Flux européens

Sanofi Pasteur
Environnement et consommateurs
Responsabilité en matière de vaccins : l’avocate générale Medina considère que l’application inconditionnelle d’un délai de forclusion de dix ans dans le cas de pathologies évolutives est contraire à la Charte

Google et Alphabet / Commission
Concurrence
L’avocate générale Kokott propose à la Cour, dans l’affaire Google Android, de rejeter le pourvoi formé par Google et de confirmer ainsi l’amende de 4,124 milliards d’euros prononcée par le Tribunal

Commission / Pologne (Publicité pour les pharmacies)
Rapprochement des législations
L’interdiction de publicité pour des pharmacies en vigueur en Pologne est contraire au droit de l’Union

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X v Y ECLI:NL:GHDHA:2025:1020 at the court of Den Haag, acting upon appeal is an interesting ‘residual’ application of the Rome I Regulation 593/2008 and an excellent case to appreciate ordre public.

The parties had married in Iran in 2009. The divorce was established by the courts at The Hague in 2022. Jurisdiction is established under Regulation 2016/1103 (‘Rome IVa) and [5.1], with respect to the dower, under residual Dutch law.

The first instance court held that no lis pendens could be accepted with concurrent divorce proceedings in Iran, due to there not being a recognition Treaty with Iran under which any Iranian finding can be recognised and enforced in The Netherlands. This part of the ruling had not been appealed.

The court also held that the parties’ prenuptial arrangements must be enforced, and that ordre public considerations do not prevent that.

The prenup gave the wife a 50% share in the husband’s estate, unless it was the wife who initiated divorce proceedings; and it included the husband’s dower arrangements, consisting of a (modest) cash payment and additionally 150 Bahar-Azadi gold coins. Payment is indeed by way of dower and not dowry as I had first erroneously reported on X, Bluesky and Linkedin. Thank you Béligh Elbalti for pointing out that a dowry is property or money brought by a bride to her husband or his family at the time of marriage. Islamic law seemingly does not recognise dowry. But it does recognise a dower: property or money provided by a husband for his wife.

The first instance court argued that ordre public must be applied in ad hoc fashion rather than across the board; that the wife had negotiated a pre-nup which canceled out the ordinarily applicable rule that spouses do not share their property, instead each keeping their separate property, both that brought into the marriage and that acquired before it; that therefore if the wife initiated the divorce, she was brought back to the situation as exists had there not been a prenup (and the same situation which applied to the man at any rate); and that the Dutch legal order’s objection to the pressure the man may therefore put on the wife to initiate the divorce, is not of such an intense nature as to offend ordre public. 

As for the dower, the first instance court held that 110 coins be paid immediately and a further 40 when the ex-husband’s financial arrangements so allow: this followed from the application of Iranian law, as clarified by expert report,  that any dower above 110 coins may be postponed to take account of the husband’s financial situation. 

The appeal court looked at the applicable law issue from a more explicit international /European angle than the first instance court.

For the matrimonial property issue (the 50% issue), the court, like the parties, applies the 1978 Hague Convention. Consequently Iranian law applies. Rather than the first instance court’s assessment of ordre public viz the Dutch provisions on same, the appeal court tests it against Article 14 of the Hague Convention, yet it comes to the same conclusion. Like the first instance court it does so with much reference to the standard Iranian practice. [5.10] ff it holds obiter that even if the provision were to offend Dutch ordre public, the impact of that finding would give the wife an inalienable right to 50% of the husband’s share (not reciprocated for the husband) which in turn would offend ordre public for it would go directly against Iranian law’s intention both party autonomy and protection for the wife: viz that latter element the court points out that in accordance with the applicable Dutch law provisions for maintenance, the wife will be looked after, on top of the dower entitlement which the court addresses next, [5.13] ff:

Rome I A1(2)b excludes “obligations arising out of family relationships and relationships deemed by the law applicable to such relationships to have comparable effects, including maintenance obligations” and in (c) it excludes “obligations arising out of matrimonial property regimes, property regimes of relationships deemed by the law applicable to such relationships to have comparable effects to marriage, and wills and succession”.

The dower element of the claim in the case clearly is not covered by Rome I itself. However The Netherlands, like for instance Belgium, applies Rome I ‘even when it does not apply’ – as long the dower can be considered a contract under the relevant Dutch PrivIntLaw provision (not: the Rome I autonomous interpretation) which the court [5.14] holds it is. [5.17] That the cash payments have been made, is not contested.

The husband claims that the wife divorced him by khul, or khula, with relinquishment of the dower. The court [5.21] disagrees. The divorce is subject to Dutch law, which does not have a khul-type procedure. As for the ordre public arguments under Dutch law (which apply here; contrary to the matriomonial property issues where as noted above, the Hague Convention applies) the appeal court confirms the lower court’s findings. A dower is part and parcel of Iranian law. The case at hand does not offend Dutch ordre public with such intensity that payment of the dower must be dismissed.

[5.21] finally the court holds that parties do not consider that the dower payments of the gold coins are covered by Iranian export sanctions.

An interesting case.

Geert.

1/2 Interesting application of Rome I to dowry per Iranian marriageRome applies residually despite exclusion of family property law: Dutch PrivIntLaw revives itNo ordre public objection to payment in fullNo relinquishment by wife seeing as Dutch law, applicable to the divorce,

— Geert Van Calster (@gavclaw.bsky.social) 2025-06-14T07:46:05.099Z

Entrée en fonctions d’un nouveau membre de la Cour de justice et de deux nouveaux membres du Tribunal de l’Union européenne

WS e.a. / Frontex (Opération de retour conjointe)
Droit institutionnel
Avocate générale Ćapeta : opérations de retour - le Tribunal a commis une erreur dans son appréciation du lien de causalité dans le cadre d’un recours en dommages et intérêts introduit par une famille syrienne contre Frontex

OHB System / Commission
Marché publics
Programme Galileo : l’arrêt du Tribunal rejetant le recours d’OHB System contre l’attribution du marché des satellites de transition est annulé

Espagne / Commission
Agriculture
Les recours introduits contre la détermination par la Commission de zones à protéger, abritant ou susceptibles d’abriter des écosystèmes marins vulnérables dans certains lieux de pêche en eau profonde, sont rejetés

[If you do use the blog for research, practice submission or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]

Thank you Alain Devers for alerting us to the Supreme Court’s decision in follow-up of the CJEU judgment in Case C‑633/22 Real Madrid Club  de Fútbol, AE v EE, Société Éditrice du Monde SA which I discussed here.

On 28 May the Supreme Court held that the court of appeal’s refusal of recognition is annulled, and needs to be reconsidered by a different court of appeal. Its annulment is based squarely on the court of appeal not having properly considered the elements identified by the CJEU. Evidently, the final judgment may still lead to the same result, but will have to be justified differently if that is the route that will be taken.

[33] it notes that the court of appeal had reviewed the substance of the Spanish courts’ findings, in reassessing whether the French journalists and editor had acted with disregard for their professional duties and in reevaluating both the seriousness of their disregard and the impact this had on the aggrieved.

[39] it refers to the court of appeal’s ordre public finding which had not considered the seriousness of the infringement as held by the Spanish courts.

[45] the court of appeal is faulted for not having considered the financial means of the journalist in question, in considering whether the recognition and enforcement would have an impact on free speech: this is one of the criteria the CJEU had held as being relevant.

[51] the same consideration is made viz the newspaper itself.

[57] the court of appeal should have considered, as now instructed by the CJEU, the distinction between the reputation of a legal cq natural person (the former lacking the ‘moral’ element of impacting on the ‘dignity’ of the person).

The CJEU had given very specific instructions to the national judges in cases like these and I am not sure that is the way to go. As Szpunar AG had noted in his Opinion in the case, the relevant CJEU authorities prior to current case hitherto had engaged with procedural law ordre public exceptions, rather than substantive rules such as here fundamental rights. The obvious downside of that route is that national courts may now be tempted nay feel obliged to refer to the CJEU to seek substantive instruction for the ordre public assessment of other rights, too, leading to Kirchberg having to give specific instructions for umpteen scenarios. Not what Brussels Ia intended, me thinks.

Geert.

EU Private International Law, 4th ed, 2024, 2.619 ff.

[If you do use the blog for research, practice submission or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]

In Stichting Environment and fundamental rights v Repsol Perú BV et al ECLI:NL:RBDHA:2025:8700, the claim relates to the 15 January 2022 oil leak at La Pampilla, Peru, also known as the Callao Oil Spill.

Defendants are Repsol Perú BV, domiciled at The Hague: this is the anchor defendant and jurisdiction against it is easily established using Article 4 Brussels Ia. The other defendants are Repsol SA Madrid, and Refinería La Pampilla SAA of Callao. Peru.

‘Forum connexitatis’ is the power for a court to exercise jurisdiction over defendants against whom it does not ordinarily have jurisdiction, provided the claims against them are so closely related to (hence ‘connexitatis’) one against a defendant viz whom said court undisputedly has jurisdiction, that the interest of justice requires joint treatment of all claims concerned. The latter defendant is called the ‘anchor defendant’.

In the case at issue, forum connexitatis needs to be tested against the EU rules (Article 8 Brussels Ia) in the case of Repsol SA; and under residual Dutch rules (Article 7(1) CPR, because A8(1) does not apply against non-EU domiciled defendants) in the case of Refiniería La Pampilla SAA.

Current judgment deals with the jurisdictional issues only and does not mention applicable law at all. It is likely claimants make use of Article 7 Rome II’s lex ecologia provisions (compare the Lliuya v RWE judgment just last week) however I cannot be sure.

A first argument of defendants is that under Article IX of the 1992 International Convention on Civil Liability for Oil Pollution Damage  – CLC, the claim must be brought in Peru:

“Where an incident has caused pollution damage in the territory, including the territorial sea or an area referred to in Article II, of one or more Contracting States or preventive measures have been taken to prevent or minimize pollution damage in such territory including the territorial sea or area, actions for compensation may only be brought in the Courts of any such Contracting State or States.”

[4.6] the court acknowledges that prima facie this does look like a knock-out point. However [4.7] it points out that on the other hand, the CLC only regulates the liability of the ship owner and its insurer and how they can be sued. [4.9] the court confirms its reading of text itself, the travaux and the DNA of the CLC as not pertaining to claims against parties other than the ship owner and its insurer. ‘A 2002 judgment by the Italian Supreme Court’ which I suspect is I.O.P.C.F. v. Registro Italiano Navale and others, re the sinking
of m/t “Erika”, Italian Supreme Court 17 October 2002 n. 14769 is distinguished on the ground that that claim involved the affiliated persons listed in A IX CLC.

The court then considers A8(1) BIa viz Repsol SA, and [4.13] points out that the same principles in application of the EU anchor rules, apply equally to the residual Dutch rules.

[4.11] it suggests that the claim against the anchor defendant must have a prospect of success, for A8(1) jurisdiction to be possible. That view is not imo supported by the authorities and the issue is currently sub judice at least as far as follow-on damages claims are concerned, in CJEU C-673/23 Electricity & Water Authority of Government of Bahrain ea v Prismiian ea. I review the Opinion of Kokott AG here.

[4.16] the core reproach viz the defendants is said to concern the inadequacy of the La Pampilla reception facilities, and defendants’ inadequate response to the spill. Repsol BV argues that it is a most remote shareholder and not at all involved in the goings-on in Peru and that even Repsol SA has no direct dealings with the Peruvian operations. [4.17] claimants argues the near exclusive ownership (more than 99%) of Repsol BV in La Pampilla, a shared director and other links show the direct involvement or at the very least a culpable non-involvement: Repsol VB ought to have used its influence to avoid the calamity.

[4.18] however the court rejects the shareholding and other circumstances and demands claimants show “direct involvement” by Repsol BV. That is most definitely a step back viz recent duty of care litigation, including in The Netherlands. The court did not immediately refuse instant permission to appeal hence I suspect (but I am not a Dutch CPR expert) this must be possible – and most definitely should be exercised.

The merits review test is as I argue above, not good law under A8(1) authority and the requirement of ‘direct involvement’ is not in line with recent duty of care practice.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.13.1 (in particular 2.496); Heading 2.2.15.3.2; Chapter 7.

'Global North' business & human rights claim, Peru oil spillDutch court rejects forum connexitatis viz Spanish, Peruvian corps, wth Dutch anchor defendantAccepts jurisdiction viz NL defendant despite 1992 CLC ConventionStichting E&FR v Repsol BV ea deeplink.rechtspraak.nl/uitspraak?id…

— Geert Van Calster (@gavclaw.bsky.social) 2025-05-26T07:17:55.045Z

Tony’s Open Chair have today published my opinion on the impact the European Commission’s ‘Omnibus’ deregulation proposal will have on the applicable law for supply chain liability claims. In short: not a good one.

Richard Gardiner has other updates on the issue here and he is generally a marvel when it comes to sharing all things CS3D.

Geert.

EU Private International Law, 4th ed 2025, Chapter 7.

Commission / Zippo Manufacturing e.a.
Relations extérieures
Litige de 2020 entre l’Union européenne et les États-Unis concernant les droits de douane : selon l’avocate générale Ćapeta, la Commission n’a pas violé le droit de Zippo d’être entendue

Pumpyanskiy / Conseil
Relations extérieures
Gel des fonds : l’avocate générale Medina considère que le critère d’inscription de femmes et d’hommes d’affaires influents sur les listes de personnes faisant l’objet de mesures restrictives à la suite de l’invasion de l’Ukraine par la Russie est légal

Commission / Hongrie (Valeurs de l’Union)
Liberté d'établissement
Valeurs de l’Union : l’avocate générale Ćapeta considère que, en interdisant ou en restreignant l’accès aux contenus LGBTI, la Hongrie a violé le droit de l’Union

Commission / Grèce (Actualisation des plans de gestion de district hydrographique et des risques d’inondation)
Environnement et consommateurs
La Cour condamne pour la première fois la Grèce pour ne pas avoir actualisé les plans de gestion des risques d’inondation afférents à 14 districts hydrographiques

[If you do use the blog for research, practice submission or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]

I have posted before of course on the jurisdictional and applicable law rules for climate claims (see in particular my post on Hugues Falys v Total) and on Article 7 Rome II’s special rule for choice of law in environmental claims. On the latter, use ‘Article 7’ or ‘A7’ in the search box, and see also my paper on A7/ lex ecologia as well as my paper here on climate justice litigation and private international law.

A few days ago I posted my overall assessment of the most recent climate judgment, Lliuya v RWE (more generally known as ‘Peruvian farmer v RWE) and in that post I said I would leave the applicable law analysis for a later post. So here we are.

Frustratingly there is still no sign of the judgment in the original German so like in my earlier post I am working with the unofficial English translation that is circulating. This may have an impact on how some of the court’s reasoning is translated and hence I may perhaps have to soften some of the criticism below once the judgment’s German version is out.

P.26  the court first of all confirms the straightforward jurisdictional basis: Article 4 of the Brussels Ia Regulation, establishing the principal rule that a defendant can and should as of right be sued in their domicile. Note the difference here with Hugues Falys where claimant is suing Total, domiciled at France, in what he presumable argues is a locus damni or locus delicti commissi under Article 7(2) Brussels Ia. The possibility to claim as of right in the defendant’s domicile is not easily dislodged in the European system, as I explain here.

Next up is the applicable law p.32 ff. Here the court’s plan of approach is, with respect, messy.

Overall the court could have sufficed with its primary finding of lex voluntatis. Much of its remaining discussion therefore would be obiter in the common law.

[2.a.aa] it first suggests implied choice of law in that parties invoked in their submissions almost exclusively provisions of German law. It refers to pre-Rome II German authority for its finding that this implies choice of law.

[2.a.bb] p.33 it then confirms this additionally as choice of law under the Rome II Regulation: reference here is made to Article 14(1) Rome II.

[2.a.cc] it confirms the universal character of Rome II but either misunderstands what this implies, or jumbles it with the meaning of ‘international’ under Rome II: for the court here rightly points out that Rome II may lead to the application of a law that is not the law of a Member State (here Peruvian law would be the obvious candidate) but then states “The Regulation therefore also applies in the case of a foreign connection to a non-member state in its material scope of application as the conflict of laws of the member state -…” (emphasis added). That is wrong; the latter (the choice of law being either for an EU or non-EU Member State, ie the conflict of laws not being between two EU laws but between an EU and non-EU law) relates to the ‘international’ element required to trigger Rome II. It is not at all related to the universal character of Rome II.

[2.a.dd] p.33 onwards the court then probably (it really could have formulated its approach here much more clearly) dismissed lex rei sitae as a rule that would bounce German law. It is unclear whether it does this proprio motu or in answer to an argument formulated by REWE (but had it not been established that REWE had agreed to German law?) and /or in German scholarship?

Whatever the trigger, the court’s approach to a role for lex rei sitae is most unclear. p.33 in fine the court refers to “legal claims resulting from an (alleged) violation of (co-)ownership and which – as in this case – are based on the law of the place where the property is located.” I assume this must be a discussion under German conflict of laws prior to Rome II, which it seems classifies nuissance claims as claims in rem, subject to the lex rei sitae. However as the court points out p.34, this qualification is irrelevant as far as Rome II is concerned. Rome II’s concepts need to be applied autonomously and lex rei sitae is not a rule contemplated by it.

Only then does the court address Article 7 Rome II, the tailor-made rule for environmental damage:

The law applicable to a non-contractual obligation arising out of
environmental damage or damage sustained by persons or property as a result of such damage shall be the law determined pursuant to Article 4(1), unless the person seeking compensation for damage chooses to base his or her claim on the law of the country in which the event giving rise to the damage occurred

Midway p.34 the ’emission’ is identified as the ‘event giving rise to the damage’.

The court’s engagement with Article 7 is unclear as to how it seems climate damage in relation to that Article. It has been suggested by some that Article 7 does not see to climate damage as such.

Either the court in current case dismissed that argument out of hand, seeing as it straightforwardly applies Article 7 to what is arguably a climate claim. Or it sees (the threat of) flooding (as opposed to ‘climate change’) as the environmental damage. A matter of course application of Article 7 to climate claims would be supportive of a wide notion of the statutory language “arising out of” environmental damage.

The court once again notes parties’ agreement on the applicable law being German law but then seemingly proprio motu flags the potential for dépeçage, midway through p.34:

However, a distinction must be made because, according to the plaintiff’s submission, the defendant’s conduct (issuing activity) has been ongoing since 1965 and the Rome II Regulation has only been applicable to non-contractual obligations since January 11, 2009 (see Art. 31 Rome II Regulation).

Under applicable German conflicts rules then, between 1 June 1999 and the entry into force of Rome I, German law would have applied as lex fori solutionis (the place of performance; I am not familiar enough with German conflicts rules to understand what performance is talked about here) and prior to 1 June 1999 the German rule it seems was ‘the place of action’ (presumably the locus delicti commissi: here earlier established of Germany as the place of emission) or the locus damni (surely Peru?), with it seems here like now in Rome II, claimant being able to choose.

For this section, availability of the judgment in German would be most welcome.

Importantly, the court’s reading suggest that for continuing torts, it decides (but it does so obiter, surely: see its overall finding of lex voluntatis) dépeçage applies.

As regular readers of the blog may remember, the Dutch Supreme Court has referred to the CJEU on the issue of continued infringement, in the case of competition claims.

The judgment overall has some loose ends on the Article 7 Rome II issue (compare similarly Milieudefensie v Shell) and the expression of the train of thought imo could have been clearer.

As noted, once I have the German version of the judgment, I shall revisit.

Geert.

EU Private International Law, 4th ed. 2023, 4.56 ff.

 

[If you do use the blog for research, practice submission or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]

Kinsa
Un ressortissant d’un pays tiers qui entre irrégulièrement dans l’Union européenne ne peut être sanctionné pour aide à l’entrée irrégulière du seul fait qu’il est accompagné de son enfant mineur

Pietro Franzina has excellent summary of European Commission report COM (2025) 268 and Staff Working Document SWD(2025) 135, both discussing the implementation of Brussels Ia, building inter alia on the Milieu Study on the same topic.

Pietro has done a tour de force in summarising both documents, highlighting the areas where statutory change might be proposed:

scope of application (‘civil and commercial’; ! arbitration; vis attractiva concursus /insolvency);

third country defendants: crucial for business and human rights claims and harmonisation here would be welcome ia in light of the expanded use of EU sustainability instruments with extended territorial scope; I discussed the issue briefly here;

rules on special jurisdiction where ia the A7(1) and (2) distinction is getting opaque but where as Pietro notes little change may be expected;

consumer contracts (with special mention for the imo outdated carve-out for contracts of transport);

exclusive jurisdiction with likely an amendment to be proposed to codify CJEU BSH Hausgeräte; 

potential for clarification of the lis pendens rules;

ditto for collective redress actions and, but with less immediate urgency it would seem, for digital assets.

Of side note is that the Staff Working Document would seem to add little to the actual Report. There is probably an institutional reason, eg SWDs do not require translation into all EU languages, however in general one would expect the SWDs to bring a bit more beef to the analytical bone. Otherwise there seems little point in having one at all.

All in all extensive proposed amendments are not to be expected however that does not mean those that might me, could not be impactful.

Geert.

EU Private International Law, 4th ed 2024, Chapter 2.

Delighted to have been asked by Arie Van Hoe to post on the Lliuya v RWE climate ruling. See the link below to Corporate Finance Lab.

Geert.

Lliuya v RWE. Germany’s historic climate ruling: A pyrrhic loss for claimants?

In Litasco SA v Banque El Amana SA [2025] EWHC 312 (Comm) Hutton DJ engaged (on an application for summary judgment) ia with an issue that one does not see all too often in litigation: a change in governing law under Article 3(2) Rome I; and with the application of Article 9 Rome I’s overriding mandatory law aka lois de police provision.

On the first issue, Litasco as claimant argue that the effect of a SWIFT message (SWIFT being an inter-bank electronic messages platform) was to change the applicable law for the relevant StandBy Letter of Credit – SBLC, into English law, pursuant to A3(2) Rome I, which permits the parties to “agree to subject the contract to a law other than that which previously governed it”.

[15] both parties seemingly agreed that “whether the SWIFT message was effective to make that change should be resolved as a matter of English law (whether as the putative applicable law, by reference to Article 10 of Rome I, or as the lex fori, which it said was supported by the Supreme Court’s analysis in Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb [2020] 1 WLR 4117 at [33]).” In that para the SC held

In our view, it is both consistent with authority and sound in principle to apply English law as the law of the forum to ascertain whether the parties have agreed on the law which is to govern their contract (and, if not, what law governs it in the absence of agreement). To apply any other law for this purpose would introduce an additional layer of complexity into the conflict of laws analysis without any clear justification and could produce odd or inconsistent results. As the authors of Dicey, Morris & Collins on The Conflict of Laws, 15th ed (2012) observe, at para 32-036 , by reference to a case in which subsequent conduct was taken into account to construe a contract found to be governed by Chilean law because it was admissible under that law:

Under a proper Rome I analysis however (reminder that Rome I is assimilated UK law) in my opinion there is CJEU authority for neither the lex fori approach nor the putative law approach (clearly post Brexit [Enka was a pre-Brexit case] there binding character of the CJEU is more complicated). In Nikiforidis a role for A10’s putative law was discussed viz the question of temporal application of Rome I and a role for said putative law on that issue was not the outcome.

For the specific claim at issue the question is arguably less relevant seeing as parties agree, therefore the determination of the lex causae to settle the effectiveness of the change arguable may a considered as having been done per Article 3(1) Rome I.

On the facts at issue, [22] the judge holds that advancing an argument that the lex contractus was not amended by the relevant SWIFT message, would not have a real prospect of success.

[23] ff deal with the issue whether Mauritian civil proceedings may be recognisable in England and have an impact on current claim. However [28] it is held that claimant in current claim did not submit to those proceedings and that as such they are clearly not recognisable for current purposes. [29] ff ff hold the same viz relevant criminal proceedings.

[43] ff then discuss the application of the Ralli Bros principle and lois de police. I have discussed in my review of Banco San Juan Internacional Inc v Petroleos De Venezuela SA why in my opinion the application of lois de police may be considered to have been exhaustively regulated by Rome I, hence displacing any application of Ralli Bros. The alternative view is that Ralli Bros continues to apply as a principle of the applicable lex contractus, English law.

In current case, the judge fully conflates Article 9 Rome I with Ralli Bros, taking [6] it seems defendant’s counsel cue:

BEA instead relies on orders made by the Mauritanian courts as providing a defence to Litasco’s claim, originally pursuant to the rule in Ralli Brothers v Compania Naviera Sota y Aznar [1920] 2 KB 287 (CA) and also pursuant to Article 9(3) of the Rome I Regulation but in the skeleton for this hearing, Mr Power (counsel for BEA) indicated that BEA was content to proceed on the basis that Article 9(3) adds nothing to the Ralli Bros principle (which he noted was the view taken by Cockerill J in Banco San Juan Internacional Inc v Petroleos de Venezuela SA [2021] 2 All ER (Comm) 590 at [118]).

– this is a similar route as the one taken in Celestial Aviation Services, and while the substantive outcome may be the same as if one had pursued an Article 9 Rome I analysis, the shortcut still does not convince me.

[84] the conclusion is that a Ralli Bros defence has no reasonable prospect of success and summary judgment is granted.

An interesting judgment.

Geert.

European Private International Law, 4th ed. 2024, 3.90.

 

https://x.com/GAVClaw/status/1891417588841750955