publishing, Oxford, 2023, 376pp, ISBN: 978-1-5099-5891-7, £90.00 (h/bk)], 281-283

The whole issue is available here.

This post was written by Mathilde Codazzi, who is a doctoral student at the University Paris II Panthéon-Assas.

In a judgment of 22 November 2023, the French Supreme Court has ruled that a court is “deemed to be seized” under Article 16(a) of the Brussels II bis Regulation at the time which the document instituting proceedings is lodged with the court, irrespective of whether the applicant lacked diligence in the accomplishment of the required steps to serve the defendant.

Background

The parents of a child born in 2012 in France separated in 2014. The mother and the child lived in Germany from 2015 to 2018. The father brought an action before the Family Court of Nantes (juge aux affaires familiales) on 28 May 2019, two months before the mother and the child went back from France to Germany, for the purpose of deciding upon the terms and conditions of parental responsibility.

In December 2019, the Family Court issued a summon to the defendant’s address (the mother) in France for the hearing, which came back stating that the recipient was unknown at this address. In January 2020, the Court invited the plaintiff to serve the defendant for a hearing which was eventually postponed because of COVID. On 18 September 2020, the father eventually served the defendant notice of the act introducing the proceedings, as required by the Court.

On 17 March 2020, however, the defendant had seized the German court for the purpose of deciding upon parental responsibility.

The French Family court declined its jurisdiction on the ground that that German court had been seized first.

Court of Appeal

By a judgment of 25 October 2021, the Rennes Court of Appeal upheld the first instance court’s decision. It ruled that by failing to inform in due course the court registry of the defendant’s new address in Germany and the defendant of the ongoing proceedings against her before serving her, the applicant had been grossly negligent within the meaning of Article 16(a) of the Brussels II bis Regulation as he failed to take the required steps to serve the defendant. As a result, by the time the applicant served the defendant, the child’s habitual residence had been transferred to Germany and German courts were thus competent to rule on parental responsibility.

Judgment

The issue was therefore to determine whether the applicant’s failure to inform the court registry of the defendant’s new foreign address and the defendant of the pending proceeding before serving the document on the defendant is constitutive of a “failure to take the [required] steps” under Article 16(a) of the Brussels II bis Regulation.

By a judgment of 22 November 2023, the French Supreme Court overruled the Rennes Court of Appeal’s decision.

The Court first recalled that pursuant to Article 8 of the Brussels II bis Regulation, the competent courts in matters of parental responsibility are the courts of the Member State in which the child is habitually resident at the time the court is seized. The Court went on to rule that, according to Article 16(a) of the Regulation, a court is deemed to be seized upon accomplishment of only one formality: the filing of the document instituting proceedings. Therefore, the Rennes Court of Appeal, having noted that the applicant had filed the request then properly served the defendant, could not decline jurisdiction on the ground that the applicant had failed to take the required steps to serve the defendant.

The French Supreme Court also refused to stay the proceedings and refer the matter to the Court of Justice of the European Union for a preliminary reference as there was no reasonable doubt about the interpretation of Article 16(a) of the Brussels II bis regulation.

Assessment

The applicant having regularly lodged the document instituting proceedings with the court, the French court was already seized even though the defendant had not been served yet. This interpretation of Article 16(a) of the Brussels II bis Regulation is rather strict: the court is deemed to be seized as soon as the document instituting proceedings is regularly filed by the applicant, without the circumstances in which the required steps are then accomplished by the applicant being relevant for this purpose.

In a report presenting the judgment, the Court explained that the concept of negligence should be given an objective meaning, and be understood as an ‘omission’ to serve the document. The lower court had, in contrast, given the concept a subjective meaning focused on whether the plaintiff had been negligent.

Arguably, this interpretation remains relevant under the Brussels II ter Regulation, which applies since 1 August 2022, given that Article 17(a) of the latter text is basically identical to Article 16(a) of the Brussels II bis Regulation.

The Yearbook of Private International Law for 2022/2023 (volume XXIV) is out. It features the following contributions.

Doctrine

Elisabetta Bergamini, Raluca Bercea, Andreea Verteș-Olteanu, The Changing Scenario on Advance Directives between National Rules and Private International Law

Gerald Goldstein, Objective, Subjective and Imperative Localization in the Resolution of Conflict of Laws

Giesela Rühl, Man Yip, Success and Impact of International Commercial Courts – A First Assessment

Adam Samuel, A “Common Law” of International Arbitration? – In Memory of Claude Reymond

Sharon Shakargy, Un-Identifying Identification

Guojian Xu, Xin Cai, Recognition and Enforcement of Foreign Judgments in China – Legal Framework and Recent Developments

New Technologies and Private International Law

Andrea Bonomi, Blockchain and Private International Law – Some General Remarks

Narges Keshavarzbahadori, Due Process Requirements in Blockchain-based Arbitration

Marta Zamorska, Artificial Intelligence-Supported Arbitral Awards – A Pandora’s Box or the Future of International Commercial Arbitration?

Robert Walters, Harsha Rajwanshi, Reconciling “Confidentiality” in Data Protection, Cyber Security, Artificial Intelligence in International Arbitration

The French Draft Private International Law Code

Cyril Nourrissat, The Draft Code of French Private International Law

Dominique Bureau, Horatia Muir Watt, Codifying against the Clock… – On a French Project for the Codification of Private International Law

Marie Goré, Rules on Trust in the French Draft Code of Private International Law

Recognition of status filiationis within the EU and Beyond

Cristina González Beilfuss, Ilaria Pretelli, The Proposal for a European Regulation on Filiation Matters – Overview and Analysis

Tamir Boldbaatar, Batzorig Enkhbold, Surrogate Motherhood under Different Laws – Legal Arrangements and Challenges of Mongolia

Valentina Calderai, Rachele Zamperini, Surrogacy Contracts and the (In)Alienability of Fundamental Rights a View from Italy – On Case No 38162/2022 of the Corte di Cassazione

Helga Luku, Free Movement, Children’s Rights and National Identity in the EU Parenthood Proposal

Paulina Twardoch, Surrogacy Agreements from the Conflict-of-Laws Perspective Today and Tomorrow

Recent Developments in International Successions

Georges Khairallah, The New Right of Compensation under French International Succession Law – A Provision with an Uncertain Future

Eva Lein, Choice of English Succession Law and German Ordre Public

Andrea Bonomi, Revocation of the Will upon Marriage – Issues of Characterisation, Applicable Law, and Renvoi – An Italian Supreme Court’s Decision and Some Reflexions on the Potential Outcome under the European Succession Regulation

National Reports

Chukwuma Okoli, The Enforcement of Foreign Jurisdiction Clauses in Nigeria – A Critique of the Nigerian Court of Appeal’s Recent Restatement

Forum

Yves El Hage, “How to Locate a Cyber Tort?”

The Tug of War over Online Gambling

Many Member States try to limit gambling through strict prohibitions, with the sole exclusion for governmental monopolies.

Malta, however, has a burgeoning online gambling industry with pan-European reach, which it deems to be protected by the freedom of services enshrined in primary EU law.

The island state resists the enforcement of judgments from courts in other Member States that take a different view; to this end, it even plans to adopt an explicit legislative provision prohibiting the enforcement of such judgments by Maltese courts (see here). [image from freepik]

The Recent Episodes in Austria

Meanwhile, gamblers in Austria who have lost money have found a lucrative alternative. Instead of bringing their claims themselves, they sell and assign them to a Swiss company, which then tries to enforce these claims before Austrian courts. This raises the question of the latters’ international jurisdiction.

In a number of decisions, the Austrian Supreme Court (OGH) has answered it in the affirmative (22 June 2023, 27 June 2023, and 25 September 2023). The reasons are of general interest; inter alia because they add a further aspect to the complex discussion on the localisation of financial loss under Article 7 No 2 of the Brussels I bis Regulation (see already here and here).

Consumer Protection is Out

To the uninitiated, Article 18 Brussels I bis seems to provide a basis of jurisdiction for the gamblers’ claims. Yet in the eyes of the Austrian Supreme Court, this provision is inapplicable because the plaintiff is not asserting his own claims, but assigned ones. This is in line with the case law of the CJEU, who excluded assigned claims from the scope of the consumer protection provisions (see the Schrems case, C-498/16, paras 42–49).

Choice of Forum

Another potential stumbling block could be a clause contained in the contracts between the gamblers and the operator according to which all disputes should be decided by the courts of Malta. The Austrian Supreme Court rightly denies any effects of this clause against the Swiss litigation vehicle. As the CJEU had ruled in DelayFix (C-519/19, para 42), such a clause produces effects only between the parties to the initial agreement.

Where Are Gambling Contracts Performed?

We are getting closer to the meat of the case, which is Art 7 Brussels Ibis. First, the contractual head of jurisdiction under Article 7 No 1 Brussels I bis needs to be analysed. Undoubtedly, the parties had entered into a contract, more precisely a service contract in the (European-autonomous) sense of lit. b. But where was the service to be performed?

The Austrian Supreme Court locates the place of performance within the meaning of Article 7 No 1 lit b Brussels I bis in the state of the service provider, i.e. in Malta. The courts there would also have jurisdiction to hear claims for the restitution of money paid under the gambling contracts. Hence, this head of jurisdiction does not allow a claim in Austria.

Where does Gambling Damage Occur?

This brings us to the last and thorniest question, whether the tort/delict jurisdiction under Art 7 No 2 Brussels Ibis points to Austria.

Two of the decisions try to reach this result by a rather classic localisation exercise. Citing the CJEU’s decision in Kolassa (C-375/13), they deem the habitual residence of the victim as the place of damage, provided another element of the case takes place there. The fact that the gambler held an account in Malta was considered irrelevant since the final damage of the gambler materialised in Austria.

Yet then, these decisions add a very different element, namely the violation of the Austrian gambling laws. The decision of 22 June 2023 phrases it in the following way:

Above all, however, the damage materialised in Austria because the damage asserted results from alleged violations of Austrian gambling law by the defendant and therefore from violations of Austrian public policy rules.

Yet the decision of 25 September 2023 follows a different line of thought. It does even attempt a classic localisation approach, but puts the violation of public law at the centre of its reasoning. In its own words:

The breach of duty relevant to the damage is located in Austria, which is why the international jurisdiction of the court of first instance for the tortious claims for damages asserted is to be affirmed pursuant to Article 7 No 2 Brussels I bis Regulation.

Assessment

The quoted passages merit criticism. A breach of duties, even under public policy rules, does not amount to a damage. The violation of rules is actually a tortious act that causes the damage, but not the damage itself. The two must be distinguished.

The Austrian Supreme Court may have been led astray by some utterances of the CJEU in the VEB decision, which referred, in determining jurisdiction under Article 7 No 2 Brussels I bis, to the place where a securities issuer company had to comply with statutory reporting obligations (VEB v BP C-709/19 para 359). Yet this was done to ensure the foreseeability of the competent court, not to locate the damage itself.

The violation of a state’s public policy provisions therefore does not allow its courts to exercise jurisdiction. The damage under Article 7 No 2 Brussels I bis must still be determined by localising a loss. Following the Kolassa reasoning, the country of the habitual residence of the gambler can be used under the condition that another element of the case takes place there. This other element could be the payment from the account of a bank established there, as the CJEU had ruled. Unfortunately, the Austrian Supreme Court did not make any determinations in this regard, but it may be assumed that the gamblers’ banks were established in Austria. Arguably, this would provide a sufficient reason to locate the damage there, without the need to refer to the Austrian public policy provisions on gambling.

— Thanks to Paul Eichmüller, Felix Krysa and Verena Wodniansky-Wildenfeld for reviewing this post.

Within the framework of the PAX 2.0 Project, Université Paris Dauphine will host the PAX Judicial Training, which will take place on 4-5 March 2024.

While the PAX Moot Court is oriented to students, the PAX Judicial Training is designed for judges and aspiring judges seeking to enhance their understanding of EU private international law.

Taking into account this year’s PAX Moot competition, whose case has been previously dealt with in this blog, judicial training will focus on international jurisdiction in cross-border civil disputes, provisional measures in EU private international law, legal capacity and parental authority and other EU private international law-related issues.

Registrations are open until 15 February 2024 at ramachandra.oviode-siou@dauphine.eu.

Speakers include Arnaud Raynouard, Marta Pertegás Sender, Vesna Lazić, Hélène van Lith, Boriana Musseva, Tsvetelina Dimitrova, Neža Pogorelčnik Vogrinc, Beatriz Añoveros Terradas, Jona Israël, Laura van Bochove, Thalia Kruger, Erlis Themeli and Duncan Fairgrieve.

The detailed programme is available here.