EAPIL blog

As the readers of this blog know, the EAPIL founding conference will take place in Aarhus on 2, 3 and 4 June 2022.

There are just a few days left for registering. Those wishing to attend the conference are invited to fill in the form available here by 1 May 2022, at the latest.

The full programme of the conference, together with practical details on how to get to Aarhus, and where to stay, can be found in the conference own webpage.

See you soon in Aarhus!

This post was contributed by Yuliya Chernykh, who is associate professor in law at the Inland Norway University of Applied Sciences (campus Lillehammer).

Addressing incidental issues in a blog post for the European Association of Private International Law feels like bringing a topic ‘back home’. Indeed, incidental or preliminary issues are a well-known concept and a classical entry in encyclopedias in private international law. The concept begs a question that must be resolved before the main issue, and is recognisable in private international law because of a choice-of-law puzzle it raises.

Conceptualising incidental issues in investment treaty arbitration is not that ‘at home’. The system (if it can be called a system in the first place) is not premised on domestic courts but on an uncoordinated variety of arbitral tribunals. These tribunals, working under institutional and ad hoc arbitration rules, build their jurisdiction based on bilateral and multilateral treaties on investment protection (to date, more than 3,000 treaties), and apply treaty provisions to resolve investment disputes. All these disputes (to date, more than 1,100 disputes) are about State responsibility under international law because of breaches of standards on investment protection, such as unlawful expropriation, violations of full protection and security, fair and equitable treatment, most-favoured-nations treatment, umbrella clauses and some other standards of investment protection contained in relevant treaties. The public international law framework of investment treaty arbitration complicates the application of national law (also frequently referred to as domestic or municipal law) and the relevance of conceptual frameworks based on private international law perspectives as a result.

What suggests then that the concept of the incidental issue might bring some value for investment treaty arbitration? Or more precisely, what makes it to suggest that treaty-based tribunals should realise that contract interpretation is an incidental issue, and apply national law to it?  I give detailed answers in my Open Access monograph in – Contract Interpretation in Investment Treaty Arbitration: A Theory of the Incidental Issue. Here, I will present a summary of some observations.

To understand the value, one must be aware of the challenges that investment treaty arbitration experiences, on the one side, and the advantages that the concept of the incidental issue provides, on the other side. The challenges are about failures to apply national law to issues traditionally governed by it and overall concerns about the correctness and quality of decision-making and legal reasoning surrounding these issues. The advantages are about structuring decision-making and legal reasoning and ensuring that questions governed by national laws are treated as they should be with the application of the relevant national law. Relying (by analogy) on the concept of incidental issue to approach national law issues in investment treaty arbitration, tribunals ensure that they do not assimilate or unduly substitute their analysis in relation to these issues by other efforts that are not informed by applicable national law. More importantly, if tribunals would approach questions traditionally governed by national law as incidental issues, they would not overlook application of national law.

The frequency of reoccurrence of national law issues in investment treaty arbitration explains why conceptualisation matters as a matter of practice. While public international law sets a general framework for how treaty-based disputes are to be resolved, it does not apply to those questions that come into existence under national laws and are governed by them. Treaty-based tribunals regularly decide on issues relating to existence, transfer, validity, and scope of rights arising from property or contracts; they may also need to consider if a legal entity exists and what capacity it has. Neither property nor contracts or legal entities come into existence as a matter of public international law. These issues are governed by national law only. There could be hundreds of other issues pertinent to various aspects of relationships and status that are not governed by public international law in the first place and require decisions to be made under national laws.

Despite its theoretical and practical attractiveness, the usefulness of approaching national law issues in investment treaty arbitration as the incidental issue has not gained much attention. Some earlier calls may be found in the work of Zachary Douglas – The International Law of Investment Claims (CUP 2009). No voice has so far advocated the conceptualising of contract interpretation as an incidental issue, possibly because incidental issues in private international law are normally more palpable questions often described as addressing/capturing relationships or status. Instead of focusing on the existence of relationships or status, contract interpretation rather depicts the process of ascertaining the content of contractual provisions and its result.

While less discernible, there are still good reasons to treat contract interpretation as an incidental issue. These reasons are essentially the same as articulated earlier. When treaty-based tribunals interpret treaties, there are no doubts about the relevance of the provisions on treaty interpretation contained in Vienna Convention on the Law of Treaties. When treaty-based tribunals ascertain the content of contractual provisions, no complexity shall arise in taking into account applicable national regulations of contract interpretation. Similar to contract validity, contract termination and contract performance, contract interpretation is governed by national law. It is not governed by international law. Jurisdictions differ in the way that they approach contract interpretation and the choice of applicable national law may impact the outcome of the interpretative exercise. My empirical investigation, however, reveals that in 47% of cases, tribunals have not (expressly) relied upon national law in their attempts to ascertain the content of contractual provisions. Conceptualising contract interpretation as an incidental issue accordingly enables one to preserve the analytical distinction between ascertaining the content of contractual provisions under national law and oversimplified assimilation of this analytical activity to fact-finding and other analytical efforts not informed by national laws. In other words, the proposal ensures application of national law to contract interpretation, advances the correctness of the decision-making and reasoning, its predictability and overall quality.

The suggestion is not trivial and can make a difference for a notable portion of cases that appear in investment treaty arbitration. Contracts frequently play a central role in treaty-based disputes. Their premature termination, a failure to prolong, or otherwise observe may trigger State responsibility under relevant treaties for investment protection. Overall, my empirical study of 573 awards reveals a broad variety of contracts that appear in investment treaty arbitration and necessitate interpretation, such as agreements about concessions, construction, credit, electricity purchase, lease agreements, pledge agreements, privatisation, etc. Numerous contractual clauses may necessitate ascertainments, such as limitation of liability clauses, termination clauses, penalty clauses, stabilisation clauses, exclusivity clauses, etc.

Finally, contract interpretation as the incidental issue fits neatly into the overall structure of decision-making in investment treaty arbitration. By way of example, when tribunals need to decide if expropriation of contractual rights has taken place because of premature contract termination by a State in the exercise of its sovereign powers, they inevitably need to engage with contractual provisions on termination. The question which they typically have to answer is whether a State has contractual grounds for terminating contracts. This question precedes a general conclusion about whether the expropriation of contractual rights has taken place. Contract interpretation of the contractual provisions on termination would appear to be the incidental issue of the second order in this analysis, whereas the question as to whether a termination was allowed under the contract would appear to be the incidental issue of the first order.

–

Vigotop v. Hungary, while not using the concept of incidental issue, illustrates the structure of decision-making, the role of contract-related questions under national laws, and the overall suitability of approaching contract interpretation as an incidental issue (Figure 7 on page 340 of my book: Illustration Chernykh).

To sum up, it appears that private international law has much to offer to the decision-making and legal reasoning within the public international law framework. This yet is another opportunity to look at the convergence between both, a topic that is gaining increasing attention, and rightly so. We may all benefit from symposium posts hosted by the European Association of Private International Law, brainstorming potentials, and pitfalls of convergence and divergence between private international law and public international law.

The new issue of the Revue Critique de Droit International Privé (1/2022) is out.

In an opening article, Paul Lagarde pays tribute to the memory of Pierre Gothot (1936-2021).

The editorial by Horatia Muir Watt (Sciences Po), Dominique Bureau (University of Paris II) and Sabine Corneloup (University of Paris II) will soon be available in English on Dalloz website (Amicus librorum).

The new issue contains three articles and numerous case notes.

In the first article, Harith Al-Dabbagh (University of Montreal) examines the question of cross-border circulation of foreign Islamic divorces in Quebec (Effet au Québec des divorces étrangers non dotés de l’exequatur – Le cas des divorces islamiques).

The English abstracts reads:

The mobility of individuals and families is constantly increasing. The objective of private international law is to ensure the stability and permanence of their personal and family status across borders. In a land of immigration such as Quebec, many people are getting their divorce elsewhere or settling there after a divorce pronounced abroad. The question of the recognition of divorce and its effects, independently of any exequatur procedure, is thus acutely raised. The issue has given rise to contradictory answers from the doctrine and jurisprudence. Focusing on Islamic divorces, the author attempts to determine the circumstances in which foreign divorce decisions become internationally effective in Quebec independently of any courts’ review of their legality. The study reveals that the dissolution of marriage carried out in Islamic lands frequently comes up against the border phenomenon.

In the second article, Christine Bidaud (University of Lyon 3) analyses the recent French reform concerning the probative value of foreign civil status records, in the light of French and ECtHR caselaw (La force probante des actes de l’état civil étrangers modifiée par la loi bioéthique : du sens à donner à l’exigence de conformité des faits à la réalité « appréciée au regard de la loi française »).

The English abstracts reads:

A new bioethics law was passed on August 2, 2021, in France. Most of the discussions focused on the opening of medically assisted reproduction to female couples and single women, the possibility of identifying a gamete donor, research on human embryos, and other issues of genuine bioethical concern. As for surrogate motherhood, the subject has been introduced more surreptitiously into the debates: the aim was to break the jurisprudence of the Court of Cassation regarding the transcription of foreign birth certificates for children born as a result of surrogacy.

In the third article, Marion Ho-Dac (University of Artois) explores the interplay between EU consumer law and EU private international law, taking the example of the jurisdiction over consumer contracts (Du dialogue interprétatif entre droit (matériel) de la consommation et droit international privé de l’Union – L’exemple du « for du consommateur »).

The English abstracts reads:

The EU consumer law acquis could occasionally be a source of inspiration for EU private international law in order to resolve conceptual uncertainties or fill gaps. This approach has already been followed by the Court of Justice of the European Union, with regard to the notion of consumer in the field of international jurisdiction, opening up a significant interpretative dialogue between substantive EU consumer law and EU private international law. However, the case law of the Court of Justice is far from being clear and uniform in the field, giving rise to theoretical confusion as well as legal unpredictability in B2C relationships. Against this background, the features and merits of an interpretative dialogue between consumer law and private international law in the EU legal order must be analysed. The study proposes, inter alia, to introduce an interpretative test into the reasoning of the Court of Justice based on the requirement of “systemic coherence of EU law”, in order to assess in a systematic way whether or not an intertextual analogy between substantive (consumer) law and EU private international law is appropriate.

More information is available here.

Cedric Hornung has published an inspiring book , titled Internationales Privatrecht zwischen Wertneutralität und Politik (Mohr Siebeck, 2021), about a fundamental tension underlying Private International Law.

On the one hand, the discipline is meant to be value-neutral, in the sense that it admonishes the judge to abstain from evaluating national legal systems before applying them. On the other hand, conflicts rules have become increasingly charged by politics in the last decades, as illustrated, e.g., by the special rules on the protection of consumers in Rome I and the environment in Rome II, or the discussions about the recognition of same-sex marriages or surrogate motherhood. Against this background, Hornung asks the – apparently rhetorical – question whether a private international law free from politisation is at all possible.

The book has been published in German. The author has kindly provided us with the following English summary:

The first main chapter seeks to provide terminological clarity on the meaning of “value-neutrality” and “politics” in the context of private international law. With the help of political concepts by essential theorists such as Aristoteles, Hannah Arendt and Jacques Rancière, the author concludes that two main elements characterise the modern understanding of this field of law: pluralism and internationalisation. When­ever a conflict-of-law rule itself or the underlying motivation reflects a unilateral or national perspective, the idea of an apolitical PIL is abandoned. Still, some instruments have been implemented in the European choice-of-law process despite their political background – the ordre public and the idea of overriding mandatory provisions are just two instances of such generally-accepted perforations. However, the author underlines that these political mechanisms need to respect certain boundaries within their politicisations so as to not completely impede the indented value-neutrality.

The second main part deals with the evolution of political and social incitements when it comes to determining the applicable law in past epochs. Starting with the antique ius gentium and moving on to cross-border legal practice in the Middle Ages, the author examines in which way territorial intentions in particular have played a central role for centuries. With regard to the late statutists, he illustrates that regional interests overlayed the conflict between municipal laws even in cases where universal rules had seemingly been established. Following, modern conceptions of PIL are presented: The author points out that, although often being named as the “father” of modern conflict of laws, Friedrich Carl von Savigny did not manage to globally exclude social, economic, and power-related reasons from his image of the “seat of the legal relation”. Then again, the “nationality rule” of his Italian counterpart Pasquale Stanislao Mancini should not be misinterpreted as purely nationalistic procedure – just like some of the approaches from the North American continent. From a German point of view, a depoliticization of the choice of law has only been realised in the PIL reforms of 1986 and 1999 where virtually no unilateral argument came into effect. On the contrary, the author closes the chapter with a glance at the Europeanisation of this field of law which quite regularly resurrects biased explanatory models.

Subsequent to the historical analysis, the view shifts towards recent developments: On the basis of the infamous Art. 10 of the Rome III Regulation and Art. 13 al. 3 of the German EGBGB (Introductory Act to the Civil Code), the author documents the current tendency to stigmatise some legal orders as per se irreconcilable with European ideals. By embodying this trend, these provisions deny a genuine value-neutrality and superimpose a classification ex ante. How social and protective measures can be incorporated into the conflict of laws without a fundamental breach with its principles is explained in matters of human rights: Thanks to their – at least theoretical – universality, they are suited as gateway for political concerns in the search for the applicable law. Particularly in international supply chains, PIL ought to defend these essential guarantees at an early stage of the legal treatment.

The Radboud University Nijmegen is organising a hybrid conference on 9-10 June 2022 dedicated to The Role of Courts and Access to Justice in the Digital Era. The programme of the event can be consulted here.

The conference is a collaboration of three groups of researchers based at Radboud University: the Institutions for Conflict Resolution group, the Digital Legal Studies group and the Interdisciplinary Hub on Privacy, Security and Data Governance (iHub), and it is made possible also with the support of the Digital Legal Studies Sectorplan and Radboud University.

The theme of the event is triggered by the European Union and national governments emphasis on the need for and benefits of digitalisation of justice. Digitalisation is meant to ‘modernise’ the conduct of judicial procedures. However, there is little reflection on what such ‘modernisation’ entails – beyond saving time and costs – and why a ‘modernised’ procedure is preferable to a ‘traditional’ procedure. In addition, the overall impact of digitalisation of justice on access to justice remains unaddressed: what kind of (access to) justice are governments building? In turn, this requires to examine whether digitalisation of justice changes or indeed transforms – as the concept of ‘digital transformation’ claims – the nature of the justice system, and whether these changes are always positive or desirable. Some even argue that beyond ‘modernisation’ or ‘transformation’, the current reforms amount to a ‘digital revolution’.

Digitalisation is often viewed as a key condition to ensuring effective justice in the modern era, enhancing ‘resilience’ of justice systems. It presumably helps tackle delays, enhance legal certainty, and make justice cheaper and more accessible for all. At the same time, challenges associated with digitalisation are highlighted, such as ensuring access for disadvantaged groups to digital technologies, the impact of digital technologies on fundamental rights and procedural justice, and ensuring security and privacy of digital solutions. The emergence of new technology brings with it the need for ongoing assessment of its impact.

For this purpose the conference brings together about 60 researchers from approximately 30 countries to critically assess the process of digitalisation of justice systems and the evolving role of courts in the digital era in Europe and beyond.

Further information about the conference can be found here. Registration is available here.

In a judgment of 11 May 2021 (Stetsov v. Ukraine; final version: 11 August 2021), the European Court of Human Rights (ECtHR) ruled on whether commercial claims may be enforced by restraining the debtor from leaving the country which ordered the payment of the claim. It found that, in principle, enforcing commercial claims through such restrictions was compliant with the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention), but that the restriction in the case at hand was disproportionate and thus justified the finding that Ukraine had violated the Convention.

Mr Stetsov, a Ukrainian national and resident, granted a personal guarantee to a bank that a company would reimburse a loan of USD 1.5 million. After the company defaulted, the bank sued Stetsov for payment in Ukrainian courts. The Court of Appeal of Kharkiv and a Ukrainian superior court eventually ordered Stetsov to pay about USD 950,000 and additional sums in hryvnias (Ukrainian currency) in judgments rendered in 2014.

As Stetsov would not pay, enforcement officers applied to courts in Kyiv for an order prohibiting Setsov from leaving Ukraine until full payment of the claim. The Kyiv Court of Appeal granted the remedy at the end of 2014, on the grounds that Stetsov knew about the judgment, and had not made any effort to start paying the judgment in four months.

Stetsov applied to replace the measure by establishing a payment of 20% of his monthly salary. The alternate remedy was established, but enforcement officers refused to lift the restriction until full payment of the judgment.

Stetsov sued Ukraine before the ECtHR.

Ukraine has ratified Protocol No. 4 to the Convention securing certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto, which provides

Article 1 – Prohibition of imprisonment for debt
No one shall be deprived of his liberty merely on the ground of inability to fulfil a contractual obligation.

Article 2 – Freedom of movement
1 Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2 Everyone shall be free to leave any country, including his own.
3 No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
4 The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.

Both parties agreed that Mr Stetsov suffered a restriction to his freedom of movement. They also agreed that such restriction was provided by law (a Ukrainian statute, the legal basis has changed since then) and served a legitimate goal, which was “the protection of the rights of others”. The ECtHR agreed.

The only debate between the parties was thus whether the restriction was proportionate. The ECtHR ruled that after a short initial period, the restriction could only be maintained after finding that the restriction could serve its purpose, i.e. ensuring the payment of the debt.

In this case, the ECtHR found that the decision of Ukrainian enforcement authorities was that the restriction could only be lifted after full payment of the debt. The ECtHR concluded that the restriction could thus not be reviewed to assess whether it was still justified, which made it a disproportionate restriction to the freedom of movement of the applicant.

The applicant sought EUR 10,000 in compensation for its ‘prejudice moral’. The ECtHR generously awarded him EUR 1,000.

Some will find it disappointing that the ECtHR did not condemn more vigorously the use of restrictions to the freedom of movement for the purpose of enforcing civil and commercial claims (French human rights scholar Margenaud has made it clear in a short commentary he has written on this case). It seems, however, that the comparison between Articles 1 and 2 of the protocol makes it clear that legislative intent was not to ban restrictions from leaving a territory, but rather to give significant discretion to the Contracting States.

In contrast, imprisonment for the purpose of paying a debt seems to be banned in principle, irrespective of the proportionality of such remedy. An interesting question is whether the prohibition would extend to imprisonment for failing to comply with an injunction aiming at securing the payment of a debt, such as a Cyprus or Irish Mareva injunction.

A series of online seminars has been in launched in December 2021, organised by the team of the Vici project Affordable Access to Justice at the Erasmus School of Law: the general topic is Trends and Challenges in Costs and Funding of Civil Justice.

The next seminar in the series is scheduled for 20 April 2022 (14-16 CET) under the title Austerity policies and litigation costs reforms.

The relationship between access to justice, efficiency of courts, and litigation costs has never been an easy one. Yet, finding a proper equilibrium has never been more challenging than in recent times. The EU economic crises of the last decade and austerity policies deeply impacted justice budgets in several EU Member States and triggered justice reforms, particularly in the area of litigation costs. Building on the experiences of three EU jurisdictions that have been greatly affected by such developments (Greece, Portugal, and Spain), the seminar will assess the impact of austerity measures on access to justice.

The speakers are Panagiotis Perakis (Vice President CCBE), Paula Costa e Silva (Lisbon University) and Fernando Gascón Inchausti (Complutense University of Madrid).

Register here to attend the event.

This post was contributed by Vincent Richard, who practices with Wurth Kinsch Olinger in Luxembourg.

On 7 April 2022, the Court of Justice delivered its judgment in case C‑568/20, J v. H Limited on the recognition in Austria of an English summary order to pay a debt recognised in a third State judgment. The case shows that the prohibition of “double exequatur” can be circumvented by resourceful litigants.

H Limited, a banking institution, obtained two judgments in Jordan in 2013 ordering J. to reimburse a loan. These judgments were subsequently presented to the English High Court of Justice which issued an order after summary proceedings stating that the debtor had to pay to the bank, a sum equivalent to what the Jordanian decisions ordered. The decision was issued in March 2019 when the country was still a Member State of the EU. This English summary order is not a direct recognition or enforcement of a foreign judgment but an English decision on the merits taking into account the foreign judgment’s res judicata. Consequently, the English court also issued the certificate referred to in article 53 of Regulation n° 1215/2012 for that summary judgment.

The creditor of judgment then tried to enforce this English summary order in Austria where the debtor resides. This action was successful at first. The Austrian first instance court authorised enforcement of the English order and, on appeal, the Austrian Regional Court of Linz dismissed the debtor’s arguments challenging the decision.

The debtor then appealed on a point of law before the Austrian Supreme Court, which in turn addressed three questions to the Court of Justice. In essence, those three questions aim to determine whether the English summary order issued based on the foreign judgment’s res judicata should be considered as a “judgment” according to Regulation n° 1215/2012 and whether it should be recognised in Austria.

Following the opinion of Advocate General Pikamäe, the Court of Justice declared that the English summary order is indeed a judgment according to art. 2a) and art. 39 of the Brussels I a) Regulation but it leaves open the possibility of challenging the compatibility of the summary order with Austrian public policy.

The Court of Justice underlines that mutual trust implies a broad understanding of the notion of “judgment” in the Regulation. Any decision under national law is considered a judgment under the Regulation as long as the procedure leading to the judgment is adversarial in nature. This criterion is itself interpreted broadly (see C-394/07 Gambazzi and particularly AG Kokott’s opinion in the case). Besides that, article 2a) and chapter III of the Regulation leave no margin of interpretation to exclude judgments because of their content as long as they do not fall within the matters excluded from the scope of the whole regulation defined by article 1.

Consequently, the CJEU declares that the English summary order issued based on two Jordanian judgments is a decision susceptible to be enforced according to Brussels I a).

At first glance, the decision of the Court of Justice is concerning because it opens the door to forum shopping tactics for foreign judgments creditors. What is peculiar in the case at hand is that the English summary order is barely distinguishable from a judgment enforcing a foreign judgment. And as the French would say “exequatur sur exequatur ne vaut” meaning that the recognition procedure does not apply to a decision that itself recognises a foreign judgment. Only the original foreign decision on the merits may be subject to recognition. This principle is explicitly mentioned by the Austrian Court in its request for a preliminary ruling. The logic of this reasoning is that the court of the requested State may only check that the judgment is eligible for recognition if it can read the judgment itself and not the appreciation of that judgment made by another court. This reasoning is all the more valid within the Brussels I system because it ensures a clear distinction between judgments originating from other Member States, which should be recognised broadly under uniform conditions and judgments originating from third States. For the latter, Member States remain free to define the conditions applicable to recognition and enforcement. Ruling otherwise would allow the creditors of the foreign judgment to try to have their judgment recognised in the State which is the most open to foreign judgments and to then bypass stricter requirements in the Member State where the debtor has assets. In the present case, it could be argued that the English procedure was used as a Trojan horse to enter Austria. However, the Brussels I a) Regulation does not explicitly exclude this scenario.

The Court of Justice leaves open the possibility of refusing recognition of the English decision by challenging its compatibility with public policy. The Court of Justice states that recognition could be refused if the debtor manages to convince Austrian courts that he was unable to challenge, in the English procedure, the merits of the claim brought forward in Jordan. In essence, this argument amounts to considering that if the English judgment is a genuine English judgment, then there must have been a possibility for an adversarial debate on the merits. In the first part, the CJEU ruled that the English order was a judgment under the Regulation even though it was based on two Jordanian decisions. Therefore, the English judgment must be compatible with the public policy of the requested State regardless of the content of the Jordanian decisions. Or to put it the other way around, if the English proceedings lead to a European decision, then the English proceedings alone must conform to European standards.

Finally, it must be pointed out that a simpler way to address similar issues would be for the debtor to pre-emptively seek a declaration of non-enforceability of the foreign decision in the Member State of enforcement when this is possible. Then, this decision could be used to block enforcement of the State of origin’s decision under article 45 1) d) of the Regulation on irreconcilable decisions. There may be good reasons why this possibility was not considered in the present case though.

Toni Marzal and George Pavlakos (both from University of Glasgow) posted recently on RSSN their article titled A Relations-First Approach to Choice of Law.

The article forms part of the forthcoming volume Philosophical Foundations of Private International Law edited by Roxana Banu, Michael Green and Ralf Michaels to be published by Oxford University Press. The volume is an outcome of an interdisciplinary project carried under the same title. As underlined by Roxana Banu:

PIL situates virtually every legal topic in a different, transnational and pluralistic context. It is therefore hard to comprehend why a philosophical inquiry has thus been far lacking. We seek to penetrate the long-standing isolation existing between the two disciplines and investigate the many opportunities for mutual enrichment.

The abstract of the article reads as follows:

The question of applicable law remains central in the doctrine and practice of private international law (PIL), raising a host of disagreements around the criteria that govern its determination. Paradoxically, this question is commonly approached through a positivist lens, whilst at the same time being guided by a commitment to individual autonomy. In this paper we propose, against mainstream practice, to frame the issue of applicable law as involving a series of questions about relational morality, which ought to be answered independently of any established legal order, and from a concern for the common good. We will proceed in four parts. First, we will demonstrate that a purely positivist understanding fails to properly account for today’s practice, given its propensity to exclude normative considerations as irrelevant to the determination of legal facts, whilst at the same time resorting to such considerations under the cover of hopelessly circular reasoning – a failure that is particularly manifest in the context of PIL. Second, we will show how current PIL tends to accomplish this operation by smuggling into legal reasoning a pre-institutional notion of individual autonomy, which implicitly guides the determination of applicable law, and is divorced from any considerations of relational morality (as well as from ideals of the common good that are left to the ex-post intervention of institutionalised legal orders). Third, we emphasise the independent value of addressing the question of legal relations in pre-institutional terms and propose a fresh way of understanding the legality of such relations among private parties, on the basis of a revised reading of Savigny and Kantian right, as key to the determination of the applicable law. Finally, we explore the downstream implications of our relations-first approach, by considering the topical question of applicable law to claims against parent/buyer companies for the harm caused by their subsidiaries/providers overseas.

The final conference of the JUDGTRUST project on the application of the Brussels I bis Regulation will take place in the Hague (and on-line) on 21 and 22 April 2022, organised by the Asser Institute with the University of Hamburg, the University of Antwerp and the Internationaal Juridisch Instituut.

The conference concludes a two-year project on the correct and consistent application of the Regulation. The research findings of the project will be presented and the conference will provide an opportunity to share knowledge amongst academics, legal practitioners and legislators on how to achieve a greater consistency among various instruments in order to enhance the legal certainty, predictability and access to justice in cross border legal transactions.

The conference will offer an opportunity to discuss about the interpretation of the Regulation; the difficulties in the application and interpretation of the Regulation by State courts; consistency within the European private international law system, and possible solutions.

Speakers include Michał Gondek (European Commission), Markus Tobias Kotzur (University of Hamburg), Vesna Lazić (Asser Institute, Utrecht University), Burkhard Hess (MPI Luxembourg), David Althoff (The Hague Institute of Private International and Foreign Law), Louise Ellen Teitz (Roger Williams University School of Law, Bristol, Rhode Island), Wolfgang Hau (Ludwig-Maximilians University of Munich), Antonio Leandro (University of Bari), Michiel de Rooij (Asser Institute), Javier Carrascosa González (University of Murcia), Gilles Cuniberti (University of Luxembourg), Fieke van Overbeeke (The Hague Institute of Private International and Foreign Law), Mukarrum Ahmed (University of Lancaster), Jachin Van Doninck (Free University Brussels), Luis de Lima Pinheiro (University of Lisbon), Lisette Frohn (The Hague Institute of Private International and Foreign Law), Beatriz Añoveros Terradas (University of Barcelona), Pontian Okoli (University of Stirling) and Francesca Villata (University of Milan).

The full programme is available here. See here for registration.

Ansgar Ohly (Ludwig Maximilian University Munich) wrote an interesting article addressing matters of jurisdiction and choice of law in trade secrets misappropriation cases. The article entitled Jurisdiction and Choice of Law in Trade Secrets Cases: the EU Perspective has been published in an Edward Elgar Research Handbook on Information Law and Governance edited by Sharon K. Sandeen, Christoph Rademacher and Ansgar Ohly. A version of the paper is now available for free consultation on SSRN.

The abstract reads as follows:

Trade secrecy law is a hybrid between intellectual property and unfair competition law. This makes the characterisation of trade secrecy law for the purposes of private international law difficult. This paper argues that neither the EU conflict of law rules for unfair competition law nor those for IP law can be applied, but that a sui-generis solution is called for.

The paper is structured around two parts: one dedicated to determining jurisdiction in trade secrets cases – Part II – and another to applicable law – Part III.

The analysis is systematic and starts from matters of jurisdiction in tort or contract cases, discussing the Bogsitter case (C-548/12) and Wikingerhof case (C-59/19; the judgment was not yet given by the CJEU), Trade Secrets Directive (Directive (EU) 2016/943), and looking at the place where ‘the harmful event occurs’.

For applicable law, the EU provisions seem to force the courts to address the difficult question of whether the protection of trade secrets is a part of intellectual property or of unfair competition law.

One of the problematic aspects of the analysis is related to the specificity of trade secrecy that usually involves a chain of events which consists of the acquisition, the disclosure, and the use of the information.

All of these acts are separate acts of infringement, but at the same time they are related (see the “cascade of liability” established by Article 4 Trade Secrets Directive).

Hence, the question is whether these acts should be dealt with separately for the purpose of establishing jurisdiction and determining the applicable law or whether the entire dispute should be handled by one forum based on one applicable law or other sui generis solution should be considered.

Since the Millennium, public interest litigation has become a growing phenomenon in civil courts. Activists and NGOs are filing civil lawsuits, both domestic and cross-border, in order to promote societal and political shifts.

Typical examples are (business and) human rights claims, environmental claims, climate change litigation but also cartel damage claims. Targeted defendants react also developing litigation strategies, such as bringing the disputes to the general public through the media. A currently much discussed example are SLAPP, strategic lawsuits against public participation – libel lawsuits brought against journalists, media and other stakeholders of the civil society in order to deter them from making investigations.

On 8 April 2022, at 4 pm CET, a Max Planck Law curriculum course is taking place under the title Strategic Litigation – A New Phenomenon in Civil Litigation?, where Burkhard Hess (Director, MPI Luxembourg) will present strategic litigation on the basis of actual cases, and analyse the main features of this (not that new?) phenomenon. The class will primarily focus on civil actions but equally look at recent developments at constitutional and international courts, trying to assess whether and to what extent this type of dispute is transforming civil litigation as we know it.

Those wishing to attend are required to register here by 6 April 2022.

In February 2022, a Working Group has been established within the European Association of Private International Law. The task of the Group was to respond to a public consultation launched by the European Commission on the prospect of an EU-wide protection for vulnerable adults, i.e., persons aged 18 or more who are unable to protect their interests because of an impairment or insufficiency of their personal faculties.

The Group presented the preliminary draft of a position paper prepared for this purpose at a webinar on 10 March 2022.

Having taken note of the feedback received from the participants in the webinar and other interested academics, practitioners and stakeholders, the Working Group shared a final draft with the Association’s Scientific Council.

The position paper, as approved by the EAPIL Council and submitted to the European Commission, is available here.

Here are some of the key takeaways of the paper:

1. Private international law has an important role to play in the realisation of the fundamental rights of persons aged 18 and more who are not in a position to protect their interests due to an impairment or insufficiency of their personal faculty.
2. The Union should urgently adopt measures of judicial cooperation aimed to support, in cross-border situations, the exercise of legal capacity by the adults concerned, in accordance with the United Nations Convention on the Rights of Persons with Disabilities.
3. In taking the above measures, the Union should preserve the operation and the prospect of success of the Hague Convention of 13 January 2000 on the International Protection of Adults. To this end, the Union should combine external action and legislation, meaning that the Convention should provide the basic legal framework in this field, common to all Member States, but legislation should be enacted by the Union to strengthen cooperation between Member States and improve the operation of the Convention in their relations.
4. The legal basis for the above measures would be Article 81 TFEU, with the clarification that the protection of adults should not be deemed to fall within the scope of “family law” within the meaning of Article 81(3).
5. The Union has external competence, based on Article 216 TFEU to authorise the Member States that have not yet done so to ratify, or accede to, the Hague Adults Convention “in the interest of the Union”, on the ground that the conclusion of the Convention would be “necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties”.
6. The legislation of the Union aimed to improve the Hague Convention regionally should relate, inter alia, to choice of court by the adult concerned and the law applicable to ex lege powers of representation.
7. Specifically, the Union should enact a rule whereby ex lege powers of representation are governed by the law of the (Member) State where the adult concerned has their habitual residence at the time when those powers are relied upon, without prejudice to the application of the provisions on ex lege powers of representation as may be in force in the Member State where the powers are invoked, whenever the provisions themselves are meant to apply regardless of the law specified by conflict-of-laws rules.

On 7 April 2022, the Court will deliver the judgment in C-568/20, H Limited. The request, with three questions, was lodged in November 2020 by the Oberster Gerichtshof (Austria); it concerns the interpretation of several provisions of Chapter III of the Brussels I bis Regulation, in addition to its Article 2(a). The dispute on the merits focuses on the enforcement of an order based on a decision of the High Court of Justice, Business and Property Courts of England & Wales, Commercial Court (QBD). AG Pikamäe’s opinion, published on December 16, 2021, proposed the following answers to the CJEU:

Articles 45 and 46 of [the Brussels I bis Regulation] should be interpreted as meaning that the court of the Member State addressed, to which an application for refusal of enforcement is made, may grant that application on the grounds that the judgment and the certificate, provided for in Article 53 of that regulation, adopted by the court of the Member State of origin breach the public policy of the Member State addressed, where the error of law relied upon constitutes a manifest breach of a rule of law regarded as essential in the legal order of the European Union and therefore in the legal order of that State. This is the case of an error affecting the application of Article 2(a) and Article 39 of that regulation requiring that the judgment of which enforcement is sought be given in a Member State.

When reviewing whether there has been a manifest breach of public policy in the Member State addressed through failure to comply with a substantive or procedural rule of EU law, the court of that State must take account of the fact that, save where specific circumstances make it too difficult or impossible to exercise the legal remedies in the Member State of origin, the individuals concerned must avail themselves of all the legal remedies available in that Member State with a view to preventing such a breach before it occurs.

The reporting judge is M. Safjan.

The decision on C-645/20, V A et Z A , is scheduled for the same day. The French Court of Cassation had addressed to the Court a single question on the interpretation of Article 10(1)(a) of the Succession Regulation, lodged in December 2020. AG M. Campos Sánchez-Bordona had suggested to reply as follows:

Article 10(1)(a) of [the Succession Regulation] must be interpreted as meaning that, in the case where the deceased did not have his last habitual residence in any Member State of the European Union, the court of a Member State in which a dispute in a matter of succession has arisen must declare of its own motion that it has jurisdiction to settle the succession as a whole if, in the light of facts alleged by the parties which are not in dispute, the deceased was a national of that State at the time of his death and was the owner of assets located there.

M. Ilešič was appointed reporting judge.

Easter vacation imposes a break on the publication of decisions and opinions. For PIL purposes, the next one will be the opinion of AG M. Richard de la Tour in C- 604/20 ROI Land Investments, a request from the Bundesarbeitsgericht (Germany), lodged on November 2020. The questions referred concern both jurisdiction and applicable law (the Rome I Regulation) in employment and (maybe, or) consumer matters:

1. Is Article 6(1) read in conjunction with Article 21(2) and Article 21(1)(b) of [the Brussels I bis Regulation] to be interpreted as meaning that an employee can sue a legal person – which is not his employer and which is not domiciled in a Member State within the meaning of Article 63(1) of the [Regulation] but which, by virtue of a letter of comfort, is directly liable to the employee for claims arising from an individual contract of employment with a third party – in the courts for the place where or from where the employee habitually carries out his work in the employment relationship with the third party or in the courts for the last place where he did so, if the contract of employment with the third party would not have come into being in the absence of the letter of comfort?
2. Is Article 6(1) of the [Brussels I bis Regulation] to be interpreted as meaning that the reservation in respect of Article 21(2) of the [the same Regulation] precludes the application of a rule of jurisdiction existing under the national law of the Member State which allows an employee to sue a legal person, which, in circumstances such as those described in the first question, is directly liable to him for claims arising from an individual contract of employment with a third party, as the ‘successor in title’ of the employer in the courts for the place where the employee habitually carries out his work, if no such jurisdiction exists under Article 21(2) read in conjunction with Article 21(1)(b)(i) of the [Regulation]?
3. If the first question is answered in the negative and the second question in the affirmative:

(a) Is Article 17(1) of the [Brussels I bis Regulation] to be interpreted as meaning that the concept of ‘professional activities’ includes paid employment in an employment relationship?

(b) If so, is Article 17(1) of the [Brussels I bis Regulation] to be interpreted as meaning that a letter of comfort on the basis of which a legal person is directly liable for claims of an employee arising from an individual contract of employment with a third party constitutes a contract concluded by the employee for a purpose which can be regarded as being within the scope of his professional activities?

4. If, in answer to the above questions, the referring court is deemed to have international jurisdiction to rule on the dispute:

(a) Is Article 6(1) of [the Rome I Regulation] to be interpreted as meaning that the concept of ‘professional activities’ includes paid employment in an employment relationship?

(b) If so, is Article 6(1) of the Rome I Regulation to be interpreted as meaning that a letter of comfort on the basis of which a legal person is directly liable to an employee for claims arising from an individual contract of employment with a third party constitutes a contract concluded by the employee for a purpose which can be regarded as being within the scope of his professional activities?

The delivery is expected on 28 April 2022. M. Safjan will be the reporting judge.

On 31 March 2022, the EU Commission disclosed that it has been working on a proposal for a bilateral treaty to be concluded with the UK focused on recognition and enforcement of foreign judgments.

The purpose of the treaty would be to facilitate the circulation of judgments between the EU and the UK. It would not be a double convention and thus would not include rules governing the (direct) jurisdiction of the courts of the Contracting States.

At the present time, the material scope of the treaty would be limited to civil and commercial matters. It would not, therefore, extend to family law.

The (indirect) jurisdiction of the foreign court would be assessed by a single flexible text. Foreign courts would be considered to have jurisdiction if there was a meaningful connection between the foreign court and the dispute. The French presidency might have pushed for adopting this test, which is currently applied in the French common law of foreign judgments.

In addition, a provision of the treaty would clarify that the test would not be satisfied if the foreign court had retained jurisdiction on the basis of a number of exorbitant rules of jurisdiction that would be identified. This list seems to be clearly inspired for the red list of the Brussels instruments.

The public policy clause is probably the most innovative provision of the treaty. It would be applicable in principle, unless “actual mutual trust” could be found to exist between the relevant EU Member State and the UK.

A provision would then identify cases where such “actual mutual trust” would be presumed.

This would be the case for all judgments circulating between France and the UK, because France participates in the 6 Nations Rugby Championship (so-called “scrum proviso”).

The scrum proviso would apply between Italy and the UK for judgments rendered 32 days after Italy would win its first Championship or would win in Twickenham by more than 20 points.

More details on the draft treaty are available here.

The author of this post is Martina Mantovani, Phd Candidate at the University Panthéon-Assas.

Climate change litigation has increased dramatically since 2015, the year of the Paris Agreement. A 2021 Report drafted by the Grantham Research Institute on Climate Change and the Environment inventoried more than 1.000 new cases brought to court over the past six years. Among these, a specific type of disputes is gaining considerable momentum: those initiated by children and youth applicants.

While youth-led climate change litigation may at first appear rather “niche”, a closer look at the number and types of cases brought in the name of children demonstrates that this phenomenon is all but negligible for its size, its geographical scope, and its impact on domestic legal systems. A blog post authored by Lorenzo Gradoni and myself for Verfassungsblog and Völkerrechtsblog examines this strand of climate change litigation in a North-South perspective, offering insights on its origin, actors, drivers and prospects.

From the standpoint of the private international lawyer, it is worth remarking that just one of out of the 76 judicial complaints of this kind speaks the language of conflicts of laws. Milieudefensie et al. v. Royal Dutch Shell plc., decided by the Hague District Court in May 2021, is a class action brought by seven NGOs – including Young Friends of the Earth – and 17,379 individuals against a private corporation having its principal place of business in the Netherlands. The case raised the question as to whether a private company can violate a duty of care and human rights obligations by failing to take adequate action to curb greenhouse gas emissions. Before moving on to the merits of a case that presented several cross-border elements, the Hague District Court had to assess its own jurisdiction over the defendant and to identify the applicable law. The Brussels I bis and the Rome II Regulation were deemed applicable to the case at hand.

Considering the outcome of this case – a big victory for the plaintiffs – one may wonder why only 1.3 per cent of the examined cases borrows private international law (PIL) techniques to advance the fight against climate change. The marginal role played by PIL until now may seem surprising, especially when compared to the much bigger part reserved to public international law, whose arguments and discourse feature in most of the domestic complaints and star in some prominent cases brought before the European Court of Human Rights, the Inter-American Commission on Human Rights, the UN Committee on the Rights of the Child (CRC), with a possible debut before the International Court of Justice.

This post sheds some light on the broader phenomenon of youth-led climate change litigation, while addressing at once the plausible reasons behind the performance gap between private and public international law in this field.

Why choosing children and youth as applicants? That’s among the burning questions raised by youth-led climate change litigation. And, indeed, the background of the cases belonging to this trend suggests that we are faced, in this regard, with a strategic move made by the promoters of this litigation. Even though most of the examined cases have been filed by children and youth in their own name, these received substantial support (not only legal, but often also organisational and financial) from several NGOs, who place a special emphasis on their role as initiators of strategic litigation.

The American NGO Our Children’s Trust (OCT) deserves a special mention, being the undisputed forerunner of this kind of litigation. Having brought, since 2011, a great number of actions in the US and consistently acting as an advisor in high-profile cases brought in other jurisdictions,  OCT defines itself as “a non-profit public interest law firm that provides strategic, campaign-based legal services to youth from diverse backgrounds to secure their legal rights to a safe climate”. The “highly strategic legal campaign” this organization is leading “includes targeted media, education, and public engagement work to support the youths’ legal actions”. In the same vein, the Centre for Environmental Rights, who is behind the first South African youth-led constitutional case, “engages in strategic litigation, advocacy, and supports community groups in defending their right to a healthy environment though training and other support initiatives”. Plan B, the initiator of several youth-led climate change cases in the UK, “has been established to support strategic legal action against climate change” with a view to “harnessing market forces towards a better future for us all”. (All italics of this paragraph are added for emphasis). ​ ​​

Strategy is the deliberate search for a plan of action that will develop a competitive advantage and compound it, with a view to facilitate the achievement of the envisioned objectives. These goals emerge with particular clarity from the definition of “strategic litigation” given by the Grantham Research Institute on Climate Change and the Environment, i.e.,  lawsuits “where the claimants’ motives for bringing the cases go beyond the concerns of the individual litigant and aim to bring about some broader societal shift”, such as “advancing climate policies, creating public awareness, or changing the behaviour of government or industry actors” (here, at 12).

When thinking in terms of legal strategy, child and youth applicants may bring along an important competitive advantage, insofar as they can advance specific arguments both on the merits and on procedural grounds that would be either unavailable or not as compelling if put forth by adults (more on this later). But there could be more to youth applicants than sheer legal advantages. In our blogpost, Lorenzo and I suggest that youth-led litigation may be a sophisticate implementation of a broader strategy that straddles law and behavioural sciences, as expressed by Lovejoy’s Law, a presumptive law of social psychology named, curiously enough, after Helen Lovejoy, the Reverend’s wife in The Simpsons. According to Lovejoy’s Law, the love for children is likely to be invoked as an emotional trump card when opponents in a political dispute run out of rational arguments. Said otherwise, it is hard(er) to say no to children, and adults might be more willing to make compromises for the sake of their kids than they would normally make for their own good. Youth-led litigation might therefore create higher engagement, both in the members of the presiding court and in the general public, in keeping with the strategies pursued by the promoting NGOs.

None of the above explains why youth-led litigation has not embraced PIL in the fight against climate change. On the contrary, such omission remains baffling for two reasons.

First, the effects of Lovejoy’s law, if any, could be felt in a trial against a private multinational corporation just as well as in an action against a sovereign state, a type of action which is vastly prevalent in current youth-led climate change litigation. In this respect, it is interesting to note that the complaint in Milieudefensie evokes this Lovejoyan motive, when it affirms that “[c]limate change is an urgent issue. Not only are we already confronted with the consequences every day at present but our children’s future is at stake too. […] Milieudefensie senses that responsibility and it, therefore, makes climate justice the central theme of this new General Policy Plan (here, § 153). The action brought against Royal Dutch Shell aimed at implementing said Plan (at § 154).

Second, PIL has traditionally given the nod to strategic litigation, forum shopping being, according to some scholars, among the most unforgettable notions of this field of law, that keeps lingering even in the minds of those who are largely uninterested in the subject (here, at 49).

The absence of PIL from the toolbox of youth-led climate change litigation has seemingly little to do with the alleged inability of this field of law of addressing global governance issues in a meaningful way. Rather, the explanation appears more “down to earth”, one may say, insofar as it may stem, on the one side, from the particular way in which this strategy is conceived and implemented at the global level and, on the other side, from the current state of climate change legislation.

As for the latter, the statements made by ClientEarth – one of the most important NGOs in the field – are particularly revealing of the dissatisfaction with the current state of climate change legislation. In a section named “How we work”, this NGO distinguishes between “shaping” and “enforcing the law”, suggesting that much works needs to be done on both accounts. This explains why most of the efforts made until aims at filling the gaps of the extant legal framework, either by holding states accountable for commitments made in international agreements (rather than in ad hoc national legislation) or by proposing innovative and expansionist readings of traditional legal notions of domestic (constitutional) law, with a view to deploying them in relation to the “new” problems created by climate change (e.g. the use of the public trust doctrine in the US: see here, at 875). In the words of ClientEarth, the promoters of this litigation: “know how to use the legal system as a lever of change, how to enforce it and how to win” and thy do “not shy away from challenging governments and businesses in court”.

Lawsuits of this kind are situated at the crossroads between “shaping” and “enforcing” domestic laws. This is evidenced (a) firstly, by the lack of global consensus, among the applicants, on very important aspects of such litigation, such as the criterion for apportioning the burden of mitigating measures among states and, (b) secondly, by the emphasis placed by NGOs on the efforts made to adopt, for the purposes of human rights-based litigation, a common (ie global) scientific standard regarding emission reductions, on the assumption that such standard is not satisfactorily embodied in current laws (correspondence with NGOs on file with the author). Against this backdrop, choosing to pursue the action against states seems the most logical way forward, fuelled by the hope of triggering Neubauer-like scenarios, whereby a big win in a (constitutional) forum is followed by a wide-ranging adaptation of existing legislation. Once the desired scientific standard is enshrined in domestic laws, cases against non-compliant businesses may be less cumbersome and become a more straightforward expression of a strategy based on the sheer “enforcement of laws”, in its “public” and “private” variations.

The main reason for the absence of PIL from youth-led climate change litigation lies, precisely, in the choice of defendant made by the “first generation” of claims. A case – even a civil claim – brought against a state in relation to its (sovereign) environmental policy choices will never give rise to issues of jurisdiction, understood as the identification of the competent (state) courts. In fact, this sovereign will have to be summoned before its own courts, in order to prevent the use of state immunity as a foreseeable defence. In the same vein, when the claim questions the quality or the adequacy of a state’s legislation, or invokes the responsibility of said state in relation to an alleged violation of its obligations or duties of care, there is no real issue of applicable law. This will always be the law of the defendant state, eventually read in the light of pertinent international norms. In other words, PIL has not much to say on these matters, the international fungibility between (state) courts and between (state) laws that lies at its core being plainly and incurably lacking in cases presenting this specific conformation.

This is not to say that PIL will not play any role in the future. A closer look at the genesis and conception of the litigation strategy behind the youth-led cases brought until now reveals its highly experimental nature. This strategy is built on a process of trial and error: small and bigger changes are tried and tested, on an experimental basis, in subsequent cases, those that are beneficial being gradually transposed and tested in other jurisdictions. A similar pattern will likely be replicated as regards the choice of defendants: in this sense, the win in Milieudefensie may pave the way to other youth-led climate change cases brought against oil and gas corporations.

Intimations of a change in this direction come directly from the world of NGOs. The Children’s Investment Fund Foundation is “the world’s largest philanthropy that focuses specifically on improving children’s lives” and counts “climate change” among its priorities. It is currently among the major funders of youth-led climate change litigation, that it backs with a $ 83,6 million grant. More precisely, a $ 26,4 million grant is tied to the “ClientEarth Phase III” project, which supports “strategic litigation to accelerate Europe’s low carbon transition and secure Europe’s climate leadership by putting it on a Paris-aligned trajectory”, and $ 21,9 millions are allocated to the File project, which supports similar litigation “in multiple jurisdictions”. It is also worth stressing that the Children’s Investment Fund Foundation has recently been the recipient of some criticism: despite having being created to improve “the lives of children in developing countries who live in poverty”, this organisation has, more recently, allegedly “been used … to pass money towards environmentalist campaigns and other foundations pushing for legal action against energy companies due to the cost of climate change”.

The assumption underpinning this criticism is, at best, debatable: legal actions against energy companies in rich countries might well have indirect beneficial effects on the lives of children in developing countries. However, what is important for the purpose of this blogpost is the acknowledgment of a shift in the flow of funds, that seems to favour, at present, litigation directed against private corporations. Consequently, PIL will play an increasingly important role: owing to a variety of factors – such as the breadth of the activity of transnational corporations, the geographical complexities of their corporate structure, the origin of the applicants, the ubiquity of the damage caused by CO2 emissions, etc – these cases will likely present a “foreign element”, triggering questions about jurisdiction, applicable law and, why not, enforcement of foreign civil judgments.

It is hard to foresee whether this prospective “private strand” of climate change litigation will turn out to be similar to the cases directed against states In cases brought against states before constitutional and international courts, child and youth applicants may be in a more favourable position when arguing both on the merits of the case and on its admissibility.

Concerning admissibility, child applicants might more convincingly plead for the setting aside of the requirement of the prior exhaustion of domestic remedies. While the CRC decisions in Sacchi may disprove this assumption, this is what the lawyers in Duarte Agostinho are trying to advance (here, § 40), given that, in applying this rule, the ECtHR has traditionally paid due regard to the “personal circumstances of the applicant” in order to prevent disproportionate obstacles to the effective exercise of the right of individual application under Article 34 of the Convention (here § 109 and 111). Concerning the merits, child and youth applicants may invoke, first, a principle of non-discrimination, whereby they shall be entitled to the same level of protection of fundamental rights afforded to prior and present generations of adult citizens. Second, they may allege a specific kind of damage. According to the constitutional complaint in Held v Montana, § 231, owing to their “unique physiological characteristics and vulnerabilities, and lack of autonomy and dependency on caregivers” children are “more vulnerable to rights violations”. Being“at a critical development stage in life, as their capacities evolve and their physiological and psychological maturity develops more rapidly than at any other time in life”, youth and children form part of “a separate suspect, or quasi-suspect, class in need of extraordinary protection“. While being specific to a constitutional complaint made under the equal protection clause, arguments of a similar kind could be also invoked within the framework of an action, such as the one put forth by Milieudefensie, aiming at imposing a “duty of care” upon corporations. This should therefore be especially stringent and more compelling vis-à-vis children and youths, as a special class of individuals in need of extraordinary protection.

One should also ask whether, in a lawsuit brought against a corporation, PIL would grant child and youth applicants any kind of comparable favor that is, one that would place them in a better position than an adult filing a comparable claim. In current law, the answer is in the negative. Concerning access to justice, only a few EU Regulations in the field of parental responsibility manifest a certain favor for the child as such, insofar as the sheer presence of the child on the territory of a Member State may, in exceptional circumstances, justify the exercise of jurisdiction by the authorities of that state (e.g. Article 11 of the Brussels IIter Regulation). Outside this particular case, the mere quality of being a child cannot be invoked to bend, in any way, the uniform rules of jurisdiction set by the EU legislator, ie to open a forum in Europe when there is none. The CJEU has confirmed, in case C-393/18 PPU, that the particular vulnerability of the child, deriving from his lack of decisional autonomy and his dependency vis-à-vis his caregivers, cannot serve as a basis for an extensive interpretation of the grounds of jurisdiction established by EU law.

This same argument should apply, a fortiori, in civil and commercial matters, which youth-led climate change litigation belongs to. Here, the principle of the best interests of the child is no longer at the forefront, and there is no detectable favor for younger applicants. As far as the Brussels Ibis and the Rome II Regulations are concerned, child and youth applicants are in the exact same position as an adult bringing a comparable claim. It is equally unlikely that the condition of dependency of the child vis-à-vis the caregivers could warrant the opening of a forum of necessity under domestic rules of PIL, on the basis that “proceedings abroad are impossible or cannot reasonably be required” (cf art. 3 of the Swiss law on PIL).

Nonetheless, there are good reasons to suspect that an increasing number of youth-led climate change cases against corporations will land in Europe in the near future. In fact, despite the neutral attitude adopted by PIL vis-à-vis child applicants, the procedural framework set out by EU law remains remarkably advantageous for the plaintiffs.

First, these could profit from the “hard-and fast” logic underpinning the rules of the Brussels Ibis Regulation, that makes establishing jurisdiction vis-à-vis a corporate defendant having its statutory seat, its central administration or its principal place of business in the EU a relatively straightforward affair, as evidenced by cases such as Luciano Lliuya v. RWE AG or Milieudefensieitself. Youth-led climate change litigation could also follow the trail blazed by the cases on social corporate responsibility and learn from this experience in order to attract, in that same European forum, eventual subsidiaries domiciled in third states. Second, in terms of applicable law, the EU legal framework might be particularly appealing in the light of the policy-oriented rule of conflict set out by Art. 7 of the Rome II Regulation, that grants the plaintiffs a choice between the law of the country where the damage occurred and that of the country of the unlawful event. This could point, in most cases, to the applicability of the law of a Member State, embodying the European acquis on environmental law and abiding to a fairly high standard of protection.

A thorough analysis of the advantages (and potential inconveniences) underpinning the rules of EU PIL is beyond the scope of this blog post. I formerly discussed the possible strategies employed to “open” a forum in the EU based on the Brussels Ibis Regulation here. For the rest, I gladly refer to the overview given here by Eduardo Álvarez-Armas. It should just be added that the recently published Proposal for a Directive on corporate sustainability due diligence might bring along a new, unprecedented advantage for child applicants who succeed in seizing a court in the EU. The proposed Directive – which purports to effectively contribute to combating climate change: cf Recital 50 – seeks to introduce, inter alia, a uniform rule on civil liability for the violation of the (also uniform) obligations of due diligence set out by the proposed instrument. This rule would be applicable also to companies established outside the EU “where 80-90 % of the harm of EU production may occur”, provided that the turnover criterion set out in Art. 2(2) of the proposed Directive is complied with (see here, at 8). Equally remarkable is the fact that the rule on civil liability shall be “of overriding mandatory application in cases where the law applicable to claims to that effect is not the law of a Member State” (Art. 22 (5) of the Proposal). This civil liability rule will therefore complement the law identified under Art. 7 of the Rome II Regulation, in cases where the latter provision will not, due to the specific features of the harmful event, point to the law of a Member State. This plaintiff-friendly legal framework, coupled with the existence of child-specific and geographically targeted funding within the framework of the ClientEarth Phase III project, will likely turn Europe into the hub of youth-led climate change litigation against corporations in the coming years.

The author of this post is Julian Henrique Dias Rodrigues, lawyer in Lisbon.

On 27 January 2022, the Lisbon Court of Appeal gave a decision concerning the (non) recognition in Portugal of notarial deeds attesting a de facto union.

A suit for recognition and enforcement of a foreign judgment (“ação especial de revisão de sentença estrangeira”) was filed in Lisbon in November 2021 by a Portuguese citizen and a British citizen, based on a Declaration of de facto union signed earlier that year before a notary public in London, where the couple lived.

The couple claimed that the above deed corresponds, under English law, to a judgement, and that it confers on the authors of the declaration the status of a relationship equivalent to that of spouses under English law.

The Portuguese Court analyzed the English Civil Partnership Act of 2004 (CPA).

For the Court, the civil partnership corresponding to the Portuguese de facto union is formalised by means of registration before a registry office, which results in the signature of a civil partnership document before the registry officer, with the presence of two witnesses (Article 2, Section 2, of the CPA).

The decision highlights that, under English law, a simple civil partnership agreement does not have any legal force (“does not under the law of England and Wales have effect as a contract giving rise to legal rights”, as stated in Article 75 of the CPA).

The Court acknowledged that it had previously recognized a public deed of de facto union of Brazilian origin. However, according to the reporting magistrate “[t]he legal situation brought in these proceedings is not analogous to the união estável recognized in Brazil. The English legal institute equivalent to the Brazilian stable union, foreseen and regulated in the United Kingdom, is the civil partnership”.

Relying on English legislation and case-law, the Court concluded that the document does not produce legal effects in the English legal order that go beyond the mere evidential force of the declaration. The legal significance of a partnership does not arise from it. That formal declaration is merely an additional element which the authority deciding whether or not to grant a claim based on the partnership will take into account in deciding in favour of the applicant.

In the Court’s view, the Deed in question was something different than a “civil partnership” under British law. For this reason, the Court refers to civil partnership to underline the difference between the situation created by the Deed and the situation of parties to a civil partnership agreement under UK law.

Returning to the Brazilian example, the judgment highlights that

contrary to what happens in Brazil, where the marriage and the ‘união estável’ can be dissolved by notarial deed, in the United Kingdom the divorce and the dissolution of the civil partnership need the intervention of a court according to the Matrimonial Causes Act 1973, and as for the dissolution of the civil partnership, article 37 of the Civil Partnership Act 2004.

In conclusion, the Lisbon Court of Appeal rejected the request as it considered that the “statutory declaration” is not equivalent in the United Kingdom – or in Portugal – to a judgement or judicial decision, not producing the respective effects.

The Lisbon Court of Appeal issued between 2019 and 2021 a series of judgments admitting the recognition of a public deed of de facto unions established in Brazil, by means of the suit of recognition of foreign judgment. However, there is no consensus on the matter.

In most cases the requests for recognition are made in the context of the acquisition of Portuguese nationality by the de facto union.

At least three judgments of the Supreme Court of Justice (“Supremo Tribunal de Justiça – STJ”) contradict the trend of the Lisbon Court of Appeal (Case 106/18.0YRCBR.S on February 2019, Case 559/18.6YRLSB.S1 on March 2019 and Case 249/18.0YPRT.S2 on December 2019).

For the STJ “the applicants declaration in a Public Declaratory Deed of De Facto Union, before a foreign administrative authority (notary public) that they live in a de facto union since July 2013, should not be considered as covered by the provision of Article 978 no 1, of the Code of Civil Procedure, and cannot be revised and confirmed to produce effects in Portugal” (Case 249/18.0YPRT.S2).

However the divergence remains open in the STJ itself.

By a ruling of 8 September 2020 the Court granted recognition to a declaration of a de facto union, issued before a notary public, and stating “The contracting parties expressly recognize the fact that they have been living as if they were married since January 2005” and that “they have said so, I, the undersigned, have requested and drawn up this instrument, which, having been read aloud and found to be in conformity, they have accepted, granted and signed, together with the witnesses, present at all acts” (Case No. 1884/19.4YRLSB.S1).

To reach this understanding, the reporting magistrate observed that

the Brazilian ‘união estável’ is a fact and not a legal act. The intervention of the public official foreseen in the legal system is constitutive, in the sense of producing effects in the legal order, namely the declarative one of the verification of the situation of de facto union.

As seen above, the matter is likely to continue to be the object of controversy among Portuguese courts.

In this post, Marylou Françoise presents her doctoral work on the role of courts in choice of law from an EU law perspective (‘L’office du juge en conflit de lois : Étude en droit de l’Union européenne’). This is a important issue for all EU PIL experts and obviously a recurring topic in France (see here, here, here and here).

This work raises a topical issue at the crossroad of private international law, EU law, and civil procedure. It aims at rethinking the national procedural system of EU Member States to accommodate more efficiently European choice-of-law rules. The status of EU choice-of-law rules before national courts can legitimately be questioned in the light of the objectives pursued by these rules.

EU choice-of-law rules are part of a specific policy of the European Union based on Article 81 of the Treaty on the Functioning of the European Union. According to this provision, the EU has the competence to develop judicial cooperation in civil matters having cross-border implications. The main goals are to encourage accessibility to justice for European citizens, to offer a predictable justice based on clear articulation of national provisions and to achieve international harmony of solutions. In this context, the European regulations applicable to conflict-of-laws are adopted to ensure that the same national law is designated irrespective of the national court hearing the case. Thus, EU choice-of-law rules have a functional nature. To achieve their goal, they need to be applied uniformly. Yet, there is no common procedural framework along with the European regulations in conflict-of-laws matter. Their uniform application depends on various national procedural provisions of the Member States.

According to the Latin maxim forum regit processum, the procedural status of choice-of-law rules depends on the national law of the court hearing the case. Several studies, including the study conducting by the Swiss institute of comparative law, have shown the diversity of national procedural provisions. The French system is particularly complex because it requires that courts distinguish between rights according to their availability (i.e. whether the parties may dispose of their rights). On 26 may 2021, the French supreme court for private and criminal matters added a new criterion that requires to apply ex officio EU choice-of-law rules when they are mandatory. For the first time (to the best of our knowledge), a national court made a distinction between conflict-of-law rules according to their European origin. If this ruling has to be welcomed according the EU principles of primacy and effectiveness to which the French court referred, the regime of the conflict-of-laws rules becomes more complex : only the choice-of -law rules which do not allow a derogation shall be applied ex officio. Yet, the vast majority of EU choice-of-law rules may be derogated from.

The French system reflects the complexity to define the procedural status of the European conflict-of-laws. More broadly, according to the national court hearing the case, the application of EU choice-of-law rules become unpredictable. The ex officio implementation of EU law directly depends on the competent court. This seems to be in complete contradiction with the purpose of EU choice-of-law rules. The unpredictable nature of the choice-of-law rule is strengthened by the lack of a European corrective mechanism.

The principle of procedural autonomy of EU Member States allows them to adopt procedural provisions to implement EU law. However, this principle is bounded by two conditions : equivalence and effectiveness ( see the Comet and SpA San Giorgio cases). These requirements are generally used by the European Court of justice to limit the autonomy of Member States. Regarding the ex officio application of EU provisions, the Court provides for a flexible approach. In its Van Schijndel case, the Court of justice held

Community law does not require national courts to raise of their own motion an issue concerning the breach of provisions of Community law where examination of that issue would oblige them to abandon the passive role assigned to them by going beyond the ambit of the dispute defined by the parties themselves and relying on facts and circumstances other than those on which the party with an interest in application of those provisions bases his claim.

In other words, national courts shall apply ex officio the European provision only if the parties ask for it. An exception is made for certain provisions in consumer law (see the Pannon case). The Court justifies this specific position by the public interest attached to European consumer provisions.

Against this background, the control of the procedural autonomy of the Members States led by the ECJ is not sufficient to establish an efficient system of conflict-of-laws. The intervention of the EU is clearly incomplete to pursue the goal of a European civil justice area. Therefore, how can EU choice-of-law rules achieve international harmony of solutions if there is no common provisions to support their application ? In this context, a new framework should be drawn up to ensure a uniform application of EU choice-of-law rules.

Firstly, it is necessary to analyse the EU acquis regarding the application of choice-of-law rules, in particular the overriding mandatory provisions, in cross-border situations and the parties’ freedom to choose the applicable law. The application of national mandatory rules is generally strictly controlled by the European Court of justice (see the Nikiforidis case). At the same time, the identification of EU mandatory provisions is confusing (see the Unamar and Da silva cases). Then, the possibility for the parties to choose the applicable law is widely accepted by European conflict of laws rules (in contractual and non-contractual matters) – except for articles 6-4 and 8 of the Rome II Regulation. EU choice-of-law rules become optional for both the parties and courts. Indeed, if the European provisions allow a derogation, they are not compulsory for the judge according to national procedural systems. These two examples illustrate that EU law is already influencing the national application of EU choice-of-law rules. However, this influence is incomplete and flawed. The procedural status of the European rule depends on the interpretation by national courts of the mandatory nature of a law or of the existence of a choice of law agreement by the parties.

EU choice-of-law rules must be applied consistently. They should have a uniform procedural status. The latter can depend neither on the substantive nature of the respective rights, nor on the national interpretation of the mandatory nature of the rule. EU choice-of-law rule must be mandatory for national courts. This solution may be seen as radical in particular since the freedom of the parties is a key component of civil procedure. It could also generate an increase of procedural costs because of the recurrent application of foreign laws. That is why this obligation to apply the choice of law rule ex officio should be limited. Party autonomy wit respect to the applicable law should be maintained but it should be exercised after the ex officio application of the choice of law rule by the court. This private choice must also be strictly framed by the choice-of-law rules themselves. The material scope of the procedural choice should comply with the individual choice allowed by the EU regulations and the procedural choice should be express. In other words, the EU choice-of-law rules should be applied automatically by the Court and parties should be informed of the potential application of foreign law.

This proposition can be loudly criticised according to the civilian procedural system. National courts cannot be a substitute for negligent litigants and several questions arise. How much litigation will cost ? How long it will last ? Are national courts well trained in European private international law ? Can they have an easy access to foreign law ?

At the same time, these arguments seem outdated. EU law is now part of national law in the Member State. The rise of international disputes requires full awareness of EU provisions and a close collaboration between EU judicial systems.

The uniform application of EU choice-of-law rules is the only way to achieve the objective of a European civil justice area. In this context, the PhD dissertation concludes by providing a proposal for a European regulation on a common procedural frame in choice of law. This proposal – based on Article 81-1 and Article 81-2 c), e) and f) of the Treaty on the functioning of the European Union – could be included into the existing regulations on choice of law. It could also appear in a future European code of private international law or in a regulation on procedural aspects of choice of law rules.

This proposal finally requires an inevitable adaptation in practice. Judicial practitioners, such as judges and lawyers, must be trained in European private international law. The ex officio application of EU conflict-of-law rule would be a revolution for many national procedural systems. But it seems to be a necessary evolution for the European judicial system.

In 2019 in Würzburg a group of young researchers from several EU Member States met for a comparative Private International Law project and to create what later became the EAPIL Young Research Network.

The first project, initiated by Susanne Lilian Gössl (Germany) and  Martina Melcher (Austria), dealt with the national implementation of the CJEU/ECtHR case law regarding the so-called “recognition of status”.

The results, a comparative report and most of the national reports, of this project have now been published in the latest issue of the open-access journal Cuadernos de Derecho Transnacional.

The issue comes with national reports from Austria (Florian Heindler and Martina Melcher), Belgium (Sarah Den Haese), Baltic States (Katažyna Bogdzevič and Natalja Žitkevitš), Croatia (Tena Hoško), France (Marion Ho-Dac), Germany (Susanne Lilian Gössl), Hungary (Tamás Szabados), Italy (Marta Giacomini and Martina Vivirito Pellegrino), the Netherlands (Tess Bens and Mirella Peereboom-Van Drunick), Poland (Natalja Žitkevitš) and Spain (María Asunción Cebrián Salvat and Isabel Lorente Martínez)

A report from Sweden, by Laima Vaige, will be published in the forthcoming issue, in Autumn 2022.

Several French learned societies (International Arbitration Institute, Comité français de l’arbitrage, Comité français de droit international privé, French Branch of the International Law Association, Société de législation comparée) will pay a tribute to Emmanuel Gaillard in a conference held in the Grand Amphithéâtre of the Sorbonne in Paris on 15 April 2022.

The conference Emmanuel Gaillard Theory in Action will feature testimonials of a variety of professionals and discussions of some of the theories promoted by Emmanuel Gaillard, including the arbitral legal order and the boundaries of private international law.

The sudden passing of Professor Emmanuel Gaillard on 1 April 2021 came as a shock for the legal world. One year later, five learned societies, of which Professor Gaillard had been an active member, on whose governing board he had served or which he had founded, are endeavouring to pay tribute to his manifold contributions to the world of law as well as the depth of his thinking, in arbitration law and beyond. The testimonials, analyses and discussions that will be shared during this event will highlight Professor Gaillard’s ability to combine theory and practice. Though he is no longer with us, he will forever remain an inspiration to generations of lawyers, as they strive to carry forth his legacy: theory in action.

The full programme of the conference is available here. Registration to the conference is possible here.

Gaillard was a prolific author, who wrote many books and articles. He also liked to draw, and made some drawings which aptly summarise some of his theories.