EAPIL blog

Elena D’Alessandro and Fernando Gascón Inchausti are the editors of The European Account Preservation Order – A Commentary on Regulation (EU) No 655/2014. The book has just been published by Edward Elgar in its Commentaries in Private International Law series.

This comprehensive Commentary provides article-by-article exploration of EU Regulation 655/2014, analysing and outlining in a straightforward manner the steps that lawyers, businesses and banks can take when involved in debt recovery. It offers a detailed discussion of national practice and legislation in order to provide context and a deeper understanding of the complex difficulties surrounding the procedural system created by the European Account Preservation Order (EAPO) Regulation.

The list of authors include Caterina Benini, Silvana Dalla Bontà, Katharina Lugani, Martina Mantovani, Elena Alina Ontanu, Guillaume Payan, Pilar Peiteado Mariscal, Carlos Santaló Goris, Guillermo Schumann Barragán, Elisabetta Silvestri, Enrique Vallines García, María Luisa Villamarín López and Marcin Walasik.

See here for further information.

Following the release of a draft code of private international law (announced here), the French Ministry of Justice has launched on 8 June 2022 a public consultation to gather feedback from all stakeholders, including academics, “in order to determine the possible next steps”.

The blog has started to contribute to the discussion (see here on renvoi and here on foreign law) and other comments will follow.

Scope of the Consultation

The consultation template is divided into three main parts. The first part concerns the very principle of adopting written codified rules in the field of private international law, as well as the scope of the code (i.e. purely national or including EU and international rules applicable within the French jurisdiction). The second part allows for general comments on the draft Code (eg. its structure, its material scope). Finally, the third part proposes article-by-article comments (among 207 articles).

Conditions for Participation in the Consultation

The French Ministry of Justice invites interested parties to send comments on the draft code of private international law to consultation-codedip.dacs@justice.gouv.fr using the Word document provided for. Comments that do not respect this format will not be taken into account.

The consultation is open until 30 September 2022.

Council Decision (EU) 2022/1022 of 9 June 2022 on the signing, on behalf of the European Union, of the Protocol to the Convention on International Interests in Mobile Equipment on Matters specific to Mining, Agricultural and Construction Equipment (MAC Protocol), has been published in the Official Journal L 172, of June 29.

Pursuant to the Decision, the signing on behalf of the Union of the Protocol adopted in Pretoria on 22 November 2019 is authorised, subject to its conclusion.

A Declaration is attached to the Decision in compliance with Article XXIV(2) of the MAC Protocol, providing that, at the time of signature, acceptance, approval or accession, a regional economic integration organisation is to make a declaration specifying the matters governed by that Protocol in respect of which competence has been transferred to that organisation by its Member States. It specifies that, in respect of matters governed by the MAC Protocol, the European Union has exercised its competence by adopting Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Article IX of the MAC Protocol – ‘Modification of provisions regarding relief pending final determination’), Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (Article X of the MAC Protocol – ‘Remedies on Insolvency’ – and Article XI of the MAC Protocol – ‘Insolvency assistance’) and Regulation (EC) No 593/2008 of 17 June 2008 on the law applicable to contractual obligations (Rome I) (Article VI of the MAC Protocol – ‘Choice of law’).

The Declaration lists the States members to the European Union and excludes from its scope Denmark and certain territories belonging to Member States. It shall be approved on behalf of the Union, subject to the adoption of a decision on the conclusion of the MAC Protocol at a later stage.

This is the third contribution to an online symposium on the ruling of the European Court of Justice, of 20 June 2022, in London Steam-Ship Owners’ Mutual Assistance Association Ltd v Spain. The first post was contributed by Adrian Briggs, the second one by Gilles Cuniberti. The post below was written by Antonio Leandro, who is Professor of Private International Law at the University of Bari.

In London Steam-Ship Owners’ Mutual Assistance Association Ltd v Spain the Court attempted to strike a balance between the ‘integrity of a Member State’s internal legal order’ and the ‘provisions and fundamental objectives’ of the Brussels I Regulation. This is as much apparent as the fact that the Court ruled closely on the circumstances of the case.

‘Internal integrity’ means that the recognition cannot trigger irreconcilability between judgments in the requested State, even when it comes to ‘judgment entered in terms of an award’. The relevant ‘provisions and fundamental objectives’ of the Brussels I Regulation prevent the same judgment from being recognized where: (a) jurisdiction (arbitration) clauses in insurance contracts have worked against (third) injured parties in such a way as to restrict their right to bring direct actions against the insurer, and (b) lis pendens rules have been breached.

What about ‘judgments entered in terms of an award’ that instead comply with ‘provisions and fundamental objectives’ of the Regulation? The expression may refer to ‘judgments entered in terms of an award’ not breaching the relative effect of jurisdiction (arbitration) clauses or the lis pendens rules, or, more generally, not encroaching on the provisions of the Regulation that protect weak parties.

Nothing seems to prevent such judgments from falling under Article 34(3) of the Brussels I Regulation and, even more, under Article 45(3) of the Brussels I Regulation (Recast), because the definition of ‘judgment’ in Article 2(a) does not appear to be limited to the material scope of the Regulation.

Res Judicata in the Interplay between Brussels I and Arbitration

The Court put res judicata outside the realm of public policy. In this respect, the Court went beyond the circumstances of the case, as it reiterated that ‘the use of the “public-policy” concept is precluded when the issue is whether a foreign judgment is compatible with a national judgment’ (para 78, which refers to Hoffmann).

The message is clear: the ‘issue of the force of res judicata’ has been regulated exhaustively in Article 34(3) and (4) of the Brussels I Regulation (Article 45 (1) (c) and (d) of the Brussels I Regulation (Recast)). The issue has been regulated exhaustively when it comes to ‘judgments’, even those ‘entered in terms of an award’.

Instead, the ‘issue’ — i.e., the use of the public policy exception under the Brussels I Regulation (Recast) to protect the force of res judicata against the recognition of irreconcilable foreign judgments – remains open when it comes to arbitral awards.

Assuming that the protection of res judicata of arbitral awards amounts to a public policy concern in the requested State, Article 45(1)(a) may be relied upon as a ground for refusing the recognition of an irreconcilable foreign ‘judgment’. This conclusion does not find obstacles in the Court’s reasoning.

As I argued elsewhere, the public policy defence neither overlaps nor expands in such cases the grounds for refusing the recognition related to the ‘irreconcilability’ that the Brussels I Regulation (Recast) confines to ‘judgments’. Put it differently, protecting res judicata of arbitral awards through the public policy exception would not entail an issue of ‘irreconcilability’ in terms of Article 45(1)(c) and (d), and would be consistent with the arbitration exclusion.

From a wider perspective, the binomial ‘res judicata – public policy’ helps the Brussels I Regulation (Recast) and arbitration coexist, including by securing the right interplay between the Regulation and the 1958 New York Convention.

Just as it may work under the Brussels I Regulation (Recast) to protect res judicata of arbitral awards, the binomial ‘res judicata – public policy’ may work, in fact, under Article V(2)(b) of the 1958 New York Convention in the reverse direction of protecting res judicata of judgments. Article V(2)(b) allows the competent authority in the requested State to refuse recognition or enforcement of an award found to be contrary to the public policy of that State. This may occur where the award is ‘irreconcilable’ with judgments having res judicata in the requested Member State, including foreign judgments that have been recognized therein under the Brussels I Regulation (Recast).

The new issue of the Revue Critique de Droit International Privé (2/2022) is out.

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 (La guerre et le statut des personnes: que peut le droit ?)

The new issue contains four articles in private international law matters and numerous case notes, including a chronique on international migration law focused on foreigners’ detention (authored by Thibaut Fleury Graff, with the participation of Inès Giauffret, University of Paris-Saclay).

In the first article, Didier Boden (University Paris 1 Panthéon-Sorbonne) explores the nature of legal norms enacted outside a State but analysed as a component of that State’s law (Les règles d’incrustation).

Some rules provide that legal norms enacted outside a State shall be considered as a component of that State’s law. These are not so-called incorporation rules that the constitutional law of some States requires to be adopted so that a treaty to which these States become parties must be applied by their authorities. They are not norms traditionally called rules on the conflict of laws in private international law, designating the law applicable to certain situations; nor are they rules requiring that a first norm be taken into consideration when a second norm is applied. They are provisions to which this article gives the name of inlaying rules and of which it describes the nature.

In the second article, Charlotte Guillard (University of Paris 2 Panthéon-Assas) examines international environmental litigation in the light of classic goals of private international law (Protection de l’environnement et justice conflictuelle : une nouvelle équation pour le droit international privé ?)

International environmental litigation is booming. The current study analyzes the main issues around the fundamental questions underlying such evolution through the prism of the traditional distinction between conflictual and substantive justice. Whether in the field of conflict of laws or in that of international jurisdiction, the global movement of materialization that is gaining ground in private international law is very visible in environmental matters. And this is not an insignificant phenomenon: the substantial results brought by the rules of private international law regarding the protection of the environment, struggle to materialize, while the coordination of legal orders on these crucial issues is rarely achieved. In spite of a strong political will, one can only note the limitation of these litigations to the preliminary questions of private international law, to the detriment of the realization of the common goal to fight against the attacks made to the environment, set by the community of the States. The resources of conflictual justice – justice of conciliation – can, in this perspective, be usefully used to promote this objective, the achievement of which is urgent, in view of the challenges it underlies.

In the third article, Uta Kohl (University of Southampton) analyses the interplay between some provisions of the GDPR regarding its (cross-border) geographical scope of application (Les Lignes directrices 05/2021 du CEPD sur l’interaction entre l’article 3 et le chapitre V du RGPD. Le RGPD entre protection accrue et faiblesse inhérente).

The European Data Protection Board’s Guidelines 05/2021 on the Interplay between the application of Article 3 and the provisions on international transfers as per Chapter V of the GDPR continue the maximalist territorial approach the EU has taken at least since Google Spain (2014) but speak particularly to the recognition in Schrems II (2020) that the simple extension of a protective law to another country does not necessarily translate into equivalent protection if the wider legal landscape in that country distorts the law in its actual operation. This recognition necessarily entails that being subject to the GDPR (Art 3) should not displace the transfers rules in Chapter V if the processing occurs in a third country, given that only the transfer rules are directed towards the actual reception of GDPR normativity in the third country. Whilst implicitly the cumulative approach acknowledges that giving the GDPR a wide territorial scope hardly delivers a panacea of effectiveness on far away shores in fundamentally different legal and political orders, whether it will redress that weakness is equally doubtful.

In the last article, Horatia Muir Watt (Sciences Po Law School) explores emerging trends in the field of collective redress under a private international law perspective (Les actions de groupe et le droit international privé : une lame de fond ?).

New legal subjectivities are emerging in our legal landscape. They are composite, metaphorical, mixing the public and the private, protective of collective interests, and of course always fictional. The site on which to monitor the depth of the shift is the courtroom, where unfamiliar, foreign entities, transplanted from alien contexts, are claiming legal standing.

More information is available here.

The readers of this blog are already aware that the University of Bonn plans to host a two-day conference on the Hague Convention of 2 July 2019 on the recognition and enforcement of judgments in civil and commercial matters, in cooperation with the Permanent Bureau of the Hague Conference on Private International Law. The event, which was expected to take place on 9 and 10 September 2022, has now been rescheduled and will eventually take place on 9 and 10 June 2023.

As explained by the organisers, the new date will likely be closer to the likely date of accession of the European Union to the Convention. Actually, on 23 June 2022, the European Parliament, based on a report by the JURI Committee, gave its consent to the accession.

The list of speakers of the Bonn conference includes scholars and practitioners, as well as representatives of UNCITRAL and the European Commission.

More information available here.

A new member has joined the editorial team of the EAPIL blog: Erik Sinander.

Erik is a senior lecturer in private international law at the Stockholm University. Being specialized also in labour law, he hopes to contribute to the blog with posts about e.g. private international labour law as well as general developments in the field of private international law from the Nordic countries.

His first post has just been published.

Welcome, Erik!

The Swedish Supreme Court held in a decision of 8 April 2022 (case Ö 4651-21) that a defendant domiciled in Denmark can be ordered to produce documents to a Swedish court without assistance or allowance from Danish authorities.

The issue arose in the framework of proceedings for maintenance brought by a daughter in Sweden against her father, based in Denmark. The former asked the court to order that the latter produce such Danish annual tax assessment notices he could access through the Danish tax authority’s web page. When the father refused to produce the notices in question, the district court declined the subpoena on producing documents and ruled on the matter. The court of appeal changed the district court’s decision and held that the father should produce the documents. Against this background, the Swedish Supreme Court granted a review permit for the issue regarding the production of digital documents when the defendant is domiciled abroad.

The Supreme Court explained that, on the basis of sovereignty, the starting point is that a court can only take evidence abroad if the foreign state has approved for it. Hence, a Swedish court is limited to the taking of evidence that can be made in Sweden. In international situations, a Swedish court can ask foreign authorities for assistance in the taking of evidence abroad. Sweden is bound both by the 1970 Hague Evidence Convention and by the 1974 Nordic Evidence Convention. In addition to these conventions, there is also Regulation 1206/2001 on cooperation between the courts of the Member States (except Denmark) in the taking of evidence in civil or commercial matter, which will be replaced by Regulation 2020/1783. According to the Swedish Supreme Court, it is not necessary to apply the international conventions or the EU regulation when the production of documents concern documents available online.

Pursuant to Swedish procedural law, a party possessing a document that supposedly may have importance as evidence must produce the document to the court. The obligation to produce a document is, according to the preparatory works, intended to be of the same extent as the obligation to testify orally before the court. In assessing whether the Danish father could be considered to have possession of the tax assessment notices, the Supreme Court stated that possession for the taking of evidence should be interpreted broadly. In addition to referring to Swedish literature on the procedural code, the Swedish Supreme Court also referred to the requirement for possession as stated in Article 3 of the International Bar Association’s Rules on the Taking of Evidence in International Arbitration (2020) for a broad interpretation of the possession requirement for taking of evidence. The Swedish Supreme Court held that the possession requirement is met for digital documents stored on the internet when a person has an unconditional access to the document.

Even if the order to produce documents available online in fact is extraterritorial, the extraterritorial effect is not judicial, the Supreme Court continued. Therefore, it is irrelevant where the digital information is stored. If the person ordered to produce documents is domiciled abroad and the document is stored abroad, the legal possibility for the Swedish court is limited. Still, in such situations a Swedish court may order someone to produce documents under penalty of a fine just like in domestic situations unless the order forces the obliged person to act contrary to the laws of another country.

The first issue of the Rivista di diritto internazionale privato e processuale of 2022 is out. It features two essays and two shorter papers.

Stefania Bariatti, Sul riconoscimento in Italia dei restructuring plans inglesi (On the Recognition in Italy of English Restructuring Plans)

An English court order sanctioning a restructuring plan is likely to be recognized by an Italian court as a judgment in civil and commercial matters or in insolvency matters both under the 1964 convention between Italy and the United Kingdom for the reciprocal recognition and enforcement of judgments in civil and commercial matters and under Law No 218/1995, since all the relevant requirements envisaged therein appear to be met. Indeed, (i) the requirement that the English court is vested with indirect jurisdiction is satisfied when the debtor’s COMI is located in England and (ii) restructuring plans do not appear to be contrary to Italian public policy, since the effects of the restructuring plan procedure, the procedural aspects and the substance of the provision envisaged in Part 26A of the Companies Act 2006 are common to the concordato preventivo procedure and the accordi di ristrutturazione del debito procedure that Italian Bankruptcy Law provides for companies encountering financial difficulties.

Sara Tonolo, Criticità e incertezze derivanti dall’applicazione del rinvio di qualificazione (Qualifikationsverweisung) (Critical Issues and Doubts in the Application of the Two-Fold Characterisation Theory (Qualifikationsverweisung))

In the context of academic literature on renvoi, and its various functions, for a century now a special role has been attributed in many legal systems to the Qualifikationsverweinsung (Renvoi de qualification). The relevance of this mechanism, founded on the complete reconstruction of the content of foreign private international law, has now been investigated by the Italian Supreme Court as an instrument for coordination within contemporary private international law. In the absence of any rules concerning characterization under Italian Law No. 218/1995, the original process of characterization by the court seised, which is referred to as primary, and the secondary characterization subsequently performed after the forum has decided to apply the law of another jurisdiction, can lead to a Qualifikationsverweisung to the lex fori. However, this result opens up a broad debate on the limits to the operability of the mechanism in question, especially with regard to other general principles, such as the principle of unity of succession.

Chiara Ragni, Riconoscimento in Italia di adozioni omoparentali e ordine pubblico internazionale (Recognition in Italy of Adoptions by Same-Sex Couples and International Public Policy)

This article aims to provide a critical analysis of judgment No 9006 of 2021 rendered by the Italian Court of cassation in plenary session, regarding the recognition in Italy of the legal effects of a foreign full adoption granted by the Surrogate Court of New York in favor of a same-sex couple. In particular, the investigation focuses on the contribution made by the Court with regards to: the question of identifying the regime applicable to the recognition of foreign adoption orders; the definition of the notion of public policy; and, finally, the reconstruction of the material content of public policy in the context under consideration, having regard to the importance of the child’s interest in preserving his or her family status for the purposes of that assessment.

Carlotta Maresca, La qualificazione della responsabilita` derivante da rottura brusca di relazioni commerciali stabili: gli effetti delle sentenze della Corte di giustizia sulla giurisprudenza francese (Characterisation of Liability Arising from Abrupt Termination of a Long-Standing Business Relationship: The Impact of the Judgments of the Court of Justice on French Case-Law)

The French provision governing the abrupt termination of long-standing business relationships (Art. L. 442-1, II code de commerce) raises in the context of private international law some issues that are still debated: notably, the question of the characterization of the nature of the liability under this provision. The French Court of Cassation has classified this liability in terms of its nature as both contractual and non-contractual. In particular, the latter characterization (délictuelle) appeared to have prevailed in the French case-law, the majority of which identified French courts as having jurisdiction over, and French law as applicable to, the present case (following the underlying logic of protection of the French victim and market). This trend has been partially changed following the intervention of the Court of Justice of the European Union (“CJEU”). In fact, in the presence of certain circumstances (in particular, in the presence of a silent contract), in Granarolo the CJEU characterized the liability in question as contractual. This article analyzes how this decision can foster the unity of private international law solutions at the European level.

The journal has just launched its new website. It comes with a “News” section and gives access to the table of contents (in Italian and English) of current and past issues, as well as to dedicated databases of articles, case notes, judgments and book reviews which appeared on the journal ever since its foundation.

The website also covers the series of books associated with the journal, which now consists of more than 80 volumes.

The Interest Group on Private International Law of the Italian Society of International Law (SIDI) will host two webinars – one in English, the other in Italian – in the framework of its recurring webinar series, titled Private International Law in Europe: Current Developments in Jurisprudence.

On 28 June 2022, from 5 to 7 pm (CET), Andrea Bonomi (University of Lausanne) will speak of Habitual Residence of an Abducted Child for the Purposes of the Law Applicable to Maintenance. Francesco Pesce (University of Genova) will serve as discussant.

On 8 July 2022, from 5 to 7 pm (CET), Javier Carrascosa González (University of Murcia) will deal with the recent case law of the Court of Justice relating to the citizenship of the Union and its implications for private international law. The discussant will be Bruno Barel (University of Padova).

The webinars will be chaired by Stefania Bariatti (University of Milan), convenor of the Interest Group.

Those wishing to attend the webinars are are invited to write an email to sidigdipp@gmail.com. Further information available here.

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

Jurisdiction over foreign patent disputes is again the subject of two new requests for preliminary rulings by the Swedish Patent and Market Court of Appeals. The latest referral, BSH Hausgeräte (C-339/22), concerns the scope of Article 24(4) of Regulation No 1215/2012 (Brussels I bis Regulation) with respect to infringement disputes when the invalidity of a foreign patent is raised as a defence. It also concerns the potential “reflexive effect” of Article 24(4) in relation to patents registered in third countries.

The first question reads as follows (my translation):

Is Article 24(4) of Regulation (EU) 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to be interpreted so that the words ‘proceedings concerned with the registration or validity of patents . . .irrespective of whether the issue is raised by way of an action or as a defence,’ mean that a national court which, in accordance with Article 4(1) of that regulation, has established its jurisdiction to hear an infringement action no longer has such jurisdiction to determine the infringement action if an objection is raised that the patent in question is invalid, or is that provision to be interpreted as meaning that the national court only lacks jurisdiction to determine the invalidity objection?

The second (related) question is (my translation):

Is the answer to question 1 affected by the existence of provisions in national law, similar to those in the second paragraph of Section 61 of the [Swedish] Patent Act, which stipulate that an invalidity objection raised in an infringement action requires the defendant to bring a separate action for a declaration of invalidity in order to be admissible?

The third question concerning the potential “reflexive effect” of Article 24(4) reads (my translation):

Is Article 24(4) of the Regulation to be interpreted as applying in relation to a court in a third country, that is to say, in the present case so that it also confers exclusive jurisdiction on the courts of Turkey for the part of the European patent validated there?

The background is that the German company BSH Hausgeräte GmbH brought proceedings before the Swedish Patent and Market Court against the Swedish company Aktiebolaget Electrolux for the infringement of its European patents validated in Austria, Germany, Spain, France, UK, Greece, Italy, Netherlands, Sweden, and Turkey. Electrolux responded by alleging that the foreign patents were invalid and that the Swedish court therefore lacked jurisdiction to hear the infringement actions concerning the foreign patents.

Electrolux argued that the wording of Article 24(4) of Brussels I Regulation, which codifies the CJEU ruling in GAT (C-4/03), clearly covers infringement actions in which invalidity objections have been raised. It argued further that infringement and invalidity cannot be separated because a valid patent is a prerequisite for an infringement. In addition, Electrolux argued that there was nothing to prevent it from raising invalidity objections before the Swedish court and that the second paragraph of Section 61 of the Swedish Patent Act, which requires an invalidity objection to be raised as an independent action and not merely as an objection in an infringement action, only concerns Swedish patents. In addition, Electrolux argued that pursuant to Article 8 of Regulation (EC) No 864/2007 (Rome II), Swedish law was not applicable and that Swedish law could not either be applied by analogy.

BSH argued that the Swedish court had jurisdiction over the infringement actions pursuant to Article 4 of the Brussels I bis Regulation based on Electrolux’s domicile and the Swedish court did not lose this jurisdiction because Electrolux contested the patents’ validity. It argued further that its action principally concerned infringement, not invalidity so Article 24 and 27 of the Brussels I bis Regulation were not engaged. In addition, BSH argued that pursuant to the second paragraph of Article 61 of the Swedish Patent Act, the court should disregard Electrolux’s invalidity objections unless Electrolux brought separate invalidity actions in the countries where the patents are validated. In such case, BSH argued that the Swedish court could stay the infringement proceedings until the invalidity proceedings became final. Lastly, BSH argued that Article 24(4) of the Brussels I bis Regulation did not apply in relation to third countries.

The Swedish Patent and Market Court held that it lacked jurisdiction over the foreign patents. In short, it held that Article 24(4) applied when invalidity objections were raised in an infringement action concerning foreign patents and that the fact that Electrolux had yet to bring invalidity actions in the countries of registration was not relevant. In addition, the court held that it must also decline jurisdiction over the Turkish part of the European patent because Article 24(4) of the Brussels I bis Regulation was an internationally accepted principle.

BSH appealed to the Patent and Market Court of Appeals. The Court found that the wording of Article 24(4) did not clearly indicate whether it covered infringement actions once invalidity had been raised in objection and that this question was not answered by the GAT decision or the CJEU’s subsequent case law. Concerning the application of Article 24(4) to third country patents, the Court observed that it was not clear from the wording of Article 24(4) of the Brussels I Regulation whether it applied, in contrast to Articles 33 and 34 of the Brussels I Regulation on lis pendens and related actions, which clearly state that that they apply in relation to third countries. The Court also noted that this question had not been answered in Owusu (C-281/02), where the CJEU held that Article 2 of the Brussels Convention (now Article 4 Brussels I bis Regulation) on jurisdiction of the basis of domicile applied to disputes involving relations between the courts of a Contracting State and a non-Contracting State.

An earlier referral, IRnova (C-399/21) also concerns the scope of Article 24(4) of the Brussels I Regulation, but this time in the context of a patent entitlement action when the basis for the action is that the claimant is the true inventor.

The question reads as follows:

Is an action seeking a declaration of better entitlement to an invention, based on a claim of inventorship or co-inventorship according to national patent applications and patents registered in a non-Member State, covered by exclusive jurisdiction for the purposes of Article 24(4) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters?

The background is that the Swedish company IRnova AB brought proceedings before the Swedish Patent and Market Court against the Swedish company FLIR Systems AB for entitlement to patent applications and patents that FLIR Systems AB had applied for and registered in third countries (USA and China) by FLIR Systems AB. The companies had previously had a business relationship. IRnova alleged that one of its employees had developed the inventions, or at least, had made such a substantial contribution to the inventions that he was to be regarded as a co-inventor and that IRnova was therefore the rightful owner. FLIR Systems AB objected to the Swedish court’s jurisdiction and the Patent and Market Court dismissed IRnova’s action. The court held that Article 24(4) of the Brussels I bis Regulation was an internationally accepted principle and therefore should apply in relation to third countries. The court held further that an entitlement action based on inventorship was so closely related to the registration and invalidity of patents that Article 24(4) was engaged.

IRnova AB appealed to the Patent and Market Court of Appeal. The Court noted that the answer to this question was not clear from the CJEU’s previous case law including Duijnstee (288/82), where the CJEU held that Article 16 of the Brussels Convention (now Article 24(4) Brussels I bis Regulation) does not apply to a dispute between an employee for whose invention a patent has been applied for or obtained and his employer, where the dispute relates to their respective rights in that patent arising out of the contract of employment.

This is the second post an online symposium on the ruling of the European Court of Justice, of 20 June 2022, in London Steam-Ship Owners’ Mutual Assistance Association Ltd v Spain. The first post was contributed by Adrian Briggs. 

The most significant consequence of the judgment of the CJEU in London Steam-Ship Owners might be the holding that the courts of the Member States requested to declare enforceable arbitral awards should verify whether the relevant arbitral tribunal respected the rule on lis pendens of the Brussels I bis Regulation.

According to the CJEU, the minimisation of the risk of concurrent proceedings, which that provision is intended to achieve, is one of the objectives and principles underlying judicial cooperation in civil matters in the European Union. Thus, a judgment on an arbitral award rendered in violation of lis pendens does not deserve deference, and should not qualify as a judgment in the meaning of Article 34(3) of the Brussels I Regulation.

Is the Objective of Avoiding Concurrent Proceedings so Essential in the EU?

As pointed out by Adrian Briggs, the CJEU rules that the rule of lis pendens should be applied by the courts of Member States in courts proceedings on arbitral awards. The CJEU suggests, it seems, that those courts should dismiss request to declare enforceable arbitral awards in case the rule on lis pendens would have been violated.

The proposition that the rule of lis pendens is so important that it should be applied by courts in exequatur proceedings of arbitral awards is very hard to reconcile with previous cases of the CJEU where the Court held that the doctrine of lis pendens is not important enough to become a ground for denying enforcement to judgments under the Brussels Regulations (I or II).

In Liberato, the CJEU held that

the rules of lis pendens in Article 27 of Regulation No 44/2001 and Article 19 of Regulation No 2201/2003 must be interpreted as meaning that where, (…) the court second seised, in breach of those rules, delivers a judgment which becomes final, those articles preclude the courts of the Member State in which the court first seised is situated from refusing to recognise that judgment solely for that reason. 

So, the doctrine of lis pendens is not important enough to exclude that a judgment which violated it be enforced in other Member States. Why does the same doctrine suddenly become so much more important in the context of arbitration?

Lis pendens and Jurisdiction Clauses: The New Rules

For the purpose of assessing the consequences of this case, it must be underscored that it was governed by the Brussels 44/2001. At the time, thanks to the (in)famous Gasser case, the rules of lis pendens fully applied to cases involving jurisdiction clauses.

As many readers will know, the rules on lis pendens were amended by the Brussels I Recast to overturn Gasser. Under Article 31(2) of the Brussels I Recast:

Without prejudice to Article 26, where a court of a Member State on which an agreement as referred to in Article 25 confers exclusive jurisdiction is seised, any court of another Member State shall stay the proceedings until such time as the court seised on the basis of the agreement declares that it has no jurisdiction under the agreement.

So, if the judgment in London Steam-Ship Owners is to be understood as extending to arbitration agreements the mandatory rules of the Brussels regime on jurisdiction clauses and lis pendens, then Article 31(2) should give a priority to arbitral tribunals over the courts of Member States which were not chosen by the parties.

The CJEU has opened the Pandora box. Does it contain an obligation for the courts of the Member States to stay proceedings once an arbitral tribunal seated in a Member State is seised?

The post below was written by Adrian Briggs QC, who is Professor of Private International Law Emeritus at the University of Oxford. It is the first contribution to an online symposium on the ruling of the European Court of Justice, of 20 June 2022, in the case of London Steam-Ship Owners’ Mutual Assistance Association Ltd v Spain.

The clearing up of the oil which in 2002 splurged out of the wretched MT Prestige (the ownership and operation of which was a worthless stew of Greek, Bahamian and Liberian entities) and into the Atlantic onto the coast of Galicia was an astonishing, miraculous, environmental triumph. It is even reported that a year after the catastrophe, the beaches of Galicia were cleaner than ever before, this thanks, no doubt, to the army of volunteers who laboured to rid the coast of all traces of the filthy effluent when the Spanish state failed to demonstrate the necessary vigour. By contrast, the clearing up of legal liability has proved to be the polar opposite. The account which follows has been pared to its barest essentials, for life is just too short for the full story to be set out.

The Spanish state sued various entities to recoup what it claimed as losses resulting from the cleaning operation. Among other targets it identified the (London) insurer of the vessel, and fancied that it had a direct claim against the insurer for the sums payable under that policy. The policy of insurance provided for arbitration in London, but the Spanish state preferred to sue in its own courts, taking the position that it had no obligation to proceed by arbitration: as one might say in England, it claimed to take the benefit, but not the burden, of the policy on which it relied; it picked out the plums and left the duff.

The English insurer, having issued a policy which provided for arbitration, took objection to its liability to anyone claiming through or under that policy being determined outside the arbitral tribunal foreseen by the policy. It was doubtless aware that it could not defend the attack on the integrity of the arbitration agreement by asking for an injunction from the English courts, so convened the tribunal. The tribunal decided that the Spanish claim for the sums due under the policy, which claim was manifestly contractual in nature and in quantum, was enforceable only by arbitration; its award, determining also that the insurer was not liable on the policy, followed. The insurer then obtained a judgment from the High Court declaring the award, in accordance with the Arbitration Act 1996, to be enforceable as a judgment. Meanwhile, the Spanish courts proceeded to order the insurer to pay $ 1 billion, which represented the cap on insurer liability under the policy of insurance. Thus the scene was set.

Seised of the question whether the Spanish judgment should be registered for enforcement in England under Chapter III of Regulation 44/2001, and perceiving this to be a question which he could not answer, an English judge made a reference to the European Court, nine days before the Brexit divorce was to be made absolute. In it he asked, in effect, what the Regulation required him to do with a Spanish judgment which was radically inconsistent with the London award and English judgment. While the cogs and wheels of the CJEU were starting to turn, the insurer appealed against the decision to make reference to the European Court, relying on orthodox grounds of European law to justify it. The Court of Appeal allowed the appeal, but concluded it was bound to remit the matter to the High Court judge who alone might recall the reference. The Spanish state appealed to the Supreme Court against the decision of the Court of Appeal. The Supreme Court arranged an early date for the appeal which would finally clarify the need or otherwise for the reference. Three days before the published date for the hearing before the Supreme Court, the European Court put out its ruling, trashing the Opinion of its Advocate-General, scuttling the appeal and preventing the English court from considering, in accordance with European law, whether a reference and ruling was required, and doing its level best to make the insurer liable in law to the Spanish state.

No doubt the timing, and the outcome, is the purest coincidence, and the fish-like smell is just an incident of coastal life. But the ruling, and the justification offered for it, is truly, madly, deeply weird.

One starts with the proposition, freely accepted by the court, that the Regulation 44/2001 does not apply to arbitration, because Article 1 says as much. The logical and legal consequence of that, in a decision to which the Court made reference, was that the English court was entitled to apply its law of arbitration, even to the point of refusing to recognise a judgment in a civil or commercial matter given by the courts of another Member State. In 145/86 Hoffmann v Krieg, the court had, at [18], deduced that

the answer to be given to the national court is that a foreign judgment whose enforcement has been ordered in a contracting state pursuant to article 31 of the [Brussels] convention and which remains enforceable in the state in which it was given must not continue to be enforced in the state where enforcement is sought when, under the law of the latter state, it ceases to be enforceable for reasons which lie outside the scope of the convention.

The judgment in Hoffmann was indeed referred to (at [52]), though this was not the paragraph there mentioned. It appears to give a complete answer to the question, as the English judge who set this all in motion should have realised. Instead, the Court used another part of the judgment in Hoffmann for its conclusion that the English judgment on the award was irreconcilable with the Spanish judgment. One may accept that that was so, but still shrug: for this question, framed by Article 34(3) of Regulation 44/2001, would be void of content if the entire subject matter of the English court order lay outside the scope of the Regulation, ratione materiae, in the first place. The Court reasoned that the English order was a judgment within the meaning of Article 34(3), even though it was one on a matter to which the Regulation has no application in the first place. This is very odd (though not a novelty: see C-568/20 J v H Ltd EU:C:2022:264), but in the court’s defence one might claim that it provides a ramshackle means for dealing with a structural problem. The problem has been noticed before; indeed, the writer has written elsewhere that it offers a feasible, if untidy, solution. So be it, then.

So did it follow that the English court could and should refuse recognition of the irreconcilable Spanish judgment? According to the Court, it did not. The reasons given were, it is submitted, as perverse as they are incredible. The gist of paragraphs 54 to 72 goes something like this. If the London tribunal had been a court, and the arbitration clause had been a jurisdiction clause, the jurisdiction clause would not have been enforceable against the Spanish state, which was a third party to the policy of insurance under which it was claiming. If the London tribunal had been an English court, it could not have taken jurisdiction in any event, as the Spanish state had already seised the Spanish courts with the same cause of action. It followed that to allow the actual English judgment to count as a judgment for the purposes of Article 34(3) would undermine or conflict with the objectives of the Regulation; the English order was not a judgment after all. The English courts had been at fault for not realising this nonsense was law:

It is for the court seised with a view to entering a judgment in the terms of an arbitral award to verify that the provisions and fundamental objectives of Regulation No 44/2001 have been complied with, in order to prevent a circumvention of those provisions and objectives, such as a circumvention consisting in the completion of arbitration proceedings in disregard of both the relative effect of an arbitration clause included in an insurance contract and the rules on lis pendens laid down in Article 27 of that regulation. In the present case, it is apparent from the documents before the Court and from the hearing that no such verification took place either before the High Court of Justice (England & Wales), Queen’s Bench Division (Commercial Court), or before the Court of Appeal (England & Wales) (Civil Division) and, moreover, that neither of those two courts made a reference to the Court for a preliminary ruling under Article 267 TFEU.

So here it is. The arbitral tribunal in London was entitled – at least, it has not yet been said that it wasn’t – to proceed to determine the claim to the proceeds of the policy of insurance, but the English court, called upon to approve enforcement of the award, was required to go through the looking glass and play its part in the pantomime just described. The fact that it has not done so meant that it had committed a jurisdictional error. In consequence, its judgment – as the court said that it was – failed to qualify as a judgment, for those reasons of jurisdictional error, to count as a judgment for the purposes of Article 34(3). There is, of course, absolutely nothing in the jurisprudence to suggest that the home court’s ‘judgment’ in Article 34(3) means ‘judgment free of all taint of jurisdictional error’, though there is the collateral instruction in Article 35 that the jurisdiction of the court that gave the foreign judgment shall not be reviewed. No wonder the English court failed to see what it should have done: the words directing it have yet to be written, never mind enacted. The result is that European law requires the English court to construct a parallel reality to enable and require it to ignore its law on arbitration. But of course, it meant that the European Court was able to order the transfer of $1 billion from London to Madrid.

We have been here before. Lewis Carroll, also writing from Oxford, reported the dialogue between Alice and Humpty-Dumpty, in the following terms

‘When I use a word’, Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less’. ‘The question is’, said Alice, ‘whether you can make words mean so many different things’. ‘The question is’, said Humpty Dumpty, ‘which is to be master — that’s all’.

And that question is the one that counts. An English court may, and surely will, say that if the answer summarised above is the answer resulting from one international instrument by which it is bound, the answer required by another one, the New York Convention, by which is it is also bound, is the one which counts, for the latter is master. And in spite of this output from the European Court, the Brussels lawmaker would seem to agree: along with Article 1, one will find confirmation in the second sentence of the third paragraph of Recital 12 to Regulation 1215/2012. That will mean that the decision of the European Court is, for the United Kingdom, a letter whose deadness has nothing to do with Brexit. It will be for those working in legal systems which remain tied by the jurisprudence of the European Court to explain to their colleagues working in the field of international arbitration how the principle that the Brussels regime does not apply to and does not prejudice the law of arbitration has had such a dramatic effect on their business: good luck with that. For those in the United Kingdom who lamented our separation from the Brussels and Lugano regime, it will be a real struggle to look at the judgment in Case C-700/20 not to regard it as a stunt which shames those who set their hand to it. Others will not need to struggle.

The Singapore-based Asian Business Law Institute (ABLI) has been engaging in work related to judgments recognition and enforcement in Asia for some time. This blog reported about the Institute’s publication of 2020 on the Asian Principles for the Recognition and Enforcement of Foreign Judgments.

ABLI is now joining hands with the Permanent Bureau of the Hague Conference on Private International Law for a joint webinar that will take place on on 27 July 2022 between 3 to 6pm (Singapore time).

Titled Cross-border Commercial Dispute Resolution – HCCH 2005 Choice of Court and 2019 Judgments Conventions, the webinar will comprise two sessions to take a holistic look at the Choice of Court and Judgments Conventions.

Attendees have the option of attending one or both sessions.

Invited speakers Sara Chisholm-Batten (Partner, Michelmores LLP), the David Goddard (Court of Appeal, New Zealand), Anselmo Reyes (International Judge, Singapore International Commercial Court), Nish Shetty (Partner, Clifford Chance LLP) and Dr Ning Zhao (Senior Legal Officer, HCCH) are expected to talk about the practical operations of the two Conventions, how they complement each other and whether the recent debate of the Choice of Court Convention is justified.

For more information or to register, click here. Early bird discount is available till 26 June. Queries about the webinar should be addressed to info@abli.asia.

The latest issue of the RabelsZ (Rabels Zeitschrift für ausländisches und internationales Privatrecht) has been published.  As always, it contains a number of insightful articles. Here are the authors, titles and abstracts:

Ralf Michaels, Peter Mankowski *11.10.1966 †10.2.2022

Katharina Pistor, Rechtsvergleichung zwischen Rechts- und politischer Ökonomie: am Beispiel des Unternehmensrechts (Legal and Political Economics in Comparative Perspective: the Case of Corporate Law)

Hardly another area of the law has seen as much interest in comparative analysis as corporate law, in particular the publicly traded corporation. The dialogue among legal academics from different legal systems was facilitated by the use of a non-legal language – that of transaction economics. It offered a unified standard for analyzing the pros and cons of different legal rules and models of corporate governance. Legal details remained largely under the radar. More recently, political scientists have discovered the corporation as an object of analysis and have emphasized the political economy that is represented by the establishment, development and function of the “corporation as a legal person”. This literature pays closer attention to the role of the state in corporate law but has neglected questions of comparative law. This paper argues that comparative law could and should assert itself between these two social sciences as a field that is devoted to describing and explaining the similarities and differences of legal institutions as a part of social systems.

Stefan Grundmann, Pluralistische Privatrechtstheorie – Prolegomena zu einer pluralistisch-gesellschaftswissenschaftlichen Rechtstheorie als normativem Desiderat (»normativer Pluralismus«) (Pluralist Private Law Theory: Prolegomena to a Pluralist and Social Science Oriented Legal Theory as a Normative Desideratum (“Normative Pluralism”))

Just how legal scholarship and legal practice should address the social sciences and other fields of inquiry is a vital question whose answer is informed by concerns of innovation, logic, and an understanding of law and jurisprudence. Law and economics is an efficient vehicle in this regard, an approach that in the USA is perhaps even dominant. The present article distinguishes between a monist interdisciplinary openness – vis-à-vis a neighbouring discipline that may indeed already have a particular goal and benchmark in mind – and a pluralist interdisciplinary openness. It identifies in the latter a disproportionately greater heuristic potential (in terms of all societal views). In a pluralist society, one that moulds pluralism into a constitutional requirement, the author sees a pluralist interdisciplinary openness as, above all, normatively superior and even mandated. It also seems better suited to the logic of jurisprudence: a discipline seeking balance in society. The article also addresses the biggest “drawback” of the approach, the unanswered and difficult question of how to determine hierarchizations. Adopting a value-tracking approach, the author proposes a mechanism embracing constitutionality and democracy as guiding legal principles.

Rolf Stürner, The ELI / UNIDROIT Model European Rules of Civil Procedure – An Introduction to Their Basic Conceptions

This contribution introduces the basic conceptions of the Model European Rules of Civil Procedure, which were affirmed by the European Law Institute, Vienna, and by UNIDROIT, Rome, in 2020. In its first part it describes the prior history of the project (ALI/UNIDROIT Principles of Transnational Civil Procedure, Storme Commission) and the history of the emergence of the Model Rules between 2013 and 2020. The following parts depict the organization and coordination of the common work in the various groups, an analysis of methodological questions arising in the context of harmonization of procedural law, a detailed presentation of important results of harmonization in fields of far-reaching convergence of national procedural laws, considerations about strong future trends of procedural design and their significance for different areas of civil procedure, and finally some remarks on innovative procedural developments taken into account by the Model Rules, with important examples in fields like collective proceedings and the financing of proceedings, or in the use of modern means of communication or artificial intelligence. The contribution also contains some cautious remarks on internal conditions associated with the emergence of the Model Rules that may have influenced its results.

Igor Adamczyk and Jakob Fortunat Stagl, Der Eigentumserwerb an Fahrnis im polnischen Recht (Transfer of Ownership in Movable Property under Polish Law)

This essay deals with the transfer of ownership under Polish law. The main question is whether Poland simply adheres to one of the classical models historically significant for this country – that of Austria, Germany, or France – or whether its system can be considered an original solution. The authors are convinced that one cannot analyse the transfer of ownership without considering the underlying contract. In particular, the passing of risk has to be considered in unison with the rules for the passing of ownership. These rules as a whole may seem syncretistic or “mixed”, yet they have to be understood as a genuine – Polish – system for the transfer of ownership.

The table of contents in German is available here.

As announced on this blog, the final conference of the DXB – Identities on the move – Documents cross borders will be held in Italy on 23-24 June 2022 and will be hosted at A.N.U.S.C.A.’s Academy in Castel San Pietro Terme (Bologna, Italy).

All interested scholars and registrars, public authorities and officials, lawyers and students are invited to take part to it for the outcomes of the research. This final event will offer an opportunity to become aware of the Regulation (EU) 2016/1191 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union and to discover the strengths and the challenges of this still relatively unknown instrument. The conference will connect the scientific and applicative dimension of the Regulation, sharing, inter alia, the Commentary on the Regulation and an EU-wide Comparative Survey placing the Regulation into the context of daily national practice.

The event will be held in person, in compliance with health safety regulations, and will also be broadcast online in live streaming for free. Deadline registration for on-line attendance is 21 June 2022 and working languages of the conference will be English, German and Italian.

The Conference programme is available here and includes as speakers Maria Caterina Baruffi, Elsa Bernard, Giacomo Biagioni, Laura Calafà, Matteo Caldironi, Renzo Calvigioni, Cristina Campiglio, Giacomo Cardaci, Gregor Christandl, Mădălina Cocoșatu, Diletta Danieli, Sanjay Dharwadker, Ester di Napoli, Ornella Feraci, Caterina Fratea, Marco Gerbaudo, Susanne Gössl, Paride Gullini, Steve Heylen, Marion Ho-Dac, Fabienne Jault-Seseke, Eva Kaseva, Dafni Lima, Balwicka-Szczyrba Małgorzata, Francesca Maoli, Claudia Elena Marinică, Martina Melcher, Dominik Damian Mielewczyk, Nicolas Nord, Guillermo Palao Moreno, Lina Papadopoulou, Paolo Pasqualis, Paul Patreider, Cinzia Peraro, Stefania Pia Perrino, Marco Poli, Camille Reitzer, Simon Rijsdijk, Alexander Schuster, Sharon Shakargy, Nicole Sims, Thomas Stigari, Anna Sylwestrzak, Marie Vautravers, Rob van der Velde, Jinske Verhellen and Brody Warren.

If you have any questions or inquiries, please write an email to info@identitisonthemove.eu.

In the context of the Vici project Affordable Access to Justice at Erasmus School of Law (financed by the Dutch Research Council – NWO), the project team has organised a series of seminars titled Trends and Challenges in Costs and Funding of Civil Justice.

The concluding seminar in the series will take place on 22 June 2022, on the Future Regulation of Third-Party Litigation Funding.

The seminar, opened by Xandra Kramer and Geert Van Calster, will feature two sessions. The first session, on the current status and the need for further regulation, will include a stakeholder roundtable moderated by Xandra Kramer with the participation of Paulien van der Grinten, Johan Skog and David Greene. The second session, on modes and levels of regulation, chaired by Eva Storskrubb, will include a panel discussion involving Kai Zenner, Tets Ishikawa, Victoria Sahani and Albert Henke.

Attendance is possible in person and online. The programme is available here.

This is an update on my monthly post on the Court of Justice of the European Union, in order to announce the publication today (Monday 20) of the decision in case C-700/20,  The London Steam-Ship Owners’ Mutual Insurance Association.

I reported on the facts and the questions referred by the High Court of Justice Business and Property Courts of England and Wales, United Kingdom here, but I believe it worth reproducing them again. The main proceedings are based on a dispute between London Steam-Ship Owners’ Mutual Insurance Association Limited (‘the Insurer’), having its registered office in the United Kingdom, and the Kingdom of Spain; it concerns claims for damages arising from the sinking off the coast of Spain of a vessel carrying fuel oil – the Prestige. The insurance contract contained, inter alia, an arbitration agreement governed by English law.

The Kingdom of Spain asserted its rights to receive compensation from the Insurer under the insurance contract, in the context of criminal proceedings instituted in Spain in 2002. Following a first-instance decision in 2013 and several appeals, the Spanish proceedings culminated in a finding that the Insurer was liable for the loss caused by the shipping accident subject to the limitation of liability provided for in the insurance contract. The Spanish court issued an execution order on 1 March 2019. On 25 March 2019, the Kingdom of Spain applied for recognition and enforcement of that order in the United Kingdom in accordance with Article 33 of the Brussels I Regulation. That application was granted. The Insurer appealed against that decision in accordance with Article 43 of the Brussels I Regulation.

The Insurer, for its part, initiated arbitration proceedings in London in 2012. In the resulting award it was established that the Kingdom of Spain would have to initiate arbitration proceedings in London in order to assert claims under the insurance contract. The Commercial Court of the High Court of Justice of England and Wales, before which enforcement of the award was sought under section 66 of the Arbitration Act 1996, entered a judgment in the terms of the award against the Kingdom of Spain in October 2013, which was confirmed on appeal. The Kingdom of Spain took part neither in the arbitration proceedings nor in the judicial proceedings in the United Kingdom.

The referring court asked the Court of Justice the following questions:

(1) Given the nature of the issues which the national court is required to determine in deciding whether to enter judgment in the terms of an award under Section 66 of the Arbitration Act 1996, is a judgment granted pursuant to that provision capable of constituting a relevant “judgment” of the Member State in which recognition is sought for the purposes of Article 34(3) of EC Regulation No 44/2001?

(2) Given that a judgment entered in the terms of an award, such as a judgment under Section 66 of the Arbitration Act 1996, is a judgment falling outside the material scope of Regulation No 44/2001 by reason of the Article 1(2)(d) arbitration exception, is such a judgment capable of constituting a relevant “judgment” of the Member State in which recognition is sought for the purposes of Article 34(3) of the Regulation?

(3) On the hypothesis that Article 34(3) of Regulation No 44/2001 does not apply, if recognition and enforcement of a judgment of another Member State would be contrary to domestic public policy on the grounds that it would violate the principle of res judicata by reason of a prior domestic arbitration award or a prior judgment entered in the terms of the award granted by the court of the Member State in which recognition is sought, is it permissible to rely on Article 34(1) of Regulation No 44/2001 as a ground of refusing recognition and enforcement or do Articles 34(3) and (4) of the Regulation provide the exhaustive grounds by which res judicata and/or irreconcilability can prevent recognition and enforcement of a Regulation judgment?

An opinion by AG Collins was published on May 5, 2022. He proposed the Court of Justice to answer that

“A judgment entered in the terms of an arbitral award pursuant to section 66(2) of the Arbitration Act 1996 is capable of constituting a relevant ‘judgment’ of the Member State in which recognition is sought for the purposes of Article 34(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, notwithstanding that such a judgment falls outside the scope of that regulation by reason of Article 1(2)(d) thereof.”

In practical terms, if followed by the Court of Justice, the Spanish decision would not be recognized in the UK under the Brussels Regulation. Very bad news for the Spanish government and also for all those, many, affected by the heavy oil spill, the worst marea negra ever experienced in Galicia.

The Grand Chamber, with M. Safjan acting as reporting judge, has decided otherwise in a decision already available  in English and French.

On the first and second questions, that she addresses together, the Court of Justice has decided

“Article 34(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that a judgment entered by a court of a Member State in the terms of an arbitral award does not constitute a ‘judgment’, within the meaning of that provision, where a judicial decision resulting in an outcome equivalent to the outcome of that award could not have been adopted by a court of that Member State without infringing the provisions and the fundamental objectives of that regulation, in particular as regards the relative effect of an arbitration clause included in the insurance contract in question and the rules on lis pendens contained in Article 27 of that regulation, and that, in that situation, the judgment in question cannot prevent, in that Member State, the recognition of a judgment given by a court in another Member State.”

And on the third

“Article 34(1) of Regulation No 44/2001 must be interpreted as meaning that, in the event that Article 34(3) of that regulation does not apply to a judgment entered in the terms of an arbitral award, the recognition or enforcement of a judgment from another Member State cannot be refused as being contrary to public policy on the ground that it would disregard the force of res judicata acquired by the judgment entered in the terms of an arbitral award.”

I expect the judgement and its reasoning to be very much commented in academic circles.

For the record, Prof. Adrian Briggs very kindly provided this piece of information in a comment to my post: “So far as concerns C-700/20, it should be noted that on March 1, the Court of Appeal, in The Prestige (No 5) [2022] EWCA Civ 238, ruled that the reference should not have been made as a matter of European law, and (in effect) remitted the matter to the judge with its advice that he should withdraw the reference. On March 31 the Supreme Court gave permission to appeal against the decision of the Court of Appeal.” If I am not wrong, the UKSC decision on the issue will be known this week as well.

Lydia Lundstedt (University of Stockholm) has posted Gtflix TV V Dr: ‘Same Ole Same Ole’ or Has the CJEU Broken New Ground? on SSRN.

In Gtflix Tv v DR, the Grand Chamber of the Court of Justice of the European Union (CJEU) handed down an important decision confirming the mosaic approach and the accessibility approach to the application of the damage head of jurisdiction to infringements of personality rights on the internet pursuant to Article 7(2) of the Brussels Ia Regulation. Pursuant to the mosaic approach, an injured party can bring proceedings in every Member State where the damage occurs but only with respect to the damage taking place in that Member State’s territory. Pursuant to the accessibility approach, the sole criterium for the occurrence of damage in a Member State is that the content that is placed online ‘is or has been accessible’ in that Member State. Both these approaches have been criticised by commentators and resisted by the Member States courts. Nevertheless, the CJEU arguably forges new ground as the decision seems to expand the mosaic and accessibility approaches into the realm of unfair competition law. Lastly, questions remain concerning whether the courts of the Member State where the damage occurred have jurisdiction to order other territorially limited remedies such as geo-blocking measures, in addition to compensation for damage.

For previous reports on this case, see here, here and here.

The JUDGTUST Project (Regulation BIa: a standard for free circulation of judgments and mutual trust in the EU) conducted by the T.M.C. Asser Instituut in cooperation with Universität Hamburg, University of Antwerp and Internationaal Juridisch Instituut has come to its completion. The findings of the this research are available online here.

The project was animated by the aim to identify best practices and provide guidelines in the interpretation and application of the Brussels I-bis Regulation (also known as Brussels Ia). For this the analysis carried across the EU Member states sought to evaluate to what extent the changes introduced (compared to the Brussels I Regulation) achieved their objective, what are the remaining shortcomings, and how can these be overcome by considering future useful changes. Together with this, the research has analysed how legislative projects at global level – e.g. the Hague Judgment Convention – and political developments – e.g. Brexit – influence the way the Brussels I-bis is applied.

In analysing the interaction between the Brussels I bis Regulation and the other EU private international law instruments, the project combines a primarily comparative legal approach with the use of empirical research methods. The comparative legal research relies on the analysis of legislation, case law of national courts in EU Member States and the Court of Justice of the European Union (CJEU), and scholarly writings. This endeavour identifies the difficulties in the application of the Brussels I-bis provisions and best practices in applying the provisions of the Regulation. This is done without neglecting the outcomes of the previous regulation – the Brussels I – and other closely related private international law sources. The empirical research relies on various methods, both qualitative and quantitative. On the basis of a dedicated Questionnaire, the national reporters from EU Member States provided information on relevant domestic case law and legal literature.

With its findings the JUDGTRUST project seeks to enhance the general understanding of the autonomous nature of the EU legal sources. Further it looks to contribute to the uniform interpretation and application of the Regulation and consequently promotes mutual trust and efficiency of cross-border resolution of civil and commercial disputes. Furthermore, the analysis provides suggestions on how to reach a greater degree of consistency of the EU private international law legislation.

The outputs of the Project include various materials available online such as the National Reports, a Consolidated Report, and materials of the Final Conference.

Together with these open access materials a Handbook on the Interpretation and Application of the Brussels I bis is expected in the coming period.

In addition to the comparative and analytical research, the project also contributed to the development of a Moot Court Competition (PAX Moot) for law students. With this the project seeks to contribute to the education of a new generation of practitioners dealing with EU private international law.