EAPIL blog

As announced on this blog, the Catholic University of the Sacred Heart, in Milan, will host, on 3 March 2023, a conference on the operation of Regulation (EU) No 655/2014 establishing a European Account Preservation Order (EAPO) procedure, in light of practice and case law.

The working languages of the conference will be English and Italian, with simultaneous interpretation.

Attendance is free, but prior registration is required. The registration form can be found here.

Speakers include Gilles Cuniberti (University of Luxembourg), Elena D’Alessandro (University of Torino), Fernando Gascón Inchausti (Complutense University, Madrid), Katharina Lugani (Heinrich Heine University, Düsseldorf), Antonio Leandro (University of Bari), Raffaella Muroni (Catholic University of the Sacred Heart), Elena Alina Ontanu (Tilburg University), Carlos Santalò Goris (Max Planck Institute, Luxembourg), María Luisa Villamarín López (Complutense University, Madrid), and Caterina Benini (Catholic University of the Sacred Heart).

The conference will also offer an opportunity to present an article-by-article commentary of the EAPO Regulation, edited by Elena D’Alessandro and Fernando Gascón Inchausti, recently published by Edward Elgar in its Commentaries in Private International Law series. Augusto Chizzini (Catholic University of the Sacred Heart) and Luca Radicati di Brozolo (formerly professor at the Catholic University of the Sacred Heart, now partner at ArbLit, Milan) will exchange views on this work.

The full programme of the conference is available, with additional details, on the event’s dedicated website.

… they sometimes forget to buy the compulsory toll ticket (“e-vignette”) in advance or make mistakes when filling out the online form. The company collecting the Hungarian toll – which is incorporated as a plc under Hungarian law – proved to be unforgiving and regularly sues the owners of the cars in German courts.

Twice was the German Federal Court called upon to decide on such actions in a relatively short timespan (judgments of 28 September 2022 – press release discussed by Matthias Weller here – and of 7 December 2022). Both rulings are of particular interest for our blog because the Court applied the Rome I Regulation.

The first issue the Federal Court had to decide was whether the actions were “civil and commercial matters” in the sense of Art 1(1) Rome I. This question had already been answered in the affirmative by the CJEU in another case (C-31/21, Nemzeti Útdíjfizetési Szolgáltató Zrt. v NW), testifying to the serious troubles Germans are in when not driving on their Autobahn.

The second issue was trickier: Was there a contractual obligation?

The Federal Court argues that contractual obligations can arise from the simple act of driving over the highway, which can be constructed as the acceptance of an offer made by the toll service company to enter into a contract. The CJEU had decided as much for the use of a railway (C-349/18 to C-351/18, Nationale Maatschappij der Belgische Spoorwegen (NMBS) v Mbutuku Kanyeba and Others, para 37). It is hard to see why it should be different for highway usage.

One may wonder which of the categories listed in Art 4(1) Rome I fits the contract over the usage of a highway: Is it a service contract, a tenancy, or another one?

The Federal Court cuts short this debate by underlining that both Art 4(1)(b) and Art 4(2) Rome I will lead to the application of Hungarian law. Undoubtedly, the characteristic performance is provided here by the toll payment company, not by the user. That the contract involves the tenancy of immovable property seems far-fetched, but even so, Art 4(1)(c) Rome I would have yielded the same result.

The Hungarian toll payment service company had not sued the driver, but the person on whose name the car was registered. The question thus arose whether the alleged liability was based on “obligations freely assumed by the defendant towards the claimant”, as required for a contractual obligation (see CJEU, C-334/00, Tacconi).

The Federal Court overcomes this obstacle by leaving it to the law applicable to the contract to decide who is debtor and creditor. It bases this view on Art 12(1)(b) Rome I, according to which the “performance” falls into the scope of this law. According to the Federal Court, this also encompasses the definition of the persons bound by the contract.

While this may be true, it would go too far to allow the law governing the contract to draw any person into its scope. This would be fundamentally incompatible with the requirement of a freely assumed obligation.

In the end, one cannot ignore the practical need to be able to sue the person in whose name the car is registered, as the driver will mostly be unknown. But perhaps this need could as well have been filled by non-contractual liability, which would have resulted in the applicability of the Rome II Regulation.

The most disputed point of both cases concerned the amount that was claimed. Since the defendants had not acquired a proper ticket in advance, they were charged a price that was three times higher than the normal toll. Since in addition they let pass a deadline of 60 days after the first payment reminder, they also had to pay another fee, ratcheting up the bill to 20 times (!) of the normal ticket price.

The defendants claimed that these rules of Hungarian law would violate German public policy. Yet, the Federal Court sees this differently. First, it underlines that German public policy must be applied “in a restrictive manner” in relation to the law of another EU Member State. Second, the Federal Court points out that the relativity of public policy mandates restraint when invoking it, as the case bears only tenuous relations with Germany and all of the facts happened in Hungary.

Most importantly, the Federal Court rejects the defendants’ claim that the additional fees would amount to “punitive damages”, which are incompatible with German public policy. It characterises the increased price not as a penalty, but instead sees the original ticket price as a discount for early payment. Furthermore, it takes the view that the increase of the ticket price in case of later payment is justified by the additional administrative burdens and risks of the toll collection company in enforcing the claim against the user. Most interestingly, the Court also explicitly acknowledges that it is in the legitimate interest of the toll collection company to incentivise voluntary prepayment.

Finally, the Court does not take issue with the second fee, even though it was 20 times higher than the original ticket price. The Court characterises this fee as a (first) contractual penalty. It recalls that such fees are not unusual in German public transport, and thus can hardly be seen as incompatible with German public policy.

Although it confirmed the lower courts’ judgments on all other points, the Federal Court nevertheless vacated them because they had awarded payment in euros to the claimants. The Federal Court highlights that the Hungarian toll laws only provide for claims in Hungarian forint, not in euros. It sent back both rulings to the lower courts to enquire whether there are any additional rules of Hungarian law that allow conversion of the debt into a foreign currency.

Besides shedding light on a number of aspects of the Rome I Regulation, both cases are also illustrative of a wider point. The German courts have lent a helping hand to the Hungarian toll payment services company in collecting unpaid fees. They have withstood the German residents’ anger over seemingly outrageous Hungarian fees by pointing out that such fees are not incompatible with the German legal system. Even though it is bad news for car drivers, it proves that judicial cooperation in the EU is working.

— Thanks to Paul Eichmüller and Verena Wodniansky-Wildenfeld for reading and commenting a draft of this post.

Mathilde Codazzi, who is a master student at the University Paris II Panthéon-Assas, contributed to this post.

In a judgment of 8 November 2022, the international commercial chamber at the Paris Court of Appeal (ICCP-CA) addressed the issue of the applicable law to a claim for loss due to fraudulent misappropriation of funds transferred on a bank account.

The plaintiff, a French farmer, invested over € 200,000 between 2013 and 2014 with an online trading platform on Forex. For that purpose, he transferred the monies on an account owned by the first defendant, an English company (Worldpay AP Ltd) and registered at the French subsidiary (or possibly branch, the judgment is not quite clear on this point) of the second defendant, a Scottish bank (Natwest Markets Plc, formerly Royal Bank of Scotland).

The plaintiff eventually brought proceedings before a Parisian court (tribunal judiciaire) in July 2020 against these two companies and the platform’s operator, a Dutch company. The judgment is not very detailed on his claims, but it seems that the plaintiff alleged that he had made gains that he could not eventually receive. It seems, therefore, that the claim is that his investment and gains were misappropriated fraudulently.

On 3 December 2021, the pre-trial judge (juge de la mise en état) declared the claim inadmissible on the ground that it was time-barred. It does not seem that the issue of the applicable law was raised at this stage.

The plaintiff appealed on the ground that he disputed the starting point of the the five-year prescription period (Article 2224 of the French civil code). His lawyer had sent to the defendants a letter of formal notice dating from March 2015. The issue was whether the starting point was that letter, or whether it had not started to run when the letter of formal notice was sent because the plaintiff was not aware that he was a victim of the fraudulent scheme.

For a reason which is not detailed in the judgement, the judge only held that the claim against the two financial institutions (Natwest and Worldplay) was time barred. The plaintiff only appealed against them. It is unclear why, but it might be that, because the issue was one of misappropriation, the claim against the platform was always quite weak, and thus was not pursued.

In a judgment of 8 November 2022, the ICCP-CA upheld the decision of the pre-trial judge.

The Court of Appeal raised the issue of the applicable law ex officio and invited the parties to comment on it. It eventually confirmed that French law applied, however.

The ICCP-CA characterized the issue as tortious (quasi-delictual). It thus ruled that the Rome II Regulation applied, and the law governing the tort also governed  the prescription issue.

It applied Article 4.1 of the Rome II Regulation and relied on the case-law of the CJEU concerning financial damage under the Brussels I Regulation, after insisting on the consistency principle mentioned in Recital 7 of the Rome II Regulation.

The court thus ruled that the applicable law should be the law of the country where the victim is domiciled when the alleged financial damage materializes directly on the plaintiff’s bank account held with a bank established in this country and that, subsidiarily, the same law is applicable when the harmful even is manifestly more closely connected to this law (Kronhofer, C-168-02, Kolassa, C-375/13 and Löber, C-304/17).

The court found that the evidence provided by the plaintiff proved the transfer of funds from his bank account held with a French bank to the Worldpay’s account, held by Natwest’s French subsidiary (or branch). It further found that the monies had been made available to the online platform from that last bank account. It then concluded that the monies had “disappeared” after being transferred on this Natwest’s French bank account, and that this set the place of the damage suffered by the investor. As a result, the court ruled that the damage occurred in France and that French law was therefore applicable to the claim.

On the merits, the ICCP-CA confirmed that the claim was time barred.

An interesting question is whether the outcome would have been the same depending on whether the claim was one of misappropriation of funds or negligence of the platform. In particular, would the loss have been suffered in both cases “directly” on the bank account where the monies had initially been transferred by the investor?

It is also interesting to note that the court relied on the consistency principle between Rome II and Brussels Ibis in a case where the provisions are quite different, in particular in that Article 4 of the Rome II Regulation is more complex than Article 7(2) of the Brussels I bis Regulation. But a reasonable argument could be that the case law of the CJEU on Article 7(2) in the field of financial loss has made the two rules very similar.

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

R. Wagner, European account preservation orders and titles from provisional measures with subsequent account attachments

The enforcement of a claim, even in cross-border situations, must not be jeopardised by the debtor transferring or debiting funds from his account. A creditor domiciled in State A has various options for having bank accounts of his debtor in State B seized. Thus, he can apply for an interim measure in State A according to national law and may have this measure enforced under the Brussels Ibis Regulation in State B by way of attachment of accounts. Alternatively, he may proceed in accordance with the European Account Preservation Order Regulation (hereinafter: EAPOR). This means that he must obtain a European account preservation order in State A which must be enforced in State B. By comparing these two options the author deals with the legal nature of the European account preservation order and with the subtleties of enforcement under the EAPOR.

H. Roth, The “relevance (to the initial legal dispute)” of the reference for a preliminary ruling pursuant to Article 267 TFEU

The preliminary ruling procedure under Article 267 of the Treaty on the Functioning of the European Union (TFEU) exists to ensure the uniform interpretation and application of EU law. The conditions under which national courts may seek a preliminary ruling are based on the established jurisdiction of the European Court of Justice (CJEU) and are summarised in Article 94 of the Rules of Procedure of the CJEU. One such condition is that the question referred to the court must be applicable to the decision in the initial legal dispute. Any future judgement by the referring court must thereafter be dependant on the interpretation of Union law. When cases are obviously not applicable, the European Court dismisses the reference for a preliminary ruling as inadmissible. The judgement of the CJEU at hand concerns one of these rare cases in the decision-making process. The sought-after interpretation of Union law was not materially related to the matter of the initial legal dispute being overseen by the referring Bulgarian court.

S. Mock and C. Illetschko, The General International Jurisdiction for Legal Actions against Board Members of International Corporations – Comment on OLG Innsbruck, 14 October 2021 – 2 R 113/21s, IPRax (in this issue)

In the present decision, the Higher Regional Court of Innsbruck (Austria) held that (also) Austrian courts have jurisdiction for investors lawsuits against the former CEO of the German Wirecard AG, Markus Braun. The decision illustrates that the relevance of the domicile of natural persons for the jurisdiction in direct actions for damages against board members (Art 4, 62 Brussels Ia Regulation) can lead to the fact that courts of different member states have to decide on crucial aspects of complex investor litigation at the same time. This article examines the decision, focusing on the challenges resulting from multiple residences of natural persons under the Brussels Ia Regulation.

C. Kohler, Lost in error: The ECJ insists on the “mosaic solution” in determining jurisdiction in the case of dissemination of infringing content on the internet

In case C-251/20, Gtflix Tv, the ECJ ruled that, according to Article 7(2) of Regulation No 1215/2012, a person, considering that his or her rights have been infringed by the dissemination of disparaging comments on the internet, may claim, before the courts of each Member State in which those comments are or were accessible, compensation for the damage suffered in the Member State of the court seized, even though those courts do not have jurisdiction to rule on an application for rectification and removal of the content placed online. The ECJ thus confirms the “mosaic solution” developed in case C-509/09 and C-161/10, eDate Advertising, and continued in case C-194/16, Bolagsupplysningen, for actions for damages for the dissemination of infringing contents on the internet. The author criticises this solution because it overrides the interests of the sound administration of justice by favouring multiple jurisdictions for the same event and making it difficult for the defendant reasonably to foresee before which court he may be sued. Since a change in this internationally isolated case law is unlikely, a correction can only be expected from the Union legislator.

T. Lutzi, Art 7 No 2 Brussels Ia as a Rule on International and Local Jurisdiction for Cartel Damage Claims

Once again, the so-called “trucks cartel” has provided the CJEU with an opportunity to clarify the interpretation of Art. 7 No. 2 Brussels Ia in cases of cartel damage claims. The Court confirmed its previous case law, according to which the place of damage is to be located at the place where the distortion of competition has affected the market and where the injured party has at the same time been individually affected. In the case of goods purchased at a price inflated by the cartel agreement, this is the place of purchase, provided that all goods have been purchased there; otherwise it is the place where the injured party has its seat. In the present case, both places were in Spain; thus, a decision between them was only necessary to answer the question of local jurisdiction, which is also governed by Art. 7 No. 2 Brussels Ia. Against this background, the Court also made a number of helpful observations regarding the relationship between national and European rules on local jurisdiction.

C. Danda, The concept of the weaker party in direct actions against the insurer

In its decision T.B. and D. sp. z. o. o. ./. G.I. A/S the CJEU iterates on the principle expressed in Recital 18 Brussels I bis Regulation that in cross-border insurance contracts only the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules. In the original proceedings – a joint case – the professional claimants had acquired insurance claims from individuals initially injured in car accidents in Poland. The referring court asked the CJEU (1) if such entities could be granted the forum actoris jurisdiction under Chapter II section 3 on insurance litigation against the insurer of the damaging party and (2) if the forum loci delicti jurisdiction under Art. 7(2) or 12 Brussels I bis Regulation applies under these conditions. Considering previous decisions, the CJEU clarified that professional claimants who regularly receive payment for their services in form of claim assignment cannot be considered the weaker party in the sense of the insurance section and therefore cannot rely on its beneficial jurisdictions. Moreover, the court upheld that such claimants may still rely on the special jurisdiction under Art. 7(2) Brussels I bis Regulation.

C. Reibetanz, Procedural Consumer Protection under Brussels Ibis Regulation and Determination of Jurisdiction under German Procedural Law (Sec. 36 (1) No. 3 ZPO)

German procedural law does not provide for a place of jurisdiction comparable to Article 8 (1) Brussels Ibis Regulation, the European jurisdiction for joinder of parties. However, according to Sec. 36 ZPO, German courts can determine a court that is jointly competent for claims against two or more parties. In contrast to Art. 8 (1) Brussels Ibis Regulation, under which the plaintiff has to choose between the courts that are competent, the determination of a common place of jurisdiction for joint procedure under German law is under the discretion of the courts. Since EU law takes precedence in its application over contrary national law, German courts must be very vigilant before determining a court at their discretion. The case is further complicated by the fact that the prospective plaintiff can be characterised as a consumer under Art. 17 et seq. Brussels Ibis Regulation. The article critically discusses the decision of the BayObLG and points out how German judges should approach cross-border cases before applying Sec. 36 ZPO.

M.F. Müller, Requirements as to the „document which instituted the proceedings“ within the ground for refusal of recognition according to Art 34 (2) Brussels I Regulation

The German Federal Court of Justice dealt with the question which requirements a document has to comply with to qualify as the “document which instituted the proceedings” within the ground for refusal of recognition provided for in Art 34 (2) Brussels I Regulation regarding a judgment passed in an adhesion procedure. Such requirements concern the subject-matter of the claim and the cause of action as well as the status quo of the procedure. The respective information must be sufficient to guarantee the defendant’s right to a fair hearing. According to the Court, both a certain notification by a preliminary judge and another notification by the public prosecutor were not sufficiently specific as to the cause of action and the status quo of the procedure. Thus, concerning the subject matter of the claim, the question whether the “document which instituted the proceedings” in an adhesion procedure must include information about asserting civil claims remained unanswered. While the author approves of the outcome of the case, he argues that the Court would have had the chance to follow a line of reasoning that would have enabled the Court to submit the respective question to the ECJ. The author suggests that the document which institutes the proceedings should contain a motion, not necessarily quantified, concerning the civil claim.

B. Steinbrück and J.F. Krahé, Section 1032 (2) German Civil Procedural Code, the ICSID Convention and Achmea – one collision or two collisions of legal regimes?

While the ECJ in Achmea and Komstroy took a firm stance against investor-State arbitration clauses within the European Union, the question of whether this will also apply to arbitration under the ICSID Convention, which is often framed as a “self-contained” system, remains as yet formally undecided. On an application by the Federal Republic of Germany, the Berlin Higher Regional Court has now ruled that § 1032 (2) Civil Procedural Code, under which a request may be filed with the court to have it determine the admissibility or inadmissibility of arbitral proceedings, cannot be applied to proceedings under the ICSID Convention. The article discusses this judgment, highlighting in particular that the Higher Regional Court chooses an interpretation of the ICSID Convention which creates a (presumed) conflict between the ICSID Convention and German law, all the while ignoring the already existing conflict between the ICSID Convention and EU law.

L. Kuschel, Copyright Law on the High Seas

The high seas, outer space, the deep seabed, and the Antarctic are extraterritorial – no state may claim sovereignty or jurisdiction. Intellectual property rights, on the other side, are traditionally territorial in nature – they exist and can be protected only within the boundaries of a regulating state. How, then, can copyright be violated aboard a cruise ship on the high seas and which law, if any, ought to be applied? In a recent decision, the LG Hamburg was confronted with this quandary in a dispute between a cruise line and the holder of broadcasting rights to the Football World Cup 2018 and 2019. Unconvincingly, the court decided to circumnavigate the fundamental questions at hand and instead followed the choice of law agreement between the parties, in spite of Art. 8(3) Rome II Regulation and opting against the application of the flag state’s copyright law.

T. Helms, Validity of Marriage as Preliminary Question for the Filiation and the Name of a Child born to Greek Nationals in Germany in 1966

The Higher Regional Court of Nuremberg has ruled on the effects of a marriage on the filiation and the name of a child born to two Greek nationals whose marriage before a Greek-orthodox priest in Germany was invalid from the German point of view but legally binding from the point of view of Greek law. The court is of the opinion that – in principle – the question of whether a child’s parents are married has to be decided independently applies the law which is applicable to the main question, according to the conflict of law rules applicable in the forum. But under the circumstances of the case at hand, this would lead to a result which would be contrary to the jurisprudence of the Court of Justice on names lawfully acquired in one Member State. Therefore – as an exception – the preliminary question in the context of the law of names has to be solved according to the same law which is applicable to the main question (i.e. Greek law).

K. Duden, PIL in Uncertainty – failure to determine a foreign law, application of a substitute law and leaving the applicable law open

A fundamental concern of private international law is to apply the law most closely connected to a case at hand – regardless of whether this is one’s own or a foreign law. The present decision of the Hanseatic Higher Regional Court as well as the proceedings of the lower court show how difficult the implementation of this objective can become when the content of the applicable law is difficult to ascertain. The case note therefore first addresses the question of when a court should assume that the content of the applicable law cannot be determined. It examines how far the court’s duty to investigate the applicable law extends and argues that this duty does not seem to be limited by disproportionate costs of the investigative measures. However, the disproportionate duration of such measures should limit the duty to investigate. The comment then discusses which law should be applied as a substitute for a law whose content cannot be ascertained. Here the present decision and the proceedings in the lower court highlight the advantages of applying the lex fori as a substitute – not as an ideal solution, but as the most convincing amongst a variety of less-than-ideal solutions. Finally, the note discusses why it is permissible as a matter of exception for the decision to leave open whether German or foreign law is applicable.

M. Weller, Kollisionsrecht und NS-Raubkunst: U.S. Supreme Court, Entscheidung vom 21. April 2022, 596 U.S. ____ (2022) – Cassirer et al. ./. Thyssen-Bornemisza Collection Foundation

In proceedings on Nazi-looted art the claimed objects typically find themselves at the end of a long chain of transfers with a number of foreign elements. Litigations in state courts for recovery thus regularly challenge the applicable rules and doctrines on choice of law – as it was the case in the latest decision of the U.S. Supreme Court in Cassirer. In this decision, a very technical point was submitted to the Court for review: which choice-of-law rules are applicable to the claim in proceedings against foreign states if U.S. courts ground their jurisdiction on the expropriation exception in § 1605(3)(a) Federal Sovereign Immunities Act (FSIA). The lower court had opted for a choice-of -aw rule under federal common law, the U.S. Supreme Court, however, decided that, in light of Erie and Klaxon, the choice-of-law rules of the state where the lower federal courts are sitting in diversity should apply.

Uglješa Grušić has published on SSRN a policy brief titled Remote working and European private international law.

The brief was prepared for the European Trade Union Institute (ETUI) an independent research and training centre of the European Trade Union Confederation (ETUC) which itself affiliates European trade unions into a single European umbrella organisation.

Policy implications listed in the brief are as follows:

• The risk created by expanding the labour pool to workers based in other countries can, if necessary, be dealt with by EU legislative action, for example, through substantive EU employment law. Furthermore, the risk created by expanding the labour pool to workers based in non-EU countries can be dealt with by the overriding application of EU employment standards to situations sufficiently closely connected with the EU. Empirical data is needed to assess the policy implications of the risk created by the expansion of the labour pool to workers based in other countries. This risk should therefore be monitored in the years ahead.
• The Brussels I Regulation, the Lugano Convention and the Rome I Regulation give domestic courts an adequate tool to deal with the potential of remote working to put additional pressure on the employee/self-employed worker dichotomy. Nevertheless, application of the concept of ‘individual employment contract’ to remote working should be monitored in the years ahead.
• Employers might be able to use arbitration agreements to effectively escape the jurisdiction of domestic courts and employment laws. This issue requires further research.

This post was contributed by Catherine Kessedjian, Professor Emerita of the University Paris Panthéon-Assas and Chair of the ADI/ILA 2023 Organising Committee.

In a judgment of 16 November 2022 (pourvoi n° 21-17.338), the French Supreme Court for private and criminal matters (Cour de cassation) addressed, among many other issues, the application of anational norms such as the Unidroit Principles on International Commercial Contracts.

This post will only focus on this issue.

Conforama, a French Company, was contractually linked to Mab Ltd, a US company until the latter became bankrupt. Two creditors of Mab Ltd made a “saisie conservatoire” in Conforama’s hands of a certain sum that it owed to Mab Ltd. However, Conforama declared that Mab Ltd did owe it another sum of money (via several invoices issued by Conforama) and intended to apply “compensation” (set-off of debts) between the two sums in order to reduce the amount that it would have to pay to the creditors.

The Paris Commercial Court (First Instance) (Tribunal de commerce de Paris, 19 June 2019, n°2008006861) decided that Conforama’s invoices were issued without cause. Consequently, it ordered Conforama to pay the entire sum due to Mab Ltd.

Conforama appealed to the Paris Court of Appeal.

At the centre of the controversy are several contracts between Conforama and Mab Ltd, from 2004 onward, titled “Commercial Cooperation” according to which Conforama issued the contested invoices. Article 4.2 of these contracts provided for set-off. French law is very strict when it comes to these types of contracts because they have led to abuses in the past. Particularly, former Article L.442-6 of the commercial Code provided that, in absence of proven counterpart, these contracts were to be declared null and void. The provisions on restrictive practices are now codified in Articles L. 442-1 to L. 442-4 of the Commercial Code (see in particular Article L 442-1 I 1°).

In this context, in order to avoid the application of French Law, Conforama argued that its cooperation contracts with Mabs were regulated by “general principles of law as applied to international commercial relations together with usages of international commerce” (translation of a quote made by the Court of Appeal out of Conforama’s brief). In addition, Conforama pointed out to Article 17 of the supplier contract of 15 July 2004 and Article 11 of its general terms and conditions of purchase of 14 October 2004 and also to the Unidroit Principles (Disclaimer: we did not have access to the exact wording of these contractual documents).

However, according to Conforama’s opponents, the cooperation agreement of 10 January 2006 referred to (former) Article 1289 of the French civil code on set-off of debts (cf. current Article 1347 of the French civil code).

The question of the applicable law to a “commercial cooperation” contract, was at the centre of the dispute with the following sub-questions: (a) what method should apply to define the applicable law when the contract is silent? (b) is the theory of “goup of contacts” helpful for applicable law purposes? (c) what role can play anational rules of law?

From this complicated contractual picture, the Court of Appeal rendered a very well-motivated decision centred on the mandatory character of French Law on the type of services Conforama pretended to invoice Mab Ltd (Paris, 30 March 2021, 19/15655). Wisely, the Court did not enter into the discussion on the matter of the ‘group of contracts’ theory or on the matter of the applicability of anational law. It simply said that the cooperation agreement did not include an applicable law provision and that the Rome Convention of 1980 (applicable ratione temporis) led the court to apply French law. Since the provisions of French law are mandatory, there was no need to go further into the arguments presented by Conforama.

At the level of the Court of cassation, Conforama altered slightly its story. Its argument can be summarised as follows. First, it argued that Unidroit Principles might be applied even though they are not mentioned expressly in a contract. Second, it insisted on the ‘group of contracts’ theory and argued that applicable law clauses contained in some other contracts did apply to all contracts that are related, including the “cooperation agreement”. Third, even if the court did decide that the contract did not include a proper choice of law clause, the cooperation contract is closely related to the distribution agreement and must be regulated by the same law.

In an unusual move for a decision that confirms the appellate decision, the Court starts with a broad pronouncement (§14 of the decision) and decides that (a) general principles applicable to international contracts, such as the Unidroit principles, may not be considered as “law” and (b) that they may not be chosen by the parties to regulate their contract according to article 3.1 of the Rome Convention of 1980.

First, this pronouncement was not necessary to the decision of the Court. It is an obiter dictum. The Court could have, as did the Paris Court of Appeal, decided that the Unidroit Principles did not apply in the case at hand (and limited its pronouncement to that) because they were simply not referenced in the contract that, apparently (although this is only implied in the discussion of the facts by the Court of Appeal) was silent on the applicable law. The Court could also reach the same decision on the basis of the mandatory nature of the applicable French provisions. Therefore, it had two avenues to confirm the Court of appeal decision without making a strong, bold, broad and overarching declaration.

Instead, for an unknown reason or out of sheer conservatism and strict positive law conception, the Court reverses years of understanding under French law (see already in that sense, Cour de cassation, 13 January 2021, 19-17.157), or at least in French doctrine, that under French law, general principles such as the Unidroit Principles could indeed have some application.

In addition, and more importantly, it was always understood that freedom of contract allowed parties to reference such non-state rules of law. This is reflected in Recital 13 of the preamble to the Rome I Regulation that reads as follows:

This Regulation does not preclude parties from incorporating by reference into their contract a non-State body of law or an international convention.

It is true that such a reference is not very common in practice. Indeed, parties may run a risk by limiting their choice of law to a non-State body of law either because that document is incomplete or would not cover the very question underlying the dispute, or because of the lack of case law to ascertain proper interpretation of these rules.

A final remark as to the effect of that part of the decision by the Court of cassation: it is rendered under the 1980 Rome Convention and not the Rome I Regulation. Strictly speaking, the Court will have to change its decision the next time it will be confronted with a similar provision in a contract regulated by Rome I. Indeed, under the Regulation, it is clear that the Court would not be able to say that parties are not allowed to choose non-State body of law as the applicable law to their contract.

A new issue of the Revue Critique de Droit International Privé (4/2022) is out.

It contains one essay, one briefing note on the accession of the EU to the Hague Judgments Convention (by Y. El Hage, Lyon 3 University), as well as numerous case notes.

The editorial by Horatia Muir Watt (Sciences Po Law School), Dominique Bureau (University of Paris II) and Sabine Corneloup (University of Paris II) will soon be available in English on Dalloz website (Journey to Europa?).

In a comprehensive article, Symeon C. Symeonides (Alex L. Parks Distinguished Research Professor and Dean Emeritus, Willamette University College of Law) explores possible ways of reforming EU conflict-of-laws rules in torts (Rome II et la responsabilité délictuelle transfrontière : une nécessaire refonte).

More information is available here.

On 15 December 2022, the UK Government launched an open consultation on its plan for the United Kingdom to become a Contracting State to the Hague Convention of 2 July 2019 on the recognition and enforcement of foreign judgments in civil or commercial matters (the Hague Judgments Convention).

As part of the decision-making process on becoming a Contracting State, the Government is looking to gather wide-ranging perspectives, especially from who have experience of current cross-border litigation.

Based on the overall analysis, the Government will make a final decision on signing and ratifying and any declarations to be made, and commence the necessary processes to ensure that this can be achieved within a reasonable timescale, in consultation with the Devolved Administrations.

The Convention would be implemented in UK domestic law under the terms of the Private International Law (Implementation of Agreements) Act 2020, subject to appropriate parliamentary scrutiny. The Convention would enter into force for the United Kingdom 12 months after the date it deposits its instrument of ratification.

The consultation, which consists of 14 questions, is meant to remain open for eight weeks, that is, until 9 February 2023.

Further details concerning submissions are available here.

A paper summarising the responses to this consultation will be published in spring 2023. The response paper will be available on-line at gov.uk.

Dear fellow Members of the European Association of Private International Law, have you paid your annual fees?

If you haven’t, please take a moment to do so! All you need to know in this respect can be found here.

We are aware that, in the past, some of you have had troubles paying their fees by credit card, through PayPal. While we renew our sincere apologies to all those affected, we are happy to report that the EAPIL PayPal form is up and running. It is available here.

Payment by bank transfer is also possible. Please refer to this page to learn about the relevant details.

Please remember that, according to the Statutes of the Association, membership is renewed automatically every year, unless terminated by the member concerned using this form.

Those who have failed to pay the fees due last year, may now do so by the same means indicated above. Just follow the procedure twice, if you pay by PayPal. If you prefer to proceed with a bank transfer, just make a transfer for the the entire amount due.

Invoices are issued for all payments.

If you need further information or require assistance, please refer to the Treasurer of the Association, Apostolos Anthimos, at treasurer@eapil.org.

On 22 December 2022, the CJEU ruled on the concept of civil and commercial matters in Eurelec Trading & Scabel v. (French) Ministre de l’Economie et des Finances (case C‑98/22). The case, which is not (yet?) available in English, is discussed by Geert van Calster here.

The case was again concerned with an action based on the power of a Member State to regulate anti-competitive practices. The court had already addressed the issue in Movic (case C‑73/19).

The case was concerned with an action before French courts initiated by the French State (the Ministry of Economy) against two Belgian companies (Eurelec Trading and Scabel) and several French entities. The action aimed at declaring that certain practices of the defendants were anti-competitive in the meaning of French law. The remedies sought were a declaration that the practices were anti-competitive, an injunction to stop such practices, and the ordering of a fine to be paid by the offenders (for more on the facts in English, see the report by Geert van Calster).

The Belgian defendants challenged the jurisdiction of French courts on the ground that the action of the French State did not fall within the scope of the Brussels I bis Regulation, as it did not belong to civil and commercial matters. The Paris court of appeal referred the matter to the CJEU.

As is well known, the CJEU has long defined the concept of civil and commercial matters by focusing on the powers of the relevant person (typically a public authority) and investigating whether those powers differ from the powers that private actors enjoy and are thus exorbitant compared to the latter.

In Eurelec, the CJEU discusses two separate issues. The first is the remedies sought before the French court.  The second is the method for gathering evidence.

The CJEU starts with the method used by the French State to gather evidence. It insists that, in the case at hand, the evidence was obtained by a search of French authorities in the defendants’ premises and by seizing certain documents. Although the court notes that the search was authorised by a court, it rules that such searches are an exorbitant power, as they could not have been conducted by private parties. It finally insists that obstructing such a search would be a criminal offence under French law.

With respect to the remedies, the CJEU rules that there is nothing exorbitant in seeking a declaration of violation of competition law, or an injunction from refraining from violating competititon law. It recalls that actions from a public authority seeking such remedies were found to belong to civil and commercial matters in Movic.

In contrast, the CJEU finds that an action for the ordering of a fine is exorbitant and is thus public power. It notes that, in addition, under French law, such action may only be initiated by the Ministry of Justice.

The CJEU concludes that the action of the Ministry of Justice fell entirely outside the scope of the Brussels I bis Regulation.

The judgment is not fully convincing.

The most unsatisfactory part is the reason relating to the gathering of evidence. The proposition that it is not possible for private parties to obtain judicial authorisation to search the premises of the opponents and to seize evidence of offences against competition law or indeed torts (IP violations) is simply wrong. Such remedies are available in private disputes in many Member States: saisie-contrefaçon in France (IP violations), search orders (previously Anton Pillar orders) in common law jurisdictions. The judgment does not identify any critical difference between these orders/remedies and the specific power afforded to the French Ministry of Justice to conduct searches on the basis of a judicial authorisation. It is interesting to note that the Ministry of Justice seemed to have implicitly accepted that there was a critical difference, as it argued that the test for defining the concept of civil and commercial matters should not have been how the evidence was gathered, but how it was used in the proceedings.

The argument that obstruction to searches are criminal offences is also pretty weak. In a number of Member States, obstruction to any attachement/seizure, whether carried out by a private party in a private case or by a public authority, will be a criminal offence.

The argument on the remedies sought is more convincing. One can see how an action to fine a particular offender could appear as a public power (though that conclusion will have to be revisited if punitive damages develop in the EU). But then there is no reason to exclude the other remedies from the scope of the Brussels I bis Regulation. The judgment should thus have been that only the action seeking a fine fell outside of the scope of the Regulation.

On 20 January 2023, the University of Strasbourg will host a conference on the private international law aspects of the Digital Market Act (DMA) and the Digital Services Act (DSA) organised by Etienne Farnoux, Nicolas Gillet, Kansu Okyay and Delphine Porcheron.

This conference is structured in two parts. The first part will be dedicated to general presentation of the new regulations. The second will address specific topics in private international law.

Speakers include Frédérique Berrod, Stéphanie Carre, Tobias Lutzi, Yves El Hage and Nurten Kansu Okyay.

The conference will be held both in site and online. The full program and details about the location and registration can be found here.

Aukje A.H. Van Hoek (University of Amsterdam) has posted The Declaratory Judgment – Between Remedy and Procedural Technique on SSRN.

The abstract reads:

This contributions discussed a very technical issue of private international law that turned out to be crucial in several class actions held in the Netherland regarding torts committed in common law countries: Should the question whether courts in the Netherlands can issue a purely declaratory judgment on the tortiousness of certain behaviour or the liability of the defendant be considered to fall under the lex causae (the declaration being considered as a type of remedy), or rather be governed by lex fori (as being a procedural issue)? The author prefers a classification as procedural, but acknowledges that the case law on this issue doesn’t fully support this outcome. The question lost some of its relevance under the new law on class actions, but is still pertinent.

The paper was published in the Liber Amicorum Monika Pauknerová (Wolters Kluwer CR 2021).

The third issue of the Belgian Revue de droit international privé / Tijdschrijft voor international privaatrecht is now available online. The issue contains a selection of ECHR, CJEU, and Belgian national case law posing various problems of private international law.

The ECHR selected cases concern the application of Article 8 ECHR on the right to family life and matters of filiation by surrogacy, the recognition and enforcement of a decision for the return of a child, an international adoption at which the biological father was opposed to, and Article 6 ECHR on access to a fair trial in relation to the application of the 1970 Hague Taking of Evidence Convention.

The CJEU case law selection makes reference to:

• the choice of court clause in the framework of the 2007 Lugano Convention (C-358/21, Tilman);
• the notion of ‘unaccompanied minor’ and the marriage of a minor refugee on the territory of Belgium that does not recognise such a marriage (C-230/21, X v Belgium);
• the recognition of an extrajudicial divorce decision based on an agreement between the spouses before a civil registrar (C-646/20, Senatsverwaltung für Inneres und Sport);
• the employment protection mechanism under Brussels I-bis Regulation (C–604/20, ROI Land Investments);
• the responsibility of an airline company under the 1999 Montreal Convention for bodily injure (post-traumatic stress disorder) suffered by a passenger during an emergency evacuation of an aircraft (C-111/21, BT v Laudamotion);
• the EU trademark protection according to Regulation (EU) 2017/1001 (C-256/21) KP v TV);
• the enforcement in another Member State of an arbitral award for damages based on a bilateral investment treaty (C-333/19, Romatsa);
• the application of Regulation (CE) 261/2004 to delays related to a flight between two airports situated in a third country (c-561/20 Q, R and S v United Airlines);
• the application of Article 7(2) Brussels I-bis Regulation in a collective action for damages against the grandparent company of a daughter insolvent company (Dutch ‘Peeters-Gatzen’ action) for restoring recovery opportunities for creditors (C–498/20, ZK v BMA);
• the clarification of the notion of pending lawsuits within the meaning of Article 292 Solvency II Directive for a winding-up decision abroad on an insurance compensation claim (C–724/20, Paget Approbois);
• the protection against the effects of the extraterritorial application of legislation adopted by the US against Iran concerning commercial relations with certain Iranian undertakings (C-124/20, Bank Melli Iran); and
• the effects of a European certificate of succession and its certified copy valid for an ‘unlimited’ period issued on the application of one of the two heirs concerned by the proceedings (C-301/20, UE and HC v Vorarlberger Landes- und Hypotheken-Bank).

The selection of the Belgian national case law contains several Court of Cassation decisions:

• one (Cour de Cassation, arrêt du 15 septembre 2022) assesses the jurisdiction of Belgian courts over an alleged tort and localisation of damages within the framework of Article 5(3) of the 2007 Lugano Convention in a claim involving UEFA and URBSFA regarding rules of the Financial Fair Play Regulation as contrary to EU public policy (Articles 101 and 102 TFEU). For this case several questions were sent for interpretation of the CJEU in a preliminary ruling regarding the application of Article 5(3) of the 2007 Lugano Convention in relation to a concerted practice of establishing the price of the tickets for football games and the loss of opportunities for football agents to conclude deals or their conclusion under less attractive conditions, the places where these damages take place, and whether reparation can be claimed from the national association (URBSFA) as jointly liable with UEFA;
• the second selected decision (Cour de Cassation, arrêt du 20 mai 2022) deals with the interpretation of the habitual residence of a child and parental responsibility within the framework of Article 8(1) Brussels II-bis Regulation and Article 5 of the 1996 Hague Convention in a case involving a Ukrainian mother and wife of a Belgian citizen who after a forth months stay in Ukraine with the couple’s two children refuses to return to Belgium;
• the third Court of Cassation case (Hof van Cassatie, arrest van 28 April 2022) poses an issue of international competence under Article 1 Brussels I-bis Regulation or Article 1 European Insolvency Regulation (Regulation 1346/2000) with regard to a decision in a Dutch insolvency procedure; and
• the forth selected decision (Cour de Cassation, arrêt du 3 juin 2021) concerns a situation requiring to determine whether the Belgian lex fori is applicable for reasons of urgency and public policy if the content of the provisions of the foreign law (i.e. Nigerian law) regarding the Muslim custom of Djerma as a regime of separation of financial assets of a couple following divorce or repudiation cannot be clearly proven before the Belgian court given the evolutive nature of the practice.

In addition, a number of Court of Appeal decisions were selected. These concern:

• a decision by the Brussels Court of Appeal (arrêt du 3 février 2022) on a case involving a paternity dispute in which the father declared a child to be his own and the alleged conflict of the Guinean law that does not allow the mother to subsequently contest the paternity with Article 22bis of the Belgian Constitution which gives priority to the highest interest of the child and Article 62(1) of the Belgian Code of Private International Law regarding the consent of the child Belgian national who has her habitual residence in Belgium;
• two decisions of the Court of Appeal of Liege. One (arrêt du 22 juin 2021) regards the application of the Brussels II-bis Regulation, Rome II Regulation and Regulation on matrimonial Regimes on the law applicable and competence regarding a divorce procedure for two Belgian nationals who married in Turkey. The other (arrêt du 20 janvier 2021) concerns matters of parental responsibility involving the application of Brussels II-bis Regulation and the 1996 Hague Convention on parental responsibility and protection of children.

Together with these a number of first instance decisions were selected for the interesting issues that they raise related to recognition of marriages celebrated abroad, name status and rectification of a foreign certificate of birth, maintenance, and choice of jurisdiction clause with regard to Article 25 and 8 of the Brussels I-bis Regulation.

The last part of the review is dedicated to EU and national legislative developments. This issue addresses the Decision (EU) 2022/1206 concerning the accession of the European Union to the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (2019 Hague Judgments Convention), the Belgian Law putting into application the Regulation (EU) 2019/1111 on the on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast), the Belgian Law of 20 July 2022 on the status and supervision of brokerage firms, and the European Commission Proposal of 7 December 2022 for a a Regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood (COM(2022)695 final).

La sustracción internacional de menores en el espacio jurídico europeo (International Child Abduction in the European Union), a monograh by PIL Assistant Professor Maria González Marimón (University of Valencia), has just been released by the Spanish publishing house Tirant Lo Blanch.

The book covers the landscape of sources in force the European Union, in an area characterized by the confluence of instruments of different origin and scope, some of which have recently undergone relevant changes.

It claims that a redefinition of the legal framework and of the interfaces among instruments is needed in order to adapt to new societal patterns as well as to currently prevailing values, in particular to the central role of children rights and to the principle of their best interests.

In addition, after a thorough, critical analysis of the novelties of Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast) (Brussels II ter Regulation), it argues that the opportunity has been lost of getting rid of the “overriding mechanism” under Article 29 of said Regulation.

The author has kindly provided the following summary of the contents and main thesis of the book:

International child abduction provides a paradigmatic example of the complexity of cross-border cases involving children. The profound societal changes of recent decades (the consolidation of different family models, the preponderance of a children rights-centered approach to the detriment of a parents’ rights-centered paradigm) are prompting to rethink and to reshape the legal framework of child abduction.

The EU traditional response to international child abduction can indeed be described as a complicated and fragmented body of legal sources: judges and practitioners in the field needed (and need) to have in mind the EU rules on the matter together with those of the 1980 Hague Convention, and, punctually, also the 1996 Hague Convention. The EU legislator, aware of the complexity and practical difficulties of the Brussels II bis rules on international child abduction, has tried to improve and refine them in the recast Regulation of 2019 . The obvious first sign of improvement is the completely new Chapter III, focused on international child abduction. This shift in the structure of the Regulation is accompanied by a welcomed explanation of its relationship to the 1980 Hague Convention. Also regarding the return procedure, the Brussels II ter Regulation introduces some (albeit not far-reaching) developments for its functioning in practice.

A further group of rules in the new Regulation reflects the EU legislator’s  commitment to adapting international child abduction rules to new social realities while pushing the children’s rights to the forefront. In this regard, worth noting provisions are the ones related to the age of the child; to reinforcing the child’s right to express his or her views in return proceedings; to the new faculty granted to the courts to guarantee the contact of the child with the parent requesting return; to the promotion of the child’s “safe return”; or to fostering ADR mechanisms to solve the disputes.

In contrast to the progresses alluded to, the EU legislator has missed the opportunity to do away with the very much questioned so-called “overriding mechanism”. Following this special procedure, the last word in relation to the return of a wrongfully removed or retained child is given to the court having jurisdiction under the Regulation; its decision prevails over any non-return previous one adopted by the court of another Member State pursuant to Article 13 of the 1980 Hague Convention. In principle, this priority is reinforced by the elimination of the exequatur requirement, without any ground of refusal of the return decision.

To the extent the “overriding mechanism” has been a source of headaches for legal operators and practitioners, it was legitimate to claim it should be dropped, and regrettable that it has not. A comparison of the respective case law of the CJEU and the ECtHR adds relevance to the matter. In the event of exceptional circumstances questioning the convenience of enforcing the privileged decision (i.e., the one of the court competent according to the Regulation), the Luxembourg Court has reacted backing up the system. By contrast, the ECtHR’s case-law on international child abduction supports a more substantive approach by recalling the need to assess the best interests of the child concerned in each particular case.

The awareness of the Strasbourg case law had led to the conviction that, in order to achieve the European legal integration objective while simultaneously protecting each individual child, a model flexible and predictable at a time was of the essence. In this regard, abolishing the exequatur for all decisions on parental responsibility, but maintaining certain safeguards at the enforcement procedure so as to allow for the assessment of the best interests of the child in the individual case, would strike a delicate, but adequate, balance between the free movement of judgments and the best interests of each child.

In fact, this is precisely the subtle equilibrium reflected in the Brussels II ter Regulation. In spite of retaining the privileged regime for return decisions resulting from the “overriding mechanism”, the Regulation actually tries to temper one of its most controversial aspects identified in practice, namely the automatism of the model, which had proven too rigid. Two are the ways to this aim: first, the possibility of modification and revocation of the certificate; secondly, a new cause of suspension – and even refusal – of the enforcement, in the event of an exceptional change of circumstances linked to the best interest of the child.

The amendment of the old “overriding mechanism” has great relevance from the perspective of the debate between the elimination of exequatur, on the one hand, and the adequate protection of children’s fundamental rights and of the best interests of the child when enforcement is seized, on the other. The new Regulation gives room to the evaluation of the judge in the requested Member State. By doing so, it can be said that the EU legislator deconstructs the model of abolition of the exequatur “in absolute terms”. Still, despite its foreseeable advantages, the system is not free of doubts regarding its future application: divergent doctrinal and jurisprudence interpretations are to be expected; also, there is a risk of abuse in the practice of the already mentioned cause for suspension (or even refusal) at the enforcement stage.

In conclusion, notwithstanding the continuity of the “overriding mechanism”, and, we insist, the lost opportunity to do away with it, the new international child abduction rules strike a better balance in the allocation of competences between the Member State with competence on the substance of the matter and the Member State in which the child is wrongfully located. It equally achieves a better compromise in relation to the assumption of the principle of the best interests of the child, and the interplay between the child’s immediate return and its exceptions. We will see whether the new rules, coupled with the reinforcement of communication and cooperation between the authorities involved, lead to strengthen the climate of trust among the judiciary of the Member States, and, in the end, to a better protection of children in EU cross-border cases.

The French Committee of Private International Law has launched the 8th edition of the Committee’s Doctoral Dissertation Award.

Eligible PhD dissertations are those written in French and defended between 15 January 2022 and 7 January 2023.

The application procedure is explained here.

The deadline for submissions is 1 March 2023.

In a post published on this blog in 2022, I addressed the relationship between private international law (PIL) and strategic climate change litigation, focusing on claims brought or supported by children and youth applicants. In those disputes, where plaintiffs are mostly seeking to hold States accountable for the violations of international and/or constitutional law, private international law was bound to have very little, if anything, to contribute.

However, in the same blog post, I also pointed at some developments in the “underworld” of climate change litigation, hinting to the emergence of new court strategies, whereby climate activists (not necessarily children or youth) direct their claims towards big transnational corporations, following in the footsteps of Milieudefensie et al. v. Royal Dutch Shell plc.

“Private” claims of this kind are bound to speak the language of PIL, at least in cases where a foreign element is involved.

Recent developments in the field of climate change litigation confirm this trend. The Four Islanders of Pari case borrows the ordinary tools of private law (tortious liability) in order to hold a foreign transnational corporation accountable for its overall CO2 emissions. This case is particularly interesting for two reasons. First, owing to its timing and the kind of damage alleged by the applicants, this case fits in a wider context of litigation, which is presently involving (or trying to involve) several international bodies and tribunals, thus evidencing a certain complementarity of action, or at least a commonality of end-goals, between private and public international law (A). Second, from the specific standpoint of PIL, this case differs from its predecessors (notably from Luciano Lliuya v. RWE AG) for being beyond the scope of application of EU PIL, the conflict of laws issues raised therein being governed by domestic (Swiss) PIL (B).

It is probably not incorrect to read the Four Islanders of Pari case as one small piece of a bigger puzzle, consisting of a fully-fledged courtroom fight against sea level rise, ie one of the most immediate consequences of climate change. Unsurprisingly, this fight is presently carried out primarily by low-lying insular States and their inhabitants: owing to their specific conformation, these islands (mostly situated in the Pacific area) are particularly vulnerable to the short-term effects of climate-change on sea levels, which are exposing them to the risk of recurrent flooding, fresh water salinization and, eventually, (total or partial) disappearance by the year 2050, or sooner.

Against this backdrop, a group of small insular States (eventually supported by a group of like-minded States) have promoted, or is seeking to promote, initiatives before two major international tribunals. In October 2022, a group of States led by Vanuatu announced the preparation of a draft Resolution, intending to prompt the UN General Assembly to seek an advisory opinion from the ICJ “on the obligations of States in respect of climate change”.

The text of the Draft Resolution was circulated among all UN member States at the end of November 2022, with a view to putting it to a vote in early 2023. In parallel with these developments, on 12 December 2022, the Commission of Small Island States on Climate Change and International Law (representing Barbuda, Tuvalu and Palau) has submitted another request for an advisory Opinion to a different international tribunal, the ITLOS.

In both cases, the advisory Opinions seek to clarify the climate change-related legal obligations placed upon States by a rich body of public international law, including the UN Charter, the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, the UN Framework Convention on Climate Change, the Paris Agreement, the UNCLOS, and rules of general international law, such as the duty of due diligence, the rights recognized in the Universal Declaration of Human Rights, the principle of prevention of significant harm to the environment. For evident reasons, a special emphasis is placed on the protection of the marine environment, on the specific vulnerability of Small Island developing States and on the interests of future generations.

Although non-binding, such advisory Opinions may entail authoritative statements of law with legal effects (see ITLOS, Maritime Delimitation in the Indian Ocean, paras. 202-205) and carry great legal weight and moral authority, thus contributing, in their way, to the elucidation and development of international law (ICJ). They could be, in particular, a preliminary step in the quest for greater accountability of international actors vis-à-vis the protection and the restoration of a viable (marine) environment.

Besides the actions undertaken directly by States, the inhabitants of small Pacific islands have been equally active before  judicial or quasi-judicial international bodies.

Among the first initiatives undertaken under the aegis of the International Covenant on Civil and Political Rights (ICCPR), there is a communication to the UN Human Rights Committee (UNCHR) filed in 2015 by a citizen of Kiribati. Claiming that climate change had turned its place of origin in an “untenable and violent environment” , which forced him and his family to migrate, the author of the Communication contested New Zealand’s decision to deny the refugee status. While unsuccessful on the merits (the UN Committee found the denial issued by New Zealand’s authorities was not clearly arbitrary and did not amount to a manifest error or a denial of justice), this initiative is still producing systemic effects for climate asylum-seekers worldwide (see, for example, a recent judgment of the Italian Court of Cassation, quoting the View adopted by the UNHRC).

More recently, a group of Islanders of the Torres Strait filed another Communication with the UNHRC, alleging the violation, by Australia, of a number of ICCPR provisions. They put forth, in particular, Australia’s failure to adopt adequate adaptation measures to protect their lives and way of life, their homes and their culture against the threats posed by sea level rise. In September 2022, the UNCHR found a violation of Article 17 (right to private and family life) and of Article 27 (protection of minorities) of the ICCPR. It ordered the respondent State to pay adequate compensation for the harm suffered by the plaintiffs and to conceive and implement effective measures to secure the communities’ continued safe existence on their respective islands, in meaningful consultations with the communities’ members.

Most interestingly for the readers of this blog, however, public international law has not been the only weapon brandished by the inhabitants of small island States in the fight against rising sea levels.

Within the framework of this broader effort to counter the effects of climate change, small State islanders have not neglected the “private side” of court litigation, ie the disputes between private entities before national (civil) courts.

In August 2022, four residents of the island of Pari (Indonesia) introduced a request for conciliation before the Justice of the Peace of the Canton of Zug (Switzerland). This is a preliminary step mandated by the Swiss Civil Procedure Code for pursuing a civil action (Article 198 Swiss CCP).

The claim is directed towards Holcim, a corporation established in Switzerland and specialized in cement-production activities. Holcim figures among the so-called Carbon Majors, ie the hundred or so companies that account for more than 70% of global greenhouse gas emissions since the dawn of the industrial age (see also here). More specifically, the plaintiffs are trying to establish a direct correlation between Holcim’s significant pro-rata contribution to such emissions (0.42% of global industrial CO2 emissions since 1750: source) and the adverse effects suffered by the local ecosystem on Pari Island. For these purposes, these plaintiffs are supported by a wide transnational networks of NGOs, whose alliances straddle the North-South divide [HEKS/EPER (Switzerland); ECCHR (Germany); Walhì (Indonesia)].

Reporting on this case is rather difficult, as no procedural documents have been made available to the general public yet. The analysis below is based on the information provided by the website dedicated to the case, which does not, however, provide for a comprehensive summary of the complaint. As mentioned above, this case is interesting for two main reasons: the type of relief sought by the claimants and the PIL issues raised therein.

According to what we presently know about the case, four Indonesian claimants “are demanding justice on behalf of the island of Pari, which is facing imminent ruin, and are taking Holcim to court”. The income and subsistence of these plaintiffs is highly dependent on fishing and tourism, ie activities that are severely affected by the rise in sea levels, which has reached a 20 cm increase globally and which threatens the very existence of the island over the next 30 years (see here).

Holcim is asked, inter alia, to “provide proportional compensation for the climate-related damage the plaintiffs have already suffered in Pari Island”. The claim is therefore based, in all probability, on the general rule on civil liability, likely interpreted in the light of international human rights law. Claims of this kind, based on extra contractual liability or a general duty of care, are not new to climate change litigation against States (see, for example A Sud v Italy) or private corporations (Milieudefensie et al. v. Royal Dutch Shell plc or Luciano Lliuya v. RWE AG). However, according to the database of the Sabin Center for Climate Change Law, the Swiss case “is novel and unprecedented ” as it combines compensation (the Lliuya approach) and reduction of GHGs (the Milieudefensie approach).

In fact, in addition to the demand for compensation, the action brought by the four islanders of Pari seeks to compel Holcim to cut CO2 emissions by 43% by 2030, compared to 2019 figures (or to reduce their emission according to the recommendations of the climate science in order to limit global warming to 1.5°C) and to contribute towards adaptation measures on Pari Island. This reference to the 1.5° threshold (set by the Paris Agreement) is an obvious hint of that the case is partly based, or at least relies on, obligations defined by public international law. It thus evidences a certain “confluence” of public and private international law. This request for injunctive relief additionally serves to highlight the commonalities that exist between the Four Islanders of Pari case and the claims advanced by the litigation directed towards States in varied fora around the globe (see again this post).

While being the first case of this kind in Switzerland, the Four Islanders of Pari closely reminds of the German Luciano Lliuya v. RWE AG. Therein, a Peruvian farmer (supported by the NGO Germanwatch) is suing a German electricity company based on its estimated contribution to global industrial greenhouse gas emissions since the beginning of industrialization. These emissions, it is contended, have contributed to the melting of mountain glaciers near Huaraz, and to the correlated rise in the water level of a glacial lake located above his town. As a consequence, his property is currently threatened by floods.

There is, however, an important difference between the two cases. While Lliuya falls within the scope of application of the Brussels I bis and the Rome II Regulations, the Four Islanders of Pari will be entirely governed by the 1987 Swiss Act on PIL (SwAPIL). This vouches for some caution in assessing the translatability to the latter of the “lessons” thus far learned from the former.

The first lesson derivable from Lliuya is that establishing jurisdiction in this kind of cases is a relatively straightforward matter, based on the widely accepted principle of actor sequitur forum rei. Suing in the place of domicile of the defendant under Article 4 of the Brussels Ibis Regulation, as interpreted in Owusu, guarantees access to a (European) forum. The same conclusion seems to apply, prima facie, within the different framework of the SwAPIL. Its Article 2, which functionally corresponds to Article 4 of Regulation 1215/2012, does not enable the seized court to exercise any discretion in deciding whether or not to hear the case (see Goldwin p. 137, a contrario). Pragmatically, the fact that (economically disadvantaged) third state plaintiffs might be required to pay court fees or warranties in order to access the local forum should not be particularly problematic from the standpoint of the right to a court, in cases where litigation is supported by external funding through NGOs or by other means (eg crowdfunding).

The progression of Lliuya before German courts additionally shows that jurisdiction is particularly important as it indirectly determines the applicable procedural law, governing fundamental issues such as the admissibility of the action or the justiciability of the claim. Moreover, in cases like Lliuya or the Four Islanders of Pari, other procedural issues such as the burden of proof, the means and the standard of evidence will play a pivotal role in determining the chances of failure or of success of the action. This means that the choice of forum remains a cornerstone in the litigation strategy of climate change cross-border cases.

Concerning the applicable law, the SwAPIL does not provide for a specific conflict of law rule for environmental damage, along the lines of Article 7 Rome II. As well known, the latter sets out a policy-oriented rule of conflict empowering the person(s) seeking compensation for damage, who is given the choice between the law of the State where the event giving rise to the damage occurred and the law of the State in which the damage occured.

From the standpoint of PIL, the determination of the applicable law might indeed be the major point of contention in the Four Islanders of Pari case, in the light of the very different choice made in this respect by the Swiss legislator. Article 133 SwAPIL provides, at its 2nd paragraph, that where the parties to the dispute are not habitually resident in the same State, torts are governed by the law of the State where the tort was committed (l’État dans lequel l’acte illicite a été commis/das Recht des States…in dem die unerlaubte Handlung begangen worden ist/ il diritto dello Stato in cui l’atto è stato commesso). However, when “the result” occurred in another State, the law of such state applies if the tortfeasor should have foreseen that the result would have occurred there. (English translation provided by Dutoit, p. 595). Therefore, SwAPIL seems to contemplate the well-known alternative between place of the event giving rise to damage and place of the damage, similarly to EU PIL, but it does not confer any choice upon the alleged victim. Conversely, the foreseeability clause set out by the second part of Article 133 SwAPIL, 2nd paragraph, raises a new problem in terms of burden of proof, in relation to which Swiss legal scholarship is divided (Dutoit, p. 595-6).

Unfortunately, as the procedural documents of the Four Islanders of Pari case have not been made available online, it is impossible to properly assess the precise petitum and to determine whether, and to what extent, the tort alleged by the Islanders is Distanzdelikt, or even a ubiquitous tort. There are many factual elements that might be relevant in this respect, such as the place where Holcim is headquartered (as the place where the main decisions in terms of environmental sustainability and green policies are taken); the concrete places (likely scattered around the world) in which Holcim is undertaking its material production activities; and Indonesia, as the place where the specific damage alleged by the plaintiffs materialized (provided that this was foreseeable by Holcim). The possibility of triggering the escape clause under Article 15 SwAPIL must also be taken into account (ie. the application of the law of the State with which the case presents “a much closer” connection). It would be interesting to know whether, in concreto, the plaintiffs are pleading for the applicability of Swiss or a foreign law.

The Four Islanders of Pari case is still at its very initial stage and deserves to be monitored closely in the near future. Its very existence confirms, however, that private international law is becoming and will become increasingly important in strategic climate change litigation, when this is directed towards private companies such as the Carbon Majors. In a way, disputes of this kind may be seen as complementary to the initiatives undertaken under the aegis of public international law by particularly affected States. There is, in particular, a commonality of objectives, despite the obvious difference in both legal petita and remedies brought before national and international courts.

Another interesting lead to be followed in the future concerns the role played by PIL in cases brought by EU-based claimants against EU-based corporations, based on allegations of false or misleading advertisement. Cases of this kind, which are mushrooming throughout the world’s jurisdictions, may seem purely domestic at a first glance. However, the fact that plaintiff and defendant are, in most cases, domiciled/established in the same State does not exclude, as such, the possibility that the “affected market” may extend beyond national borders, especially where the defendant is a big transnational corporations operating worldwide.

An example of such cases might be the recent FossielVrij NL v. KLM, where a group of environmental organizations is suing (in the Netherlands) the national airline KLM, owing to its ‘Fly Responsibly’ advertisement campaign (which is based on allegedly false claims of “climate neutrality” or “CO2ZERO”).

The (unofficial English translation of the) application is regrettably very concise as concerns the reasoning on jurisdiction and (especially) applicable law. It merely states  that “since both [the applicant] and KLM have their registered offices in the Netherlands, the Dutch court is competent to take cognizance of this dispute. As a result, Dutch law will also apply to the claims of Fossil Free against the defendant”.

While acknowledging, in the application, the wide reach of the Fly Responsibly campaign (here, § 179 : “The campaign will be rolled out worldwide on 13 December in a number of vital, fast-growing markets, the UK, Norway, Sweden, Germany, the US, Canada, Brazil and China”), implemented through TV ads, physical ads at Schiphol Airport, online “banner” ads on KLM websites, marketing emails and targeted ads on social media platforms (here, § 183), the application does not elaborate further on the relationship between the specific claim, the Rome II Regulation and the several options opened under its Article 6.

Cases of this kind also deserve to be closely followed by the private international lawyer.

The University of Coimbra will host, on 27 and 28 January 2023, a conference in English on the Brussels II ter Regulation.

The speakers include Antonio Fialho, Cristina González Beilfuss, Dário Moura Vicente, Geraldo Rocha, João Gomes de Almeida, Maria dos Prazeres Beleza, Paula Távora Vitor, Philippe Lortie, Pietro Franzina, Rosa Lima Teixeira, and Samuel Fulli-Lemaire.

Chandra Gracias, Dulce Lopes, Helena Mota, Rui Dias and Rui Moura Ramos will serve as discussants.

For further information, including the full programme, see here.

The monthly program of the Court of Justice of the European Union regarding private international law, as of today, is as follows.

On 12 January 2023, Advocate General  Emiliou will deliver his opinion in case C-638/22 PPU, Rzecznik Praw Dziecka e.a., on the suspension of a Hague return decision. A hearing had taken place last December. The related entry in the blog offers a summary of the facts and reproduces the questions before the Court of Justice.

Two hearings are scheduled for the same day. The first one, in case C-87/22, IT, concerns child abduction. The Regional Court of Korneuburg (Austria), asks the Court the following

1. Must Article 15 of [the Brussels II bis Regulation] be interpreted as meaning that the courts of a Member State having jurisdiction as to the substance of the matter, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, may request such a court to assume jurisdiction even in the case where that other Member State has become the place of habitual residence of the child following wrongful removal?
2. If Question 1 is answered in the affirmative: Must Article 15 of [the Brussels II bis Regulation] be interpreted as meaning that the criteria for the transfer of jurisdiction that are set out in that article are regulated exhaustively, without the need to consider further criteria in the light of proceedings initiated under Article 8(f) of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction?

The children V and M were born in Slovakia; like their parents, they have Slovakian nationality. Under Slovak law, the two parents have joint custody of the two children. Both parents work in Bratislava. After the children were born, the family initially lived in Slovakia and moved to Austria in spring 2014. Since 2017, the kids have been attending school in Bratislava. They speak only a few words of German. Their mother tongue is Slovak and they communicate with their parents and grandparents in that language.

The parents separated in January 2020. Since July 2020, the children have been living with their mother in Bratislava.

At the same time as an application for return under Article 8(f) of the 1980 Hague Convention, which had been brought before the Okresný súd Bratislava I (District Court Bratislava I), the father applied to the District Court, Bruck an der Leitha (Austria), for the transfer of custody of both children to him alone. In the alternative, he asked for the granting to him of primary care of the children with joint custody being retained, as well as for the transfer of temporary custody to him alone until the custody proceedings have been concluded, claiming in essence that the mother had endangered the welfare of the children by unlawfully removing them from Austria to Slovakia. He submits that she had pulled the children out of their social integration.

The mother opposed the father’s applications for custody and raised the plea of lack of international jurisdiction on the ground that the children had been habitually resident in the Slovak Republic throughout the period in question. They attended school, had their medical appointments and engaged in their recreational activities in that country, and it was only for meals and overnight stays that the children stayed in the house in Hainburg an der Donau, where they had not been socially integrated.

By order of 4 January 2021, the District Court, Bruck an der Leitha, refused the father’s application on the ground of lack of international jurisdiction. By order of the Regional Court, Korneuburg, sitting as the court ruling on appeals on the merits, of 23 February 2021, the appeal brought by the father against the order of 4 January 2021 was upheld and the contested order was amended to the effect that the mother’s plea of lack of international jurisdiction was rejected. That decision of that court was confirmed by order of the Oberster Gerichtshof (Austrian Supreme Court) of 23 June 2021.

On 23 September 2021, the mother applied to the District Court, Bruck an der Leitha, for it to request a court in the Slovak Republic, to assume jurisdiction in accordance with Article 15(5) of Regulation 2201/2003, or, in the alternative, to fulfil the request of its own motion in accordance with Article 15(1)(b) and 15(2)(b) of that regulation, on the grounds that, in addition to the return proceedings under the 1980 Hague Convention before the District Court Bratislava I, and before the District Court Bratislava V, several sets of proceedings were pending before courts of the Slovak Republic, which had been instituted by both the father and the mother, and those courts had already taken extensive evidence and the courts of the Slovak Republic were for that reason better placed to rule on the parental responsibility for the two children. The father opposed the mother’s application.

By the order now being contested, the District Court, Bruck an der Leitha, requested the District Court Bratislava V, in accordance with Article 15(1)(b) of the Brussels II bis Regulation to assume jurisdiction in the proceedings concerning the custody of the two children and the father’s right of access to his children. The father has appealed against that order. The mother requests that the appeal be dismissed. Moreover, she requests that the matter be brought before the Court of Justice for an interpretation of Article 15 of the Regulation.

The second hearing corresponds to case C-832/21, Beverage City Polska, a request from the Oberlandesgericht Düsseldorf (Germany) on the interpretation of Article 122 of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark, in conjunction with Article 8(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the enforcement of judgments in civil and commercial matters (Brussels I bis). In the litigation on the merits,  the applicant has taken the view that there is an infringement of its EU trade marks and brought an action against four defendants before the Landgericht Düsseldorf (Regional Court, Düsseldorf), for injunctive relief throughout the European Union and – later limited to acts in Germany – for information, the disclosure of accounts and a declaration of liability for damages. The third and fourth defendants argued, inter alia, that there is a lack of international jurisdiction over the action brought against them. The court refers the following question to the Court of Justice:

Are claims ‘so closely connected’ that it is expedient to hear and determine them together to prevent irreconcilable judgments, within the meaning of Article 8(1) of the [Brussels I bis Regulation], where, in infringement proceedings for infringement of an EU trade mark, the connection consists in the fact that the defendant domiciled in a Member State (here, Poland) supplied the goods which infringe an EU trade mark to a defendant domiciled in another Member State (here, Germany) whose legal representative, against whom infringement proceedings have also been brought, is the anchor defendant, if the parties are connected to each other only through the mere supply relationship beyond which there is no legal or factual connection?

None of the cases has been assigned to the Grand Chamber, therefore the hearings will not be broadcast.

In a judgment of 7 September 2022, the French supreme court for private and criminal matters (Cour de cassation) addressed several issues arising out of applications to declare enforceable judgments wrongfully filed under the Brussels I Regulation.

While the Brussels I bis Regulation does not provide for a declaration of enforceability of judgments anymore, the Succession and Matrimonial Property Regulations still do.

In 1997, the European Commission granted € 132,000 to an agency for local democracy in Croatia to offer training to local officials. With the grant came various reporting obligations to the Commission within 18 months. The individual who received the grant did not comply with them. The European Commission sued him in Croatian courts and obtained in April 2012 a judgement from a Croatian court ordering restitution of the monies.

As the debtor had relocated in France, the Commission sought to enforce the Croatian judgment in France under the Brussels I Regulation. It obtained a certificate from the Croatian court in 2014, and, in 2015, a declaration of enforceability of the judgment from an officer of a French court.

The debtor appealed to the court of appeal of Colmar (France), which declared the application for a declaration of enforceability inadmissible, on the ground that it fell outside of the scope of the Brussels I Regulation.

It is not always easy to navigate the rules on the scope of EU regulations, including, it seems, for the European Commission itself…

Croatia acceded to the European Union and to the Brussels I Regulation in 2013. In this case, therefore, not only had the proceedings been initiated before Croatia acceded, but the judgment had also been rendered the year before.

The transitional provisions in the Brussels I Regulation (Article 66) provide that, for the rules on recognition and enforcement of judgments to apply, the judgment should, at the very least, have been made after the entry into force of the Regulation, depending, in particular, on whether the Lugano Convention applied before the entry into force of the Regulation (Article 66(2)).

An interesting question was that of the powers of the French Court of Appeal. The first instance French authority had declared the Croatian judgment enforceable on the basis of the Brussels I Regulation. The power of the Court of Appeal was defined by Article 45(1) of the Regulation, which provides:

The court with which an appeal is lodged under Article 43 or Article 44 shall refuse or revoke a declaration of enforceability only on one of the grounds specified in Articles 34 and 35. (…)

As most readers will know, the grounds in arts 34 and 35 do not include that the judgment did not fall within the scope of the Regulation. Indeed, the Cour de cassation recalled that the CJEU ruled in Case C-139/10 (Prism Investments BV) that a declaration of enforceability could only be revoked on the grounds in Articles 34 and 35.

Interpreted literally, this would mean that a court of appeal could not review the first instance decision in so far as it would have found wrongly that the regulation applied.  As Adrian Briggs wrote in his treatise on Civil Jurisdiction and Judgments, Article 45(1) should “not be taken completely seriously”.

The Cour de cassation rules that Article 45 should be interpreted as limiting the power of the court of appeal to the verification of the existence of a ground in Articles 34 and 35 and the applicability of the regulation (the court suggests that this also flows from the case law of the CJEU).

While it seems clear that the court of appeal should have the power to review the applicability of the Regulation, it is unclear whether this should be considered as mandated by Article 45. If the Regulation does not apply, Article 45 should not either. The remedy should thus be, rather, that the action seeking a declaration of inadmissibility under the Regulation should be declared as inadmissible, for the Regulation would not apply.

After the European Commission was reminded about the date Croatia acceded to the EU, it logically decided that it would thus seek to enforce the Croatian judgment under the French common law of judgments.

The debtor, however, argued that the judgment of the Court of appeal dismissing the first action under the Brussels I Regulation was res judicata, and that the European Commission could not relitigate the case under a different regime.

Under French law, res judicata extends to all arguments which could have been raised in the first proceedings. This, in effect, means parties to French proceedings are under an obligation to raise immediately all possible arguments in support of their claim. In this case, the European Commission would only be given one chance to demonstrate its mastery of the law of foreign judgments.

The Cour de cassation, however, rules that, in the context of an appeal under Article 43 of the Regulation, the European Commission could not have made any argument under the French common law of judgments. As a result, the judgment of the court of appeal should not prevent the Commission from making these arguments in a new action.

The Young Property Lawyers’ Forum (YPLF) invites junior researchers to submit proposals for presentations given at its 12th annual meeting, to take place at the European Legal Studies Institute, University of Osnabrück, Germany, on 1 and 2 June 2023.

The theme of this year’s conference is Property Law and Its Boundaries and it can be dealt with from a wide range of perspectives, including but not limited to, doctrinal, theoretical, and comparative. Topics can cover, e.g., core areas of property law doctrine, intellectual property, or property law’s intersections with environmental law, family law, criminal law, administrative law, etc.

Junior researchers (graduate level up to 5 years after conferral of doctoral degree) are invited to submit abstracts of presentations to be given at the conference. Abstracts can be of completed (but unpublished) drafts and, in keeping with the YPLF’s mission as an informal network to exchange ideas, abstracts on works in progress are encouraged.

Abstracts should be sent via email to yplf@yplf.net by 1 February 2023.

The call for papers can be found here. For more information on the conference, see here.