EAPIL blog

This post was written by Mathilde Codazzi, who is a doctoral student at the University Paris II Panthéon-Assas. In a judgment of 13 December 2023, the French Cour de cassation ruled that Italian decisions establishing parentage of an adult child in her 50s could be granted exequatur for it was not contrary to French international […]

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published. The following abstracts have been kindly provided by the editor of the journal. H.-P. Mansel, K. Thorn and R. Wagner, European Conflict of Law 2023: Time of the Trilogue This article provides an overview of developments in Brussels in the […]

On 26 April 2024, a half-day conference will be held at 9 am CET, organized by the Centre for Private International Law at the School of Law, University of Aberdeen, in collaboration with the Faculty of Law, University of Ljubljana. The conference aims to explore crucial topics within the realm of private international law. The […]

Augustin Gridel (University of Lorraine) has kindly prepared a presentation in English of his monograph titled Marchés et instruments financiers en droit international privé (Financial Markets and Financial Instruments in Private International Law), published by Bruylant in 2023. The aim of this book is to describe the relationship between the law of financial markets and […]

On 19 March 2024, the Council of the European Union approved the position of the European Parliament at first reading on the proposal for a directive on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings, also known as Strategic lawsuits against public participation, or SLAPPs. The directive has thereby […]

The Council of the European Union on 15 March 2024 reached a final deal on the proposal for a directive of the European Parliament and of the Council on corporate sustainability due diligence (see here and here for previous analysis on the proposal hosted on this blog). The deal comes after a series of meetings […]

A few days ago, the redesigned EAPIL website was launched. Among other things, it features a reserved area for members of the European Association of Private International Law (MyEAPIL). An automated e-mail message was sent to all the 560 members of the Association on 11 March 2024, with their personal login credentials. Several members have […]

The Rail Protocol to the Cape Town Convention on International Interests in Mobile Equipment entered into force on 8 March 2024. Resolving Conflit Mobile One of the main goals of the Cape Town Convention was to resolve the perennial problem of change of applicable law governing security interests over tangible moveable assets (conflit mobile). The […]

Introduction Beverly Hills Polo Club branded goods are sold in the USA and the UK. Trade marks in the USA are owned by X. Corresponding trade marks in the UK are owned by Y. Trade mark law is territorial. Does Amazon infringe UK trade mark law by advertising the USA branded goods on its USA […]

The fourth issue of 2023 of the Rivista di diritto internazionale privato e processuale (RDIPP) is out. Along with recent case law and materials, it features five contributions. Cristina Campiglio, Giurisdizione e legge applicabile in materia di responsabilità medica (ovvero a proposito di conflitti di qualificazioni) (Jurisdiction and Applicable Law in Matters of Medical Liability […]

The latest issue of the Journal of Private International Law (Volume 19, Issue 3) is now available. This issue features eight articles and one book review. Chukwuma Samuel Adesina Okoli and Abubakri Yekini, Implied jurisdiction agreements in international commercial contracts: a global comparative perspective, 321-361 This article examines the principles of implied jurisdiction agreements and […]

An international conference on the recast of the Brussels I bis Regulation will take place at the Skylounge of the University of Vienna on 12 April 2024. Organized by Professors Burkhard Hess, Christian Koller and Paul Oberhammer (Institut für Zivilverfahrensrecht, Universität Wien), the event will bring together representatives of the European Commission and of the […]

The Conclusions and Recommendations of the latest annual meeting of the Council on General Affairs and Policy of theHague Conference on Private International Law, which was held from 5 to 8 March 2024, have recently been published. The most significant developments arising from the document include the following. Legislative Work The Council noted the progress […]

The author of this post is Sara De Vido, Associate Professor of International Law at the Ca’ Foscari University of Venice. This post, drawn from a broader article (S. De Vido, ‘The Privatisation of Climate Change Litigation: Current Developments in Conflict of Laws‘ Jus Cogens 6, 65–88 (2024)), explores the promise of ecofeminism as a […]

A curious judgment has been rendered recently by the highest court of Germany in civil matters. The Federal Court (BGH) considers a long-term rental agreement for an apartment in Germany as a ‘purely domestic matter’ (reiner Binnensachverhalt) – even though it was concluded between a foreign state and one of its nationals, who still had […]

As announced on this blog a few days ago, the website of the European Association of Private International Law has a new look and some new contents. Take a tour of the new website and learn about who we are, what we do, and how members can contribute to the Association’s goals, including by launching […]

A call for papers has recently been issued by Michiel Poesen and Patricia Živković (University of Aberdeen), co-convenors of the Society of Legal Scholars Conflict of Laws section, for the Conflicts section of the SLS Annual Conference 2024 at Bristol University from 3 to 4 September 2024. The theme of the conference is Learning from Others: Lessons for Legal Scholars?.

The call is reproduced below, as received by the promoters.

As scholars, we interact with others – students; fellow academics; legal practitioners; the wider public – and the 2024 conference will reflect on the gains we can achieve from such interaction in a global academic environment.  The conference will examine this theme in two ways.  First, as scholars attending the SLS conference, we benefit greatly from meeting colleagues from different backgrounds and disciplines and, notably, from other legal jurisdictions (both within and outside the common law world).  What can we gain from taking an international or comparative perspective to our work?  To what extent do different perspectives, such as socio-legal, interdisciplinary or historical viewpoints, assist our research? Secondly, one of the significant elements of the conference is the inclusion of papers from both junior and senior scholars. What lessons can we gain from each other, both in terms of mentoring and in recognising the need to promote the interests of early career legal scholars and offering support for those entering the academy? No scholar is an island. The SLS provides a positive inclusive environment for legal academics at whatever stage of their career to engage with each other and learn valuable lessons from a diverse and inclusive community of legal scholars. Doctoral students are very welcome and are encouraged to submit papers for consideration in the Subject Sections Programme.

Conference Information 

The 2024 conference will be primarily in person with a virtual element.  ECR and EDI sessions, together with the AGM and Council meeting, will be available virtually free of charge.  A small charge will be made for virtual attendance at the plenary sessions. Council members who are not attending the 2024 Conference will still be able to attend the Council meeting and AGM virtually and, consistent with our EDI priorities, speakers who cannot attend may, on sufficient notice, be able to present virtually.  We will also endeavour to allow speakers unable to attend at the last minute due to ill-health or travel restrictions to present virtually. This decision reflects a move globally to resume in person conferences, the significant costs of virtual attendance which would require a rise in price due to the absence of suitable facilities at Bristol University and evidence of a significant drop in numbers for virtual attendance at the 2023 conference. We will also continue to offer support for attendance via our Annual Conference Additional Support Fund (ASF) to support those with special circumstances warranting additional support. Priority for support will be given to applicants who have no other source of funding.

If you are interested in delivering a paper or organising a panel, please submit your paper abstract or panel details by 11:59pm UK time on 22 March 2024. All abstracts and panel details must be submitted through the Oxford Abstracts conference system which can be accessed here – and following the instructions (select ‘Track’ for the relevant subject section). If you registered for Oxford Abstracts for last year’s conference, please ensure that you use the same e-mail address this year if that address remains current. For those whose papers are accepted, the original submission offers the facility to upload a full paper nearer the time. If you experience any issues in using Oxford Abstracts, please contact slsconference@mosaicevents.co.uk. If you are submitting as part of the Gesellschaft für Rechtsvergleichung there will be a tick box option for you to select as you complete the form.

This is the second year we will be running first blind peer review, with a subsequent non-blind review once initial decisions have been made to consider profile diversity before final decisions are made and communicated. The feedback from convenors on this process was overwhelmingly positive.

Decisions will be communicated by 26 April 2024.

Submission Format

We welcome proposals for papers and panels on any issue relating to “Learning from Others: Lessons for Legal Scholars?.” We welcome proposals representing a full range of intellectual perspectives and methodological approaches in the subject section, and from those at all stages of their careers.

Those wishing to present a paper should submit a title and abstract of around 300 words. Those wishing to propose a panel should submit a document outlining the theme and rationale for the panel and the names of the proposed speakers (who must have agreed to participate) and their abstracts.  Sessions are 90 minutes in length and so we recommend panels of three speakers, though the conference organisers reserve the right to add speakers to panels in the interests of balance and diversity.

As the SLS is keen to ensure that as many members with good quality papers as possible can present, speakers should not present twice at the conference at the expense of another credible paper.  When you submit an abstract via Oxford Abstracts you will be asked to note if you are also responding to calls for papers or panels from other sections.

The Best Paper Prize

Please also note that the SLS offers two prizes. First, The Best Paper Prize, which can be awarded to academics at any stage of their career, and which is open to those presenting papers individually or within a panel.  The Prize carries a £300 monetary award, and the winning paper will, subject to the usual process of review and publisher’s conditions, appear in Legal Studies.  To be eligible:

•  speakers must be fully paid-up members of the SLS (Where a paper has more than one author, all authors eligible for membership of the Society under its rule 3 must be members. The decision as to eligibility of any co-authors will be taken by the Membership Secretary, whose decision will be final.)
• papers must not exceed 12,000 words including footnotes (as counted in Word; figures and tables are not included in the word count);
• papers must be uploaded to the paperbank by 11:59pm UK time on 23 August 2024;
• papers must not have been published previously or have been accepted or be under consideration for publication; and
• papers must have been accepted by a convenor in a subject section and an oral version of the paper must be presented at the Annual Conference.

The Best Paper by a Doctoral Student Prize 

In 2020 the Society launched the Best Paper by a Doctoral Student Prize, which is open to currently registered doctoral students who are members of the Society. The Prize is £300. There is no link to publication in Legal Studies arising from this award, but any winner would be welcome to submit their paper for consideration by the Society’s journal. To be eligible:

• speakers must be fully paid-up members of the SLS who are Doctoral students. (Where a paper has more than one author, all authors eligible for membership of the Society under its rule 3 must be members and all authors must be Doctoral students, whatever their discipline). The decision as to eligibility of any co-authors will be taken by the Membership Secretary, whose decision will be final;
• papers must not exceed 12,000 words including footnotes (as counted in Word; figures and tables are not included in the word count);
• papers must be uploaded to the paperbank by 11:59pm UK time on 23 August 2024;
• papers must not have been published previously or have been accepted or be under consideration for publication; and
• papers must have been accepted by a convenor in a subject section and an oral version of the paper must be presented at the Annual Conference.
• Where a paper eligible for this prize wins the Best Paper Prize, the judges may at their discretion award the prize for Best Paper by a Doctoral Student to a different nominated paper
• The judges may announce a shortlist at their discretion with the winner to be announced by the first week in August.

Registration and Paying for the Conference 

We have also been asked to remind you that all speakers will need to book and pay to attend the conference and that they will need to register for the conference by 14 June 2024 to secure their place within the programme, though please do let us know if this deadline is likely to pose any problems for you. Booking information will be circulated in due course and will open after the decisions on the response to the calls are made.

The third edition of Paul Torremans‘ Intellectual Property and Private International Law has just been published by Oxford University Press in its Private International Law series.

The blurb reads:

The rapidly developing field of intellectual property and private international law could be difficult to navigate for practitioners and researchers because of the complex interface of the two legal disciplines. Intellectual Property and Private International Law sets out the main concepts with a comprehensive analysis of issues arising from the relationship between the two disciplines from common law, European Union and international perspectives.

This highly regarded work examines how jurisdiction is established in intellectual property disputes, how one identifies the applicable law and how to secure the recognition and enforcement of foreign judgments. This new edition encompasses the numerous, and in some cases major, legal developments seen over the past twelve years. It deals with the private international law aspects of the introduction of mandatory exemptions to the Directive on Copyright in the Digital Single Market; discusses the new Court of Justice of the European Union case law on article 7.2 Brussels I Regulations and its divergent approach to European Union intellectual property rights; covers recent EU directives and national case law, including the fundamental change in patent law that will result from the introduction of the European Patent with Unitary Effect and the Unified Patent Court; as well as elucidating the implications of Britain’s departure from the European Union.

New to this Edition:

• Analyses the fundamental change in patent law that will result from the introduction of the European Patent with Unitary Effect and the Unified Patent Court
• Discusses the private international law side of the introduction of mandatory exemptions to copyright in the DSM Directive
• Clarifies the impact of Brexit and other EU directives and case law
• Covers the Court of Justice of the European Union case law on article 7.2 Brussels I Regulation and its divergent approach to Eurasian Economic Union (EEU) intellectual
• Property rights

A corrigendum to Regulation (EU) 2020/1784 of 25 November 2020 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (the Recast Service Regulation) has been published on the Official Journal of the European Union of 2 February 2023 (L 405).

It concerns Article 33, which is about the information that Member States must share with the Commission so that the latter can make it available to the public at large.

Article 33(1) refers to such information as is required under Articles 3, 7, 12, 14, 17, 19, 20 and 22 of the Regulation. This includes, for example, the names and addresses of receiving agencies, the professions or competent persons that are permitted under national law to effect the direct service of documents, whether national law requires a document to be served within a particular period, etc.

The correction is, specifically, about Article 33(3). As originally published, the latter provision read as follows:

The Commission shall publish the information communicated in accordance with paragraph 1 in the Official Journal of the European Union, with the exception of the addresses and other contact details of the agencies and of the central bodies and the geographical areas in which they have jurisdiction.

According to the corrigendum, Article 33(3) should read instead:

The Commission shall publish the information communicated in accordance with paragraph 1 through appropriate means, including through the European e-Justice Portal.

As this is presented as a corrigendum, rather than an amendment to the Regulation, the revised text is meant to apply as of the date of application of the Regulation, that is, 1 July 2022. In fact, the information referred to in Article 33(3) has never been published on the Official Journal, and appears to be already available on the European Judicial Atlas in Civil Matters, which can be reached through the e-Justice Portal.

The author of this post is Lydia Lundstedt, who is an Associate Professor and Senior Lecturer at Stockholm University. In the interest of transparency, author notes that she previously wrote an expert legal opinion on behalf of BSH Hausgeräte.

On 22 February 2024, Advocate General (AG) Emiliou’s Opinion on the interpretation of Article 24(4) Regulation (EU) No 1215/2012 (Brussels I bis) in BSH Hausgeräte (C-339/22) was published.

Article 24(4) confers exclusive jurisdiction “in proceedings concerned with the registration or validity of patents” upon “the courts of the Member State in which the … registration has been applied for, [or] has taken place …”.

AG Emiliou opines that Article 24(4) 1) does not encompass infringement proceedings even after an alleged infringer pleads the invalidity of the foreign patent; and 2) does not apply to proceedings concerning patents registered in third states, but that a Member State court may give Article 24(4) reflexive effect on the basis of national law. See here for a brief synopsis of the facts and the questions referred and GAVC LAW for a good review of the opinion.

Article 24(4) Does Not Apply to Infringement Proceedings Even After Invalidity is Pleaded

Prior to the CJEU ruling in GAT (C-4/03), there were three possible interpretations of what is now Article 24(4). GAT ruled out the first interpretation, i.e., that the provision does not apply to preliminary questions, by holding that what is now Article 24(4) applied to “all proceedings relating to the registration or validity of a patent, irrespective of whether the issue is raised by way of an action or a plea in objection”. In describing this background, the AG calls GAT an “unfortunate decision” because it goes beyond what is necessary to fulfil the raison d’être of Article 24(4), which in the AG’s view, is deference to national sovereignty. He explains that because an invalidity finding in an infringement proceeding has only inter partes effects, it does not encroach upon the sovereignty of the state of patent registration. He states that if the EU legislator had not codified GAT when it amended the Regulation, he would have advised the CJEU to overturn GAT.

Even after GAT and its codification, uncertainty remained concerning which of the remaining two interpretations of Article 24(4) were correct, namely, 1) that once invalidity is raised, infringement proceedings fall within Article 24(4) and the infringement court loses its jurisdiction (broad reading) or 2) that while validity falls within Article 24(4), infringement does not. Thus, a court having jurisdiction over an infringement dispute based on the rules in the Regulation retains its jurisdiction over the infringement claim but may not determine validity (narrow reading).

The AG finds that the narrow reading is the “lesser evil” because it better aligns with the system and objectives of the Regulation. Specifically, he finds that it better respects the relationship between the general rule in Article 4 and the exception in Article 24(4), and also better ensures legal certainty as the defendant will not be able to undermine the plaintiff’s choice of jurisdiction by raising a validity defence.

Moreover, the AG notes that a narrow reading ensures that a defendant cannot “torpedo” the proceedings and deny the patent holder its right to intellectual property and to an effective remedy (see Article 17(2) and Article 47 of the EU Charter and 41(2) TRIPS) by raising invalidity so late in the proceedings that the statute of limitations has expired so the patent holder cannot initiate new proceedings before the court of registration.

That said, the AG argues that Article 47 of the Charter requires the infringement court to take the invalidity defence into account and he offers practical guidelines on how a Member State court should procced. He suggests that if an invalidity defence has been properly raised, the infringement court should make a preliminary analysis of how a court in the state of registration would decide the matter (compare Solvay (C‑616/10), where such an analysis is done before granting a preliminary injunction) and balance the patent holder’s right to an effective remedy as well as the requirement of efficiency of procedure with the alleged infringer’s right of defence and the sound administration of justice. If the invalidity defence is serious, the Member State court having jurisdiction over the infringement claim should instruct the defendant to initiate invalidity proceedings in the state of patent registration within a set deadline and stay the infringement case in accordance with its procedural rules until the validity question has been decided by the courts/authorities of the state of registration.

Member State Courts May Give Article 24(4) Reflexive Effect

The AG notes that the reflexive effect of Article 24(4) has implications for the interpretation of the other rules in Article 24 and for Article 25 on prorogation agreements. The starting point for the AG’s analysis is that the Regulation has a “design flaw” in that while it applies to disputes where the defendant is domiciled in a Member State and the subject matter is closely connected to a third state, it was not designed for such disputes. Thus, the AG opines that the gap needs to be filled in by one of three ways.

The AG rejects the first way, i.e., applying Articles 24/25 by analogy to such situations, because it goes against the clear wording of these articles which refer to a “Member State” and also because previous CJEU case law had already held that the Articles did not apply (see IRnova (C-399/21) concerning patents registered in third states and Coreck Maritime (C-387/98) concerning prorogation agreements in favour of third states). The AG also notes that such a solution would be inconsistent with the system of the Regulation.

The AG also rejects a second way whereby Member States courts having jurisdiction over such disputes based on a rule in the Regulation, are bound to exercise that jurisdiction. Referring to the “design flaw” mentioned above, the AG first opines that an absence of specific provisions addressing these situations cannot be interpreted to mean that Member State courts must exercise jurisdiction. The AG notes that there is nothing in the wording or recitals of Articles 33 and 34 that suggests that these provisions are exhaustive. Articles 33 and 34 allow a Member State court to stay proceedings under certain circumstances if proceedings are already pending in a third state court. The AG also rejects the argument that Owusu (C-281/02) supports this interpretation. In that decision, the CJEU stated “Article 2 of the Brussels Convention [now Article 4 of the Regulation] is mandatory in nature and that, according to its terms, there can be no derogation from the principle it lays down except in the cases expressly provided for by the Convention”. The AG notes that in Owusu the CJEU declined to answer the second question which dealt with the specific situation here. The AG also notes that Coreck Maritime and Mahamdia (C‑154/11) suggests that Member State courts are permitted to give effect to prorogation agreements in favour of third state courts.

Second, the AG opines that such an interpretation (i.e. the second way) would be at a variance with the raison d’êtreof Article 24 to give deference to sovereignty and of Article 25 to respect party autonomy. Moreover, he states that this interpretation would not contribute to legal certainty because a resulting Member state judgment would not be valid in the third state and the issue may be relitigated there resulting in irreconcilable judgments.

Third, the AG notes that the Lugano Convention and the 2005 Hague Convention do not remedy these problems because they only bind a few states and therefore unilateral solutions within the framework of the Regulation are needed.

Lastly, the AG rejects the argument that this interpretation was the clear intention of the EU legislator noting that it was not expressed in the text of Regulation, the travaux preparatoires are generally not clear, and in any case, must be understood in the context whereby the EU legislator abandoned the idea of achieving a comprehensive solution to disputes connected to third states.

The AG suggests therefore a third way of filling the gap, i.e. that the Regulation permits Member State courts that have jurisdiction over such disputes pursuant to a rule of the Regulation, to decline jurisdiction on the basis of national law. That said, the AG opines that the Member State courts’ discretion is limited by EU law in that 1) a Member State court may refuse to exercise jurisdiction over a dispute connected to a third State only where the matter in dispute (i.e. patent invalidity) would fall within the scope of Article 24 had the matter been located in a Member State, or where a choice-of-court agreement in favour of a third state otherwise fulfils the requirements laid down in Article 25; and 2) a Member State court must respect the rules on the protection of weaker parties and the exclusive jurisdiction of the courts of another Member State. However, even when these conditions are fulfilled, the AG opines that a Member State court is not required to decline jurisdiction if there is a risk for denial of justice. The AG rejects the argument that this creates a risk for legal uncertainty because this way gives narrow discretion to the Member state courts under specific circumstances.

Comment

I heartily agree with the AG opinion concerning the scope of Article 24(4) so I will limit my comments to his opinion on the reflexive effect of Article 24(4). It seems a bit odd to start off with the premise that there is a design flaw in the Regulation that the CJEU needs to fix instead of accepting the Regulation as it is and interpreting it accordance to the CJEU’s methods of interpretation. The wording of the provisions and the system of the Regulation suggest that Member State courts may not give Articles 24 and 25 reflexive effect under national law.

Indeed, Articles 24 and 25 expressly apply only to Member State courts and Articles 33-34 expressly apply to third state courts. Articles 33-34 are the only rules in the Regulation that permit a Member State court to decline or stay jurisdiction in favour of a third state court. In particular, recital 24 instructs that when applying Articles 33-34, a Member State court may take into consideration

whether the court of the third State has exclusive jurisdiction in the particular case in circumstances where a court of a Member State would have exclusive jurisdiction.

An e contrario interpretation suggests that a Member State may not decline jurisdiction in other situations (except where a higher norm demands this). Moreover, if the Member States already had discretion to give Article 24 and 25 reflexive effect, then Articles 33-34 are superfluous. Lastly, Article 6 exhaustively informs when the Member State courts may apply national rules.

With regard to the objective of Article 24 of giving deference to sovereignty, an argument can be made that, in the absence of an international obligation, the EU does not give third state sovereign interests the same weight as Member State interests. A similar argument can be made with respect to Article 25, i.e., that the EU intentionally refuses to give effect to third state prorogation agreements outside of its treaty obligations, e.g. 2005 Hague Convention on Choice of Court Agreements. That said, the situations involved in Articles 24 and 25 are not completely congruent as Article 25 raises the issue of party autonomy, which is arguably a fundamental right. Also, introducing a discretionary reflexive effect does not further the objective of legal certainty including strengthening the legal protection of persons established in the European Community as it will be less easy to identify in which court one can sue and be sued.

Curiously, the AG’s solution has the unfortunate result that it extends to third states the very solution that the AG criticizes. On the one hand, the AG is critical of GAT and its codification in Article 24(4) because it goes beyond what is necessary to fulfil Article 24(4)’s objective of giving deference to the sovereignty interests of the state of patent registration. On the other hand, the AG suggests that deference to sovereignty interests of the state of patent registration requires that the Member State courts give Article 24(4) reflexive effect when a matter would have fallen under Article 24(4) had the patent been registered in another Member State instead of a third state.

When it comes to the application of Article 24(4), as the AG notes, the CJEU is now “trapped in the solution that it initially adopted”. This is not the case however when giving Article 24(4) reflexive effect. There is no reason why the rule cannot be adapted to better serve its objective without going beyond what is necessary. As noted, deference to the sovereignty interests of a third state does not require a Member State court that is exercising jurisdiction on the basis of a rule in the Regulation to decline jurisdiction over a question concerning a third state patent’s invalidity when the question is raised in infringement action. Thus, there is no reason to “reflexively” apply Article 24(4) to these situations. In contrast, if an alleged infringer sued a patent holder in a Member State on the basis of a rule in the Regulation asking the court to invalidate with erga omnes effect a patent registered in a third state, Article 24(4) should “reflexively” apply as a matter of EU law giving effect to a recognised rule of public international law that one state will not invalidate the public law acts of another state.