EAPIL blog

The Hague Academy of International Law has made known the programme of the winter course on International Law of 2024.

The course will be opened by Yves Daudet (Hague Academy of International Law) with a lecture on Solidarity in International Law.

The general course, titled On the Interface between Public and Private International Law, will be given by Campbell Mclachlan KC (Victoria University of Wellington).

The special courses will be as follows: Ximena Fuentes (University of Chile), Defying Existing International Law as the Starting Point of the Formation of New Customary Law; Patrícia Galvão Teles (Autonomous University of Lisbon) The Advisory Function of International Courts and Tribunals; Maria Gavouneli (National and Kapodistrian University of Athens) Energy in International Law; August Reinisch (University of Vienna) The Settlement of Disputes Involving International Organizations; Ben Saul (University of Sydney) The Special Regime of International Counter-Terrorism Law; Santiago Villalpando (Office of United Nations Educational, Scientific and Cultural Organization – UNESCO) The Practice of the Law of Treaties since the Vienna Convention.

The directors of studies will be Fuad Zarbiyev (Geneva Graduate Institute) for the English-speaking section, and Paula Wojcikiewicz Almeida (Getulio Varga Foundation Law School in Rio de Janeiro) for the French-speaking session.

All applicants are required to register online. A limited amount of scholarships is available. Registration period for full fee applicants is between 1 May 2023 and 1 October 2023. Selected attendees of the Winter Courses will also be able to participate in the doctoral networking sessions coordinated by Daniëlla Dam-de Jong (Leiden University), additional afternoon lectures, embassy visits, social activities,  and to register for an exceptional event: the “Hours of Crisis“ Simulation Exercise. The competition will be conducted in English only.

More information on the Academy’s programmes may be found here.

The eleventh edition of the treatise on Droit international privé in the Précis Dalloz series, one of the leading texts on private international law in France, has recently been published (January 2023, 1100 pages).

The previous edition was published ten years ago. The new, fully revised edition has been prepared by Pascal de Vareilles-Sommières (Sorbonne Law school, Paris I University), who was the co-author of the previous editions (alongside the late Yvon Loussouarn and Pierre Bourel), and Sarah Laval (Littoral Côte d’Opale University).

The first part, titled “Common rules governing private international law” (Règles générales de droit international privé), focuses on the general theory of private international law, and adopts an original distinction between “identification of the legal source” (i.e. in the three fields of choice of law, jurisdiction and judgments) and “regime of the foreign norm” (i.e. the regime of the international regularity (or lawfulness) of the foreign norm – law and judgment – and then the regime of the implementation of the foreign norm).

The second part, titled “Special rules governing private international law” (Droit international privé special), is concerned with the special rules applicable in the different fields of private law (i.e. persons, family, property, obligations, businesses). Another sign of originality here is that each of the areas presented contains a preliminary development on the “policy of building connecting factors”.

While the treatise’s foreword is insightful and conceived as a “user’s guide”, I thought it would be interesting to directly ask the two authors about some specific features of this revised edition. They kindly agreed to answer some questions for the readers of the EAPIL blog and I thank them very warmly.

– This treatise takes, in your own words, a “neo-Savignian” approach to private international law. What does this mean?

On the one hand, a neo-Savignian approach to PIL focuses, like under the traditional Savignian approach, on the links between a given legal relationship and a particular country, in order to sort out, in favour of this country, the choice-of-law/choice-of-court issues (including issues related with jurisdiction of foreign courts, in case of a dispute over a foreign judgment dealing with the case) arising out of said relationship. Like Savigny, a neo-Savignian advocate believes that one of these links (or one set of links among them) justifies better than others the precedence of the concerned country as to ruling the relationship at stake through its law or its courts. This creed relies on the idea that the authority of a ruler varies depending on the strength of its links with the governed subject.

When enacting a choice-of-law (or choice-of-court) rule, a lawmaker who follows a neo-Savignian approach picks up the link (or set of links) which, in his opinion, is the most relevant for the kind of relationship covered by the created rule – and which appears to him as showing the “seat” (like Savigny used to say) of the legal relationship in a particular country. This link will therefore become the connecting factor in the choice-of-law rule (or the jurisdictional basis in the choice-of-court rule – including, here again, the jurisdictional standards applied to foreign courts, as provided by the foreign judgment regime) covering the legal relationship at stake. And this “seat country” will consequently have (at least in principle) its law and/or the judgments rendered by its courts enforced, for said legal relationship, by the forum (viz, the country whose choice-of-law/choice-of-court rules apply, assuming that the dispute is brought before that country’s courts).

But on the other hand (and conversely to the Savignian approach), our neo-Savignian approach promotes the idea that legal relationships between private persons in an international setting do not necessarily have only one seat in one country – whose law and courts would thus govern this relationship –, but may well have (and actually often have) several “anchors” or relevant connections to different countries, each of whom being a possible seat or “anchorage”. Two important consequences stem from this: (i) in a given case, the seat relevant for adjudicating the dispute may well prove different from the seat relevant for legislating over it; (ii) moreover, since one must think contemporary choice-of-law and choice-of-court rules (including, as aforementioned, those governing foreign judgments) in terms of domestic rather than international sources (at least in principle), the seat of a given relationship may well vary from country to country.

All this shows that, in our early XXI century, reasoning (as used to do Savigny) in terms of “one seat in one country for one kind of relationship” – at least each time this relationship appears in an international setting – is a bit misleading since it does not correspond to the truth of law as it is experienced by the parties. Our neo-Savignian doctrine admits the possibility of plural seats for a given legal relationship and addresses this occurrence through a set of choice-of-law and choice-of-courts rules which are inspired by Savigny’s thought (search of the most relevant links), as adapted to fit the contemporary legal landscape for private law applying in an international context (plurality of relevant fora enacting varied choice of law and choice of court rules). Accordingly, in a given country, the conflict between the countries (taken as lawmakers or as judgment-makers for the case at stake) with which a legal situation is linked, will be won by the one that has the most relevant relationship with the situation, this relevance being determined by a series of private and public considerations.

Far from being merely neutral, the choice-of-law rules appear as the result of a certain policy implemented by the authors of these rules (the “choice-of-law policy”, distinct from the “substantive policy” enacted by the substantive law chosen as applicable and relevant when it comes to sorting out the substantive issue). The same is true, mutatis mutandis, for the choice-of-court rules.

The neo-Savignian approach also repudiates two popular postulates: (i) the postulate according to which countries are not affected by the solution of conflict of laws (since at a minimum, the authority of the sovereign country, taken as a ruler, vis-à-vis the parties to the legal relationship is at stake when sorting out a choice-of-law/choice-of-court issue); and (ii) also the postulate according to which, in a given case, the applicable law and the jurisdiction of courts are basically disconnected from one another; on the contrary, they are both seen as one side of the exercise of one countries’ power to make “law” (broadly speaking: either by enacting a bill, or by rendering a judgment). The originality of the neo-Savignian approach therefore also lies in a sort of presumption that the country whose courts have jurisdiction over a case often ought to be (and actually, quite naturally) the country whose law governs the relationship (jurisdiction of the forum legis).

– Could you concretely illustrate this neo-Savignian approach?

Let us take one example of a multiple-seat private law relationship; it will be provided by the family chapter of PIL, and more especially, the filiation issue (relation of child to father).

Under French law, the choice-of-law rule points to a country as being the correct lawmaker for filiation where it turns out that the child’s mother has the nationality of that country (C. civ., Article 311-14); whereas the jurisdiction rule points to France as being the correct judgment-maker for filiation where the defendant (often the suspected father) is domiciled in France (CPC, Article 42), or, in case he is not, where he is a French citizen (C. civ., Article 15), or even, as a minimum, where the claimant (the child in a filiation proceeding) is a French citizen (C. civ., Article 14). These rules show that French substantive law on filiation will apply before French courts in a dispute brought before French courts each time that (i) the suspected father is domiciled in France, or at least that he, or the child, has French nationality (so that French courts have jurisdiction); and (ii) the mother is French (so that French substantive law governs the case). In such a case, France gets a plenary power to provide for a substantive regime (both through legislature and through court) for the filiation. The seat of the relation of child to father (at least from the French viewpoint) is located in France, both with respect to the substantive law governing the case and to the court having the final word in the dispute.

Let us assume now that the man is Italian, and the child is a US citizen (since he was born within the US territory, where one assumes also here that his French mother lives with him). In that case, Italian courts claim jurisdiction over the case (Italian Act No 218, 1995, Article 37). Assuming that the claimant brings the dispute against the suspected father before Italian courts, these courts should assert jurisdiction on the filiation issue, since for Italy, the judicial seat of the case is in Italy. As to the legislative seat, it will be provided by the Italian choice-of-law rule, under which the law governing filiation is the law of the country of origin (nationality) of the child (Italian Act No 218, 1995, Article 33), here the law of the relevant US state. Hence the Italian court will not apply the French law, even though the child’s mother is French (and notwithstanding the French choice-of-law rule claiming applicability of French law for that reason).

Typically, under our neo-Savignian approach, the filiation proceeding covers a relation that has not one seat in onecountry, but at least three seats in three countries (France, Italy and the United States), and parties to this relationship should be aware of this data when wondering what is the content of the legal regime governing the substantive issues arising out of their case. One should add here that the country where the filiation proceeding is brought would be well advised not to forget this plural-seat data when it comes to addressing the legal issues arising out of this dispute. It is probably so for France, if recognition of enforcement of the Italian judgment is sought there: even though the French choice-of-law rule claims French substantive law being applicable to the filiation issue (since the mother is French), the foreign judgment regime as set up by French case-law does not rule out the Italian judgment for the mere reason that the Italian court did not enforce French law (but rather the law of the relevant state in the USA).

– The formal presentation of private international law solutions in the treatise is inspired by a “trans-systemic/transnational” pedagogy. The aim is to go beyond the particularistic (i.e., French-oriented) approach to the discipline. Could you elaborate on that?

This presentation divides each PIL development into two parts. The first part is more about rhetoric; it sets the problematics, the principles and the interests at stake for each topic, it lists the different considerations that shall be taken into consideration to solve the choice-of-law/choice-of-court issues, and it suggests a solution according to the neo-Savignian approach. These rhetoric parts are not too deeply invaded by legal data from one particular country or another. Accordingly, at that stage, the book rather sticks to a universalist view of PIL.

The second part of the developments on each issue is a presentation of the rules as they exist in some jurisdictions, would these rules stick to the solutions exposed in the first part or would they differ from them. In this second part, the rules are not only French rules, but European and International (Hague Conventions in particular) rules as well. The purpose of this transnational presentation is to depart from a purely French point of view as well as to understand the extent to which French Law solutions are similar to European and International Law solutions. The outcome of this presentation is that, contrarily to other handbooks on the libraries’ shelves, this recast edition is not merely a book on French PIL, but rather a book on PIL as it is conceived and applied by France, by the European Union and by the international community through international conventions (mainly Hague conventions from the Hague Conference for PIL).

The (private international) law of choice-of-court agreements provides us with a good example of this methodology. In the rhetoric part of the presentation on this issue, the book draws on (i) the relation between the lawfulness of choice-of-court agreements and the question whether the jurisdiction rule is binding or non-binding in law, for the parties; and (ii) the considerations influencing the decision whether such a rule ought to be binding in law or not for the parties. Then, in a series of developments on law as it is in force in some jurisdictions, a quick presentation is made regarding French law, EU law (Brussels I bis Regulation) and the Hague convention on choice of court agreements.

– How do you “present” and “represent” in the treatise the Europeanisation of private international law and, ultimately, EU private international law?

To make a long story short, one can say that there are two possible paths that one can follow in order to present the EU as a lawmaker in the field of PIL.

On the one hand, the traditional way tends to look at the EU from the classical public international law viewpoint. EU member-states are sovereign States bound by an international treaty (Treaty of Rome, 1957 – which was ultimately renamed the Treaty on the Functioning of the European Union by the Treaty of Lisbon, 2007). From that standpoint, EU PIL is fostered by EU institutions and comes into force in the EU member-states through an international treaty. It is on that basis that it becomes part of the law of each member-state and it ought to work as such.

On the other hand, a more unusual analysis of the EU is to see this entity as a political entity having some features of a sovereign State (nevertheless not all of them, so that it cannot claim being a State from the international law standpoint, but, at a maximum, it may qualify as what is sometimes called a “proto-state”). As such, EU PIL in a member-state differentiates from domestic PIL of this member-state, with some consequences like one in the field of characterization, where, for a member-state court, resorting to domestic definitions for interpreting EU legal categories as used in EU PIL regulations is not appropriate (at least in principle). Similarly, the proto-state notion proves useful for the correct understanding of the function of EU PIL, compared to member-state PIL of domestic origin. This last one may be seen as a tool for fixing the ambit of legislative or judiciary action of a member-state. The first one is seen in the book as delineating the outskirts of each member-state’s private law (as made by a legislature or by a court), whether with regards to each other, or even with regards to non-member-states. It may well be used also as a tool for delineating the outskirts of EU private law where it exists, as the case may be. And finally, the proto-state notion is useful to understand another influence of EU law on EU member-state PIL having a domestic origin: to the extent that EU may be seen as a “proto-federal State”, the interference of EU freedom of persons (Article 21 TFEU) on the law of EU member-states, including PIL of domestic origin, appears as one regarding the lawfulness of the legal provisions composing this domestic law.

One must add that the European influence on the PIL of European countries is not limited to EU law, but may come from other organizations or instruments as well, like the Council of Europe. This international organization is much less integrated than the European Union, and for this reason the book does not see it as a proto-state. But of course, this does not prevent us from scrutinizing the possible incidence of the Council of Europe law (and especially the ECHR case-law) on EU (and EU member-state) PIL, particularly through the reshaping of the public policy defence.

– Could you concretely illustrate your “proto-state” approach of EU PIL?

Article 4.1 of Rome II Regulation and Articles 4, 7, and 45 of the Brussels I bis Regulation read as follows, through the proto-State notion as applied to the European Union:

In principle, under Article 4.1 of Rome II regulation, the EU grants (or recognizes) jurisdiction to legislate in matter of non-contractual obligation to any member-state having sovereignty on the territory where the damage occurs. The same jurisdiction to legislate is recognized in principle by EU PIL to any non-EU country exercising sovereignty on this territory. EU member-states are granted jurisdiction to adjudicate a case in non-contractual obligations under the Brussels I.a regulation (article 4 and 7); but countries having rendered a judgment in this subject matter may be seen as providing a regular ground to their judgment, even though they are not a country selected by these articles, and this is so whether they are (i) an EU member-state (since the origin of the EU member-state judgment is not controlled under article 45.3 of Brussels I.a regulation); or (ii) a non-EU country (since EU PIL does not cover recognition and enforcement of non-EU country judgments).

– For the benefit of the private international law community, what are the two or three major issues which, in your book, seem to you to be at the heart of the reflections to be conducted for the private international law of the future? 

The first issue could be a potential harmonization between the answer to the two questions of (i) which law prevails? and (ii) which court has jurisdiction? In France, scholars usually have strong opinions on the separation between these two fields and stick to the postulate that their regulation relies on distinct considerations: whereas the court that has jurisdiction appears to be chosen after purely procedural considerations, the choice of law is usually determined by non-procedural considerations, since the choice-of-law issue may arise outside any proceedings. This presentation neglects the idea that choosing a country’s court instead of another one is not neutral with respect to the outcome of the proceeding and eventually has a strong influence on the solution of the dispute. Therefore, a country exercising a legislative power also has an interest in exercising its judicial power. Taking these elements into consideration might be a good opportunity to review the choice-of-court rules and see to what extent they stick – or could stick – to this approach.

A second issue is about the leeway available to a court when it comes to exercising its jurisdiction over a case presenting relevant links with court’s country. Since the claimant holds a strong sway on the outcome of the proceeding – through the choice of the forum where the dispute is brought –, any country ought to provide its courts with the power to give up the exercise of its jurisdiction over the dispute, each time it turns out that the claimant would have an excessive advantage in suing the defendant before the court of one of the countries whose links with the case are sufficient to trigger its jurisdiction to adjudicate.

A third issue could be the digitalization of international private relations. This digitalization emphasizes the opportunity to depart from a reasoning in terms of mere localization of facts and urges the need to adopt a reasoning in terms of policy advocated for by the choice-of-law/choice-of-court legislature. For these relations, the determination of the applicable law or of the court that has jurisdiction cannot be the result of a search for a country where the facts take place (it is submitted that this country really does not exist), but the result of the comparison between the different public and private interests at stake. Eventually, the relationship arising in a digitalized context has its seat in the country with the most relevant links to it – relevance being here the outcome of an analysis and weighing of the competing interests that one can find, for a country, to be recognized as a ruler (through its laws or courts) for said relationship, and, for the parties to said relationship, that this country be recognized as governing it.

This post was written by Verena Wodniansky-Wildenfeld, University of Vienna.

On 8 March 2023, the German Supreme Court issued a judgment on the paternity of two children. In the case at hand, the validity of the marriage of the mother, which gives rise to the presumption of paternity, had to be determined as a preliminary issue. This was further complicated by the interference of a talaq divorce.

Facts of the Case

An Iranian-German woman married an Iranian man in Iran in 1996 and was subsequently divorced by a talaq in Iran in 2006. The recognition of this divorce was refused in Germany, as is usual for reasons of public policy in connection with the right to be heard, in 2012 by a decision of a German administrative authority. In 2009, the woman remarried another Iranian man in Iran and gave birth to two children in 2010 and 2013, who have had their habitual residence in Germany ever since. The second husband was registered as the father in the German birth register. The registry office wanted to correct this registration in favour of the first husband, as Section 1592(1) of the German Civil Code (BGB) considers the husband of the mother at the time of the birth as the legal father of the child.

The precondition for the preliminary question

The core issue before the German Supreme Court was the determination of the law applicable to parenthood. In the absence of overriding rules of EU or international law (the Bilateral Treaty between Germany and Iran did not apply because the mother of the children has both German and Iranian nationality), the court turned to national conflicts rules. Article 19(1) of the Introductory Act to the German Civil Code (EGBGB) provides for an alternative connecting factor based either on the law of the child’s habitual residence or, for each parent separately, on his or her nationality. In the case of married persons, parentage may also be determined according to the law governing the general effects of their marriage at the time of birth.

As the children had their habitual residence in Germany, the Court examined parentage in accordance with German substantive law. Accordingly, the children’s father would be the person who was married to the child’s mother at the time of birth.

The question arose to whom the mother was effectively married at the time of birth. The court therefore assessed the validity of the second marriage as a preliminary question. The substantive requirements for marriage are governed by the law of the nationality of each of the spouses (Article 13(1) EGBGB). Accordingly, the second marriage violated from a German viewpoint the prohibition of bigamy (Section 1306 BGB), as the Iranian divorce was not recognised in Germany. For the mother of the child, the second marriage would merely be dissolvable under German law, but not automatically null and void by operation of law (ex lege). For the second husband, who is exclusively of Iranian nationality, Iranian law applies according to Article 13(1) EGBGB, which stipulates that a man must not marry a woman who is already married (Article 1050 Iranian Civil Code), otherwise the marriage is considered to be invalid.

In this respect, the Court first had to decide whether the talaq divorce with the first husband was effective in order to answer the question of the validity of the marriage with the second husband.

The Outcome

The legally binding decision of the German administrative authority not to recognise the talaq divorce has the consequence that it has no legal effect in Germany. A separate conflict-of-laws assessment is therefore not required, at least in cases with a strong national link, as in the present case. The Court therefore correctly assumed that the second marriage of the mother was a violation of the Iranian prohibition of bigamy and therefore null and void, as the divorce had to be considered invalid.

In order to avoid a situation in which the status of the parties to a marriage is in doubt (limping marriage), the “stricter” law that is most opposed to the marriage is generally applied when examining the substantive requirements for marriage. According to this principle, the second marriage would be considered void, as it is considered void under Iranian law. However, this would be a “paradox” result in so far as the marriage would not be null and void under either of the two legal systems when examined individually. Therefore, the Court deviates from the principle of applying the stricter law and, exceptionally, allows the milder German law to decide the consequence. The result is that under German law two marriages existed at the time of birth. The court resolves the subsequent double presumption of paternity by an analogous application of Section 1593 sentence 3 BGB (A child that could be both the child of the former husband and the new husband is to be regarded only as the child of the new husband). Consequently, only the second marriage is decisive, and the second husband was registered as the father of both children.

Assessment

Although the reasoning of the decision may appear contrived and somewhat forced, the outcome reflects the factual circumstances. The prior legally binding decision not to recognise the divorce and the resulting lack of a conflict-of-laws analysis forces the court to reach deep into its bag of tricks in order not to undermine a presumption of paternity that is effective in both legal systems. Adaptation would normally be the tool of choice in cases where the result of a conflicts analysis is unsatisfactory because the legal consequences would not arise in either jurisdiction. In the case at hand, however, adapting the outcome was not possible due to the interplay between procedural law and substantive law. The procedural effect of the refusal to recognise the divorce must be clearly distinguished from the conflict-of-laws implications. The court is therefore facing the challenge of making corrections at the level of the legal consequences in order to achieve the desired result. Dogmatically as well as methodologically, it is always problematic to put the cart before the horse in this way, and once again the approach taken by the Court is not flawless. Instead of following legal practice, the Court chose the most practical solution in the individual case – which is always where legal practice and science have to part company.

Holidays are over and September 2023 will be a busy month at the Court of Justice also as regards private international law, starting with the delivery of the Opinion by AG Emiliou in case C-90/22, Gjensidige, and of two decisions by the third and the fifth chamber respectively (both formations of five judges) already on Thursday 7.

The request for a preliminary ruling in Gjensidige comes from the Lietuvos Aukščiausiasis Teismas (Lithuania). In the case at hand, the proceedings in cassation focus on the legal provisions governing the significance of an agreement conferring jurisdiction, entered into by the parties to a contract for international carriage, in the context of determining both the jurisdiction of the court hearing the dispute that arose from that contract and the legal consequences of a breach of the lis pendens rules. The national court is asking the following:

Can Article 71 of Regulation No 1215/2012, having regard to Articles 25, 29 and 31 and recitals 21 and 22 thereof, be interpreted as permitting the application of Article 31 of the CMR Convention also in cases where a dispute falling within the scope of both those legal instruments is the subject of an agreement conferring jurisdiction?

Having regard to the legislature’s intention to strengthen the protection of agreements conferring jurisdiction in the European Union, can Article 45(1)(e)(ii) of Regulation No 1215/2012 be interpreted more broadly, as covering not only Section 6 of Chapter II of that regulation but also Section 7 thereof?

After assessment of the specific features of the situation and the resulting legal consequences, can the term ‘public policy’ used in Regulation No 1215/2012 be interpreted as covering the ground for deciding not to recognise a judgment of another Member State where the application of a specialised convention, such as the CMR Convention, creates a legal situation in which both the agreement conferring jurisdiction and the agreement on the applicable law are not observed in the same case?

One the same day the Court will hand down its judgement in cases C-590/21, Charles Taylor Adjusting,  and C-832/21 Beverage City Polska.

The request for a preliminary ruling in case C-590/21 was lodged by the Areios Pagos (Court of Cassation, Greece). It concerns the interpretation of Article 34(1) and Article 45(1) of the Regulation No 44/2001 (Brussels I), in proceedings on the recognition and enforcement by a court of a Member State of judgments issued by a court of another Member State which have the effect of deterring parties, which had brought proceedings before another court of the former Member State, from continuing the proceedings pending before it. The questions referred read:

(1) Is the expression “manifestly contrary to public policy” in the EU and, by extension, to domestic public policy, which constitutes a ground for non-recognition and non-enforcement pursuant to point 1 of Article 34 and Article 45(1) of Regulation No 44/2001, to be understood as meaning that it extends beyond explicit anti-suit injunctions prohibiting the commencement and continuation of proceedings before a court of another Member State to judgments or orders delivered by courts of Member States where: (i) they impede or prevent the claimant in obtaining judicial protection by the court of another Member State or from continuing proceedings already commenced before it; and (ii) is that form of interference in the jurisdiction of a court of another Member State to adjudicate a dispute of which it has already been seised, and which it has admitted, compatible with public policy in the EU? In particular, is it contrary to public policy in the EU within the meaning of point 1 of Article 34 and Article 45(1) of Regulation No 44/2001, to recognise and/or declare enforceable a judgment or order of a court of a Member State awarding provisional damages to claimants seeking recognition and a declaration of enforceability in respect of the costs and expenses incurred by them in bringing an action or continuing proceedings before the court of another Member State, where the reasons given are that: (a) it follows from an examination of that action that the case is covered by a settlement duly established and ratified by the court of the Member State delivering the judgment (or order); and (b) the court of the other Member State seised in a fresh action by the party against which the judgment or order was delivered lacks jurisdiction by virtue of a clause conferring exclusive jurisdiction?

(2) If the first question is answered in the negative, is point 1 of Article 34 of Regulation No 44/2001, as interpreted by the Court of Justice of the European Union, to be understood as constituting a ground for non-recognition and non-enforcement in Greece of the judgment and orders delivered by a court of another Member State (the United Kingdom), as described under [(1)] above, where they are directly and manifestly contrary to national public policy in accordance with fundamental social and legal perceptions which prevail in Greece and the fundamental provisions of Greek law that lie at the very heart of the right to judicial protection (Articles 8 and 20 of the Greek Constitution, Article 33 of the [Astikos Kodikas (Greek Civil Code)] and the principle of protection of that right that underpins the entire system of Greek procedural law, as laid down in [Article 176, Article 173(1) to (3) and Articles 185, 205 and 191] of the [Kodikas Politikis Dikonomias (Greek Code of Civil Procedure)] cited in paragraph 6 of the statement of reasons) and Article 6(1) of the [European Convention on Human Rights], such that, in that case, it is permissible to disapply the principle of EU law on the free movement of judgments, and is the non-recognition resulting therefrom compatible with the views that assimilate and promote the European perspective?

In his Opinion delivered on 23 March 2023, AG Richard de la Tour proposes propose that the Court of Justice answer as follows:

Article 34(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that a court of a Member State can refuse to recognise and enforce a decision on the ground that it is contrary to public policy based on the fact that that decision prevents the continuation of proceedings pending before another court of that Member State, in that it awards to one of the parties provisional damages in respect of the costs and expenses incurred by it in bringing those proceedings, where the reasons given are, first, that the subject matter of those proceedings is covered by a settlement duly established and ratified by the court of the Member State delivering that decision, and, second, that the court of the other Member State before which those proceedings were brought lacks jurisdiction by virtue of a clause conferring exclusive jurisdiction.

It is now for judges K. Jürimäe, M. Safjan, N. Piçarra, N. Jääskinen (as reporting judge) and M. Gavalec to decide.

In case C-832/21, Beverage City Polska, the Oberlandesgericht Düsseldorf (Higher Regional Court for Civil and Criminal Matters of Düsseldorf, Germany), made a request for a preliminary ruling on the interpretation of Article 8, point 1, of the Brussels I regulation, in relation to Article 122 of Regulation (EU) 2017/1001 on the European Union trade mark. The main proceedings engaged the owner of a Union trademark, established in the United States, and a distributor and its supplier, respectively domiciled in Germany and Poland, regarding the alleged violation by them of said trademark. The Court of Justice is asked to complete its jurisprudence on the requirements of the special rule established in Article 8, point 1, of Regulation No. 1215/2012, which allows several persons domiciled in different Member States to sue before the courts of the domicile of only one of them, whereas the claims filed before the referring court are directed against several companies and their administrators, against whom the action has been filed not only in their capacity as representatives of such companies, but also in their personal capacity.

AG Richard de la Tour’s Opinion, March 23, 2023 proposes the Court to answer:

Article 8(1) of Regulation (EU) No 1215/2012 …, read in conjunction with Article 122 of Regulation (EU) 2017/1001 …, must be interpreted as meaning that more than one defendant, domiciled in different Member States, may be sued in the courts for the place where one of them is domiciled that are seised, in the context of infringement proceedings, of claims brought against them by the proprietor of an EU trade mark where the defendants are alleged to have infringed that trade mark in a materially identical manner through each of their acts in a supply chain. It is for the court seised to assess whether there is a risk of irreconcilable judgments resulting from separate proceedings, taking into account all the relevant material in the case file.

The decision corresponds to judges E. Regan, D. Gratsias, M. Ilešič (reporting judge), I. Jarukaitis and Z. Csehi.

Three further decisions will be published the following week, i.e. on Thursday 14.

C-632/21, Diamond Resorts Europe e.a., is a Spanish request from the Juzgado de Primera Instancia e Instrucción n.º 2 de Granadilla de Abona on the law applicable to contractual obligations under Regulation No 593/2008 (Rome I) and (to some extent) its predecessor, the 1980 Rome Convention. The succinct presentation  of the facts according to the English summary of the request establishes that an action was brought before the referring Spanish court seeking the annulment of two contracts (of 14 April 2008 and of 28 June 2010) concluded between a UK company and the applicants in the main proceedings, Mr JF and Ms NS, of British nationality. The contracts relate to the purchase of points which enable consumers to use accommodation belonging to the club owned by the defendant in Europe, including Spain. Consumers are not allocated specific accommodation, even for a specified period each year; instead, they are offered a brochure of accommodation and must request availability for each property at a particular time.

These are the questions referred to the Court:

1) Are the 1980 Rome Convention … and Regulation No 593/2008 on the law applicable to contractual obligations to be construed as applying to contracts in which both parties are United Kingdom nationals?

If the answer to the first question is in the affirmative

2) Is Regulation No 593/2008 to be construed as applying to contracts concluded before its entry into force, pursuant to Article 24 of that regulation? If the answer is no, must a club-points-based timeshare contract be treated as falling within the scope of Articles 4(3) or (5) of the 1980 Rome Convention, including where the consumer has chosen the law of a State other than his or her State of habitual residence as the applicable law? Further, if the answer is that such contracts can come under either provision, which set of rules takes priority?

3) Irrespective of the answers to the second question, is a club-points-based timeshare contract to be treated as a contract for the acquisition of rights in rem in immovable property or association-type rights in personam?

– If it is considered that rights in rem are acquired, for the purposes of determining the law applicable, which of Article 4(c) and 6(1) of Regulation No 593/2008 is applicable by way priority, including in the event that the consumer chooses the law of a State other than that of his or her State of habitual residence as the applicable law?

– If it is considered that rights in personam are acquired, are those rights to be treated as a tenancy of immovable property, for the purposes of Article 4(c), or as a provision of services, for the purposes of Article 4(b)? Further, and in any event, is Article 6(1) applicable by way of priority in so far as the contract is with a consumer and/or user, including where the consumer chooses the law of a State other than that of his or her State of habitual residence as the applicable law?

4) In all of the above cases, is national legislation which states that ‘all contracts concerning rights relating to the use of one or more immovable properties situated in Spain during a specified or specifiable period of the year are subject to the provisions of this Law, regardless of the place or the date on which such contracts were concluded’ to be interpreted as being compatible with the provisions governing the applicable law laid down in the 1980 Rome Convention and in Regulation No 593/2008?

No Opinion has been asked for. The Court will decide in a chamber of three judges, namely L. Arastey Sahún, F. Biltgen (as reporting judge) and J. Passer.

On the same day, the same chamber will hand down the judgment in case C-821/21, Club La Costa e.a., corresponding again to a Spanish request; no Opinion precedes the decision. Six questions have been referred to the Court on the Brussels I bis and Rome I Regulations:

In relation to Regulation (EU) No 1215/2012 …:

1. In the case of consumer contracts to which Article 18(1) of the Brussels I Regulation is applicable, is it compatible with that regulation to interpret the term ‘the other party to a contract’ used in that provision as encompassing only a person who signed the contract, such that it cannot include natural or legal persons other than those who actually signed the contract?

2. If the term ‘the other party to a contract’ is interpreted as encompassing only a person who actually signed the contract, in situations in which both the consumer and ‘the other party to a contract’ are domiciled outside Spain, is it compatible with Article 18(1) of the Brussels I Regulation to conclude that the international jurisdiction of the Spanish courts cannot be determined by the fact that the group of undertakings to which ‘the other party to a contract’ belongs includes companies that are domiciled in Spain but did not sign the contract or signed different contracts other than that in respect of which a declaration of nullity is sought?

3. If ‘the other party to a contract’, as referred to in Article 18(1) of the Brussels I Regulation, provides evidence that its domicile is established in the United Kingdom in accordance with Article 63(2) of the regulation, is it compatible with that provision to conclude that a domicile so established delimits the option that can be exercised under Article 18(1)? And, in addition to that, is it compatible with that provision to conclude that it does not simply establish a mere ‘presumption of fact’, or that that presumption is overturned if ‘the other party to a contract’ carries on business outside the jurisdiction of its domicile, or that the onus is on ‘the other party to a contract’ to demonstrate that its domicile, as determined in accordance with the provision cited, is the same as the place where it carries on its business?

In relation to Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008:

4. In the case of consumer contracts to which the Rome I Regulation is applicable, is it compatible with Article 3 of that regulation to conclude that clauses determining the applicable law, which are included in the ‘general conditions’ of the contract signed by the parties or which are included in a separate document which is expressly referred to in the contract and is shown to have been provided to the consumer, are valid and applicable?

5. In the case of consumer contracts to which the Rome I Regulation is applicable, is it compatible with Article 6(1) of that regulation to conclude that it can be relied on by a consumer and by the other party to a contract?

6. In the case of consumer contracts to which the Rome I Regulation is applicable, is it compatible with Article 6(1) of that regulation to conclude that, if the conditions laid down therein are satisfied, the law indicated in that provision will in all cases be applied in preference to that indicated in Article 6(3), even though the latter may be more favourable to the consumer in the particular case?

In the main proceedings, Mr NM, a British national domiciled in the United Kingdom, concluded in Spain in 2018 a timeshare contract under Spanish Law 4/2012 of 6 July 2012. Mr NM’s wife, also a British national domiciled in the UK, was a party to the contract as well, as was, through its Spanish branch, the entity Club La Costa (UK) PLC, a British company domiciled in the UK which directs its commercial activities to Spain and other countries, including the UK. The timeshare contract contained a clause according to which it ‘shall be interpreted in accordance with English law and shall be subject to the exclusive jurisdiction of the English courts.’ Mr NM brought an action against the other party to the contract, Club La Costa (UK) for a declaration of nullity of that contract before the referring court together with a claim for a refund of payments made PLC. The claim was directed as well against another four companies, three of British nationality and a fourth of Spanish nationality; none of them had participated in the conclusion of the contract at issue in the main proceedings; they had, though, in the conclusion of other contracts in which Club La Costa (UK) PLC was not involved. The disputed issue in the main proceedings is whether the Spanish courts have jurisdiction to hear the claim. It is also necessary to determine what the applicable law is. In this regard, albeit not the subject matter of a question to the Court of Justice, the doubts of the referring court are raised by the fact that under Spanish procedural law, if a foreign law is applicable, the party which invokes that law must confirm the existence and content of that law. Spanish law also lays down rules on the admission of evidence under foreign law.

Finally, the decision by judges L. Arastey Sahún, F. Biltgen (as reporting judge) and J. Passer in case C-393/22, EXTÉRIA, not accompanied by a previous Opinion, will be published on 14 September 2023. Here, the Nejvyšší soud (Supreme Court, Czech Republic) asks the Court in Luxembourg whether Article 7(1)(b) of Regulation No 1215/2012 must be interpreted ‘as meaning that the concept contract for the provision of services also includes a contract to enter into a future contract (pactum de contrahendo), in which the parties undertook to enter into a future contract that would be a contract for the provision of services, within the meaning of that provision’.

On 31 August 2023, the European Court of Human Rights has handed out its decision regarding application in case C. v. Italie (application no. 47196/21), on the refusal by the Italian authorities to recognize the bond of filiation established by a Ukrainian birth certificate between the child C, born abroad by surrogacy, and her biological father and her mother of intention. Article 8 of the Convention is at stake.

The Court has declared the request admissible (unanimously); it has held, by six votes to one, that there has been a violation of Article 8 of the Convention in its procedural aspect in connection with the establishment of parentage between the applicant and L.B.; and has held unanimously that there has been no violation of Article 8 of the Convention on account of the refusal to transcribe the applicant’s birth certificate in respect of her intended mother.

The decision is already available in French at HUDOC.

On a related previous ruling against Denmark, with three dissenting opinions (out of seven) see E. Sinander’s post here.

The Facts

In 2018, L.B. and E.A.M., an Italian heterosexual couple, enter into a surrogacy contract in Ukraine. An embryo from an egg from an anonymous donor and sperm from L.B. was implanted in the uterus of a surrogate mother. The applicant was born in August 2019. A birth certificate was drawn up in Ukraine.

On September 16, 2019, L.B. and E.A.M. asked the civil registrar of the Italian town of V. for the entry into the civil status register of the child’s Ukrainian birth certificate. By decision of 4 December 2019, the civil status office rejected the request on the ground that such a transcription was contrary to public order. On January 14, 2020, L.B. and E.A.M. appealed before the court of V. They requested the transcription of the certificate and, in the alternative, the transcription of the name of the biological father alone. By a decision of March 16, 2020, the court dismissed the appeal on the grounds that taking into account the best interests of the child could not lead to disregard of the principle of incompatibility of surrogacy with public order. L.B. and E.A.M. appealed against this decision and requested, by way of an interim appeal included in the appeal proceedings, the partial transcription of the birth certificate in respect of L.B. In a judgment of June 14, 2021, the Court of Appeal dismissed their appeal.

On 8 June 2022, L.B. asked the civil status office of the municipality of C.S., where he had transferred his residence, to carry out a partial transcription of his daughter’s birth certificate. By a note of July 6, 2022, the civil status office refused the partial transcription on the grounds that the prohibition of surrogacy could not be circumvented.

Ruling of the Court

On the merits, the Strasbourg Court considers that the existence of an interference with the applicant’s right to respect for her private life is beyond doubt. It recalls that such interference infringes Article 8 unless, ‘in accordance with the law’, it pursues one or more of the legitimate aims set out in the second paragraph of this provision and if it is ‘necessary in a democratic society’, the notion of ‘necessity’ implying an interference based on a pressing social need and, in particular, proportionate to the legitimate aim pursued (Mennesson v. France, no. 65192/11).

The Court finds that the rejection of the request for the entry in the civil status registers of the applicant’s foreign birth certificate was provided for by law, within the meaning of the second paragraph of Article 8, surrogacy being prohibited under Italian law. It also finds the condition of legitimate aims is met, in that the interference under examination pursued two of the legitimate aims listed in the second paragraph of Article 8 of the Convention (‘the protection of health’ and ‘the protection of human rights and freedoms of others’).

The interference is, however, not ‘necessary in a democratic society’ to achieve the pursued aims. Here, the Court differentiates:

A. On the establishment of the parent-child relationship between the applicant and her biological father, the Court recalls that, according to its case-law, Article 8 of the Convention requires domestic law to provide for the possibility of recognition of the link between a child, born as a result of surrogacy practiced abroad, and the intending father when the latter is the biological father. In addition, the Court has already noted that the absence of recognition of a parent-child relationship between a child born from surrogacy practiced abroad and the intended parent has negative consequences on several aspects of the right of the child to respect for private life; it also disadvantages the child in as far as it places him in a form of legal uncertainty as to his identity in society. It is in the interest of the child who is in this situation that the duration of the uncertainty as to the establishment of his filiation be as short as possible.

Regarding the case at hand, the Court concludes that the domestic courts dismissed the disputed claims without weighing the various interests at stake and, above all, without considering the requirements of speed and efficiency required in proceedings such as the present one. The Court finds that, in view of the particular circumstances of the case, despite the margin of appreciation afforded to the State the Italian authorities failed in their positive obligation to guarantee the applicant’s right to respect for her privacy to which he is entitled under the Convention. Accordingly, there has been a violation of Article 8 of the Convention on this point (see dissenting opinion by Judge Wojtyczek).

B. Regarding the impossibility for the applicant to have the bond which unites her to her intended mother recognized, the Court admits that Italian law does not allow the transcription of the birth certificate for the intended mother. It acknowledges, however, that Italian law guarantees the latter the possibility of legally recognizing the child through adoption. In this regard, the Court notes that, according to the Plenary Assembly of the Italian Court of Cassation, adoption enables the courts seised to assess the requirements of Article 8 of the Convention and the best interests of the child.

In view of the foregoing, the Court is of the opinion that by refusing to transcribe the applicant’s Ukrainian birth certificate into the Italian civil status registers in so far as it designates E.A.M. as her mother, the Respondent State did not, in the circumstances of the case, exceed its margin of appreciation. Therefore, there has been no violation of Article 8 of the Convention on this point.

The author of this post is Chukwuma Okoli, Assistant Professor in Commercial Conflict of Laws at the University of Birmingham, and Senior Research Associate at the University of Johannesburg.

In a recent article, I explore what should be globally significant in a forum selection agreement as an indicator of the implied choice of law.

This topic is in itself a very old one, dating back to the late 19th century when English judges in Hamlyn & Co v Talisker Distillery (1894) AC 202, 208.explicitly held that in the absence of an express choice of law, a choice of forum agreement would imply the choice of law. The popular Latin maxim for this is: Qui eligit forum vel iudicem eligit ius. Currently, however, this topic is ill-defined, notoriously complex, and a hotly debated issue in theory and practice across the global community.

Indeed, there are two main opposing schools of thought on this topic, the first being that where there is no express choice of law, a forum selection agreement (encompassing a jurisdiction and arbitration agreement) should be decisive or a strong presumption in implying the choice of law. This enhances coherence between the forum and lex fori. Moreover, on pragmatic grounds, it is easier and less expensive for the forum to apply its own law correctly. Conversely, the opposing school of thought argues against a forum selection agreement being decisive or a strong presumption to imply the choice of law. This is on the basis that parties who choose a forum should also choose the law. Failure to choose a law to match a forum selection agreement will negate an implied choice of law; it could either mean that the parties were ignorant of the choice of law or did not intend to apply the law of the chosen forum. Therefore, according to a strict standard, this school of thought requires the corroboration of other indicators to imply a choice of law. In essence, where an express choice of law is absent, the choice of forum alone cannot imply a choice of law, because this wrongly conflates jurisdiction with choice of law.

There are many scholarly works that have commented on this issue, but few have devoted their attention to the topic. Maxi Scherer (2011) and Jan Neels (2016) are the only scholars I have found to dedicate their research to this area. Scherer’s focus is exclusively based on the European Union, whilst Neels is mainly concerned with  a note on the approach of the Indian courts in this regard. Nevertheless, other scholars have discussed the matter in great depth, even though it has not been the main thrust of their research, for example, Manuel Penades Fons (2012), Peter Mankowski (2017), Richard Plender &, Michael Wilderspin, (2019) Michael McParland (2015), and Garth Bouwers. (2021).

However, what is lacking in the previous scholarly works is the commitment to provide clear guidance on global uniform criteria for this issue. My article explicitly departs from a recent study by Garth Bouwers, who proposes a ‘case-by-case basis, avoiding fixed criteria’ in the use of a forum selection agreement as an indicator to imply a choice of law (ibid at at pages 237 & 247) The reason for advancing a clear guide to global uniform criteria is that it should contribute to greater certainty, predictability, and uniformity in this field of law.

The methodology employed, namely, a global comparative perspective, is one that presents all relevant international, regional, and supranational instruments, and selected legal systems in Africa, Asia, Australasia, Europe, the Middle East, and North and South America. The legal systems compared encompass those in the Global North and Global South, including common law, civil law, and mixed legal systems. I consider Symeon Symeonides to be the intellectual godfather of this form of global comparative perspective on choice of law. A decade or so ago, he employed this methodology in his seminal work, which covered around 100 codifications on choice of law. Daniel Girsberger, Thomas Graziano, and Jan Neels also utilised this methodology in an edited work on choice of law in international commercial contracts. Finally, Garth Bouwers applied this methodology in his recent study on tacit choice of law in international contracts.

Based on such a global comparative perspective, my article’s core proposal is that an exclusive forum selection agreement should be a key factor in implying the choice of law. However, except in cases where the forum is chosen on a neutral basis, there should be a general requirement of corroboration with at least one other factor of significance. My proposal is therefore a compromise between the school of thought that insists on the corroboration of a plurality of factors as a requirement, and the other, which rejects this requirement. Therefore, it is a proposal that should not be difficult to sell as a global approach.

However, debate might be unnecessary if parties make an express choice of law in their international contracts. Nevertheless, the reality is that whilst choice of forum agreements are popular worldwide, agreements on an express choice of law are not always entered into. Therefore, this present study is one that should remain pertinent to the theory and practice of international commercial dispute resolution.

The University of Coimbra Institute for Legal Research, UCILeR, Portugal, is an investigation center devoted to the analysis of the legal implications and possible solutions for societal challenges.

Knowing that the family and personal status have been going through profound changes in internal legislations and in the scope of international mobility, the organizing committee of the Seminar on Transatlantic dialogues on PIL: family and personal status on the move (consisting of Dulce Lopes, Guillermo Palao Moreno, Nicolas Nord and Paula Távora Vítor) decided to contribute to the ongoing discussions on those issues, by adding a clear and necessary intercontinental dimension to them.

The Seminar is intended to discuss topics related to novelties in the regulation and recognition of family and personal status, through a series of combined panels from colleagues from Europe and America, ranging from the more general issues such as Family and Personal Status and Registry, Family and Personal Status between Nationality and Habitual Residence, Family and Personal Status and Human Rights and Family and Personal Status and Best Interest of the Child, to the more specific topics on Name in Private International Law (How far should personal autonomy go?), Multiple Parenthood in Private International Law (Socio-affective ties and new family models), Gender in Private International Law (Should sex still be a part of the civil status?) and Poly Amorous Relationships in Private International Law (Going beyond polygamy?). 

Young Researchers are welcome to propose individual or co-authored presentations. These presentations should cover one of the above-mentioned themes or others closely related to them. Paper proposals shall fit into the objectives of the Seminar and will be selected according their innovative approach, academic soundness as well as to their contribution to the development of private international law studies.

Proposals should be submitted no later than 20 September 2023 by e-mail to dulcel@fd.uc.pt and paulavit@fd.uc.pt. The proposals should include: the proposed title; an abstract of no more than 300 words; the participant’s name, function and affiliation; the indication if the paper is to be presented online or on-site.

The submission of paper abstracts and participation in the Seminar is free of charge. UCILeR does not cover expenses.

The conference will be held in a hybrid format – online and on-site – at the University of Coimbra. The papers selected by the conveners will be presented on 12 October 2o23.

Horatia Muir Watt (Sciences Po Law School) has published the lecture that she gave as the 18th Rabel Lecture in November 2022 on Alterity in the Conflict of Laws – An Onthology of the In-Between.

The conflict of laws can serve heuristically to underscore two established but radically opposing models of modernist legal ordering: multilateralism and statutism. Such a prism is helpful if we want to rethink (as we must!) our late-modern legality’s deep epistemological settings in the shadow of the »catastrophic times« to come, whether in terms of environmental devastation or political dislocation. Both phenomena are profoundly linked and indeed constitute two faces of alterity, natural and cultural, from which modernity has progressively taught us to distance ourselves. Importantly, law encodes the conditions that produce these dual somatic symptoms in our contemporary societies. This chasm between nature and culture has produced humanity’s “ontological privilege” over our natural surroundings and a similar claim of superiority of modern (Western) worldviews over “the rest”. In this respect, the main achievement of the moderns, as Bruno Latour wryly observed, has been to universalise the collective blindness and amnesia that allow our “anthropocentric machine” to hurtle on, devastating life in its path and devouring the very resources it needs to survive.

The paper, which is published in free access, is forthcoming in the Rabels Zeitschrift.

The third issue of the Journal du droit international for 2023 was released. It contains three articles and several case notes relating to private international law issues.

In the first article, Sylvette Guillemard (Laval University) analyses the recent French Draft PIL Code based on the Quebec experience in this area (Regard québécois sur le projet de Code de droit international privé français).

A draft of a French private international law code project was presented to the Minister of Justice in March 2022. As soon as it was submitted, it was immediately commented on by various parties; its qualities are admired as much as its shortcomings are pointed out. In 1994, the Quebec legislator adopted a book dedicated to private international law in its new Civil Code. After nearly 30 years, it was able to reveal its flaws and demonstrate its advantages. Therefore, neither too old nor too young, it appeared to us as an excellent object of comparison with the French project. At the end of the exercise, we may conclude that French law can only emerge as the winner of this “operation of shaping the rules [of private international law] into a whole”, to borrow the words of Rémy Cabrillac.

In a second article, Djoleen Moya (Catholic University of Lyon) discusses the evolving role of courts in applying choice of law rules, using divorce law as a case study (Vers une redéfinition de l’office du juge en matière de règles de conflit de lois ? L’exemple du divorce international).

The latest developments in matters of divorce, both in domestic law and in private international law, have largely renewed the question of the obligation for a judge to apply choice-of-law rules. Traditionally, the Cour de cassation considers that in matters of divorce, judges must apply, if necessary ex officio, the applicable conflict rule, because unwaivable rights are concerned. However, this solution is under discussion. First, the qualification of divorce as an unwaivable right is questionable, especially since the admission of a purely private divorce by mutual consent in French law. But above all, the Europeanisation of the applicable choice-of-law rules seems likely to call for a new definition the judges’ procedural obligations. If we add to this the recent reorientation of the Cour de cassation’s position and the solutions stated in the draft Code of Private of International Law, the question undoubtedly calls for a reassessment.

In the third article, Sara Tonolo (University of Padova) examines the role of private international law in fundamental rights disputes in the context of a recent ECtHR case dealing with surrogate motherhood and cross-border recognition of civil status record (Les actes de naissance étrangers devant la Cour européenne des droits de l’homme. À propos de l’affaire Valdís Fjölnisdóttir et autres c/ Islande).

The European Court of Human Rights ruled on the recognition of the filiation status within surrogacy in the Valdís Fjölnisdóttir and others v. Iceland case. This perspective leaves many questions unanswered and prompts further reflection, particularly with regard to the role that private international law can play in the protection of human rights, in the context of the difficult balance between the protection of the right to private and family life and the margin of appreciation reserved to member states.

The table of contents of the issue can be accessed here.

Alfonso Luis Calvo Caravaca (University Carlos III of Madrid), Javier Carrascosa González (University of Murcia), María Asunción Cebrián Salvat (University of Murcia) and Isabel Lorente Martínez (University of Murcia) authored the European Kodex of Private international Law 2023. Cases & materials on European private international law.

The abstract reads:

The authors want this work to be able to operate as an instrument for improving legal quality in the practical application and in the study of private international law in the English language. In this sense, any opinion on “The European Kodex of Private international law” will be very well received, as it will help to outline, polish and improve these materials for the benefit of all legal operators dedicated to private international law and, ultimately, for the benefit of a correct and useful practice of this fascinating sector of law.

It is freely accessible here.

A new anthology titled Applicable Law Issues in International Arbitration has been published in the Hague Academy of International Law’s Centre of Resarch Series.

The book is the result of research undertaken by scholars accepted to the Centre for Studies and Research in International Law and International Relations in 2021.

Giuditta Cordero-Moss and Diego P. Fernández Arroyo were the directors of the research centre.  The two directors have also edited the anthology which includes a selection of 16 works stemming from that research session (authored by Apollin Koagne Zouapet, Ana Coimbra Trigo, Didier Bationo, Wendinkonté Sylvie Zongo, Ali Kairouani, Nicola Strain, Andrea Mackielo, Alexandre Senegacnik, Ludovica Chiussi Curzi, Giulia Vallar, Marco Buzzoni, Yağmur Hortoğlu, Paola Patarroyo, Erik Sinander, Federico Cabona, and Lito Dokopoulou), as well as two chapters written by the specially invited guests Franco Ferrari and Luca Radicati di Brozolo.

In the introduction, the editors reflect on the research results and conclude that “determining the applicable law in arbitration is a manifold task that needs to balance involved interests, which are not necessarily always consistent with each other”.

The table of contents of the anthology can be read here.

On 13 April 2023, the University Paris Dauphine hosted a conference on State Immunity from Enforcement (L’immunité d’exécution de l’Etat).

Speakers included Philippe Théry (Univ. Paris Panthéon-Assas), Louis Perreau-Saussine (Univ. Paris Dauphine), Gilles Cuniberi (Univ. Luxembourg), Sophie Lemaire (Université Paris Dauphine), Nathalie Meyer-Fabre (Avocate au Barreau de Paris), Duncan Fairgrieve (Univ. Paris Dauphine), Fabrizio Marrella (Univ. Ca’ Foscari), David Pavot (Univ. Sherbrooke), Mathias Audit (Univ. Panthéon-Sorbonne), Juliette Morel-Maroger (Univ. Paris Dauphine), Jérôme Chacornac (Univ. Paris Panthéon-Assas), Hélène Tissandier (Univ. Paris Dauphine), Victor Grandaubert (Univ. Paris Nanterre), Renaud Salomon (Cour de cassation).

The videos of the conference of the various sessions of the conference are freely available and can be accessed here.

Florence Guillaume (Professor of Private International Law at the University of Neuchâtel, Switzerland, and Founder of the LexTech Institute) has made available on SSRN a draft version of a paper on Decentralized Autonomous Organizations (DAOs) Before State Courts. How can private international law keep up with global digital entities? that is forthcoming in a book edited by Madalena Perestrelo de Oliveira and Antonio Garcia on DAO Regulation: Principles and Perspective for the Future.

The abstract reads as follows:

This paper examines civil and commercial disputes involving Decentralized Autonomous Organizations (DAOs) and the complex questions of private international law that arise. The legal capacity of a DAO to be a plaintiff or defendant in court varies across jurisdictions, highlighting the need to determine the applicable law to a DAO. A distinction must be made between different types of DAOs. There are currently a few jurisdictions, notably in the United States, that have enacted DAO legislation defining a legal status for such entities. Those regulated DAOs are governed by both computer code and company law. In other jurisdictions, existing company structures can be used to offer a legal wrapper to DAOs. However, the vast majority of DAOs currently in existence are constituted and solely governed by code, posing challenges in bringing them before a state court.

The paper explores recent case law and the difficulties in identifying the appropriate party to sue when pursuing a DAO. Using Swiss law as a basis, it examines the qualification of DAOs under private international law and the challenges of anchoring a global digital entity to a specific jurisdiction. The article illustrates these challenges through three types of disputes: governance, contractual, and tort-related. Determining jurisdiction over a DAO-related dispute requires applying private international law rules. Although the paper assumes Swiss courts for convenience, the reasoning can be applied to different legal systems due to the similarities in conflict of jurisdiction rules. However, challenges persist even if a court has jurisdiction and renders a decision, as enforcement may prove difficult, especially on-chain. Additionally, initiating legal proceedings against a DAO presents issues with serving court documents. DAOs offer opportunities for innovative electronic methods of document service, but specific requirements and restrictions exist for international service of documents. Practical difficulties may arise, making it impractical or unattainable to serve court documents on the defendant.

The analysis concludes that state courts currently struggle to ensure reliable access to justice in disputes involving DAOs. As an alternative to state courts, opting for Alternative Dispute Resolution (ADR) mechanisms, such as Blockchain-based Dispute Resolution (BDR), can offer a simpler and more efficient solution depending on circumstances. In any case, entrusting dispute resolution to a BDR mechanism avoids the complexities associated with state court procedures.

Joseph Singer (Harvard Law School) has posted Conflict of Abortion Laws on SSRN.

The abstract reads:

When a resident of an anti-abortion state goes to a prochoice state to get an abortion, which law applies to that person? To the abortion provider? To anyone who helps them obtain the abortion? Since Dobbs v. Jackson Women’s Health Organization overruled Roe v. Wade, states have passed conflicting laws regarding abortion, and courts will need to determine whether anti-abortion states can apply their laws to persons or events outside their territory either through civil lawsuits or criminal prosecution. This article canvasses the major disputes likely to arise over conflicts of abortion law and the arguments on both sides in those cases. It addresses both common law analysis and the constitutional constraints on application of state law under the Full Faith and Credit Clause and the Due Process Clause, and it comes to some conclusions both about what laws should apply in different fact settings and how the choice of law analysis should proceed.

Since Dobbs focused on the “history and tradition” behind rights under the Due Process Clause, and because the constitutional test for “legislative jurisdiction” that regulates when a state can apply its law to a controversy is partly based on the Due Process Clause, we start with the prevalent approaches to conflicts of law available to judges at the time the Bill of Rights was adopted in 1791 and when the Fourteenth Amendment was adopted in 1868, focusing on the “comity” approach championed by Justice Joseph Story. We consider also the First Restatement’s vested rights approach in vogue between the end of the nineteenth century and the middle of the twentieth century. We then move to modern choice of law analysis to determine which law applies when a person leaves their state to obtain an abortion. We will consider the Second Restatement’s “most significant relationship” test, the “comparative impairment” approach, the “better law” and “forum law” approaches, as well as the emerging Third Restatement of Conflict of Laws rules being drafted right now by the American Law Institute.

One set of cases involves conduct that is wholly situated within the borders of the anti-abortion state. That state has full authority under the Constitution to regulate its internal affairs and to apply its laws to people who distribute or use anti-abortion medication there or who otherwise assist residents in violating its laws prohibiting or limiting access to abortion. Anti-abortion states have full authority to regulate conduct within their borders. However, the First Amendment protects people who provide information about the availability of abortion services in other states where it is legal, and the constitutional right to travel should protect those who transport someone out of state to get an abortion in a prochoice state or who subsidize the cost of such out-of-state travel.

A second set of cases concerns cross-border torts where conduct in a prochoice state has effects in an anti-abortion state. Courts traditionally apply the law of the place of injury to those cases if it was foreseeable that the conduct would cause the injury there. But there are traditional exceptions to the place of injury rule that should apply in the abortion context when the place of conduct defines the conduct as a fundamental right and immunizes the actor from liability or places a duty or an affirmative privilege on the abortion provider to provide the care. Courts should depart from the place of injury rule in those circumstances when conduct is wholly confined to the immunizing (prochoice) state, and that means that an anti-abortion state cannot legitimately punish an abortion provider in a prochoice state who provides care there in reliance on rules of medical ethics that require the care to be provided. Nothing would violate rule of law norms more severely than placing a person under a simultaneous duty to provide care and a duty not to provide that care. On the other hand, anti-abortion states have full authority to regulate out-of-state conduct that does spill over the border into the anti-abortion state, such as shipping abortion medication to a recipient there. Difficult issues of foreseeability and proximate cause arise when an abortion provider prescribes abortion medication in a prochoice state but knows or suspects that the patient will be taking the medication back to the anti-abortion state to ingest. In some fact settings, the foreseeability issue is significant enough that it may rise to a constitutional limitation on the powers of the anti-abortion state to apply its law to out-of-state conduct or to assert personal jurisdiction over the abortion provider. In other cases, the place of injury has the constitutional authority to apply its law to out-of-state conduct that the actor knows will cause unlawful harm across the border but it may or may not have personal jurisdiction over the nonresident provider.

A third set of cases involve bounty claims, tort survival lawsuits, or wrongful death suits that an anti-abortion state might seek to create by giving claims to one of its residents against the resident who left the state to get the abortion. Such cases may be viewed as “common domicile” cases by the anti-abortion state since both plaintiff and defendant reside in the anti-abortion state. That may tempt the anti-abortion state to apply its laws to an abortion that takes place in another state even though both conduct and injury occurred in a state that privileges the conduct and immunizes the defendant from liability. However, the law of the place of conduct and injury should apply in those cases since the prochoice law is a “conduct-regulating rule,” and choice of law analysis, traditional rules, and constitutional constraints on legislative jurisdiction all require deference to the law of the prochoice state in such cases. Courts sometimes apply the law of the common domicile when the law at the place of conduct and injury is not geared to regulating conduct there, but the opposite is true for laws directed at conduct, and this article will show why prochoice laws that define abortions as a fundamental right are conduct-regulating rules. The same is true for the question of criminal prosecution. An anti-abortion state has no legitimate authority to punish a resident who leaves the state to get an abortion in a state where abortion is protected as a fundamental right.

The paper is forthcoming in the Northeastern University Law Review.

The Department of Private International Law at the University of Groningen is looking for an assistant professor in the field of European private international law to strengthen education and research. Candidates from outside the Netherlands are expressly invited to apply.

The responsibilities include: teaching English language classes on private international law within the existing bachelor- and master programmes; supervising bachelor and master theses in the field of private international law; conducting research within the area of European private international law (in line with the Faculty’s research programme PIPR (Public Interests and Private Relationships); supervising PhD projects together with the Professor of Private International Law; engage in the development of research projects.

Applications must be filed by 31 August 2023, at the end of the day, through a dedicated form.

More information can be found here..

Lawrence Collins (UCL, former Justice of the UK Supreme Court) has posted Reflections on the Law Governing Confidentiality in Arbitration on SSRN.

The abstract reads:

The paper considers the law governing confidentiality in international arbitration, and in particular where there is a binary choice between the law governing the arbitration agreement and the law of the seat of the arbitration. The paper concludes that not only is there no binary choice, but also that the solution may depend upon the forum in which the issue arises, and that it will be only very rarely that the issue will need to be addressed directly.

The paper was published in Brekoulakis et al (eds), Achieving the Arbitration Dream: Liber Amicorum for Professor Julian DM Lew (Wolters Kluwer, 2023).

This post was written by Ralf Michaels and Antonia Sommerfeld, Max Planck Institute for Comparative and International Private Law, and is also available via conflictoflaws.net.

The Draft for a Corporate Sustainable Due Diligence Directive currently contains no rules on jurisdiction. This creates inconsistencies between the scope of application of the Draft Directive and existing jurisdictional law, both on the EU level and on the domestic level, and can lead to an enforcement gap: EU companies may be able to escape the existing EU jurisdiction; non-EU companies may even not be subject to such jurisdiction. Effectivity requires closing that gap, and we propose ways in which this could be achieved.

The Proposal for a Directive on Corporate Sustainability Due Diligence

The process towards an EU Corporate Sustainability Due Diligence Directive is gaining momentum. The EU Commission published a long awaited Proposal for a Directive on Corporate Sustainability Due Diligence (CSDDD), COM(2022) 71 final, on 23 February 2022; the EU Council adopted its negotiation position on 1 December 2022; and now, the EU Parliament has suggested amendments to this Draft Directive on 1 June 2023. The EU Parliament has thereby backed the compromise textreached by its legal affairs committee on 25 April 2023. This sets off the trilogue between representatives of the Parliament, the Council and the Commission.

The current state of the CSDDD already represents a milestone. It not only introduces corporate responsibility for human rights violations and environmental damage – as already found in some national laws (e.g. in France; Germany; Netherlands; Norway; Switzerland; United Kingdom) – but also and in contrast (with the exception of French law – for more details see Camy) introduces civil liability. Art. 22 (1) CSDDD entitles persons who suffer injuries as result of a failure of a company to comply with the obligations set forth in the Directive to claim compensation. It thereby intends to increase the protection of those affected within the value chain, who will now have the prospect of compensation; it also intends to create a deterrent effect by having plaintiffs take over the enforcement of the law as “private attorney generals”. Moreover, the Directive requires that Member States implement this civil liability with an overriding mandatory application to ensure its application, Art. 22 (5) CSDDD. This is not unproblematic: the European Union undertakes here the same unilateralism that it used to criticize when previously done by the United States, with the Helms/Burton Act as the most prominent example.

That is not our concern here. Nor do we want to add to the lively discussion on the choice-of-law- aspects regarding civil liability (see, amongst others, van Calster, Ho-Dac, Dias and, before the Proposal, Rühl). Instead, we address a gap in the Draft Directive, namely the lack of any provisions on jurisdiction. After all, mandatory application in EU courts is largely irrelevant if courts do not have jurisdiction in the first place. If the remaining alternative is to bring an action in a court outside the EU, the application of the CSDDD civil liability regime is not, however, guaranteed. It will then depend on the foreign court’s conflict-of-law rules and whether these consider the CSDDD provisions applicable – an uncertain path.

Nonetheless, no mirroring provisions on international jurisdiction were included in the CSDDD, although such inclusion had been discussed. Suggestions for the inclusion of a new jurisdictional rule establishing a forum necessitatis in the Brussels I Regulation Recast existed (see the Study by the European Parliament Policy Department for External Relations from February 2019, the Draft Report of the European Parliament Committee on Legal Affairs with recommendations to the Commission on corporate due diligence and corporate accountability (2020/2129(INL) as well as the Recommendation of the European Groupe of Private International Law (GEDIP) communicated to the Commission on 8 October 2021). Further, the creation of a forum connexitatis in addition to a forum necessitatis had been recommended by both the Policy Department Study and the GEDIP. Nevertheless, the report of the European Parliament finally adopted, together with the Draft Directive of 10 March 2021, no longer contained such rule on international jurisdiction, without explanation. Likewise, the Commission’s CSDDD draft and the Parliament’s recent amendments lack such a provision.

Enforcement Gap for Actions against Defendants Domiciled within the EU

To assess the enforcement gap, it is useful to distinguish EU companies from non-EU companies as defendants. For EU companies, the Directive applies to companies of a certain size which are formed in accordance with the legislation of a Member State according to Art. 2 (1) CSDDD – the threshold numbers in the Commission’s draft and the Parliament amendments differ, ranging between 250–500 employees and EUR 40–150 million annual net worldwide turnover, with questions of special treatment for high-risk sectors.

At first sight, no enforcement gap seems to exist here. The general jurisdiction rule anchored in Art. 4 (1) Brussels I Regulation Recast allows for suits in the defendant’s domicile. Art. 63 (1) further specifies this domicile for companies as the statutory seat, the central administration or the principal place of business. (EU-based companies can also be sued at the place where the harmful event occurred according to Art. 7 (2) Brussels I Regulation Recast, but this will provide for access to an EU court only if this harmful event occurred within the EU.) The objection of forum non conveniens does not apply in the Brussels I Regulation system (as clarified in the CJEU’s Owusu decision). Consequently, in cases where jurisdiction within the EU is given, the CSDDD applies, including the civil liability provision with its mandatory application pursuant to Art. 22 (1), (5).

Yet there is potential leeway for EU domiciled companies to escape EU jurisdiction and thus avoid the application of the CSDDD’s civil liability. One way to avoid EU jurisdiction is to use an exclusive jurisdiction agreement in favour of a third country, or an arbitration clause. Such agreements concluded in advance of any occurred damage are conceivable between individual links of the value chain, such as between employees and subcontractors (in employment contracts) or between different suppliers along the chain (in purchase and supply agreements). EU law does not expressly prohibit such derogation. Precedent for how such exclusive jurisdiction agreements can be treated can be found in the case law following the Ingmar decision of the CJEU. In Ingmar, the CJEU had decided that a commercial agent’s compensation claim according to Arts. 17 and 18 of the Commercial Agents Directive (86/653/EEC) could not be avoided through a choice of law in favour of the law of a non-EU country, even though the Directive said nothing about an internationally mandatory nature for the purpose of private international law – as Art. 22 (5) CSDDD in contrast now does. The German Federal Court of Justice (BGH) extended this choice-of-law argument to the law of jurisdiction and held that jurisdiction clauses which could undermine the application of mandatory provisions are invalid, too, as only such a rule would safeguard the internationally mandatory scope of application of the provisions. Other EU Member State courts have shown a similar understanding not only with regard to exclusive jurisdiction agreements but also with regard to arbitration agreements (Austrian Supreme Court of Justice; High Court of Justice Queen’s Bench Division).

Common to Arts. 17 and 18 Commercial Agents Directive and Art. 22 CSDDD is their mandatory nature for the purpose of private international law, which established by the ECJ for the former and is legally prescribed for the latter in Art. 22 (5) CSDDD. This suggests a possible transfer of the jurisdictional argument regarding jurisdiction. To extend the internationally mandatory nature of a provision into the law of jurisdiction is not obvious; choice of law and jurisdiction are different areas of law. It also means that the already questionable unilateral nature of the EU regulation is given even more force. Nonetheless, to do so appears justified. Allowing parties to avoid application of the CSDDD would run counter to its effective enforcement and therefore to the effet utile. This means that an exclusive jurisdiction agreement in favour of a third country or an arbitration clause will have to be deemed invalid unless it is clear that the CSDDD remains applicable or the applicable law provides for similar protection.

Enforcement Gap for Actions against Defendants Domiciled Outside the EU

While the enforcement gap with regard to EU companies can thus be solved under existing law, additional problems arise with regard to non-EU corporations. Notably, the Draft Directive applies also to certain non-EU companies formed in accordance with the legislation of a third country, Art. 2 (2) CSDDD. For these companies, the scope of application depends upon the net turnover within the territory of the Union, this being the criterion creating a territorial connection between these companies and the EU (recital (24)). The Parliament’s amendments lower this threshold and thereby sharpen the scope of application of the Directive.

While application of the CSDDD to these companies before Member State courts is guaranteed due to its mandatory character, jurisdiction over non-EU defendants within the EU is not. International jurisdiction for actions against third-country defendants as brought before EU Member State courts is – with only few exceptions – generally governed by the national provisions of the respective Member State whose courts are seized, Art. 6 (1) Brussels I Regulation Recast. If the relevant national rules do not establish jurisdiction, no access to court is given within the EU.

And most national rules do not establish such jurisdiction. General jurisdiction at the seat of the corporation will usually lie outside the European Union. And the territorial connection of intra-EU turnover used to justify the applicability of the CSDDD does not create a similar basis of general jurisdiction, because jurisdiction at the place of economic activity (“doing business jurisdiction”) is alien to European legal systems. Even in the US, where this basis was first introduced, the US Supreme Court now limits general jurisdiction to the state that represents the “home” for the defendant company (BNSF Railroad Co. v. Tyrrell, 137 S.Ct. 1549 (2017); Daimler AG v. Bauman, 571 U.S. 117 (2014); Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011)); whether the recent decision in Mallory v. Norfolk Southern Railway Co., 600 U.S. (2023) will re-open the door to doing business jurisdiction remains to be seen (see Gardner).

Specific jurisdiction will not exist in most cases, either. Specific jurisdiction in matters relating to tort will be of little use, as in value chain civil liability claims the place of the event giving rise to damages and the place of damage are usually outside the EU and within that third state. Some jurisdictional bases otherwise considered exorbitant may be available, such as the plaintiff’s nationality (Art. 14 French Civil Code) or the defendant’s assets (Section 23 German Code of Civil Procedure). Otherwise, the remaining option to seize a non-EU defendant in a Member State court is through submission by appearance according to Art. 26 Brussels I Regulation Recast.

Whether strategic joint litigation can be brought against an EU anchor defendant in order to drag along a non-EU defendant depends upon the national provisions of the EU Member States. Art. 8 (1) Brussels I Regulation Recast, which allows for connected claims to be heard and determined together, applies only to EU-defendants – for non-EU defendants the provision is inapplicable. In some Member States, the national civil procedure provisions enable jurisdiction over connected claims against co-defendants, e.g. in the Netherlands (Art. 7 (1) Wetboek van Burgerlijke Rechtsvordering), France (Art. 42 (2) Code de procédure civile) and Austria (§ 93 Jurisdiktionsnorm); conversely, such jurisdiction is not available in countries such as Germany.

Various Member State decisions have accepted claims against non-EU companies as co-defendants by means of joinder of parties. These cases have based their jurisdiction on national provisions which were applicable according to Art. 6 (1) Brussels I Recast Regulation: In Milieudefensie in December 2015, the Court of Appeal at the Hague held permissible an action against a Dutch anchor defendant that was joined with an action against a Nigerian company as co-defendant based on Dutch national procedural law, on the condition that claims against the anchor defendant were actually possible. The UK Supreme Court ruled similarly in its Vedanta decision in April 2019, wherein it found that English private international law, namely the principle of the necessary or proper party gateway, created a valid basis for invoking English jurisdiction over a defendant not domiciled in a Member State (with registered office in Zambia) who had been joined with an anchor defendant based in the UK. The claim was accepted on the condition that (i) the claims against the anchor defendant involve a real issue to be tried; (ii) it would be reasonable for the court to try that issue; (iii) the foreign defendant is a necessary or proper party to the claims against the anchor defendant; (iv) the claims against the foreign defendant have a real prospect of success; (v) either England is the proper place in which to bring the combined claims or there is a real risk that the claimants will not obtain substantial justice in the alternative foreign jurisdiction, even if it would otherwise have been the proper place or the convenient or natural forum. The UK Supreme Court confirmed this approach in February 2021 in its Okpabi decision (for discussion of possible changes in UK decisions after Brexit, see Hübner/Lieberknecht).

In total, these decisions allow for strategic joint litigation against third-country companies together with an EU anchor defendant. Nonetheless, they do not establish international jurisdiction within the EU for isolated actions against non-EU defendants.

How to Close the Enforcement Gap – forum legis

The demonstrated lack of access to court weakens the Directive’s enforceability and creates an inconsistency between the mandatory nature of the civil liability and the lack of a firm jurisdictional basis. On a substantive level, the Directive stipulates civil liability for non-EU companies (Art. 22 CSDDD) if they are sufficiently economically active within the EU internal market (Art. 2 (2) CSDDD). Yet missing EU rules on international jurisdiction vis-à-vis third-country defendants often render procedural enforcement before an intra-EU forum impossible – even if these defendants generate significant turnover in the Union. Consequently, procedural enforcement of civil liability claims against these non-EU defendants is put at risk. The respective case law discussed does enable strategic joint litigation, but isolated actions against non-EU defendants cannot be based upon these decisions. At the same time, enforceability gaps exist with respect to EU defendants: It remains uncertain whether the courts of Member States will annul exclusive jurisdiction agreements and arbitration agreements if these undermine the application of the CSDDD.

This situation is unsatisfactory. It is inconsistent for the EU lawmaker to make civil liability mandatory in order to ensure civil enforcement but to then not address the access to court necessary for such enforcement. And it is inadequate that the (systemic) question of judicial enforceability of civil liability claims under the Directive is outsourced to the decision of the legal systems of the Member States. National civil procedural law is called upon to decide which third-country companies can be sued within the EU and how the Ingmar case law for EU domiciled companies will be further developed. This is a problem of uniformity – different national laws allow for different answers. And it is a problem of competence as Member State courts are asked to  render decisions that properly belong to the EU level.

The CSDDD aims to effectively protect human rights and the environment in EU-related value chains and to create a level playing field for companies operating within the EU. This requires comparable enforcement possibilities for actions based on civil liability claims that are brought pursuant to Art. 22 CSDDD against all corporations operating within the Union. The different regulatory options the EU legislature has to achieve this goal are discussed in what follows.

Doing business jurisdiction

A rather theoretical possibility would be to allow actions against third-country companies within the EU in accordance with the former (and perhaps revived) US case law on doing business jurisdiction in those cases where these companies are substantially economically active within the EU internal market. This would be consistent with the CSDDD’s approach of stretching its scope of application based on the level of economic activity within the EU (Art. 2 (2) CSDDD). However, the fact that such jurisdiction has always been considered exorbitant in Europe and has even been largely abolished in the USA speaks against this development. Moreover, a doing business jurisdiction would also go too far: it would establish general jurisdiction, at least according to the US model, and thus also apply to claims that have nothing to do with the CSDDD.

Forum necessitatis and universal jurisdiction

Another possible option would be the implementation of a forum necessitatis jurisdiction in order to provide access to justice, as proposed by the European Parliament Policy Department for External Relations, the European Parliament Committee on Legal Affairs and the GEDIP. However, such jurisdiction could create uncertainty because it would apply only exceptionally. Moreover, proving a “lack of access to justice” requires considerable effort in each individual case. Until now, EU law provides for a forum necessitatis only in special regulations; the Brussels I Regulation Recast does not contain any general rule for emergency jurisdiction. Member State provisions in this regard generally require a certain connection with the forum to establish such jurisdiction – the exact prerequisites differ, however, and will thus not be easily agreed upon on an EU level (see Kübler-Wachendorff).

The proposal to enforce claims under Art. 22 CSDDD by means of universal civil jurisdiction for human rights violations, which could be developed analogously to universal jurisdiction under criminal law, appears similarly unpromising; it would also go further than necessary.

Forum connexitatis

It seems more promising to implement a special case of a forum connexitatis so as to allow for  litigation of closely connected actions brought against a parent company domiciled within the EU together with a subsidiary or supplier domiciled in a third country, as proposed by the European Parliament Policy Department for External Relations and the GEDIP. This could be implemented by means of a teleological reduction of the requirements of Art. 8 (1) Brussels I Regulation Recast with regard to third-country companies, which would be an approach more compatible with the Brussels Regulation system than the implementation of a forum necessitatis provision (such a solution has, for instance, been supported by Mankowski, in: Fleischer/Mankowski (Hrsg.), LkSG, Einl., para. 342 and the GEDIP). This would simultaneously foster harmonisation on the EU level given that joint proceedings currently depend upon procedural provisions in the national law of the Member States. Moreover, this could avoid “blame games” between the different players in the value chain (see Kieninger, RW 2022, 584, 589). For the implementation of such a forum connexitatis, existing Member State regulations and related case law (Milieudefensie, Vedanta, and Okpabi) can serve as guidance. Such a forum is not yet common practice in all Member States; thus, its political viability remains to be seen. It should also be borne in mind that the implementation of a forum connexitatis on its own would only enable harmonised joint actions that were brought against EU domiciled anchor defendants together with non-EU defendants; it would not enable isolated actions against third-country companies – even if they are economically active within the EU and fall within the scope of application of the CSDDD.

Best option: Forum legis

The best way to close the CSDDD enforcement gap would be introducing an international jurisdiction basis corresponding to the personal scope of application of the Directive. The EU legislature would need to implement a head of jurisdiction applicable to third-country companies that operate within the EU internal market at the level specified in Art. 2 (2) CSDDD. Effectively, special jurisdiction would be measured on the basis of net turnover achieved within the EU. This would procedurally protect the Directive’s substantive regulatory objectives of human rights and environmental protection within EU-related value chains. Moreover, this would ensure a level playing field in the EU internal market.

Other than a forum premised on joint litigation, this solution would allow isolated actions to be brought – in an EU internal forum – against non-EU companies operating within the EU. The advantage of this solution compared to a forum of necessity is that the connecting factor of net turnover is already defined by Art. 2 (2) CSDDD, thus reducing the burden of proof, legal uncertainty and any unpredictability for the parties. Moreover, this approach would interfere less with the regulatory interests of other states than a forum necessitatis rule, which for its part would reach beyond the EU’s own regulatory space.

A forum legis should not be implemented only as a subsidiary option for cases in which there is a lack of access to justice, because this would create legal uncertainty. The clear-cut requirements of Art. 2 (2) CSDDD are an adequate criterion for jurisdiction via a forum legis. On the other hand, it should not serve as an exclusive basis of jurisdiction, because especially plaintiffs should not be barred from the ability to bring suit outside the EU. The risk of strategic declaratory actions brought by companies in a court outside the EU seems rather negligeable, and this  can be avoided either by giving preference to actions for performance over negative declaratory actions, as is the law in Germany or through the requirement of recognisability of a foreign judgment, which would not be met by a foreign decision violating domestic public policy by not providing sufficient protection.

This leaves a problem, however: The CSDDD does not designate which Member State’s court have jurisdiction. Since a forum legis normally establishes adjudicatory jurisdiction correlating with the applicable law, jurisdiction lies with the courts of the country whose law is applied. This is not possible as such for EU law because the EU does not have its own ordinary courts. The competent Member State court within the EU must be determined. Two options exist with regard to the CSDDD: to give jurisdiction to the courts in the country where the highest net turnover is reached, or to allow claimants to choose the relevant court. The first option involves difficult evidentiary issues, the second may give plaintiffs an excessive amount of choice. In either case, non-EU companies will be treated differently from EU companies on the question of the competent court – for non-EU companies, net turnover is decisive in establishing the forum, for EU-companies, the seat of the company is decisive. This difference is an unavoidable consequence resulting from extension of the scope of application of the Directive to third-country companies on the basis of net turnover.

Implementation

How could this forum legis be achieved? The most straightforward way would be to include a rule on jurisdiction in the CSDDD, which would then oblige the Member States to introduce harmonised rules of jurisdiction into national procedural law. This would be a novelty in the field of European international civil procedure law, but it would correspond to the character of the special provision on value chains as well as to the mechanism of the CSDDD’s liability provision. An alternative would be to include in the Brussels I Regulation Recast a sub-category of a special type of jurisdiction under Art. 7 Brussels I Regulation Recast. This as well would be a novelty to the Brussels system, which in principle requires that the defendant be seated in a Member State (see also Kieninger, RW 2022, 584, 593, who favours reform of the Brussels I Regulation Recast for the sake of uniformity within the EU). This second option would certainly mesh with current efforts to extend the Brussels system to non-EU defendants (see Lutzi/Piovesani/Zgrabljic Rotar).

The implementation of such a forum legis is not without problems: It subjects companies, somewhat inconsistently with the EU legal scheme, to de facto jurisdiction merely because they generate significant turnover in the EU’s internal market. Yet such a rule is a necessary consequence of the extraterritorial extension of the Directive to third-country companies. The unilateral character of the CSDDD is problematic. But if the CSDDD intends to implement such an extension on a substantive level, this must be reflected on a procedural level so as to enable access to court. The best way to do this is by implementing a forum legis. The CSDDD demonstrates the great importance of compensation of victims of human rights and environmental damage, by making the cicil liability rule internationally mandatory. Creating a corresponding head of jurisdiction for these substantive civil liability claims is then necessary and consistent in order to achieve access to court and, thus, procedural enforceability.

The author of this post is Lydia Lundstedt, a Senior Lecturer at the Stockholm University.

By a ruling of 17 May 2023 (No 13504), the Corte Suprema di Cassazione (Italian Supreme Court) held that the Italian courts lacked jurisdiction over an action concerning the non-infringement of an international design right. The decision raises several interesting issues concerning the application of the rules on jurisdiction set out in the Brussels I bis Regulation to infringements of intellectual property rights.

Facts

The German company Bulthaup is the holder of an international design right for a tap valid for inter alia Germany and Italy. Bulthaup sent a warning letter to another German company, Nobilia-Werke, demanding that it cease selling the tap “Alila” claiming that it was a copy of Bulthaup’s design. The Alila tap is manufactured by an Italian company, Gessi. When Gessi learned that Bulthaup had sent a warning letter to its customer, Nobilia-Werke, Gessi wrote to Bulthaup and denied infringement. After communication between Gessi and Bulthaup’s lawyers, Gessi sued Bulthaup and the related company Bulthaup Italia Srl (Bulthaup Italia) before the Tribunale di Milano (Court of Milan). In addition, Nobilia-Werke was made a party to the proceedings.

Gessi requested that the Court of Milan declare that the Italian part of the international design was invalid. In addition, Gessi requested inter alia a declaration that the production and marketing of the Alila tap did not infringe the industrial property rights of Bulthaup and/or Bulthaup Italia and that its and Nobilia-Werke’s activities did not constitute acts of unfair competition. Bulthaup and Bulthaup Italia objected to the Court of Milan’s jurisdiction on the basis that the claims “concern German territory only”, with the exception of the invalidity claim concerning the Italian part of the design. Nobilia-Werke did not contest jurisdiction. The Court of Milan set a hearing to clarify and Gessi appealed to the Supreme Court.

The Supreme Court’s decision

The Supreme Court held that the Court of Milan had jurisdiction over the invalidity claim concerning the Italian part of the design in accordance with Article 24(4) of Brussels I bis Regulation. With regard to the other claims concerning inter alia a declaration of non-infringement of design rights and a declaration of non-violation of unfair competition rules, the Supreme Court held that the Court of Milan did not have jurisdiction.

First, the Supreme Court held that Article 4 of the Brussels I bis Regulation could not provide a basis for jurisdiction because both Bulthaup and Nobilia-Werke were domiciled in Germany, not Italy.

Second, the Supreme Court examined whether Article 7(2) of Brussels I bis Regulation could provide a basis for jurisdiction. With references to the case law of the Court of Justice of the European Union (CJEU), the Supreme Court observed that Article 7(2) was applicable to actions for negative declarations and that a plaintiff could sue either at the place of the causal act or the place of (direct) damage. The Supreme Court recalled the CJEU’s decision in Wintersteiger (C‑523/10) holding that in cases of trademark infringement, damage occurs in the Member State where the right is protected. The Supreme Court observed that this ruling was relevant for infringements of design rights. The Court found however that this decision did not provide a basis for jurisdiction because the right at issue was the German part of the international design.

In addition, the Supreme Court rejected Gessi’s assertion that damage occurred in Italy in accordance with the CJEU’s interpretation of Article 7(2) in Bolagsupplysningen (C-194/16).  It can be recalled that the CJEU held that a legal person claiming that its personality rights have been infringed by the publication of incorrect information on the internet can sue where it has its centre of interests because that is where the damage to its reputation is most keenly felt. The Supreme Court stated that Bolagsupplyningen concerned “a completely different” situation specific to internet, whereas in the case at hand, the damage alleged by Gessi, namely, interference with its contractual relationship with Nobilia-Werke, occurred in Germany. Indeed, the Court explained that damage from a warning letter sent by a German company (Bulthaup) to another German company (Nobilia-Werke) about activity in Germany in alleged violation of a right protected in Germany could only occur in Germany. In addition, the Court rejected Gessi’s assertion that Bulthaup had sent another warning letter addressed to Gessi concerning Gessi’s conduct in Italy. The Supreme Court explained that this so-called warning letter was in fact a letter from Bulthaup’s lawyer in reply to a letter from Gessi’s lawyer concerning a possible settlement. As a lawyer’s letter seeking an amicable settlement could not be a basis for damage, the Supreme Court held that the Court of Milan did not have jurisdiction on the basis of Article 7(2).

Lastly, the Supreme Court examined whether Article 8(1) of the Brussels I bis Regulation could provide a basis for jurisdiction in light of the fact that Gessi had also sued Bulthaup Italia, which is domiciled in Italy. Pursuant to Article 8(1), a defendant domiciled in a Member State may be sued, when he or she is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.

The Supreme Court recalled the CJEU’s decision in Roche Nederland (C-539/03) that the application of Article 8(1) does not apply to alleged infringements of different parts of a European patent because each part is a separate and independent right which must be assessed under national law so there is no risk for irreconcilable judgments. Thus, the Supreme Court noted that the claim concerning the invalidity of the Italian part of the design was not relevant for establishing jurisdiction over for the claims for non-infringement.

Thereafter, the Supreme Court noted that while Gessi’s action for negative declaratory relief was justified in so far as it related to Bulthaup’s accusation of infringement in Germany of the German part of the design right, the Supreme Court held that jurisdiction could not be fictitiously established by bringing a claim against a “silent” and “disinterested” defendant (Bulthaup Italia). The Supreme Court explained that Bulthaup Italia was not the holder of the design right and had not asserted the right so there was therefore no plausible reason for involving it in the dispute. Consequently, the Supreme Court held that the Court of Milan did not have jurisdiction on the basis of Article 8(1).

Analysis

The Supreme Court’s ruling does not clearly separate the question of jurisdiction from the question of admissibility under national procedural law. As the defendant Bulthaup Italia is domiciled in Italy, it may be sued in Italy for any claim within the scope of the Brussels I bis Regulation except for where there is exclusive jurisdiction. Thus, the Court of Milan should have jurisdiction over Bulthaup Italia in accordance with Article 4 Brussels I bis Regulation in respect of the negative declaratory claims concerning infringement and unfair competition. It is a separate question that these claims are inadmissible under national procedural law because Gessi had no legitimate interest in bringing a claim against Bulthaup Italia.

In addition, while I agree with the Supreme Court that Article 7(2) would not provide a basis for jurisdiction over Bulthaup for the negative declaratory claims concerning Germany, Gessi’s claims appear to refer also to Italy. Indeed, Gessi requests a declaration that “the production and marketing” of the tap does not infringe industrial property rights. The production of the tap, which likely takes place in Italy, concerns the Italian part of the international design. As the Supreme Court rightly noted, in Wintersteiger, the CJEU held that jurisdiction lies in the Member State where the right is protected, and Bulthaup’s right is protected (also) in Italy. Thus, the Court of Milan should have jurisdiction over Bulthaup in accordance with Article 7(2) Brussels I bis Regulation in respect of the claim for non-infringement of the Italian part of the international design. Again, it is a separate question whether this claim is admissible under national procedural law in light of the fact that Bulthaup had not sent any warning letter to Gessi concerning Italy.

Concerning Article 8(1) of the Brussels I bis Regulation, I agree with the Supreme Court that the invalidity claim was not relevant for establishing jurisdiction over the non-infringement claims, but for an additional reason not mentioned by the Court. The invalidity claim was brought against Bulthaup, not Bulthaup Italia. Clearly, Bulthaup cannot be used as an anchor defendant to bring additional claims against Bulthaup.

In contrast, the negative declaratory claims were brought against both Bulthaup and Bulthaup Italia so the latter could serve as an anchor defendant. That said, the Supreme Court’s conclusion that Article 8(1) was not applicable in cases of abuse is arguably in line with Freeport (C‑98/06). In that case, the CJEU held that if the requirements of (what is now) Article 8(1) are fulfilled, there is no further need to establish separately that the claims were not brought with the sole object of ousting the jurisdiction of the courts of the Member State where one of the defendants is domiciled. This decision has been understood to mean that the claims are either sufficiently connected or there is abuse. In this case, the Supreme Court found that there was abuse because there was no plausible reason for involving Bulthaup Italia in a dispute concerning the German part of the design right.

As noted above, however, Gessi’s negative declaratory claims appear to concern Italy as well. There would be a plausible reason for involving Bulthaup Italia in a dispute concerning the Italian part of the design right. This raises two issues. First, could Bulthaup Italia be used as an anchor defendant even though the claims against Bulthaup Italia were likely inadmissible under Italian procedural law for lack of a legitimate interest? In Reisch Montage (C‑103/05), the CJEU held that (what is now) Article 8(1) applies even when an action brought against the anchor defendant (here Bulthaup Italia) is inadmissible pursuant to a provision of national law already at the time it is brought.

Second, are the negative declaratory claims against Bulthaup Italia concerning Italy connected to the claims against Bulthaup concerning Germany in the meaning of Article 8(1)? The CJEU’s decision in Roche Nederland which was cited by the Supreme Court, deals with patents. In a later case, Painer (C-145/10), which deals with copyright infringement, the CJEU did not exclude the application of article 8(1) in relation to defendants accused of infringing copyright protected in different Member States when the national laws on which the claims were based were “substantially identical”. In light of the fact that national design rights have been harmonized in accordance with Directive 98/71/EC on the legal protection of designs, the question arises whether the approach in Roche or Painer should be followed.

On 28 June 2023, the European Commission presented a package consisting of three proposals regarding the Euro currency. It includes a proposal for a regulation on the legal tender of Euro banknotes and coins, a proposal for a regulation on the establishment of the digital euro, accompanied by a proposal for a regulation of on the provision of digital Euro services by payment services providers incorporated in Member States whose currency is not the Euro.

While ensuring that individuals and businesses can continue to access and pay with Euro banknotes and coins across the Euro area, the package aims to set out a framework for a possible new digital form of the Euro that the European Central Bank could choose to issue in the future, as a complement to cash.

The package is not concerned, as such, with private international law. However, it appears to have some implications for private international law, which will be briefly discussed below.

Background

Digitalisation and new technology are progressively influencing the lives of Europeans and the European economy. As the European economy becomes more digital, Europeans are increasingly using private digital payment methods to transact. Banknotes and coins, the only existing forms of central bank money with legal tender available to the general public (including individuals, governments, and corporations), cannot support the EU’s economy in the digital age.

As online transactions expand and payment habits of the general public migrate to the wide range of private digital payment methods available in the EU, their use in payments declines. The lack of a widely available and useable form of central bank money that is technologically fitted to the digital era may also erode trust in commercial bank money, and eventually in the Euro itself.

In this context, the issuing of a retail CBDC (Central Bank Digital Currency) has acquired substantial attention in recent years: a retail CBDC, like cash, would be an official form of central bank money that is directly available to the general public and has the legal tender status. And attention would like to turn into reality also in the EU.

Indeed, many central banks across the world have started looking at the possibility of introducing CBDCs. They, like the European Central Bank, have been conducting research and piloting programmes to better understand their potential advantages and drawbacks. Sweden, for instance, began a research on the viability of an e-krona within the EU. Outside of the EU, the United Kingdom has published multiple consultations and begun research towards a digital pound, akin to the European Central Bank’s technical inquiry into a digital euro. China has previously produced a digital yuan outside of Europe, which is already accessible for payment in an increasing number of places, with major banks and payment service providers facilitating the process. The United States, then, is looking at the possibility of a digital dollar but has not yet concluded if it is necessary.

However, some underlying choices need to be faced. For example, CBDC can be of two different types: (a) Account-based: before allowing a user to make a payment, an account-based approach often entails the use of a trusted third party to authenticate the identification of the account holder and the check on account balance; the accounts are then debited and credited accordingly; or (b) Token-based: a form of money issued by a central bank whereby the monetary claim on the central bank is incorporated in a digital token and the transfer of the token equals transfer of the claim, without current-account relationship between the central bank and the holder.

To conclude this overall background, it is useful to clarify that it is not a matter of crypto-assets and blockchain. Crypto assets, indeed, are purely digital assets that use public ledgers over the internet to prove ownership. They use cryptography, peer-to-peer networks and a distributed ledger technology (DLT) – such as blockchain – to create, verify and secure transactions. While the digital euro, unlike crypto-assets, would be central bank money. The European Central Bank would guarantee its safety, stability, and ability to be exchanged for Euro currency at face value. In contrast, the value of crypto-assets might vary substantially, and their conversion into Euro currency or even commercial bank money cannot be guaranteed.

Proposal on Digital Euro

The goal of the proposal on digital Euro is to keep central bank money with legal tender status available to the general public, while also providing a cutting-edge and cost-effective payment method, ensuring a high level of privacy in digital payments, maintaining financial stability, and promoting accessibility and financial inclusion.

As a result, they offer the essential legal framework to guarantee the successful use of the digital Euro as a single currency throughout the eurozone, addressing the demands of users in the digital age, and supporting competitiveness, efficiency, innovation, and resilience in the EU’s digitalizing economy. They offer the essential legal framework to guarantee the successful use of the digital Euro as a single currency throughout the eurozone, addressing the demands of users in the digital age, and supporting competitiveness, efficiency, innovation, and resilience in the EU’s digitalizing economy.

Subject Matter, Establishment and Issuance of the Digital Euro

‘Digital euro’ means the digital form of the single currency available to natural and legal persons for the purpose of retail payments. It may be issued by the European Central Bank and, if authorised by the European Central Bank, by eurozone national central banks. This means that it would be public money or central bank money. Like Euro banknotes and coins, the digital Euro will be a direct liability of the European Central Bank or of eurozone national central banks vis-à-vis digital Euro users, i.e. those making use of a digital Euro payment service in the capacity of payer, payee, or both.

Several rules are being proposed to integrate the digital Euro into the current legal framework. In particular, digital Euro payment transactions shall be subject to Payment Services Directive (PSD2, as will be replaced by proposed PSD3 and PSR), the Cross-Border Payments Regulation (as will be amended by the proposed accompanying Regulation), the Anti-Money Laundering Directive (AMLD5, as will be replaced by proposed AMLD6 and AMLR) and the Funds Transfer Regulation.

Legal Tender

The digital Euro will have legal tender status, which means that it must be accepted at face value with the ability to satisfy a payment obligation; this is not the case for existing electronic means of payments provided by commercial banks. Surcharges will be prohibited. To guarantee the effective preservation of the digital euro’s legal tender status as a unified currency throughout the eurozone, as well as the acceptance of digital Euro payments, provisions on sanctions for infringements will be adopted and implemented in the Member States.

Payees are entitled to refuse payment in digital Euro under the circumstances indicated in Article 9.
The digital Euro will be convertible in the same way as Euro banknotes and coins, scriptural money, and electronic money are. Where both digital Euro and Euro cash acceptance is required, the payer may choose between the two.

Distribution

(Private) Payment service companies would act as intermediaries for the digital euro. Banks and other payment service providers, indeed, would be in charge and in responsibility of distributing digital euros and providing payment services to natural and legal persons, primarily via offering a variety of digital Euro payment services (without the need for an extra licence). These services include first of all enabling users to access and use digital euro; persons, indeed, would be able to open a digital Euro account at any commercial bank or any other payment service provider, such as payment institutions and electronic money institutions. Then, other digital Euro payment services included cover initiating and receiving digital Euro payment transactions, managing their digital Euro payment accounts (which function similarly to digital wallets and have a unique account number), providing users with digital Euro payment instruments, and conducting funding (i.e., acquiring digital Euro in exchange for cash or other funds) / defunding operations.

There is also a list of basic digital Euro payment services that must be provided to individuals for free, such as opening and maintaining digital Euro payment accounts, funding/defunding from/into cash, initiating and receiving digital Euro payment transactions (person-to-person, person-to-government, government-to-person, or point of interaction including point-of-sale and e-commerce) via an electronic payment instrument, or providing such instruments. Users using digital euros can have one or more digital Euro payment accounts with the same or other payment services providers.

Access, Use and its Limits, Technical Features and Privacy

The proposal provides also other rules.

Chapter six, devoted to the access side, deals with the use of the digital Euro outside the Euro area, which depend on whether natural and legal persons reside or are established in a non-Euro area Member States or in a third country. It will be possible, subject to described conditions under Articles 18 to 21.

Technical features are also taken into account under chapter seven, where it is indicated that the digital Euro should be developed in a way that makes it easy to use for the general public, including financially excluded or at-risk individuals, those with impairments, functional limits, or inadequate digital skills, and the elderly. In order to achieve this aim, digital Euro users will not be needed to have a non-digital Euro payment account. And the digital Euro should be available for digital Euro payment transactions both offline and online as of the first issuance of the digital Euro and should allow for conditional payment transactions. Users may use the European Digital Identity Wallets established under the proposed Regulation on a European Digital Identity, described on this blog, to onboard and make payments. The digital Euro should enable digital users to switch their digital Euro payment accounts to another payment services provider at the request of the digital Euro user.

Finally, privacy and data protection issues are addressed.

Private International Law Implications

CBDCs are not free from private international law implications. Payment currency, indeed, is a component that private international law cannot ignore.

Basically, the problem of problems, which then concerns all the classic private international law issues, is that relating to the connecting factors to be used for this currency. Can the criteria of the locus rei sitae and lex rei sitae have any weight? And if so, where is this currency located? If not, what other criteria to use?

And, generally related to the latter, also the role of private autonomy and its possible limits is to be addressed. For instance, if the CBDC is included in a contract with cross-border elements, how do you provide for party autonomy? Should boundaries to CBDC, and the contract, be established?

In jurisdiction matter, it follows that identifying the court to deal with it is relevant, among intermediaries and account holders.

But also for the applicable law the problems are no less: opening CBDC accounts, holding, transactions, payments, settlements, and other aspect such as data flow can be dealt with.

An impact, also, in terms of recognition and enforcement, imagining having a judgement including CBDC matters to be recognized and enforced in different countries.

History tends to repeat itself: what to do then? Adapt existing rules, if they resist this tool, or devise new ones?

Surely a good starting point is to refer to the contribution in progress in this field, such as the Proposal for Exploratory Work: Private International Law Aspects of Central Bank Digital Currencies (CBDCs) by the Hague Conference on Private International Law. Perhaps the HCCH is also the place to regulate these private international law issues at international level (so, with non-EU countries) on these topics?

Finally, since we are talking about dematerialized assets, can some help come from the system developed under the Convention of 5 July 2006 on the Applicable Law to Certain Rights in Respect of Securities held with an Intermediary (Securities Convention)?

The Dickson Poon School of Law is seeking to appoint three outstanding candidates with research and teaching expertise in Intellectual Property (IP) law or Private International Law/Conflict of Laws (PIL/CoL) to Lectureships. The successful candidate/s will have a primary research interest in either IP law or PIL/CoL and the ability to produce internationally excellent research in this area.

This post will be offered on an indefinite contract (subject to a probation period). This is a full-time post.

Applications close on 10 August 2023.

Further information is available here.