Agrégateur de flux

Indi Gregory is an eight-month-old child. She suffers from profound metabolic, neurological and cardiological disorders. At the time of writing this post she was a patient at an intensive care unit at a hospital in Nottingham.

A few months ago, the doctors who have been treating Indi in England came to the conclusion that her illness is incurable and that, given the pain caused by the life supporting treatment she is receiving, it is in Indi’s best interest that such treatment be withdrawn.

The parents disagreed and have since reiterated their wish to have the treatment continued. They made contact with a paediatric hospital in Italy, which made itself available to explore further options and continue treating the child.

The matter was dealt with by the High Court of England and Wales. This dramatic case, which reminds of similar cases involving children with incurable diseases, widely covered by the press (including the cases of Charlie Gard and Alfie Evans), raises a number of highly sensitive issues, legally and ethically. It also raises some private international law issues, as a result of the fact that Indi was recently granted Italian citizenship and that the Italian authorities, namely the Italian Consul in Manchester, claimed jurisdiction over the matter and issued orders aimed at transferring Indi to Rome.

This post is exclusively concerned with the latter issues.

Proceedings in England and in the European Court of Human Rights

The hospital Trust seised the High Court of England and Wales, in September 2023, seeking authorisation to remove the life sustaining care Indi was receiving, on the ground that, according to the Trust, there was no prospect of recovery, Indi’s life expectancy was very limited, the treatments she was receiving were causing her a high level of pain and suffering, and there was no discernible quality of life or interaction by Indi with the world around her.

The parents opposed the application, alleging, inter alia, that Indi had prospects of gaining a degree of autonomy, that she was showing small signs of improvement, and that the precise causes of her presentation are unclear and required further time and investigation.

On 13 October 2023, the Family division of the High Court ruled in favour of the Trust. Peel J explained:

With a heavy heart, I have come to the conclusion that the burdens of invasive treatment outweigh the benefits. In short, the significant pain experienced by this lovely little girl is not justified when set against an incurable set of conditions, a very short life span, no prospect of recovery and, at best, minimal engagement with the world around her. In my judgment, having weighed up all the competing considerations, her best interests are served by permitting the Trust to withdraw invasive treatment in accordance with the care plan presented.

Shortly afterwards, the Court of Appeal of England and Wales was seised of an appeal against the decision, by the parents, based on three grounds. By a ruling of 23 October 2023, the Court concluded that there was no prospect of an appeal on either of those grounds succeeding, and accordingly refused permission to appeal.

The parents of Indi Gregory seised the European Court of Human Rights, seeking an urgent order that would prohibit the withdrawal of life supporting treatment. The Strasbourg Court, however, did not uphold their request.

Peel J of the High Court was then again seised by Indi’s parents. They sought permission for the care of their child to be transferred to other medical professionals, at a hospital in Rome. On 2 November 2023, the High Court dismissed the application on the ground that there was no material change of circumstances, or other compelling reason, to justify reconsideration of the original order.

Specifically, concerning the proposal by the Rome hospital for cardiac intervention, Peel J considered that such intervention was inappropriate “because of the severity of the underlying conditions, IG’s instability and the lack of prospect of any meaningful quality of life, and the ongoing burden and pain of invasive treatment”. He added that “invasive life sustaining treatment is no longer appropriate for IG” and that the “substantial burdens of such treatment significantly outweigh any perceived (but in my judgment negligible) benefit, in a context where her life expectancy is very short, and her conditions irreversible”. He explained that,

there is nothing to suggest that IG’s prognosis would be beneficially altered by the Italian hospital’s treatment. On the contrary, it may well prolong pain and suffering if and to the extent that it incorporates invasive procedures which in my judgment are not in IG’s best interests, and should not be sanctioned.

 Steps Taken by the Italian Government and Authorities

On 6 November 2023, the Italian Government decided to grant Italian citizenship to Indi Gregory. It relied for this on Article 9(2) of the Italian Statute on Citizenship (Law No 91 of 1992), according to which citizenship may be granted, through a Presidential Decree, where to do so is of “exceptional interest for the Italian State”.

According to the press release accompanying the decision, such an interest consisted, in the circumstances, in providing IG with additional therapeutic opportunities (“ulteriori sviluppi terapeutici”), for the purposes of safeguarding the pre-eminent humanitarian values underlying the case (“preminenti valori umanitari”). The decision, the press release explains, was adopted following a request by the parents of the child, in connection with their wish to have Indi transferred to Rome to receive further treatment.

The author of this post was unable to retrieve any official document explaining in which way, i.e., based on which legal grounds and reasoning, the fact of making Indi Grgeory an Italian citizen would alter the picture resulting from the orders of Peel J, and increase the chances of Indi being transferred to Rome.

Be that as it may, on 8 November 2023, according to press reports, the Italian Consul in Manchester asserted that Italian authorities had jurisdiction over the case, precisely on the ground that Indi had become an Italian citizen, and ordereed that IG be transferred to Italy. The decision was taken by the Consul in his capacity of “guardianship judge”, that is, in the exercise of the judicial functions that Italian law confers on the heads of consular posts as regards, specifically, the protection of minors of Italian nationality outside the territory of Italy. The Consul also appointed a special representative of IG to take care of the implementation of the order. Press reports indicate that the appointed representative made contact with the hospital managers seeking their “cooperation”.

Further Developments

The English High Court made a new ruling on 8 November 2023. The parents wished to take the child back home, in Derbyshire, and have the extubation and the resulting compassionate care performed there.

Peel J dismissed the request. He observed that Indi “should continue to have clinical treatment of the highest quality, carried out in a safe and sustainable setting”, which would “not be available at home”, noting that

for the plan to work at home, there needs to be a close, constructive and engaged level of communication between the parents and the Trust/relevant clinicians, but, unfortunately, that does not appear to be the case.

Interestingly, for the purposes of this post, Peel J took note that Indi had very recently been granted Italian citizenship, while adding that the Indi’s father (the mother did not intervene at the hearing)

acknowledged, correctly and properly, that my decisions and orders are unaffected by this development.

Rumours circulated in the press concerning a possible agreement between the Italian and the UK Governments regarding the transfer of Indi to Italy, although no indications were given as to the legal grounds on which the decisions of the High Court could be superseded.

Withdrawal of life support is expected to be carried out today, 9 November 2023, at 15 CET.

Some Remarks on the Private International Law Aspects of the Case

The text of the order issued by the Italian Consul in Manchester has not been made publicly available. The author of this post is not aware of the exact provisions of the order. The grounds on which the Consul asserted that the case comes with the jurisdiction of Italian authorities are also not known. It is also not known whether the Consul addressed the issue of the recognition of the English orders in the Italian legal system, and, in the affirmative, what conclusions were reached in that regard. In addition, it is not known whether any exchanges occurred between the Consul and the High Court either prior to the Consul’s order or at a later stage.

The following remarks are, accordingly, of a general nature, and do not purport to represent an analysis, let alone an assessment, of the measures taken by the Italian authorities.

The Hague Child Protection Convention

Italy and the UK are parties to the Hague Child Protection Convention of 19 October 1996.

As stated in Article 1(1)(a), the Convention aims, inter alia, to “determine the State whose authorities have jurisdiction to take measures directed to the protection of the person or property of the child”. Cases like that of Indi Gregory appear to come with the material scope of the Convention.

Pursuant to Article 5(1) of the Hague Child Protection Convention, the authorities of the Contracting State of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child’s person or property. In relation to States, like the UK, in which two or more systems of law regarding the protection of children apply in different territorial units, reference to habitual residence must be construed, as clarified in Article 47(1), as referring to habitual residence in a territorial unit. Thus, as concerns children whose habitual residence is in England, English courts have jurisdiction.

As a rule, the authorities of the State of which the child is a national do not have jurisdiction under the Convention.

Rather, the Convention contemplates the possibility that a case be transferred by the authorities having jurisdiction based on Article 5 to the authorities of a different Contracting State.

Specifically, Article 8 stipulates that the authority of the State of habitual residence of the child, if they consider that the authority of another Contracting State “would be better placed in the particular case to assess the best interests of the child” (including the authorities of the State of nationality of the child), may request that other authority to assume jurisdiction to take such measures of protection as they consider to be necessary, or suspend consideration of the case and invite the parties to introduce such a request before the authority of that other State.

Article 9 goes on to state that the authorities to which the case may be transferred (including, again, the authorities of the State of nationality), if they consider that they are better placed in a particular case to assess the child’s best interests, they may request the competent authority of the Contracting State of the habitual residence of the child that they be authorised to exercise jurisdiction to take the measures of protection which they consider
to be necessary. The authorities concerned may then proceed to an exchange of views.

In the case of Indi Gregory, the English High Court has, so far, not considered that the Italian authorities would be better placed to deal with the case, including after the Court was informed that an Italian hospital was available to treat the child and that Indi had been made an Italian citizen.

On 9 November 2023 news reports had that the Italian Consul in Manchester had approached the High Court in connection with a request based on Article 9 of the Convention. Very few details were available on this  at the time of publishing this post.

The urgency of the matter does not appear to change things. The Hague Convention includes a special provision that applies in “all cases of urgency”, namely Article 11, but this provision confers jurisdiction on the authorities of the Contracting State “in whose territory the child or property belonging to the child is present”.

It is worth adding that measures relating to the protection of a child emanating from the authorities (including a Consul, as the case may be) of a Contracting State are entitled to recognition in all other Contracting States “by operation of law”, as stated in Article 23(1). However, recognition may be refused, according to Article 23(2)(a) “if the measure was taken by an authority whose jurisdiction was not based on one of the grounds provided for in Chapter II”, of the Convention, i.e., Article 5 and following.

Does the Involvement of a Consular Authority Change the Picture?

One may wonder whether the picture resulting from the above provisions of the Hague Child Protection Convention could be affected in some way where a consular post, rather than a judicial authority, claims to take measures directed at the protection of a child.

The Hague Convention applies, as such, to all the authorities of a Contracting States with competence over matters within the scope of the Convention itself. The nature of the authorities involved in a given case are, accordingly, immaterial. Rather, where a consular post is involved, it is appropriate to assess whether the rules governing consular relations may play a role, and possibly affect the operation of the Hague Convention.

Both the UK and Italy are parties to the Vienna Convention on consular relations, of 24 April 1963. In addition, the two countries have concluded between themselves, in 1954, a consular convention.

Article 5 of the Vienna Convention describes consular functions as including, among others, “safeguarding … the interests of minors … who are nationals of the sending State, particularly where any guardianship or trusteeship is required with respect to such person”. As specified in Article 5(h), the latter function is to be exercised by consular posts “within the limits imposed by the laws and regulations of the receiving State”.

For their part, the authorities of the receiving State (the English authorities, in the case of Indi), are required, according to Article 37(b) of the Vienna Convention “to inform the competent consular post without delay of any case where the appointment of a guardian or trustee appears to be in the interests of a minor … who is a national of the sending State”. It is clarified, however, that the giving of this information is “without prejudice to the operation of the laws and regulations of the receiving State concerning such appointments”.

The bilateral consular convention does not appear to extend the functions of consular authorities regarding the protection of children, nor impose on the authorities of the receiving State duties that go beyond what is provided in the Vienna Convention, in particular as regards the jurisdiction of courts and the recognition of foreign decisions.

As a result, it is difficult to see how the findings above, made in respect of the Hague Child Protection Convention, could be modified in light of the involvement of a consular authority.

Bundesamt für Fremdenwesen und Asyl e.a. (Femmes afghanes)
Espace de liberté, sécurité et justice
Selon l’avocat général Jean Richard de la Tour, les mesures discriminatoires adoptées à l’égard des femmes afghanes par le régime des talibans constituent, en raison de leur effet cumulé, une persécution

Commission / Irlande e.a.
Aide d'État
Selon l’avocat général Pitruzzella, il y a lieu d’annuler l’arrêt du Tribunal sur les rulings fiscaux adoptés par l’Irlande en faveur d’Apple

Commission / Suède (Contrôle de l’acquisition et de la détention d’armes)
Rapprochement des législations
Manquement d’État : la Suède est condamnée à payer 8 500 000 euros pour transposition tardive de la directive modifiée sur les armes

Všeobecná úverová banka
Clause abusive d’un contrat de crédit à la consommation garanti par le logement familial : le juge doit apprécier la proportionnalité entre la faculté du professionnel d’exiger la totalité du prêt et la gravité de l’inexécution par le consommateur

Gesamtverband Autoteile-Handel (Accès aux informations sur les véhicules)
Rapprochement des législations
Les constructeurs automobiles doivent mettre les numéros d’identification des véhicules à la disposition des opérateurs indépendants

Google Ireland e.a.
Liberté d'établissement
Lutte contre les contenus illicites sur Internet : un État membre ne peut pas soumettre un fournisseur d’une plate-forme de communication établi dans un autre État membre à des obligations générales et abstraites

Ronald A. Brand, Michael S. Coffee and Paul Herrup are the authors of The 2019 Hague Judgments Convention, published by Oxford University Press, part of its Private International Law Series.

Declared a ‘game-changer’ by the Hague Conference Secretary General, the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters has introduced international obligations of unprecedented sweep and power. Now, this authoritative treatise provides the diplomatic background and the historical context for the Convention, discussing the law on judgments recognition in the absence of the Convention’s ratification. After recounting the twenty-seven-year history of the negotiations leading to the Convention’s conclusion, it offers an article-by-article discussion of each provision. It also considers paths not taken, advancing possible solutions to address future pressures and developments.

More information, including the table of contents, can be found here.

X v Y (yep, annoying and entirely without reason, an anonymous judgment) ECLI:NL:RBLIM:2023:4342 is an interesting illustration of Brussels Ia’s Article 7(1)(a’)s ‘looking over the fence’ aka the conflicts method for determining forum contractus.

The method implies that beyond the standard contractual categories for which Article 7(1)(b) locks in forum contractus as a European ius commune, the ‘place of performance of the obligation in question’ needs to be determined by provisionally identifying the lex contractus and then using that lex contractus to determine place of performance, leading to a conclusion whether the judge seized has jurisdiction or not. See CJEU 12/76 Tessili v Dunlop.

In the case at issue, the contract is a loan and the applicable law is determined with reference to CJEU Kareda. This is where the court veers off course (my first categorisation by Tweet of the judgment being an excellent example therefore needs to be corrected): In Kareda the CJEU held that the credit agreement at issue was to be considered an ‘agreement for the provision of services’ per A7(1)(b), locking in forum contractus “in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided”. In such case, no more looking over the fence is required, let alone consideration of Article 4(3) Rome I etc.

Geert.

Students claxon
First instance Limburg, excellent example of 'looking over the fence' aka the conflicts method per CJEU Tessili v Dunlop to determine forum contractus per A7(1)a BIa, A4(2) Rome I (no A4(3) manifest closer connection
ECLI:NL:RBLIM:2023:4342https://t.co/g6EdSsEs2c

— Geert Van Calster (@GAVClaw) October 20, 2023

The UK Supreme Court has dismissed the appeal in Skatteforvaltningen (the Danish Customs and Tax Administration) v Solo Capital Partners LLP & Ors [2023] UKSC 40, confirming the Court of Appeal’s finding that the claim against the majority of the defendants may go ahead.

I reviewed the first instance judgment here and the Court of Appeal’s here and I shall not repeat all the issues. Readers should note that the issues discussed are of wider relevance to current developments in both public and private international law (business and human rights litigation, climate change litigation etc.).

[21] Lord Lloyd-Jones summarises the Dicey rules at play (and also notes the editors of the 16th d and those before them pointing out the inroads that in recent years have been made into the principle) and [22] he makes a delightfully concise reference to somewhat different US views on the rationale for the issue.

[39] after reviewing the authorities, it is held that

The Danish tax system undoubtedly provided the context and the opportunity for the alleged fraud and the operation of the fraud can be understood only by an examination of that system. It may well be that at the trial of this action it will be necessary to address that in detail. However, as we have seen [that’s a reference to Dicey as summarised above, GAVC], there is no objection to the recognition of foreign tax laws in that way. Because the present proceedings do not involve an unsatisfied claim to pay taxes due in Denmark, they fall outside the scope of the revenue rule.

[41] applies fraus and nemo auditur in dismissing appellants’ attempt to present themselves as taxpayers

The appellants seek to circumvent this difficulty by nevertheless portraying the refund applicants as taxpayers. It is said that by making applications for withholding tax refund applications the applicants brought themselves within the Danish tax system and became Danish taxpayers. It is also said that the respondent by paying “refunds” accepted them into the Danish tax system. It is further said that in rescinding the “refunds” the respondent was acting in the capacity of a taxing authority. The appellants therefore maintain that, in all the circumstances, the recipients of “refunds” and the respondent were in the relationship of taxpayer and taxing authority. As the Court of Appeal pointed out (at para 136) this submission is misconceived. The applications for “refunds” were all based on the lie that the applicants had paid tax in the first place which, on the respondent’s pleaded case, they had not. This attempt to portray the applicants as taxpayers cannot bind the respondent as the victim of their fraud and the applicants cannot take advantage of their own wrongdoing in order to bring themselves within the revenue rule.

[44] ff discusses the impact of (commentary on) CJEU C-49/12 Sunico, which was also discussed by the  first instance judge in current case and by Szpunar AG and the CJEU in Movic.

[53] ff then discusses the sovereign authority rule, essentially considering whether the claim is a simple money claim like thirteen to the dozen, and with reference (via Dr Mann) to Grotius’ ‘actus qui a rege sed ut a quovis alio fiant’.

[58] again substance is distinguished from context

appellants are undoubtedly able to point to prior exercises of sovereign power by Denmark in creating its laws relating to the taxation of dividends and in operating the tax system. This, however, merely provides the context for the present claims. The substance of the claims, as we have seen, does not involve any act of a sovereign character, any exercise or enforcement of a sovereign right, or any vindication of sovereign power. On the contrary, the respondent is simply bringing restitutionary claims to recover monies of which it has been defrauded, a course open to any private citizen who had been similarly defrauded.

Unlike in first instance, neither Lugano nor Brussels Ia feature substantially at the Court of Appeal or Supreme Court. That is a pity for how the Dicey rules and similar ones in the current EU Member States relate to Lugano and Brussels, is not clear-cut.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.28 ff. (4th edition forthcoming January 2024).

For background see https://t.co/B5DeTbT5g4
More on the blog soon.

via @bwmlindsay https://t.co/3tVcUeFyL7

— Geert Van Calster (@GAVClaw) November 8, 2023

L’application du principe ne bis in idem exige de prendre en considération les faits mentionnés dans les motifs du jugement antérieur et ceux sur lesquels a porté la procédure d’instruction mais qui n’ont pas été repris dans l’acte d’accusation ainsi que toutes informations pertinentes concernant les faits matériels visés par une procédure pénale antérieure menée dans cet autre État membre et clôturée par une décision définitive.

en lire plus

Une patiente sollicite son dentiste pour obtenir l’accès à son dossier médical dans le but d’intenter une action en responsabilité contre lui pour divers manquements dans le traitement prescrit. Or la loi allemande prévoit que l’accès à une copie du dossier médical est payant. La patiente saisit les tribunaux contre le dentiste, considérant que le caractère payant est contraire au règlement général sur la protection des données (RGPD). La Cour de justice de l’Union européenne (CJUE) répond dans un arrêt précis qui décline, au domaine médical, le haut niveau de protection des données personnelles au sein de l’Union.

en lire plus

Un vélo à assistance électrique ne relève pas de l’obligation d’assurance des véhicules automoteurs car il n’est pas actionné exclusivement par une force mécanique.

en lire plus

The Pax Moot case for 2024 is out! This year’s round is called Petar Šarcevic, and the competition will take place in Ljubljana from 24 to 26 April 2024.

Read all about MyStream and kidfluencer Giulia here: https://www.paxmoot.eu/case.

Further information and the time line is available on the Paxmoot website.

 

Written by Birgit van Houtert, Assistant Professor of Private International Law at Maastricht University

On 1 September 2023, the 2019 Hague Judgments Convention (HJC) entered into force. Currently, this Convention only applies in the relationship between EU-Member States and Ukraine. Uruguay has also ratified the HJC on 1 September 2023 (see status table). The value of the HJC has been criticised by Haimo Schack inter alia, for its limited scope of application. However, the HJC can be valuable even beyond its scope as this blog will illustrate by the ruling of the Dutch Supreme Court on 29 September 2023, ECLI:NL:HR:2023:1265.

Facts

In 2019, a couple with Moroccan and Dutch nationality living in the Netherlands separated. They have two children over whom they have joint custody. On 5 June 2020, the wife filed for divorce and ancillary relief, inter alia division of the matrimonial property, with the Dutch court. On 29 December 2020, the husband requested this court to also determine the contribution for child maintenance to be paid by the wife. However, the wife raised the objection of lis pendens with reference to Article 12 Dutch Civil Code of Procedure (DCCP), arguing that the Dutch court does not have jurisdiction regarding child maintenance, since she filed a similar application with the Moroccan court on 9 December 2020, and the judgment to be rendered by the latter court could be recognised in the Netherlands.

Lis pendens

On 26 March 2021, the Dutch district court pronounced the divorce and ruled that the wife must pay child maintenance. This court rejected the objection of lis pendens because the Moroccan and Dutch proceedings did not concern the same subject matter as in Morocco a husband cannot request child support to be paid by the wife. Furthermore, there has been no Convention to enforce the Moroccan judgment in the Netherlands, as required by Article 12 DCCP. However, the Court of Appeal held that the district court should have declined jurisdiction regarding child maintenance, because both proceedings concerned the same subject matter, i.e. the determination of child maintenance. Subsequently, the Court of Appeal declined jurisdiction over this matter by pointing out that the Moroccan judgment, which in the meantime had been rendered, could – in the absence of a Convention – be recognised in accordance with the Dutch requirements for recognition of non-EU judgments, the Gazprombank-requirements (see Hoge Raad 26 September 2014, ECLI:NL:HR:2014:2838, 3.6.4).

The case brought before the Supreme Court initially concerned the interpretation of lis pendens under Article 12 DCCP. In accordance with this provision, the Supreme Court states that the civil action should be brought to a foreign court first, and subsequently the Dutch court to consider the same cause of action between the same parties. If it is expected that the foreign proceedings will result in a judgement that can be recognised, and if necessary enforced, in the Netherlands either on the basis of a Convention or Gazprombank-requirements (see Hoge Raad 29 September 2023, ECLI:NL:HR:2023:1266, 3.2.3), the Dutch court may stay its proceedings but is not obliged to do so. The court may, for example, decide not to stay the case because it is expected to take too long for the foreign court to render the final judgment (3.3.5). However, the court must declare itself incompetent if the foreign judgment has become final and this judgment could be recognised and, if necessary enforced, in the Netherlands. To define the concept of finality of the foreign judgement, the Supreme Court drew inspiration from the HJC and the Explanatory Report by Garcimartín and Saumier (paras. 127–132) by applying the definition in Article 4(4) HJC by analogy; i.e the judgment is not the subject to review in the State of origin and the time limit for seeking ordinary review has been expired. According to the Supreme Court, this prevents that the dispute cannot be settled anywhere in court (3.3.6).

In the case at hand, the Dutch district court did thus not have to decline jurisdiction as the Moroccan judgment had not been final yet. The Supreme Court has also specified the conditions under which the court at first instance’s decision on the application of Article 12 DCCP can be challenged on appeal (3.4.2-3.4.6), which is outside the scope of this blog.

Finality of the foreign judgment in the context of recognition

Moreover, the Supreme Court clarifies that in proceedings involving lis pendens, an action may be brought for recognition of the foreign decision, including a claim to rule in accordance with the condemnation in the foreign decision (on the basis of Article 431(2) DCCP) (3.5.1). After reiterating the known Gazprombank-requirements for recognition, the Supreme Court addresses for the first time the issue whether the foreign judgment should be final (which has frequently been debated by scholars). According to the Supreme Court, the court may, postpone or refuse the recognition on the basis of the Gazprombank-requirements if the foreign judgement is not final, i.e. the judgment is the subject of review in the State of origin or the time limit for seeking ordinary review has not expired (3.6.2). The Supreme Court therefore copies Article 4(4) HJC, and refers to the Explanatory Report by Garcimartín and Saumier (paras. 127–132). Similar to the latter provision, a refusal on this ground does not prevent a renewed application for recognition of the judgment. Furthermore, the court may, on application or of its own motion, impose the condition that the party seeking recognition of a non-final foreign judgment provides security for damages for which she could be ordered to pay in case the judgement is eventually annulled or amended. The Supreme Court therefore follows the suggestion in the Explanatory Report by Garcimartín and Saumier (para. 133).

Comment

The application by analogy of the autonomous definition of finality in Article 4(4) HJC yields legal certainty in the Netherlands regarding both the lis pendens-conditions under Article 12 DCCP, and the recognition of non-EU judgments in civil matters to which no Convention applies. Because of the generally uncodified nature of Dutch law for recognition of latter judgements, legal certainty has been advocated. In this regard, the Dutch Government Committee on Private International Law submitted its advice in February 2023 to revise Article 431 DCCP which inter alia includes the application by analogy of the jurisdictional filters in Article 5(1) HJC (see advice, p. 6). Thus, despite its limited scope of application, the HJC has value because of its possible application by analogy by courts and legislators (see also B. van Houtert, ‘Het 2019 Haags Vonnissenverdrag: een gamechanger in Nederland? Een rechtsvergelijkende analyse tussen het verdrag en het Nederlandse commune IPR’, forthcoming Nederlands Internationaal Privaatrecht 4, 2023). Furthermore, the Dutch Supreme Court’s application by analogy of Article 4(4) HJC contributes to the Hague Conference on Private International Law’s aim to unify Private International Law.

The Mexican Academy of Private International and Comparative Law (AMEDIP) will hold its annual XLVI Seminar entitled “Private International Law and the National Code of Civil Procedure. A critical analysis” (el Derecho Internacional Privado y el Código Nacional de Procedimientos Civiles. Un análisis crítico) from 8 to 10 November 2023. See our previous post here.

The program is available here.

Today there will be a book presentation entitled:

“Comentarios a la Normatividad Procesal en el Código Nacional de Procedimientos Civiles y Familiares” by Nuria González Martín and Jorge Alberto Silva.

Commenting: Magistrado Oscar Gregorio Cervera and Ligia Claudia González Lozano.

There is a fee for participation both in person and online.

 

Mazepin / Conseil
Relations extérieures
Guerre en Ukraine : le Tribunal confirme le gel des fonds de M. Dmitry Arkadievich Mazepin

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published. The following abstracts have been kindly provided to us by the editor of the journal.

J. Oster, Provisional Measures Against Cross-Border Online Platforms

In its ruling of 15.2.2022 (Trustpilot A/S ./. Interreal Group B.V.), the Gerechtshof Amsterdam had to decide on provisional measures within the meaning of Article 35 Brussels Ibis Regulation against an online evaluation platform. The Court held that Article 35 Brussels Ibis Regulation applied independently of a jurisdiction clause concerning the proceedings on the merits of the case. However, according to the Court, Article 35 Brussels Ibis Regulation only covers measures having a provisional or protective character. The Court found that this applies to an obligation of an online platform to temporarily store user data available to the platform, but it excludes both obligations of that online platform to hand over user data to the applicant company and a forward-looking duty to store the data of prospective users.

M. Cremer, Golden Passports in Private International Law

A number of states grant citizenship by investment, which allows wealthy individuals to acquire a new nationality essentially through payment. The article analyzes the impact of so-called golden passports in private international law. It contends that from a theoretical standpoint, choice of law rules are not required to use nationality obtained through investment as a connecting factor. In practice, private international law avoids applying the corresponding law in most, but not all cases. However, in certain situations, European law imposes a different result for golden passports from EU Member States.

R.A. Schütze, Security for Costs of English and Swiss Plaintiffs in German Courts

The decision of the Federal Supreme Court (Bundesgerichtshof – BGH) is a milestone in the German-British relations regarding the procedural position of English plaintiffs in German courts after the Brexit. The BGH – overruling an earlier judgment of the Regional Court of Appeal Frankfurt/Main – decided that plaintiffs residing in the UK are not obliged to provide security for costs under sect. 110 German Code of Civil Procedure (ZPO). The Court applied the European Convention on Establishment (Art. 34, Sect. 4).
The Court further decided that Plaintiffs residing in Switzerland have no such obligation either under the Lugano Convention 2007.
The BGH finally decided that Respondent must request security for costs in the instance the event occurs that gives Respondent the right to claim security for cost.

C. Thole, The Distinction between Civil Matters and Acta Iure Imperii under Art. 1 Brussels Ibis Regulation

On 22 December 2022 the CJEU handed down a further judgment on the definition of civil and commercial matters within the meaning of Art. 1 Brussels Ibis Regulation and the distinction between civil matters and acta iure imperii. The short judgment denied the applicability of the regulation with regard to an action of a public authority of a Member State against companies established in another Member State seeking a declaration of the existence of restrictive practices, an order penalising those practices and an order on the cessation of those practices. Christoph Thole finds the judgment to be feasible, but parts of the Court’s line of reasoning remain doubtful.

T. Bens, The Bogus Entrepreneur, the Intermediating Life Companion and the Bona Fide Contractual Partner: Determination of Consumer Status under Art. 17(1) Brussel Ibis Regulation

The preliminary ruling of the Court of Justice of the European Union in Wurth Automotive concerns the determination of whether a person has the status of consumer as defined by Art. 17 Brussels Ibis Regulation. According to settled case law of the Court of Justice, the national court must determine the aim for which the contract was concluded by the person who claims the consumer status. The referring Austrian court nonetheless seems to have had some issues with applying the case law of the Court on “mixed” contracts given the peculiar facts and circumstances of the case. The highly factual preliminary questions are all reformulated by the Court to rather abstract questions of interpretation, evaluation and evidence. The ruling confirms that a person who misleads their professional contractual partner as to the aims for which they sought to conclude the contract cannot invoke the protective jurisdictional rules for consumers, but also ties this defence to certain questionable evidentiary restrictions.

I. Bach and F. Burghardt, The Role of the Last Joint Habitual Residence on Post-Marital Maintenance Obligations

Art. 5 of the 2007 Hague Protocol on the law applicable to maintenance obligations holds an exemption to Art. 3’s general principle: Regarding post marriage maintenance, the law at the creditor’s habitual residence does not apply if the marriage is more closely connected to another state. The BGH now established a de minimis exception for Art. 5: The law of the other state only prevails if its connection to the marriage is a) closer than the connection of the creditor’s habitual residence and b) sufficiently close in absolute terms. Ivo Bach and Frederik Burghardt argue that such an additional threshold is neither in line with the wording of Art. 5 nor with the Drafters’ intention and the ratio legis. Unfortunately, the BGH has refused to refer the question to the ECJ for a preliminary ruling.

A. Botthof, Convention on the Civil Aspects of International Child Abduction: State of Return and Best Interests of the Child After the Making of an Order for the Return of the Child

Two recent decisions shed new light on the Convention on the Civil Aspects of International Child Abduction. The Court of Appeal of Berlin comments on the controversial question of whether a wrongfully removed child can be returned to a Contracting State other than that in which the child was habitually resident immediately before the removal. According to the Court of Appeal, this is possible if children return to their usual family ties and relationships. The Supreme Court of Justice of Austria was concerned with the best interests of the child in the return process. The current decision reaffirms the established jurisdiction, according to which the claim that the child’s best interests are endangered by the return can only be based on facts that occurred after the making of an order for the return of the child.

D. Wiedemann, European Account Preservation Order (EAPO) for Penalty Payments

Within the scope of application of the Brussels Ibis Regulation, creditors have two options when enforcing a judgment obliging a debtor to perform an action or to refrain from an action: On the one hand, creditors can enforce this judgment across borders by means of the enforcement methods available in another Member State. On the other hand, creditors may obtain an order levying a penalty payment and enforce that order in accordance with the enforcement measures for monetary claims in another Member State (Art. 55 Brussels Ibis Regulation). Thus, creditors are free to choose whether to enforce the judgment or to enforce an order levying a penalty payment across the border. The securing of penalty payments by means of a European Account Preservation Order (Regulation 655/2012) could be a third procedural option. In the first case, the Higher Regional Court of Cologne refused to allow this option. The court decided that creditors may not pursue a European Account Preservation because the penalty payment essentially concerns a claim to perform an action and not a pecuniary claim. In the second case, the CJEU implied that penalty payments should indeed be regarded as pecuniary claims. However, a penalty payment order that does not determine the final amount cannot justify the issuance of a European Account Preservation Order. In this case, the creditor has to satisfy the court that the claim is likely to succeed (Art. 7(2) Regulation 655/2012).

P. Hay, The Rise of General Jurisdiction Over Out-of-State Enterprises in the United States

In June 2023, the U.S. Supreme Court continued its revision of personal jurisdiction law, in this case by refining, thereby perhaps expanding, the law of when a court may exercise general personal jurisdiction – that is, jurisdiction over all claims – over a non-resident person or an out-of-state enterprise. In Mallory v. Norfolk Southern Railway Co., it held in a 4+1:4 decision that, when a state requires a non-resident company to register to do business in the state and such registration constitutes consent to jurisdiction over all claims against it, such exercise is permitted. In reaching its conclusion, the Court applied a more than a century old (1917) precedent. The plurality of four Justices also compared the exercise of such jurisdiction to “tag jurisdiction” (general jurisdiction over persons present in the state at the time of service) and did not consider the Court’s much more recent cases on specific (claim-related) jurisdiction to be in contrast with (i.e., to overrule) the 1917 decision. The dissent disagreed and, in light of the majority’s new revision, considered specific jurisdiction now significantly deleted. Indeed, it does seem that the distinction between general and specific jurisdiction continues to become considerably blurred.

M. Reimann, The Renewed Threat of “Grasping” Jurisdiction over Corporations – and Its Limits

In its latest decision on personal jurisdiction, Mallory v. Norfolk Southern Railway Co. (600 U.S. __, 2023), the US Supreme Court handed the states a new weapon against corporations that are not “at home” in the forum state. In a 5:4 decision, the Court found the requirement that a corporation consent to general in personam jurisdiction as a condition for obtaining a business license compatible with the due process clause of the fourteenth amendment. In this manner, a state can circumvent the rule established in Daimler AG v. Bauman (2014) that corporations are subject to general in personam jurisdiction only where they are “at home” (i.e., typically in the state(s) of their incorporation or headquarters). Yet, the jeopardy for corporations is not quite as serious as it seems at first glance for three reasons. First, at least so far, very few states have used this form of “consent”, and there is reason to believe that it will not become the overwhelming practice. Second, at least if such consent is the only connection between the defendant and the forum state, the respective suits will often be dismissed under the forum non conveniens doctrine because the forum will not have any plausible interest or reason to entertain them. Third, requiring consent to general in personam jurisdiction as a condition for obtaining a business licence will almost surely be challenged under the so-called “dormant commerce clause”. That provision was not before the Court in Mallory; it imposes serious limits on what states can do to out-of-state corporations. The consent requirement likely violates these limits in cases in which the forum state has no legitimate interest in adjudicating the dispute. Thus, in the long run, the consent requirement will likely be effective only if the forum state has a reasonable connection with the litigation before its courts. Such a narrowed version would be a welcome correction of the overbroad protection that (especially foreign) corporations have enjoyed under Daimler. Foreign corporations should also consider that the consent requirement can kick in only if they need a business license from the forum state – which is not the case if they act there through subsidiaries or just occasionally. Still, foreign corporations have reason to worry about the future of personal jurisdiction because Mallory is another indication that the Court’s majority is not willing to protect them as broadly as in the past. It is, for example, quite possible that the Court will eventually allow personal jurisdiction over an out-of-state corporation on the basis of service of process on one of its officers in the forum state.

T. Kono, Punitive Damages and Proactive Application of Public Policy in the Context of Recognition of Foreign Judgments in Japan

The Californian judgment including punitive damages was partially enforced in California. The question of whether the enforced portion could be interpreted to include the portion that awarded punitive damages was raised as a precondition for the enforceability of the unpaid portion in Japan. The Supreme Court of Japan stated that the punitive damages portion in the Californian judgment does not meet the requirements of Article 118(3) of the Japanese Code of Civil Procedure and that the exequatur on the foreign judgment cannot be issued as if the payment was allocated to the claim for the punitive damages. The Supreme Court seems to have taken the position that Japan’s system of recognition of foreign judgments is a system that can proactively deny the effect of foreign judgments not only where the effect of the foreign judgment extends into Japanese territory, but also where the effect of the foreign judgment does not extend into Japan. The author of this article is of the view that the social function of punitive damages would not constitute public policy at state levels insofar as punitive damages are insurable. Hence, the proactive use of public policy by the Japanese Supreme Court would not cause direct tension with those states. In other states, where they are not insurable, however, under certain circumstances, public policy in Japanese law versus public policy in US law may arise as a debatable issue.

S. Noyer, Annual Conference of the Society for Arab and Islamic Law in honor of Omaia Elwan, October 7 and 8, Heidelberg, Germany

Sattvica / EUIPO - Maradona e.a. (DIEGO MARADONA)
Propriété intellectuelle et industrielle MARQ
Bataille juridique autour de la marque DIEGO MARADONA : le Tribunal de l’Union européenne confirme le refus de l’EUIPO d’enregistrer le transfert de cette marque en faveur de la société argentine Sattvica

The PAX Moot case for the 2024 moot competition on private international law is now out. The 2024 Round is dedicated to Petar Šarčević.

The Petar Šarčević Round explores social media platforms’ activities such as content creation and monetization from a private international law perspective.

The case requires participants to deal with matters of international jurisdiction of the District Court of Ljubljana and applicable law in a complex factual situation involving parental responsibility, contractual relationships, validity of a contractual relationship entered into by a minor, termination of contractual relations, tort claims, and removal of online published content.

The moot competition has two phases: a written and an oral round. The oral round will take place in Ljubljana from 24-26 April 2024.

More information about the competition, the schedule building up to the oral round in Ljubljana, the applicable rules for the Petar Šarčević Round, and the registration procedure for the teams taking this challenge will follow soon.

To all teams deciding to join the competition: good luck in preparing the case!