EAPIL blog

The 4th German-speaking Conference for Young Scholars in Private International Law will take place on 23 and 24 February 2023 at the Sigmund Freud University in Vienna.

The theme of the conference will be Deference to the foreign – Empty phrase or guiding principle of private international law?

Here’s the concept:

As part of the legal system, rules of private international law are bound by the principles of their national jurisdiction, but they also open up the national system to foreign rules. Is the claim of deference to the foreign merely an empty phrase or, at best, a working hypothesis, or can it serve as a meaningful guiding principle of private international law? Are there tendencies within or across specific areas of private international law to move away from deference to, and towards a general suspicion against, the foreign? To what extent does (mutual) trust become the basis of deference to the foreign in the process of internationalisation and Europeanisation? What, if any, is the relationship between deference to the foreign and the methods of private international law?

The organisers of the conference (Andreas Engel, Florian Heindler, Katharina Kaesling, Ben Köhler, Martina Melcher, Bettina Rentsch, Susanna Roßbach and Johannes Ungerer) are inviting contributions from all areas of private international law, including but not limited to contract and tort law, company law, family and succession law as well as international procedural law, international arbitration and uniform law.

The written contributions will be published in an edited conference volume. The conference will be held in German, but English presentations are also welcome. The call for papers will be released in spring 2022. Abstracts may be submitted until late Summer 2022.

Further information on the conference is available here.

The author of this post is Marco Buzzoni, Research Fellow at the Max Planck Institute Luxembourg.

On 21 December 2021, the Grand Chamber of the Court of Justice of the European Union (“CJEU”) handed out its much-anticipated judgment in Case C-251/20, Gtflix Tv v DR (“Gtflix Tv”), a case dealing with the interpretation of Article 7(2) of the Brussels I bis Regulation in the context of torts committed through an online publication. In this decision, the Court confirmed that the so-called ‘mosaic approach’ to jurisdiction first established in Shevill applies to an action seeking compensation for the harm allegedly caused by the placement of disparaging comments on the internet. Departing from the Opinion of AG Hogan issued on 16 September 2021 (on the Opinion, see more here), the CJEU held that the courts of each Member State in which those comments are or were accessible have jurisdiction to hear the case, provided that the compensation sought is limited to the damage suffered within the Member State of the court seised.

Far from putting an end to doubts concerning the allocation of jurisdiction under Article 7(2) Brussels I bis, however, the CJEU’s decision in Gtflix Tv will most likely revive the debates on the need to update the current jurisdictional framework applicable to online torts.

Gtflix Tv — a company established in the Czech Republic and specialised in the production and distribution of adult audiovisual content — brought an action for interim measures (référé) against DR — a director, producer and distributor of similar content domiciled in Hungary — before the President of the tribunal de grande instance de Lyon (Regional Court, Lyon, France).

Before that court, the plaintiff sought the rectification and removal of disparaging comments allegedly made by DR on several websites and forums, and asked for a symbolic compensation for the economic and non-material damage caused to its reputation. The court of first instance dismissed the action for lack of jurisdiction, and the plaintiff appealed this decision before the cour d’appel de Lyon (Court of Appeal, Lyon). On appeal, the plaintiff increased to EUR 10,000 the provisional sum claimed as compensation for the damage suffered in France. On 24 July 2018, however, the Court of Appeal confirmed the dismissal for lack of jurisdiction. The plaintiff subsequently filed an application against the judgment with the French Cour de cassation (Court of Cassation, France), contending that French courts had jurisdiction based on Article 7(2) Brussels I bis.

By a decision dated 13 May 2020 (on this decision, see more here), the Court of Cassation held that the French courts lacked jurisdiction to hear claims seeking the removal and the rectification of the allegedly disparaging statements published on the internet, in light of the CJEU’s judgment in Bolagsupplysningen and Ilsjan. As to the remaining claim for compensation, however, the French court wondered whether the same solution should apply, given the “necessary link of dependence” between this action and the request for rectification and withdrawal. Hence, the Court of Cassation decided to stay the proceedings and referred the following question to the CJEU:

“Must Article 7(2) [Brussels I bis] be interpreted as meaning that a person who, considering that his or her rights have been infringed by the dissemination of disparaging comments on the internet, brings proceedings not only for the rectification of data and the removal of content but also for compensation for the resulting non-material and economic damage, may claim, before the courts of each Member State in the territory of which content published online is or was accessible, compensation for the damage caused in the territory of that Member State, in accordance with the judgment of 25 October 2011, eDate Advertising and Others (C‑509/09 and C‑161/10, EU:C:2011:685, paras 51 and 52), or whether, pursuant to the judgment of 17 October 2017, Bolagsupplysningen and Ilsjan (C‑194/16, EU:C:2017:766, para 48), that person must make that application for compensation before the court with jurisdiction to order rectification of the information and removal of the disparaging comments?”

After a relatively lengthy summary of the general canons of interpretation that, according to the Grand Chamber, should guide the jurisdictional rules applicable to extra-contractual liability (paras 20-26), the Court began its decision by recalling the traditional solution according to which Article 7(2) grants jurisdiction to both the courts of the place “where the damage occurred and the place of the event giving rise to it” (para 27). The Court then underscored that the case at hand only required an assessment of whether the alleged damage occurred in France (para 28), and stated that, under existing precedent, parties who wish to vindicate violations of privacy and other personality rights through the internet (including defamation and harm to their commercial reputation) may either:

1. bring an action before the courts of each Member State in which content placed online is or has been accessible and seek compensation only in respect of the damage caused in the Member State of the court seised (Shevill);
2. seek compensation for all the damage allegedly suffered before the courts of the Member State in which the publisher of that content is established or before the courts of the Member State in which the plaintiff’s centre of interests is based (eDate Advertising); or
3. apply for the rectification of incorrect information and the removal of disparaging comments affecting their reputation, but only before the courts competent to rule on the entirety of the damage (Bolagsupplysningen and Ilsjan).

Having thus set the stage for its decision (paras 29-33), the CJEU went on to reject the idea that the “necessary link of dependence” between these claims weighed in favour of the exclusive jurisdiction of the courts competent to rule on the entire damage (paras 34-40). In this respect, the Court held, first of all, that while applications for rectification of information and removal of content are single and indivisible in nature and may therefore warrant the concentration of jurisdiction upon a limited number of courts, no such justification exists for claims of compensation (para 35). Secondly, the Court dismissed the argument that a “necessary link of dependence” exists between applications for injunctive relief and actions for damages, as “their purpose, their cause and their divisibility are different, and there is therefore no legal necessity that they be examined jointly by a single court” (para 36). Thirdly, the Court considered that a concentration of jurisdiction would not always serve the interests of the sound administration of justice (paras 37-40).

Finally, the Grand Chamber concluded its decision by rejecting the argument formulated by AG Hogan according to which, should the Court uphold the mosaic approach to jurisdiction inaugurated in Shevill, the reference to the place where the damage occurred should only be interpreted to cover the Member States where the publication in question is concretely “directed”. Citing its decisions in Pinckney and Hejduk, the Court held, however, the wording of Article 7(2) does not impose any additional condition regarding the determination of the competent court, and that such a restrictive approach could in some cases lead to the de facto exclusion of the option to bring proceedings before the courts of the place where the damage occurred.

Contrary to what a first reading of the judgment may suggest, the CJEU’s decision in Gtflix Tv does not simply uphold well-established solutions contained in the conspicuous body of case-law concerning the protection of privacy and personality rights. Indeed, a closer look at the Court’s reasoning reveals that the solution reached by the Grand Chamber was everything but a foregone conclusion.

Firstly, the CJEU’s reliance on its precedents largely ignores AG Hogan’s observation that “[u]nder French law, disparagement does not fall within the scope of infringement of rights relating to the personality” (para 96 of the AG’s Opinion) and that, therefore, the place where the damage occurred should have been determined having regard to the CJEU’s case-law issued in the area of infringement of economic rights. Rather than a mere reiteration of the mosaic approach to jurisdiction, the Grand Chamber’s decision in Gtflix Tv may therefore be regarded as an extension of it to an area of the law where this solution did not obviously apply and to a context, that of internet jurisdiction, that the Court in Shevill had not specifically addressed.

Secondly, the Grand Chamber’s emphasis on the plaintiff’s option to bring an action before the courts of any place where the damage occurred (see paras 39 and 42) stands in stark contrast with some of the CJEU’s most recent decisions under Article 7(2) (on this point, see in particular cases Case C‑800/19, Mittelbayerischer Verlag KG, and C‑709/19, Vereniging van Effectenbezitters, both stressing the need to ensure the predictability of the jurisdictional rule applicable to extra-contractual liability). In this respect, it is rather telling that the Grand Chamber’s summary of the relevant canons of interpretation applicable to Article 7(2) Brussels I bis conveniently omits the oft-cited principle according to which derogations from the general rule set out in Article 4 Brussels I bis should be interpreted restrictively. Undoubtedly, this factor would have nudged against the confirmation of the mosaic approach ultimately upheld by the CJUE.

Finally, the reasons put forward by the Grand Chamber to reject a narrower interpretation of the term “accessibility” favoured by the AG are rather unpersuasive. On the one hand, in fact, the Court’s comparison between the wording of Article 7(2) and Article 17(1)(c) Brussels I bis is quite unconvincing, given the overwhelming weight played by judge-made rules in the law of extra-contractual jurisdiction. On the other hand, the extension of the solution adopted in Pinckney and Hejduk seems especially ill-suited to disputes where, by contrast to cases involving of the protection of copyright, the principle of territoriality does not appear to be particularly pregnant.

All in all, the CJEU’s judgment in Gtflix Tv highlights the need to revisit the jurisdictional provision set out in Article 7(2) Brussels I bis, specifically — but by no means exclusively — with regards to disputes sitting at the intersection of internet jurisdiction and personality rights. Admittedly, legislative reform represents a more palatable solution than the piecemeal approach based on case-law when it comes to the specific challenges posed by the impact of new technologies in this area of the law. In this respect, it will therefore be interesting to see how the Grand Chamber’s decision will be received in the context of the recent initiative promoted by the EU Commission to protect journalists and civil society against SLAPPs, as well as within the broader framework of the upcoming recast of Brussels I bis Regulation.

David Walker, Rapporteur of the 24th International Union of Judicial Officers (UIHJ) Congress, has edited the proceedings of the event. The book, published by Bruylant, is titled Cyberjustice, new Opportunities for the Judicial Officer and includes various contributions  (in English and French) dealing with Cyberjustice in line with the expectations of judicial officers. Many articles are dealing with international justice and enforcement (e.g. e-Codex, Hague Convention on Judgments, Service of documents Regulation…) under a digital perspective.

As explained in the foreword by Marc Schmitz, President of the UIHJ, the world is digitising and the current pandemic of COVID-19 even accelerates this process. The judicial officer must consider the digital evolution of justice not only as a challenge but as an opportunity. In particular digital enforcement and digital asset seizure will become common practice in the near future. In this context, there is a need to introduce rules on digital enforcement and seizure of digital assets. These rules need to be harmonised globally. Solutions at national level alone will not be sufficient. The digital world is cross-border. The UIHJ can be one of the pioneers and play a leading role in drafting position papers and making recommendations in the field of digitalisation of enforcement, such as a proposal for a World Code of Digital Enforcement.

The table of contents reads as follows:

Introduction by the President of UIHJ
Word of His Excellency Director General of Dubai Courts
Introduction by the General Reporter

Part I – Excellence and Innovation

Part II – New Technologies – Delivering Efficient Justice

Part III – New technologies and enforcement

Contributors include : Françoise Andrieux, Amna Al Owais, Massimiliano Blasone, Jackson Chen, Gary A. Crowe, Malone da Silva Cunha, Karolien Dockers, Sylvian Dorol, Robert W. Emerson, Luc Ferrand, Natalie Fricero, Patrick Gielen, Alex Irvine, Aída Kemelmajer de Carlucci, Martin Leyshon, Jorge Martinez Moya, Paula Meira Lourenço, Tereza Lungova, Orazio Melita, Yacob Mohamed Ahmed Abdullah, Jérôme Gérard Okemba Ngabondo, Luis Ortega, Guillaume Payan, Iva Peni, Neemias Ramos Freire, Teresa Rodríguez de las Heras Ballell, Dovilė Satkauskienė, Marc Schmitz, Risto Sepp, Rui Simao, Adrian Stoica, François Taillefer, Dimitrios Tsikrikas, Aranya Tongnumtago, Jos Uitdehaag, Sjef van Erp, Jona Van Leeuwen, Pimonrat Vattanahathai, Anna Veneziano, Elin Vilippus, David Walker, Vladimir Yarkov, Ning Zhao.

Full table of contents here and more information here.

The post below was written by Matthias Lehmann, who is Professor of Private International Law at the University of Vienna. It is the fourth contribution to the EAPIL on-line symposium on the ruling of the Court of Justice in the case Hrvatske Sume d.o.o. Zagreb v BP Europa SE. The previous posts were authored by Peter Mankowski, Adrian Briggs and Bernard Haftel. 

Readers are encouraged to share their views by making comments to the posts. Those wishing to submit longer contributions for publication are invited to get in touch with the managing editor of the blog, Pietro Franzina, at pietro.franzina@unicatt.it.

The CJEU decision already reviewed in this blog-post is more than doubtful from a comparative law viewpoint. It ignores the fact that in some legal systems a claim for unjust enrichment may be based on a tort. This is the case, for instance, in German law, where the unlawful interference with another’s rights may lead to a so-called Eingriffskondition (unjust enrichment based on intervention) under sec. 812(1) of the German Civil Code (BGB). It is also true in Swiss law, English law and in the law of most U.S. states, which equally allow restitutionary claims in cases of torts. Even though these are not EU Member States, their laws may apply to claims brought under the Brussels Ibis Regulation. These legal systems illustrate that the gamut of unjust enrichment may cover facts that also sound in tort. Comparative law is infinitely richer than the CJEU accepts. To say that a claim for restitution is never based on a harmful event reminds of the attitude of Palmström in Christian Morgenstern’s poem “The Impossible Fact“: “that which must not be, cannot be”.

A natural reading of the term “quasi-delict” in Art 7(2) Brussels Ibis suggests that it would cover claims for restitution in case of wrongs. The CJEU has chosen a different path by excluding these claims from the scope of the provision altogether.  This follows from a purist understanding of the term “unjust enrichment” which, according to the CJEU, should not overlap with any other legal category. This is remarkable given that the term “unjust enrichment” does not even feature in the Regulation. It is also astounding that the CJEU adopts quite a different approach with regard to Art 7(1) Brussels Ibis: The Court expressly recognises that this head of jurisdiction, which does not even provide an open-ended term like “quasi-contractual”, covers an unjust enrichment claim that “is closely linked to a pre-existing contractual relationship between the parties” (para 51). In effect, while being very open-minded with regard to Art 7(1), the Luxembourg judges are particularly narrow-minded with regard to 7(2). It is the old Kalfelis mistake again: giving priority to contract over tort in matters of jurisdiction.

The CJEU’s grammatical argument for this narrow-mindedness is the mention of “harm” – via the expression “harmful event” – in Art 7(2) Brussels Ibis. From the  provision’s use of this term, the Court concludes that unjust enrichment is excluded because it is not based on the harm of the victim, but on the enrichment of the other party. Yet this ignores that Art 7(2) Brussels Ibis uses the expression “harmful event” not as a definitional element for tort/delict or quasi-delict, but as part of the connecting factor to determine the competent court for those claims. The difference is important because even in case of unjust enrichment a harm may exist. This is illustrated by unjust enrichment based on intervention (Eingriffskondiktion): German law expressly provides that the unjust enrichment in these cases must be “at the cost” (auf Kosten) of the victim. This is merely another way of saying that the victim must suffer a loss, or “harm”.

Thus, the existence of a claim for unjust enrichment does not mean that a place where the harmful event occurred cannot be identified. Retaining the place of harm as the decisive criterion for determining the competent court over claims of Eingriffskondiktion and similar restitutionary claims for torts also makes sense: It offers the victim the benefit of having the same court deciding on the tort and related claims, which is exactly what Art 7(2) Brussels Ibis aims at by mentioning “quasi-delicts”. Using the place of the harmful event as the connecting factor in these cases also does not violate the legal nature of unjust enrichment claims, but merely illustrates the different focus of procedural and substantive law.

One could, however, save the reasoning of the CJEU by creative interpretation. A case could be made for contending that the CJEU did not want to exclude claims such as those mentioned under German, English, Swiss or U.S. state law from the scope of Art. 7(2) Brussels Ibis because it did not rule on them, but on a different type of claims under Croatian law. Arguably, the CJEU adopted an autonomous understanding of “unjust enrichment” independent of national or comparative law, which does not cover cases that require harm as a condition for a restitutionary claim. If in the future the Court would be faced with such a claim, it could allege that this situation was not the same as that of the Hvratske Šume ruling because the latter only concerned “unjust enrichment” in an autonomous European sense. This would then pave the way for qualifying the particular cases of Eingriffskondiktion and similar claims as being “quasi-delicts”.

Even if this creative-restrictive reading of the CJEU’s ruling were rejected, one must not overestimate its impact. The result of excluding cases involving unjust enrichment from Art 7(2) Brussels Ibis do not seem disastrous: The claimant will have to use the base rule of Art 4 Brussels Ibis and sue the defendant at the place of its domicile. This will in most cases coincide with the place where the defendant has acted, and thus with part of the Art 7(2) jurisdiction. And even if not, the place of domicile of the defendant will often be the place where the enrichment has taken place. The domicile of the enriched party could thus function as a kind of “default head of jurisdiction” for unjust enrichment claims.

The damage done by the CJEU is thus rather small in practical terms. It will mainly concern cases in which the party having borne the loss from an unjust enrichment is not the claimant, but the defendant. A case in point is a claim for a negative declaration that no unjust enrichment claim exists. Following the CJEU approach in Folien Fischer, such a claim could be brought at the domicile of the party that is alleging or likely to allege the unjust enrichment, i.e., at the domicile of the party that has suffered rather than benefitted from such enrichment. But this awkward result is the product of the CJEU allowing claims for negative declarations under the Brussels Ibis regime rather than a problem specific to unjust enrichment.

Many thanks to Amy Held, Felix Krysa and Verena Wodniansky-Wildenfeld for their comments on the draft post.

The post below was written by Bernard Haftel, who is Professor of Private International Law at the University of Sorbonne Paris Nord.

This is the third contribution to the EAPIL online symposium on the ruling of the Court of Justice in the case Hrvatske Sume d.o.o. Zagreb v BP Europa SE. The previous posts were authored by Peter Mankowski and Adrian Briggs. 

Readers are encouraged to share their views by making comments to the posts. Those wishing to submit longer contributions for publication are invited to get in touch with the managing editor of the blog, Pietro Franzina, at pietro.franzina@unicatt.it.

It is not my habit to say good things about the decisions of the Court of Justice, but for this New Year, let’s say that this will count as a good resolution.

So let’s be clear : the decision in Hrvatske Sume d.o.o. Zagreb v BP Europa SE on 9 December 2020 seems to be not only a good decision on the very issue at hand, but also indicative of a return to some general orthodoxy, or so we hope (but perhaps this is again the optimism of the beginning of the year speaking).

The solution – which consists in treating claims based on unjust enrichment as being, in principle, neither contractual nor tortious, and therefore subject only to the forum of the defendant’s domicile – seems to us to be in line with the concepts of contractual and tortious matters provided for by the Regulation, with the aims pursued by its rules and with the general logic of the Brussels “system”.

On a conceptual level, the question was whether the claim for unjust enrichment corresponded to the central concepts of “matters relating to a contract” or “matters relating to tort, delict or quasi-delict”. In accordance with the Kalfélis case law[1], the Court of Justice recalls that matters relating to tort, delict or quasi-delict are subsidiary, covering “any claim which seeks to establish the liability of a defendant and which is not related to contractual matters”. The result was that it was necessary to consider the contractual characterisation beforehand. Does unjust enrichment imply a ‘legal obligation freely entered into by one person in relation to another and on which the claimant’s action is based’? (ECJ 20 janv. 2005, Engler, Case C-27/02, ECJ 14 mai 2009, Ilsinger, Case C-180/06) The Court answers in the negative. More precisely, the Court answers that this is not in principle the case. Unjust enrichment does not in principle imply a contractual basis. In the case under review, the unjust enrichment resulted from the execution of a court decision that was subsequently declared invalid. However, the Court rightly adds, quoting Advocate General Saugmandsgaard Oe, that in some cases enrichment may well have a strong link with a contract. The idea of unjust enrichment is indeed broad and can cover unjust enrichment in the strict sense, but also what french law calls répétition de l’indu (restitution of undue payment) or restitutions following the annulment of a contract. However, it is clear that when unjust enrichment is closely linked to a contract, and typically when it is the consequence of an annulment, the action is contractual in nature (The judgment cites the Profit Investment SIM judgment of 20 April 2016 (Case C 366/13) on pt. 40 in this regard).

The fact remains that unjust enrichment is not, as a matter of principle, contractual in nature outside these cases.

Does this mean that it is a tort, delict or quasi-delict ? This is to question the second criterion laid down by the Kalfélis judgment: for a non-contractual action to fall within the scope of delictual or quasidelictual matters, it must still be an action for liability. In the French version, the term “responsabilité” is used. Coming from the Latin “respondere”, it implies that a person is called upon to answer for the harmful consequences of his actions, whether intentional (delict) or unintentional (quasi-delict). The English word “liability”, coming from the French “lier”, ie bind, goes in the same direction. It involves establishing that a person is bound by his or her actions and must repair the harmful consequences. All the language versions point in the same direction: matters relating to tort, delict or quasi-delict presuppose an act that has caused damage, which the purpose of the liability action is to repair.

The Court rightly points out that none of these elements are present in the case of an action for unjust enrichment. It is almost the opposite.The act which gives rise to unjust enrichment is generally not an act of the defendant, but of the plaintiff.  In principle, it is not the defendant who is at the origin of the unjust enrichment, but the plaintiff who has enriched him. This fact, then, has not caused damage but, on the contrary, an advantage to the defendant who is then sued for unjust enrichment. Finally, and logically as a consequence of the above, the object of the action is not to call the defendant to account for his actions but to invite him to return the advantage he has received without cause.

Conceptually, and regardless of the language version, unjust enrichment is therefore logically not part of the concept of “tort, delict or quasi-delict”.

As we know, it is often less conceptual rigour than functional appropriateness that guides the Court of Justice, especially when it is called upon to clarify its qualifications.

The uniform interpretation praised by the Court of Justice is based not so much on conceptual rigour – which in any case would have no real basis in the absence of a sufficiently developed uniform substantive law – as on the aims and objectives of the regulation whose interpretation is at issue.

From this point of view, the solution adopted also appears satisfactory, in two respects.

Firstly, because the criterion applied to torts, delicts and quasi-delicts is simply not applicable to unjust enrichment. Under the terms of Article 5§3, now 7§2, the criterion of jurisdiction is the place where the harmful event occurred. In a case of unjust enrichment, there is no harmful event. There is no event causing damage, but only an event causing enrichment, which will usually be the act of the plaintiff. There is no damage either, but an enrichment, which is not only conceptually the opposite of damage but, moreover, is not materially locatable. Since the criterion is thus inapplicable, the corresponding qualification is for this reason alone manifestly inadequate.

Secondly, the solution here is at odds with that adopted in matters of conflict of laws. In this area, unjust enrichment, like quasi-contracts in general, is a matter for extra-contractual matters and the Rome II Regulation. The idea of consistent interpretation set out in point 7 of the preamble to the Rome I and Rome II Regulations could thus have led to unjust enrichment being placed in the field of Article 7§2. However, on the one hand, the terminology is different, the Rome II Regulation speaking of “non-contractual obligations” while the Brussels Regulations speak of “tort, delict or quasi-delict”. On the other hand, and above all, the consequences of the qualification are not the same. In matters of conflict of laws, the Rome II Regulation provides for specifically appropriate criteria (or at least specifically designed for such cases), which is not the case in matters of jurisdiction. Above all, in matters of jurisdiction, as the judgment under review illustrates, it is quite possible not to qualify at all, because of the general ground of jurisdiction constituted by the defendant’s domicile. Obviously, nothing similar is possible in matters of conflict of laws.

Finally, the solution also appears satisfactory on a more general level. Not only does the solution highlight the autonomy of the qualifications adopted in the field of conflict of laws and jurisdiction (CJEU 16 Jan. 2014, Kainz, Case C-45/13, CJEU, 28 July 2016, Case C-191/15, VKI c/ Amazon EU), which is an excellent point, but, above all, it restores to its rightful place the principle ground of jurisdiction : the defendant’s domicile.

The Court of Justice systematically repeats that the forum of the defendant’s domicile is the principle, to which the other grounds of jurisdiction, in particular those of Article 7, are only exceptions, which are by nature subject to strict interpretation. This is what led the Court, initially at least, to leave the actio Pauliana unqualified (ECJ, 26 march 1992, Case C-261/90, Reichert II. In a contractual context, the Court now decides that the actio Pauliana falls within the scope af article 7§1, see CJEU, 4 oct. 2018, Feniks, Case C-337/17). However, in recent years, although it has continued to repeat like a mantra that the alternative grounds of jurisdiction in Article 7 are merely derogations from the principle of the forum of the defendant’s domicile, implying a particularly close link, the Court of Justice has tended to extend the scope of these derogations, in particular to matters relating to tort, delict or quasi-delict. For instance, it has ruled that an action seeking to deny liability falls within the scope of Article 7§2 (CJEU, 25 oct. 2012, Case C-133/11, Fischer), as does an action for an injunction in which a consumer protection association sought to prohibit a trader’s use of unfair terms in contracts with consumers (ECJ, 1st oct. 2002, Case C-167/00, Henkel). However, strictly speaking, none of these actions “sought to bring into play the liability of the defendant”.

It is therefore a return to a certain orthodoxy that the judgment under review implies. A return to the idea that the defendant’s forum is a principle; a principle from which the alternative grounds of jurisdiction in Article 7 derogate only if there is a sufficiently close link between the alternative forum and the dispute, which is clearly not the case in matters of unjust enrichment. On a systemic level, the solution appears equally justified.

So how did we get a decision of the CJEU satisfactory in all respects? In Luxembourg, Santa Claus was obviously two weeks early.

[1] ECJ 27 Sept. 1988, Case 189/87, Kalfélis, ECR 1988, p. 5565, the decision already seemed to find that unjust enrichment was excluded from Article 5§3. The principle is regularly recalled, see recently, e.g., CJEU, 28 Jan. 2015, Kolassa, Case C-375/13, CJEU, 24 Nov. 2020, Wikingerhof, C 59/19.

The post below was written by Adrian Briggs QC, who is Professor of Private International Law Emeritus at the University of Oxford. It is the second contribution to the EAPIL online symposium, announced by an earlier post, regarding the ruling of the Court of Justice in the case of Hrvatske Šume. The previous post of Peter Mankowski can be found here. 

The arrival of the decision in C-242/20 Hrvatske Šume in December 2021 was as predictable as it was depressing. So was the omicron variant of covid-19: early December 2021 will not go down as the high point of anyone’s year. Those who have already contributed to this commentary have highlighted the technical shortcomings in the apology for a judgment, and there is no need to repeat their criticisms which are, in my view and in any rational world, unanswerable. Their careful work allows others to paint a more impressionistic picture.

The claimant in the case sustained damage: any consequence arising out of … unjust enrichment, as this is explained in the Rome II Regulation. The reason why the claim was not within Article 7(2) of the Brussels I Regulation will therefore have been that there was no harmful event when the defendant refused to repay a sum which it had no legal basis to retain. Although English is only one of twenty-odd languages, each of which is equally authentic, in what sense is that refusal, assuming it is unjustified in law, not a harmful event ? Consider the child who, sent on a shopping errand, refuses to hand over to her mother the change from the original £10 which the shopkeeper had given her. This refusal is, it seems, not to be understood as a harmful event. That will come as news to many. If while out walking I find a wallet which someone has evidently dropped, and decide to pick it up and keep it, does the claim later brought against me by the owner fall within Article 7(2) ? One would think so; and it makes no difference whether the claim is for the leather folder or the banknotes which it contains. Or take the case in which I attempt to make an electronic transfer of funds to my favourite nephew’s bank account but which, as a result of my incompetent typing, I manage to transfer to a complete stranger (it happens; don’t ask). When I discover my mistake, and the bank, in the modern way of banks, refuses point blank to do anything to help, I am left to sue the intransigent recipient for repayment. Does the claim fall within Article 7(2) ? The answer should be yes, and the proposition that the refusal to repay that which one should not have received and certainly should never have kept is not a harmful event rejected as the nonsense which it certainly is.

In what sense is the refusal to pay over not a harmful event ? The only illumination has to come from bare and conclusory paragraph 55 of the judgment, which says that ‘a claim for restitution based on unjust enrichment is based on an obligation which does not originate in a harmful event. That obligation arises irrespective of the defendant’s conduct, with the result that there is no causal link that can be established between the damage and any unlawful act or omission committed by the defendant’. The proposition that there is no causal link between the damage (which seems to be admitted) and anything the defendant did or didn’t do is apparent only to those who value belief above observation. The damage of which the claimant now complains would not have occurred if the defendant had behaved otherwise: how is that relationship not a causal one ? The Court may say that it depends on the meaning of ‘causal’, which it may do. That, however, is not elaborated by the judgment. So we must try to do it ourselves.

One possible explanation might be that the recipient does me no harm; that I harmed myself and everything which follows is an immaterial consequence of that self-harm. If that is so, it would reflect developments within the judicial exegesis of ‘damage occurring’ as this relates to Article 7(2). Maybe so, but it makes cases of transfer or property as a result of fraud or misrepresentation hard to deal with. If it is suggested that the delayed-refusal to deliver or redeliver is not a harmful event, what of the case in which the person to whom I have lent my bicycle (gratuitously, not for reward) refuses to return it to me ? He did no wrong when I handed it over and he borrowed it, but it would make one rub one’s eyes in disbelief if it were said that his refusal to return it on my demand hand it over was not a wrongful act because I had self-harmed by voluntarily parting with it in the first place.

And so one could continue unto length of days. Not everyone will see the lines as needing to be drawn in the same place as I would locate them, which is, no doubt, exactly as it should be. One should instead ask why the Court has decided to turn its back on Kalfelis and thirty-odd years of general (granted, not universal) assumption that ‘all actions which seek to establish the liability’ of a defendant does not mean what it said, in favour of some abstract and doctrinaire distinction-drawing, which serves no useful purpose at all. It will now require a judge at first instance, perhaps in the remoter regions of the Union where theories of unjust enrichment and waiver of tort are not part of daily discourse, to figure out whether a non-contractual obligation giving rise to a pleaded claim is – as a matter of general European law, rather than within his or her own legal system, as paragraph 40 makes perfectly clear – based on a harmful event. What on earth was the sense of that ?

This is the first contribution to the on-line symposium regarding the ruling of the Court of Justice in the case of Hrvatske Šume. The author is Peter Mankowski, who is Professor of Private International Law at the University of Hamburg. It is based on the author’s case note in German, forthcoming in Recht der Internationalen Wirtschaft. The publication of this version is permitted by courtesy of Deutscher Fachverlag, Frankfurt/Main. 

Article 7 of the Brussels I bis Regulation provides for special jurisdiction for contractual claims (point 1) and for tort claims (point 2).

On the other hand, it does not mention any claims for unjust enrichment (alternatively called: restitution). Does this mean that there is no special jurisdiction for claims or unjust enrichment under Article 7 of the Brussels I bis Regulation if point 5 does not apply)?

However, even if the answer was ‘yes’, this would not amount to a denial of justice for creditors in unjust enrichment since they could always avail temselves of the general jurisdiction in the State where the defendant is domiciled under Article 4 (1) of the Brussels I bis Regulation as kind of ‘residual jurisdiction’ (A-G Saugmandsgaard Øe, Opinion of 9 September 2021 in Case C-242/20, para. 80). Actor sequitur forum rei might save the last remains of the day for claimants, thus. It is ‘only’ about additional options for the claimant through special jurisdictional grounds.

The CJEU has so far avoided rendering a fundamental opinion where to place unjust enrichment (in particular in Case C-102/15, Gazdasági Versenyhivatal v Siemens AG Österreich; see, as contrast to A-G Wahl, Opinion of 7 April 2016 in Case C-102/15, paras. 54 to 75) and only occasionally decided on bits pieces (CJEU Case C-611/45, Land Berlin v Ellen Mirjam Sapir, paras. 35 et seq.; CJEU Case C-366/13, Profit Investment SIM SpA v Stefano Ossi, para. 55; CJEU Case C-185/15, Marjan Kostanjevec v F&S Leasing GmbH, paras. 34-40).

However, in Hrvatske Šume (Case C-242/20) the CJEU can no longer avoid a more principled approach. A-G Saugmandsgaard Øe had categorically denied, on detailed grounds, that an action for recovery of the property gave rise to liability for damage and therefore ruled out the possibility that it could constitute a tort for the purposes of Article 7(2) of the Brussels I bis Regulation (A-G Saugmandsgaard Øe, Opinion of 9 September 2021 in Case C-242/20, paras. 56-79). In other words, the CJEU accepts this as key argument (paras. 53-59). That is, however, taking things way to litteral. It does not fit with the concept of ‘damage’ in Article 2(1) of the Rome II Regulation, which is very broad and, in particular, must be broad enough to also cover ‘damage’ in the case of other non-contractual obligations beyond the actual law of tort (see only Mankowski, in: Ulrich Magnus v Mankowski, Rome II Regulation [2019] Article 2 Rome II Regulation note 8), further to the fact that claims for injunctive relief under tort law fall within point 2, too. Oh, and on top of it, it tends to disregard purposive interpretation and hails litteral interpretation instead (Layton, Cuniberti, EAPIL Blog 9 December 2021; Cuniberti [Comment], EAPIL Blog 9 December 2021).

In any event, actions for the recovery of ineffective contractual relationships must be characterised differently (to the same avail van Calster, gavclaw.com 9 December 2021). In their case, the assessment of Article 12(1)(d) of the Rome I Regulation is correct. They must be characterised as contractual, and special jurisdiction at the place of performance of Article 7(1) of the Brussels I bis Regulation is therefore open to them (Court of Justice, 20 April 2016, Case C-366/13, para. 55 — Profit Investment SIM SpA v Stefano Ossi; A-G Saugmandsgaard Øe, Opinion of 9 September 2021 in Case C-242/20,  points 48-52; Mankowski, RIW 2017, 322, 324-326; Grušić, [2019] 68 ICLQ 837, 854-859). The CJEU does not hesitate to confirm this (paras. 47-50). Profit Investement is still good law on this point. In so far as the void or ineffective contract is a consumer, insurance or individual employment contract, what is at issue would be the grounds of jurisdiction under the relevant protective regime (A-G Kokott, Opinion of 2 June 2016 in Case C-195/15, points 54 et seq.; OLG Dresden IPRspr. 2007 No 140, p. 394; LG Darmstadt ZIP 2004, 1924, 1925), in accordance with the generalisable principle underpinning Articles 12(1)(e) of the Rome I Regulation and 10(1) of the Rome II Regulation. Moreover, the rules on jurisdiction for other kinds of actions where the recovery of sums paid, i.e. the way back, should be the same as the ones governing the way forward, e.g. those of the Maintenance Regulation in the event of recovery of maintenance overpaid (Mankowski, RIW 2017, 322, 326).

The CJEU had to rule on another specific issue: Do actions for recovery based on unjust enrichment in respect of something obtained in enforcement fall within the scope of (now) Article 24(5) of the Brussels I bis Regulation and fall within exclusive jurisdiction at the place of enforcement? It could be argued that this would result in a substantive revision of enforcement and therefore a sort of extraordinary remedy exists. On the other hand, these are not formally attacks or even appeals against individual enforcement measures. Its success does not create the foreclosure measure as such, but merely revises its economic result. This is rightly not sufficient for the Court of Justice (paras. 31-36). Irrespective of the legal basis used, it is not sufficient if this unjust enrichment (para. 36), a general offence or a specific offence such as § 717(2) of the German ZPO (in more detail Mankowski, in: Rauscher, EuZPR/EuIPR, vol. 1 [5th ed. 2021] Article 24 Brussels I bis Regulation notes 220-223; Philip Schwarz, Enforcement shopping in the European judicial area [2019] pp. 227-245; see also OLG Saarbrücken EuZW 2017, 347 paras. 18-23).

The Rome II Regulation recognises unjust enrichment as a separate non-contractual obligation besides and on equal footing with tort; it consequently allocates an own and separate conflict-of-law rule to unjust enrichment in Article 10 of the Rome II Regulation. The Brussels I bis Regulation, on the other hand, makes no mention of unjust enrichment. This leads to a discrepancy (Mankowski, RIW 2017, 322 [322]; van Calster, gavclaw.com 14 September 2021). It can be inferred from the 2007 Rome II Regulation that unjust enrichment is not a tort for its purposes. It is precisely for that reason that it sets up its own system of unjust enrichment, almost in return for compensation. The more recent Brussels I bis Regulation of 2012 does not reflect this either in positive or negative terms, but requires a characterisation for every claim based on unjust enrichment, whether it can be characterised — more or less badly — as contractual or delicate for the purposes of the Brussels I bis Regulation. Its grid has therefore remained rougher and less sophisticated than that of the Rome II Regulation. ‘Non contractual’ does not automatically equate to the narrower ‘tort, delict, or quasi-delict’ of Article 7 point 2 of the Brussels I bis Regulation (A-G Saugmandsgaard Øe, Opinion of 9 September 2021 in Case C-242/20, paras. 76-79; Briggs, EAPIL Blog 10 December 2021; Pacula, conflictoflaws.net, 17 December 2021). In that regard, unjust enrichment continues to be an unfamiliar concept for the law of jurisdiction, as it has ever been since the days of the original 1968 Brussels Convention. However, this is no longer fully in line with the state of play since the Rome II Regulation at the latest. Unfortunately, the CJEU does not correct this judicially. The CJEU in effect treats creditors in unjust enrichment (beyond ineffective contracts) less favourably than creditors in tort by denying them the benefit of a special head of jurisdiction which would be encroachable on them.

The CJEU is focused on the premissae maiores, i.e. on the individual grounds of jurisdiction, the limits of which the CJEU feels bound to examine. Unfortunately, the premissa minor does not get like attention. In particular, it is not possible to see any recourse to the assistance which the doctrine on condictiones would offer (see Mankowski, RIW 2017, 322, 323 et seq.), which in turn already has its roots in Roman law — and thus in a central source of European and Community law. The term ‘interference’ or ‘infringement’, Eingriffskondiktion, or a functional equivalent, does not appear anywhere in the CJEU. In that regard, already the A-G’s Opinion scored less than possible. The A-G and, following, the CJEU celebrate a ‘chracterisation festival’, a Qualifikationsfest (van Calster, gavclaw.com 14 September 2021), without employing the full array of methodological tools. The contention that unjust enrichment could never be attributable to an event harmful in the broad sense and to the conduct of the person liable for the condiction (para. 55), is wrong for it disregards the cases of interference and infringement of another’s rights. Hence, other cases in the future might prompt more distinguishing answers (cf. Miguel de Asensio, pedromiguelasensio.blogspot.com, 13 December 2021). While not all claims in unjust enrichment automatically qualify for Article 7 point (2) of the Brussel I bis Regulation, there might be some instances that do individually (cf. Cuniberti, EAPIL Blog 9 December 2021; Miguel de Asensio, pedromiguelasensio.blogspot.com, 13 December 2021). One future day, a notion of ‘restitution in wrong’ should prevail, properly re-transferring interference and infringement into the realm of Article 7 point 2 of the Brussels I bis Regulation even de regulatione lata (Mankowski, in: Ulrich Magnus/Mankowski, Brussels Ibis Regulation [2nd ed. 2022] Article 7 Brussels Ibis Regulation note 245). Predictability would not be overly impinged by that (to calm the concerns raised by (cf. Sisák, EAPIL Blog 10 December 2021).

However, neither the unconvincing reasoning nor the conclusion raising severe doubts for cases of interference or infringement (see Mankowski, RIW 2017, 322, 326 et seq.) can erase the fact that the CJEU establishes a seemingly clear orientation mark for practical purposes (to the same avail Miguel de Asensio, pedromiguelasensio.blogspot.com 13 December 2021). It would be ill-advised to implement any specific restriction on actions for recovery in natura. This is because such recovery is the primary legal consequence of any claim for enrichment, and a subsidiary shift to compensation for value must not have the effect of changing the jurisdiction of the court, as the primary legal consequence is also the ground for the subsidiary one. Hrvatske Šume conveys the practical message, for the time being: Beyond the realm of ineffective contracts, claims in unjust enrichment can avail them only of general jurisdiction and the special grounds of jurisdiction derived from Article 7 point 5; 8 points 1 and 3 of the Brussels I bis Regulation, but not of the special grounds of jurisdiction derived from Article 7 points 1 and 2 Brussels I bis Regulation. The Kalfelis formula (Athanassios Kalfelis v Bankhaus Schröder Münchmeyer Hengst & Cie) has always been deceptive, and there have always been tertia to contract and tort even in liability cases. Liability is not a binary world. Any perceived suggestion that Article 7 (2) Brussels I bis Regulation, or previously Article 5 point 3 Brussels Convention or Brussels I Regulation, was a residual rule within the realm of special jurisdiction (cf. Cuniberti, EAPIL Blog 9 December 2021; Okoli, EAPIL Blog 9 December 2021) has always been wrong. Sloppy and inaccurate drafting must prompt such important consequences.

Choice of court agreements pursuant to Article 25 of the Brussels I bis Regulation remain possible, ex ante as well as post eventum (Mankowski, RIW 2017, 322, 330). However, ex ante choice of court agreements (also) on claims for enrichment are unlikely to exist outside a contractual environment; they score their highest probality in framework agreements covering all legal relationships between the respective parties.

The reform agenda of the European legislature for a future Brussels Ib Regulation ought to reflect whether unjust enrichment should be blessed with a separate rule on special jurisdiction (Grušić, [2019] 68 ICLQ 837, 854-859; Mankowski, in: Ulrich Magnus/Mankowski, Brussels Ibis Regulation [2nd ed. 2022] Article 7 Brussels Ibis Regulation note 63a). The same applies to claims in negotiorum gestio (see in detail Dornis, in: Mankowski [ed.], Research Handbook on the Brussels Ibis Regulation [2020], p. 64). If these categories of non contractual obligations, well within the realm of the Rome II Regulation, were expressly addressed this would placate the principal questions.

On 9 December 2021, the CJEU ruled in HRVATSKE ŠUME d.o.o., Zagreb v. BP EUROPA SE (Case C-242/20) that the distinction between contracts and torts under Article 7 of the Brussels I bis Regulation is not exclusive, and that claims for unjust enrichment need not be characterised either as contractual or tortious (see the comments by Geert van Calster here and Krzysztof Pacula here).

The Court had established until this case a clear bright line rule. Cases which did not fall within the jurisdictional rule for contracts (Article 7(1)) fell within the jurisdictional rule for torts (Article 7(2)). The ‘tort’ category was thus a residual category which included all liability actions which were not contractual in nature.

Hrvatske Sume changes this, and may have far reaching consequences.

First, as Article 7(2) only applies to ‘torts’ as such, it will now be necessary to positively define the concept of tort in the meaning of that provision. Will it include strict liability rules? Will it include torts which do not require the existence of a damage? Will it include torts which do not strictly require causation between the act of the defendant and the damage suffered by the victim?

Secondly, it will be necessary to identify those concepts which must be distinguished from torts and contracts. One of them is unjust enrichment. What are the others? Other quasi-contracts such as negotiorum gestio? Certain statutory rights? Certain other remedies?

Starting from tomorrow morning, the EAPIL blog will host an online symposium to discuss the above issues. Peter Mankowski will kick off the discussion. More contributions are scheduled for publication later on Monday and on Tuesday.

Readers are encouraged to contribute to the discussion by commenting on the posts. Those wishing to submit longer analyses are invited to do so by writing an e-mail to Pietro Franzina (pietro.franzina@unicatt.it).

Daria Levina (European University Institute) posted on SSRN a paper titled The Law Governing Enforceability of Forum Selection Agreements. The paper was completed to fulfill the requirements for a master of laws degree at Harvard Law School and received the 2018 Addison Brown Prize in conflict of laws.

The abstract reads as follows:

The paper examines approaches to determining the law governing forum selection agreements (“FSA”) in the US, the EU, Germany, and on international level (on example of the 2005 Hague Convention on Choice of Court Agreements). It analyses the historical treatment of FSA, as well as its legal features, and shows how they influenced the approaches adopted by the above jurisdictions. It looks at all potentially applicable laws (lex fori, lex causae, lex fori prorogati) and discusses the arguments in favor and against each of them, testing them against the principles of predictability, procedural economy, legal certainty, and regulatory interests of states. The paper adopts comparative approach in order to familiarize with the solutions adopted by different legal systems draw conclusions which might benefit them.

On 17 November 2021, the French Supreme Court for private and criminal matters (Cour de cassation) issued an interesting decision in the field of family law (Cass. Civ. 1re, 17 November 2021, n°20-19.420). The Court held that a bigamous marriage is not automatically void under French law when the spouses are foreign nationals. Indeed, the French choice of law rule on the validity of marriage provides for the application of the law of the spouses’ common nationality (article 202-1 of the Civil Code). Therefore, the lower court is required to designate on its own motion the applicable law to the marriage to assess its validity.

A couple, both Libyan nationals, married in 2000 in Libya. On November 2017, the wife filed a petition for divorce before French court. The lower court ruled that the request for divorce was inadmissible, because the husband was already married in Libya before this marriage. French law prohibits bigamy pursuant to article 147 of the Civil Code. As a result, the lower court had held that the second marriage “has no legal existence” and thus cannot be dissolved by a French court.

The wife appealed to the French Supreme Court based on a traditional conflict-of-law reasoning. She argued that the lower court should have checked whether the personal law of the spouses (as applicable law to marriage pursuant to article 202-1, op. cit.) did authorise bigamy. If so, the second marriage, celebrated abroad, could produce effects in France and thus be dissolved by a French court.

Under French domestic family law, article 147 of the French Civil Code lays down the principle of monogamy. French criminal law punishes a spouse guilty of bigamy (article 433-20 of the Penal Code). At the same time, comparative law reveals that some foreign legal systems allow polygamy. Even if this institution is in sharp contrasts to Western socio-cultural values, the global mobility of persons requires to pay attention to a possible acceptance of such marriages in the French forum.

Remarkably, the French legal system has traditionally adopted a nuanced position, depending on the proximity that the situation of bigamy or polygamy has with the forum. In France, no bigamous or, a fortiori, polygamous marriage can be validly celebrated, even if the second marriage is concluded between the same persons, already married abroad (Civ. 1re, 3 February 2004, n°00-19.838). The situation is different when the bigamy is not “created” in France, but was legally established abroad. The second marriage may then, in certain circumstances, be recognised in France and produce certain effects (e.g. in the field of social security rights or succession). In these latter circumstances, two hypotheses must be distinguished.

Either the national law of one of the spouses (pursuant to article 202-1 of the Civil Code) does not allow bigamy. French law will consider this prohibition as constituting an absolute impediment to marriage prevailing over the more liberal content of the national law of the other spouse. French authorities will therefore refuse to give effect to this marriage in France. For instance, a second marriage, validly celebrated abroad, of a foreign spouse whose personal status admits polygamy, with a French woman, cannot be recognised in France (Civ. 1re, 28 January 2002, n°00-15789).

Or the personal status of the spouses, i.e. their common or own national law, authorises polygamy. The French court may, to a certain extent, recognise the second marriage (and make it produce effects) by attenuating the “eviction” impact of the French fundamental values (effet atténué de l’ordre public). This has been held by the French Supreme Court on several occasions (Civ. 1re, 28 January 1958, Chemouni and more recently Civ. 2e, 14 February 2007, n°05-21.816).

In the present case, the lower court ruled on a domestic law basis. The case, however, was international and required a conflict-of-law analysis since the parties may not dispose of their rights. It is worth recalling that French PIL does not provide for a systematic mandatory application of choice of law rules. But French courts are required to apply conflict-of-law rules in non-patrimonial matters, such as personal status issues, since the parties may not dispose of their rights. They even have to determine the applicable law ex officio (comp. recently on the context of EU PIL, Civ. 1re, 26 May 2021, n°19-15.102, commented on the blog here and here).

In the absence of French written rules of PIL, the French Supreme Court has traditionally based this solution on article 3 of the French Civil Code. It was the only “international” provision in the Code Napoleon at the time of the judicial development of PIL rules in the French legal system. Unfortunately, it may be confusing for the reader, since article 3 makes no mention whatsoever of the court’s role in conflict-of-law matters. This is a strong point in favour of a (forthcoming?) French PIL codification.

This is the ground on which the French Supreme Court annulled the judgment of the Court of appeal in this case: in the field of marriage, conflict-of-law rules are mandatory. The lower court should have verified, in accordance with the personal law of the spouses pursuant to article 202-1 of the Civil Code, whether the foreign bigamous marriage was valid (so that, in the affirmative, it could be dissolved). At that stage of the reasonning, the French prohibition of bigamy pursuant to article 147 of the Civil Code did not matter.

We could maybe regret that the Supreme Court does not provide for the full PIL reasoning in order to be more informative. It will be indeed for the lower court to proceed to the second step of the choice of law analysis. The validity of the foreign marriage could be denied, despite its validity under the applicable law, on the basis of public policy. If the content of  foreign law infringes the fundamental values of French society, a French court may displace it and apply French law instead.

There is, however, a limit mentioned above: in order to protect rights acquired abroad and the permanence of the status of individuals across borders, the effect of public policy may be limited (effet atténué de l’ordre public). This has traditionally been the case in the field of polygamy when it is allowed under the personal status of the spouses (see above). The lower court should thus exclude the eviction of the foreign law despite its sharp cultural difference with French substantive family law and consider the foreign marriage as valid.

In this case, the bigamous marriage should be recognised so that the second wife is allowed to divorce. In other words, as a matter of policy, the private interests of the second wife should prevail. Whether this view would be shared by all Member States in the implementation of the EU PIL instruments on family matters is another matter.

The fifth edition of the treatise of Horatia Muir Watt (Sciences Po Law School) and Dominique Bureau (Paris II University) on French private international law has recently been published.

The treatise, which is one of the leading texts on private international law in France, is divided into two volumes (over 800 p. each). The first volume focuses on the general theory of private international law, and distinguishes between conflits de juridictions (jurisdiction and judgments), conflits de lois (choice of law) and conflits d’autorités (international regime of the action of non judicial authorities and recognition of the acts that they issue).

The second volume is concerned with special rules applicable in the different fields of private law (persons, property, family, obligations, businesses). It ends with a long conclusion which discusses two innovative topics. The first is an attempt to build a general theory of special European law on jurisdiction, judgments and choice of law. The second is an enquiry into whether new forces will lead to a complete reorganisation of the field: environment, digitalisation and the impact of new forms of organisation of business on traditional conceptual categories.

The latest issue of the IPRax (Praxis des Internationalen Privat- und Verfahrensrechts) has been published.

It contains a number of insightful articles and case comments, whose abstracts are provided below.

E.-M. Kieninger, Climate Change Litigation and Private International Law

The recent Shell ruling by the District Court of The Hague raises the question whether Carbon Majors could also be sued outside the state of their corporate home and which law would be applicable to claims for damages or injunctive relief. In particular, the article discusses possible restrictions of the right to choose between the law of the state in which the damage occurred and the law of the state in which the event giving rise to the damage took place (Art. 7 No. 2 Brussels Ia Regulation and Art. 7 Rome II Regulation). It also considers the effects of plant permits and the role that emissions trading should play under Art. 17 Rome II Regulation.

S. Arnold, Artificial intelligence and party autonomy – legal capacity and capacity for choice of law in private international law

Artificial intelligence is already fundamentally shaping our lives. It also presents challenges for private international law. This essay aims to advance the debate about these challenges. The regulative advantages of party autonomy, i.e. efficiency, legal certainty and conflict of laws justice, can be productive in choice of law contracts involving artificial intelligence. In the case of merely automated systems, problems are relatively limited: the declarations of such systems can simply be attributed to their users. Existence, validity or voidability of choice of law clauses are determined by the chosen law in accordance with Art. 3(5), 10(1) Rome I Regulation. If, however, the choice of law is the result of an artificial “black box” decision, tricky problems arise: The attribution to the persons behind the machines might reach its limit, for such artificial decisions can neither be predicted nor explained causally in retrospect. This problem can be solved in different ways by the substantive law. Clearly, national contract laws will differ substantially in their solutions. Thus, it becomes a vital task for private international law to determine the law that is decisive for the question of attribution. According to one thesis of this article, two sub-questions arise: First, the question of legal capacity for artificial intelligence and second, its capacity for choice of law. The article discusses possible connecting factors for both sub-questions de lege lata and de lege ferenda. Furthermore, it considers the role of ordre public in the context of artificial choice of law decisions. The article argues that the ordre public is not necessarily violated if the applicable law answers the essential sub-questions (legal capacity and capacity for choice of law) differently than German law.

M. Sonnentag and J. Haselbeck, Divorce without the involvement of a court in Member States of the EU and the Brussels IIbis- and the Rome III-Regulation

In recent years some Member States of the European Union such as Italy, Spain, France, and Greece introduced the possibility of a divorce without the involvement of a court. The following article discusses the questions whether such divorces can be recognised according to Art. 21 Regulation No 2201/2003 (Brussels-IIbis), Art. 30 Regulation No 2019/1111 (Brussels-IIbis recast) and if they fall within the scope of the Regulation No 1259/2010 (Rome III).

W. Hau, Personal involvement as a prerequisite for European tort jurisdiction at the centre of the plaintiff’s interests

The case Mittelbayerischer Verlag KG v. SM gave the ECJ the opportunity to further develop its case law on the European forum delicti under Art. 7 No. 2 Brussels Ibis Regulation for actions for alleged infringements of personality rights on the internet. The starting point was the publication of an article on the homepage of a Bavarian newspaper, which misleadingly referred to “Polish extermination camps” (instead of “German extermination camps in occupied Poland”). Strangely enough, Polish law entitles every Polish citizen in such a case to invoke the “good reputation of Poland” as if it were his or her personal right. The ECJ draws a line here by requiring, as a precondition of Art. 7 No. 2, that the publication contains objective and verifiable elements which make it possible to individually identify, directly or indirectly, the person who wants to bring proceedings at the place of his or her centre of interest. While this approach allows for an appropriate solution to the case at hand, it leaves several follow-up questions open.

A. Hemler, Which point in time is relevant regarding the selection of a foreign forum by non-merchants according to § 38(2) German Code of Civil Procedure (ZPO)?

38(2) German Code of Civil Procedure (ZPO) permits the selection of a foreign forum only if at least one party does not have a place of general jurisdiction in Germany. In the case discussed, the defendant had general jurisdiction in Germany only when the claim was filed. However, there was no general jurisdiction in Germany when the choice of forum clause was agreed upon. The Landgericht (district court) Frankfurt a.M. therefore had to decide on the relevant point in time regarding § 38(2) ZPO. Given the systematic structure of § 38 ZPO and the law’s purpose of advancing international legal relations, the court argued in favour of the point in time in which the choice of forum clause was agreed upon. The author of the paper rejects the court’s view: He argues that the systematic concerns are less stringent on closer inspection. More important, however, is the fact that the law also calls for the protection of non-merchants. This can only be sufficiently achieved if the point in time in which the claim was filed is regarded as the crucial one.

D. Henrich, News on private divorces in and outside the EU

In two decisions the German Federal Court of Justice (“BGH”) had to deal with the recognition of private divorces (divorces without involvement of a state authority). In the first case (XII ZB 158/18) a couple of both Syrian and German nationality had been divorced in Syria by repudiation. While recognition of foreign public divorces (divorces by a state court or other state authority) is a question of procedure, private divorces are recognized if they are effective according to the applicable law, here the Rules of the Rome III Regulation (Article 17(1) Introductory Act to the Civil Code). Because the couple had no common ordinary residence, the Court applied Article 8 lit. c Rome III Regulation. German Law dominating, the Court denied recognition.

In the second case (XII ZB 187/20) the BGH made a reference for a preliminary ruling of the European Court of Justice regarding the recognition of a divorce in Italy in the register office in front of the registrar. The BGH follows the opinion that in such cases it is the consent of the parties that dissolves the marriage, the divorce being a private one. The BGH questions whether in spite of that the divorce could be recognized according to Sec. 21 Council Regulation (EC) No. 2201/2003 or, if not, according to Sec. 46 of the Council Regulation.

C. Budzikiewicz, On the classification of dowry agreements

Agreements on the payment of a bride’s dowry are a recurring topic in German courts. It usually becomes the subject of a legal dispute in connection with or after a divorce. This was also the case in the decision to be discussed here, in which the applicant demands that her divorced husband pay for the costs of a pilgrimage to Mecca. Since the case has an international connection due to the husband’s Libyan nationality, the Federal Supreme Court first addresses the controversial question of the characterization of dowry. However, since all connection options lead to German law in the present case, the Court ultimately refrains from deciding the question of characterization. It explains that the agreement on the payment of dowry is to be classified under German law as a sui generis family law contract, which requires notarization in order to be effective. The article critically examines the decision. In doing so, it addresses both the question of characterization of dowry and the need for form of agreements on the payment of dowry under German law.

E. Jayme and G. Liberati Buccianti, Private Divorces under Italian Law: Conflict of Laws

Divorce, under German law, is only permitted by a decision of a judge, even in cases where a foreign law is applicable which would allow a private divorce based on the agreement of the spouses. Italy, however, has introduced, in 2014, a divorce by private agreement in two procedures: the agreement of the spouses can be submitted to the public prosecutor who, in case he agrees, will send it to the civil registrar, or, secondly, by a direct application of the spouses to the civil registrar of the place where the marriage had been registered.

The article discusses the problems of private international law and international civil procedure, particularly in cases where Italian spouses living in Germany intend to reach a private divorce in Italy. The discussion includes same-sex-marriages of Italian spouses concluded in Germany which are permitted under German law, but not under Italian law, according to which only a “civil union” is possible. The Italian legislator has enacted (2017) a statute according to which the same-sex-marriage concluded by Italian citizens abroad will have the effects of a civil union under Italian law. The question arises of whether the Italian rules on terminating a civil union will have an effect on the spouses marriage concluded in Germany.

The article also discusses the validity of private divorces obtained in Third States which are not members of the European Union, particularly with regard to religious divorces by talaq expressed by the husband, and the problem whether such divorces are compatible with the principles of public policy. The authors mention also the specific problems of Italian law with regard to religious (catholic) marriages concluded and registered in Italy, where a divorce by Italian law is possible which, however, may be in conflict with a nullity judgment of the catholic church.

G. Mäsch and C. Wittebol, None of Our Concern? – A Group of Companies‘ Cross-border Environmental Liability Before Dutch Courts

The issue of cross-border corporate responsibility has been in the limelight of legal debate for some time. In its decision of 29 January 2021, the Court of Appeal of The Hague (partially) granted a liability claim against the parent company Royal Dutch Shell plc with central administration in The Hague for environmental damages caused by its Nigerian subsidiary. In particular, the Dutch court had to address the much-discussed question to what extent domestic parent companies are liable before domestic courts for environmental damage committed by their subsidiaries abroad, and whether domestic courts have international jurisdiction over the subsidiary. With this precedent, the number of cross-border human rights and environmental claims is likely to rise in the near future.

H. Jacobs, Article 4(2) and (3) Rome II Regulation in a case involving multiple potential tortfeasors

In Owen v Galgey, the High Court of England and Wales engaged in a choice of law analysis in a case involving multiple potential tortfeasors. The claimant, a British citizen habitually resident in England, was injured in France when he fell into an empty swimming pool. In the proceedings before the High Court, he claimed damages from, inter alia, the owner of the holiday home and his wife, both British citizens habitually resident in England, and from a French contractor who was carrying out renovation works on the swimming pool at the material time. The judgment is concerned with the applicability of Article 4(2) Rome II Regulation in multi-party tort cases and the operation of the escape clause in Article 4(3) Rome II Regulation. While the High Court’s view that Article 4(2) requires a separate consideration of each pair of claimants and defendants is convincing, it is submitted that the court should have given greater weight to the parties’ common habitual residence when applying Article 4(3).

The table of contents of the issue is available here.

Antonio Leandro (University of Bari) has posted Asset Tracing and Recovery in European Cross-border Insolvency Proceedings on SSRN.

Tracing and recovering assets amount to crucial means to preserve the estate in insolvency proceedings. The proceedings’ outcome may depend on a successful liquidation, which, in turn, can succeed insofar as the concerned assets are traced and recovered smoothly. Besides, insolvency-related disputes, such as the avoidance disputes, may benefit from instruments that help find debtor’ assets or recover payments.

Cross-border insolvency proceedings exhibit peculiar features in this respect because of the debtor’s assets and affairs being in touch with different States. Multiple laws and jurisdictions, with differing or even divergent underlying legal traditions, may in fact be concerned with tracing and recovery.

Moreover, tracing and recovery may affect individuals (e.g., debtors, directors, shareholders, secured creditors, third parties) whose interests clash with those of insolvency proceedings, especially that of satisfying creditors through the proceeds of liquidated assets. If such persons have connections (e.g., citizenship, seat, habitual residence, domicile, as well as affairs, rights, obligations, etc.) with different States, including other States than that in which the assets are located, the cross-border context gets wider.

Against this backdrop, intermingled problems of private international law arise, including assessing the courts having jurisdiction to issue tracing or recovering measures, the authorities that may apply and take action, the law governing the measures and the enforcement thereof, the recognition of foreign tools aimed at detecting and recovering the assets. All these problems lie on a terrain where issues of characterization, state sovereignty and cooperation between foreign authorities are interwoven.
The paper intends to explain how to melt this skein within the EU civil judicial space.

After the Christmas break the Court of Justice takes up again its public activity. Regarding judicial cooperation on civil matters, the first event in January 2022 is the hearing in case C-18/21, Uniqa Versicherungen, scheduled for Wednesday 19.

The request for a preliminary ruling comes from the Oberster Gerichtshof (Austria). It focuses on the impact of COVID-19 on procedural periods in civil proceedings in the context of Regulation (EC) No 1896/2006 creating a European order for payment procedure (here the consolidated text).

In the case at hand, the District Court for Commercial Matters of Vienna had issued a European order for payment on 6 March 2020, which was served on the defendant, a resident in the Federal Republic of Germany, on 4 April 2020. The latter lodged a statement of opposition thereto in a written submission posted on 18 May 2020. The court of first instance rejected the opposition on the ground that the objection had not been filed within the 30-day period foreseen in Article 16(2) of Regulation (EC) No 1896/2006.

The Commercial Court of Vienna, ruling on the appeal on the merits, set that order aside holding that the period for lodging a statement of opposition under Article 16(2) had been interrupted pursuant to the Federal Law on accompanying measures for COVID-19 in the administration of justice. According to that law, all procedural periods in judicial proceedings that had started to run on 22 March 2020 or thereafter, up until the end of 30 April 2020, are to be interrupted and are to begin to run anew on 1 May 2020. The applicant’s appeal on a point of law is directed against that decision, and seeks to have the order of the court of first instance restored.

The Austrian Supreme Court has referred the following question to the Court of justice:

Are Articles 20 and 26 of Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure to be interpreted as meaning that those provisions preclude an interruption of the 30-day period for lodging a statement of opposition to a European order for payment, as provided for in Article 16(2) of that regulation, by Paragraph 1(1) of the Austrian Bundesgesetz betreffend Begleitmaßnahmen zu COVID-19 in der Justiz (Federal Law on accompanying measures for COVID-19 in the administration of justice), pursuant to which all procedural periods in proceedings in civil cases for which the event triggering the period occurs after 21 March 2020 or which have not yet expired by that date are to be interrupted until the end of 30 April 2020 and are to begin to run anew from 1 May 2020?

K. Jürimäe is the reporting judge in a chamber composed, in addition, by N. Jääskinen, M. Safjan, N. Piçarra and M. Gavalec. Advocate General A. Collins will announce the date of his opinion after the hearing. For the record: the Court has interpreted Articles 16, 20 and 26 of the Regulation already several times, see case C-324/12, joined cases C‑119/13 and C‑120/13, C-94/14, C-245/14, C-21/17.

Advocate General Szpunar‘s Opinion in case C-617/20, T.N. and N.N., will be published the next day (that is, on Thursday 20). The questions have been referred by the Hanseatisches Oberlandesgericht in Bremen (Germany), in the context of an intestate succession, and relate to the interpretation of Articles 13 and 28 of the EU Succession Regulation:

(1) Does a declaration concerning the waiver of succession by an heir before the court of a Member State that has jurisdiction for the place of his or her habitual residence, which complies with the formal requirements applicable there, replace the declaration concerning the waiver of succession to be made before the court of another Member State that has jurisdiction to rule on the succession, in such a way that when that declaration is made, it is deemed to have been validly made (substitution)?

(2) If Question 1 is to be answered in the negative:

In addition to making a declaration before the court that has jurisdiction for the place of habitual residence of the party waiving succession which complies with all formal requirements, is it necessary, in order for the declaration concerning the waiver of succession to be valid, that the latter inform the court that has jurisdiction to rule on the succession that the declaration concerning the waiver of succession has been made?

(3) If Question 1 is to be answered in the negative and Question 2 in the affirmative:

a. Is it necessary that the court that has jurisdiction to rule on the succession be addressed in the official language of the location of that court in order for the declaration concerning the waiver of succession to be valid and, in particular, in order to comply with the time limits applicable for making such declarations before that court?

b. Is it necessary that the court that has jurisdiction to rule on the succession receive the original documents drawn up in relation to the waiver by the court that has jurisdiction for the place of habitual residence of the party waiving succession and a translation thereof in order for the declaration concerning the waiver of succession to be valid and, in particular, in order to comply with the time limits applicable for making such declarations before the court that has jurisdiction to rule on the succession?

The judgment will be handed down by judges E. Regan, I. Jarukaitis, M. Ilešič (reporting), D. Gratsias, and Z. Csehi.

Finally, another hearing of interest will be taking place at the very end of the month, on Monday 31. C-700/20, London Steam-Ship Owners’ Mutual Insurance Association, is a Grand Chamber case (K. Lenaerts, L. Bay Larsen, K. Jürimäe, C. Lycourgos, E. Regan, I. Jarukaitis, N. Jääskinen, M. Ilešič, J.C. Bonichot, A. Kumin, L. Arastey Sahún, M. Gavalec, Z. Csehi, O. Spineau-Matei, and M. Safjan as reporting judge), to be decided with the benefit of Advocate General A. Collin’s opinion. The request, from the High Court – Business and Property Courts of England and Wales Commercial Court, was lodged on 22 December 2020. The questions referred arose in the context of an appeal by The London Steam-Ship Owners’ Mutual Insurance Association Limited (the “Club”), pursuant to Article 43 of Regulation (EC) No 44/2001, against a registration order made by the Queen’s Bench Division of the High Court of Justice of England and Wales pursuant to Article 33 of the same regulation. The registered judgment that is the subject of the registration order is an auto de ejecución (execution order) of the Provincial Court of La Coruña, Spain, delivered following the proceedings related to the sinking of the Prestige (the “Vessel”) at the coast of Spain in November 2002. The Vessel was carrying 70,000 MT of fuel oil at the time she sank causing significant pollution damage to the Spanish and French coastlines. The execution order declares the Club liable in respect of 265 claimants, including the Kingdom of Spain in the sum of € 2.355 billion. Spain applied to register the Spanish judgment against the Club in England. The Club was the Protection & Indemnity (“P&I”) insurer of the Vessel and its owners (the “Owners”) at the time the Vessel sank, pursuant to a contract of insurance where an arbitration clause was included.

The background of the dispute can be summarized as follows:

In late 2002, criminal proceedings relating to the loss of the Vessel were commenced in Spain; civil claims were brought in those proceeding. On 13 November 2013, the Provincial Court of La Coruña handed down a judgment which was confirmed after first and second appeals. On 15 November 2017, the Provincial Court delivered a judgment on quantum concluding that the Club (and others) was liable to over 200 separate parties, including the Kingdom of Spain, in sums in excess of € 1.6 billion as a result of the casualty, subject in the case of the Club to the global US$ 1 billion limit of liability. On 1 March 2019, the Provincial Court issued an execution order (the Spanish judgment referred to above) setting out the amounts that each of the claimants were entitled to enforce against the respective defendants.

In January 2012, the Club had commenced London arbitration proceedings seeking declarations that, pursuant to the arbitration agreement in the contract of insurance, Spain was bound to pursue its claims under Article 117 of the Spanish Penal Code in London arbitration. The arbitral tribunal found that, as a matter of English law, although Spain was not a contractual party to the arbitration agreement in the Contract of Insurance, according to English equitable principles Spain could not be a “beneficiary” of the Owners’ contractual rights without respecting the “burden” of the arbitration agreement. The award declared as well that the Club was not liable to Spain.

In March 2013, the Club applied to the Commercial Court of the High Court of Justice of England and Wales for “leave” (permission) to enforce the Award in the jurisdiction. The application was granted on October 2013.

On 25 March 2019, Spain applied to the High Court of Justice in England and Wales for the registration of the Spanish judgment as a judgment of the High Court pursuant to Article 33 of Regulation Brussels I. The application was successful. One month later the Club lodged an appeal under Article 43 of Regulation No. 44/2001 against the Registration Order based on Article 34(3) and Article 34(4) of the same instrument.

In this context, the High Court is referring the following questions to the Court of Justice:

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

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

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

It’s been another busy year for the EAPIL blog. The 310 posts we have published in 2021 have attracted about 180.000 visits and some 190 comments.

Interactions on social media have been on the rise, too. We witnessed an increase in the number of followers on LinkedIn (they are more than 900 now), and in the intensity of their reactions. Meanwhile, the number of those following our Twitter account (@eapilorg) has reached 400: we are glad to see that our tweets are often retweeted and quote tweeted. Thank you!

Unsurprisingly, the impact of Brexit on existing instruments in the field of private international law ranked among the key topics of the year. Actually, one post of out ten, among those published in 2021 on the EAPIL blog, referred to Brexit in one way or another.

The case law of the Court of Justice relating to judicial cooperation in civil matters also attracted a consistent flow of visits, and so did Marta Requejo’s monthly posts on the upcoming Court’s judgments and the scheduled conclusions of the AGs.

The developments in domestic case law also proved to be of particular interest to our readers. Gilles Cuniberti’s post on a ruling of the French Supreme Court redefining territoriality of enforcement was the single most commented post of the year, with Gilles’ later post on the judgment of the UK Supreme Court in FS Cairo v Brownlie, on tort jurisdiction, ranking second in terms of comments.

Here are the blog’s five posts of the year, based on the number of visits received:

1. Brexit and the Brussels Convention: It’s All Over Now, Baby Blue? by Matthias Lehmann, published on 12 February 2021, part of an on-line symposium on the Fate of the 1968 Brussels Convention which attracted contributions from a number of scholars, including guest posts by Andrew Dickinson, Serena Forlati and Alex Layton
2. French Parliament Adopts Mandatory Law to Enforce Reserved Share in Succession Matters, a guest post by Christelle Chalas, published on 17 August 2021
3. Swiss Court Refuses Post-Brexit Application of the Lugano Convention – Even Good Cases Can Make Bad (Case) Law, a guest post by Rodrigo Rodriguez, published on 10 March 2021
4. Is the 2005 Hague Choice-of-Court Convention Really a Threat to Justice and Fair Play? A Reply to Gary Born, a guest post by Trevor Hartley, published on 30 June 2021
5. The Principle of Mutual Trust in EU law in the Face of a Crisis of Values, a guest post by Cecilia Rizcallah, published on 22 February 2021

The above ranking tells one thing the editors are well aware of: guest posts represent a crucial contribution to this blog.

So, here’s a message to both old and new guest bloggers out there: your submissions are welcome in 2022 as they have been in the past year. So don’t hesitate to get in touch with us: we are eager to read you!

With this post, the EAPIL blog takes a short Winter break. Blogging will resume on 3 January 2022.

All the best for the new year!

On 20 December 2021, the Supreme Court of the UK delivered its judgment in Maduro Board of the Central Bank of Venezuela v Guaidó Board of the Central Bank of Venezuela ([2021] UKSC 57).

The case was concerned with the conflicting instructions over reserves held in England issued by the boards of the Central Bank of Venezuela appointed respectively by Mr Maduro, who was reelected president of Venezuela in 2018, and by Mr Guaido, who is the president of the National Assembly of the country and claims to be its interim president because the 2018 elections were flawed.

The Supreme Court had to decide whether the UK Government has recognised Interim President Guaido as Head of State of Venezuela and, if so, whether any challenge to the validity of Mr Guaido’s appointments to the Board of the Central Bank of Venezuela is justiciable in an English court.

From the Press Summary issued by the Court:

In May 2018, a Presidential election took place in Venezuela, which the incumbent, Mr Nicolás Maduro Moros, claimed to have won. Her Majesty’s Government in the United Kingdom (“HMG”) considered that this election was deeply flawed. On 15 January 2019, the Venezuelan National Assembly announced that Mr Juan Gerardo Guaidó Márquez was the interim President of Venezuela. On 4 February 2019, the then UK Foreign Secretary declared that the United Kingdom recognises Mr Guaidó “as the constitutional interim President of Venezuela, until credible presidential elections can be held”. That statement was reiterated by HMG in a subsequent letter and in statements made to the Court on behalf of the Foreign Secretary in these proceedings.

The Maduro Board and the Guaidó Board both claim to act on behalf of the Central Bank of Venezuela (the “BCV”). The Maduro Board claims to have been appointed to represent the BCV by Mr Maduro as President of Venezuela. The Guaidó Board claims to be an ad hoc board of the BCV, appointed by Mr Guaidó as interim President of Venezuela under a ‘transition statute’ passed by the Venezuelan National Assembly. The Venezuelan Supreme Tribunal of Justice (the “STJ”) has issued several judgments holding that the transition statute is null and void. The Maduro Board and the Guaidó Board both claim to be exclusively authorised to act on behalf of the BCV, including in arbitration proceedings in the London Court of International Arbitration and in respect of gold reserves of about US$1.95 billion held by the Bank of England for the BCV. The central issue in this appeal is which of these two parties is entitled to give instructions on behalf of the BCV.

The Commercial Court ordered a trial of two preliminary issues. The first (the “recognition issue”) is whether HMG recognises Mr Maduro or Mr Guaidó and, if so, in what capacity and on what basis. The second (the “act of state issue”) is whether courts in this jurisdiction may consider the validity under Venezuelan law of (among other things) the appointments to the BCV board made by Mr Guaidó and the transition statute passed by the Venezuelan National Assembly.

At first instance, Teare J held, in respect of the recognition issue, that HMG had conclusively recognised Mr Guaidó as Venezuela’s head of state. The judge further held that the validity of the transition statute and the appointments of Mr Guaidó engaged the act of state doctrine and were thus non–justiciable. The Maduro Board appealed successfully to the Court of Appeal on both issues. On the recognition issue, the Court of Appeal considered that HMG had recognised Mr Guaidó as the person entitled to be head of state (de jure) but had left open the possibility that it impliedly recognised Mr Maduro as in fact exercising some or all of the powers of head of state (de facto). It considered that this issue was best determined by posing further questions of the Foreign Commonwealth and Development Office and remitted the matter to the Commercial Court for this purpose. The Court of Appeal held that the act of state issue could not be answered at that stage without considering both whether HMG recognises Mr Guaidó as Venezuela’s head of state for all purposes and whether the STJ judgments should be recognised by courts in this jurisdiction.

Under the United Kingdom’s constitutional arrangements, the recognition of foreign states, governments and heads of states is a matter for the executive [64]. Courts in this jurisdiction thus accept statements made by the executive as conclusive as to whether an individual is to be regarded as a head of state [69], [79]. This rule is called the ‘one voice principle’. Its rationale is that certain matters are peculiarly within the executive’s cognisance [78]. Historically, courts have drawn a distinction between the recognition of a government de jure and de facto [83]-[85]. This distinction is now unlikely to have any useful role to play before courts in this jurisdiction [99].

HMG’s statement was a clear and unequivocal recognition of Mr Guaidó as President of Venezuela, which necessarily entailed that Mr Maduro was not recognised as the President of Venezuela [92]. Under the one voice principle, it is therefore unnecessary to look beyond the terms of HMG’s statement [93]. No question of implied recognition thus arises, and the Court of Appeal was wrong to think it did [98]. The Court of Appeal’s reliance on the outdated concepts of de jure and de facto recognition was also misplaced [99]. The question of recognition in this case has also been unnecessarily complicated by the distinction between whom HMG recognises as Venezuela’s head of state and whom it recognises as head of government [106]. The relevant matter in these proceedings is the identity of Venezuela’s head of state, not its head of government [109].

It follows that courts in this jurisdiction are bound to accept HMG’s statements which establish that Mr Guaidó is recognised by HMG as the constitutional interim President of Venezuela and that Mr Maduro is not recognised by HMG as President of Venezuela for any purpose [110], [181(1)].

There are two aspects of the act of state doctrine with which this appeal is concerned. The first (“Rule 1”) is that the courts of this country will recognise and will not question the effect of a foreign state’s legislation or other laws in relation to any acts which take place or take effect within the territory of that state. The second (“Rule 2”) is that the courts of this country will recognise, and will not question, the effect of an act of a foreign state’s executive in relation to any acts which take place or take effect within the territory of that state [113]. Although Rule 2 has been doubted, in light of the substantial body of authority in its support its existence should now be acknowledged [135]. Furthermore, there is no basis for limiting Rule 2 to cases of unlawful executive acts concerning property, such as expropriation or seizures [139]-[142].

Rule 2 thus applies to an exercise of executive power such as Mr Guaidó’s appointments to the BCV’s board [146]. However, there are several exceptions to the act of state doctrine, including for acts which take place outside a state’s territory, for challenges to acts which arise incidentally, and for judicial acts [136]. The extra–territorial exception does not apply in this case because the relevant acts of appointment were made within Venezuela and were not in excess of the jurisdiction of Venezuela in international law [149]. The incidental exception does not apply either, because these proceedings involve a direct attack upon the validity of Mr Guaidó’s appointments to the BCV’s board [152]. However, judicial rulings of a foreign state are not subject to the act of state doctrine [157]-[161]. For a court in this jurisdiction to decide whether to recognise or to give effect to the STJ judgments would therefore not engage the act of state doctrine. This is a matter which falls outside the preliminary issues and must therefore be remitted to the Commercial Court for further consideration. However, courts in this jurisdiction will refuse to recognise or give effect to foreign judgments such as those of the STJ if to do so would conflict with domestic public policy. The public policy of the United Kingdom will necessarily include the one voice principle which is a fundamental rule of UK constitutional law. As a result, if and to the extent that the reasoning of the STJ leading to its decisions that acts of Mr Guaidó are unlawful and nullities depends on the view that he is not the President of Venezuela, those judicial decisions cannot be recognised or given effect by courts in this jurisdiction because to do so would conflict with the view of the United Kingdom executive [170].

The transition statute is foreign legislation. Its validity may thus fall within Rule 1. There is no doubt about the existence of Rule 1, which would ordinarily prohibit challenges to the transition statute [172], [174]. However, the validity of the STJ judgments impugning the transition statute is not subject to the act of state doctrine [177]. In any event, Rule 1 is not necessary to the analysis because, subject to the effect to be given to STJ judgments, Rule 2 precludes questioning Mr Guaidó’s appointments to the BCV’s board [180].

Courts in this jurisdiction will therefore (subject to the effect to be given to the STJ judgments) not question the lawfulness or validity of the appointments to the BCV board made by Mr Guaidó [181(2)]. However, it remains necessary to consider whether the STJ judgments should be recognised or given effect in this jurisdiction. The proceedings are remitted to the Commercial Court for it to do so [181(3)].

The periodical Polski Proces Cywilny [Polish Civil Procedure] devoted a whole issue (2021/4) to the Brussels II ter Regulation. The issue is published in open access. Below are the abstracts of (and the links to) the various contributions.

D. Martiny, New efforts in judicial cooperation in European child abduction cases

Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (Recast) contains new and extensive provisions on international child abduction. The 1980 Hague Convention on International Child Abduction is complemented mainly by chapter III (Arts. 22 to 29). The paper examines the interplay of these two legal sources in the closer intra-EU cooperation that is intended. The author analyses jurisdiction and the procedure for the return of a child in the case of wrongful removal or retention. Amendments in recognition and enforcement of ‘privileged’ decisions ordering the return of a child are also addressed.

B. Hess, Towards a Uniform Concept of Habitual Residence in European Procedural and Private International Law?

In the private international and procedural laws of the European Union, habitual residence has become an often-used concept to determine jurisdiction and applicable law. However, its broad usage does not entail that the concept is based on a uniform understanding. The paper explores the different areas where the principle is being applied. It concludes that a uniform concept of habitual residence does not exist in European law although the concept is primarily based on objective factors. Furthermore, from a regulatory perspective, it does not seem desirable to develop this concept in a uniform way. In this regard, the case law of the European Court of Justice, distinguishing different applications of the concept, appears to be balanced.

M.A. Lupoi, Between parties’ consent and judicial discretion: joinder of claims and transfer of cases in Regulation (EU) 2019/1111

Regulation no. 2019/1111 has introduced new rules and mechanisms in order to ensure that a parental responsibility case is decided by the court more conveniently placed to protect the best interest of the child. Thus, while no general provision on the joinder of related claims is provided for, the recast regulation grants the interested parties a limited possibility to choose the competent forum. More significantly, the judge is granted discretionary powers as concerns the exercise of its jurisdicton and the decision to transfer the case to a more appropriate forum. These new powers and procedural mechanisms enforce the European space of justice and implement cooperation and collaboration between the Courts of different Member States.

M. Szpunar, K. Pacuła, Forum of necessity in family law matters within the framework of EU and international law

The forum of necessity revolves around the idea that a court may be called upon to hear a case, though it lacks jurisdiction under the normally applicable rules. The justification of its jurisdiction lies in the fact that the claimant cannot bring the proceedings before another forum or cannot be reasonably required to do so in a given situation. The present paper constitutes an attempt to contextualize and to position the forum of necessity within the framework in which it operates in the Member States, namely the framework of EU and international law. It juxtapositions three legal concepts (forum of necessity, forum non conveniens and universal civil jurisdiction) in order to determine the boundaries of necessity jurisdiction as it is known under EU law. It also benchmarks the necessity jurisdiction against international law and takes into account the influences of human and/or fundamental rights in an attempt to determine whether international law places on the Member States any constraints or obligations as to ensuring a forum of necessity. Taking into account those findings, the paper presents the spectrum of influences that the doctrine of forum of necessity may produce across various instruments of EU private international law, in particular those pertaining to family law matters.

O. Bobrzyńska, Brussels II ter Regulation and the 1996 Hague Convention on Child Protection – the interplay of the European and Hague regimes in the matters of parental responsibility

The article discusses the issue of the application of the conflict-of-laws rules contained in the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children in matters of parental responsibility heard by the courts of EU Member States when jurisdiction is based on the provisions of EU Regulations. This issue is discussed in the context of the relationship between the 1996 Hague Convention and the new Brussels II ter Regulation (Council Regulation (EU) 2019/1111 of 25 June 2019 on Jurisdiction, the Recognition and Enforcement of Decisions in Matrimonial Matters and the Matters of Parental Responsibility, and on International Child Abduction), including the demarcation of the application of the jurisdictional norms of the Convention and the Regulation. The new Regulation seeks to address the problems that arose in this regard under the Brussels II bis Regulation.

F. Gascón Inchausti, P. Peiteado Mariscal, International child abduction in the case law of the Court of Justice of the European Union: learning from the past and looking to the future 

Council Regulation (EU) 2019/1111 of 25 June 2019 on Jurisdiction, the Recognition and Enforcement of Decisions in Matrimonial Matters and the Matters of Parental Responsibility, and on International Child Abduction (Recast) sets up the basis for the treatment of international child abduction among Member States and, for the last fifteen years, some of its most complex elements have been interpreted and developed by the Court of Justice of the European Union. This paper aims to explain this approach and the case law, focusing on the changes and on the challenges that the forthcoming entry into force of Council Regulation (EU) 2019/1111 brings to this delicate issue. 

Z. Kubicka-Grupa, A review of the Polish Supreme Court case law in international family law matters (from January 2015 to April 2021)

 The powers of the Polish Supreme Court include, inter alia, hearing cassation appeals and issuing resolutions. However, in matrimonial matters and matters regarding parental responsibility the jurisdiction of the Supreme Court is strongly limited by law. This also applies to cases with a cross-border element. In the period from January 2015 to April 2021, the Supreme Court issued eleven decisions concerning jurisdiction in matters of parental responsibility under the Brussels II bis Regulation, the civil aspects of international child abduction as well as the recognition and enforcement of judgments in family law matters. The article provides a review of this case law. It contains a concise description of the facts of the cases, the legal assessment expressed by the Supreme Court and a brief commentary by the author.

The Journal of Private International Law and the Singapore Management University will hold a virtual conference on 23 to 24 June 2022, divided into four sessions, on the conflicts of jurisdiction issue. The conference is aimed at assisting with the ongoing work of the Hague Conference on Private International Law (HCCH) on jurisdiction.

The speakers are leading private international law scholars and experts, many of whom are directly involved in the ongoing negotiations at the HCCH. Specifically, the first session, devoted to the common law approaches to conflicts of jurisdiction, chaired by Jonathan Harris, will include an opening by the dean of Yong Pung How School of Law from Singapore Management University and presentations by Campbell McLachlan, Ardavan Arzandeh, Ronald Brand and Mary Keyes; the second one, on the other, focused on civilian approaches to conflicts of jurisdiction, chaired by Kei Takeshita, will involve Tanja Domej, Geert Van Calster, Nadia De Araujo, Marcelo De Nardi and Zheng Sophia Tang; the third will follow, which, based on the work at the Hague Conference on Private International Law and chaired by Paul Beaumont, will be dealt with by Fausto Pocar, David McClean, João Ribeiro-Bidaoui and Matthias Lehmann; finally, continuing on the same topic, the forth chaired by Adeline Chong, including Trevor Hartley, Yeo Tiong Min, Franco Ferrari and Anselmo Reyes, concluded by closing remarks. Each session, with a break in between, will feature a dedicated Q&A moment.

Registration to attend the conference will open nearer the time. The programme for the conference is available here.

Furthermore, the biennial Journal of Private International Law Conference has been delayed until 2023 in order to enable it to take place in person at the Singapore Management University. This conference will be based on a call for papers. Similarly, further details will be announced in due course.

John F. Coyle from the University of North Carolina has published on SSRN an article titled The Mystery of the Missing Choice-of-Law Clause.

The abstract reads as follows:

There is widespread agreement among experienced contract drafters that every commercial contract should contain a choice-of-law clause. Among their many virtues, choice-of-law clauses facilitate settlement and reduce litigation costs. While most modern contracts contain these provisions, some do not. In many instances, the absence of these clauses may be attributed to outdated forms, careless drafting, inattentive lawyers, or some combination of the three. In a few instances, however, it appears that sophisticated contract drafters purposely omit choice-of-law clauses from their agreements. If these clauses add value to a contract—and there is near-universal agreement that they do—then this decision raises a perplexing question. Why would any experienced contract drafter ever consciously choose not to write a choice-of-law clause into an agreement?
This Article seeks to answer this question with respect to one type of agreement where choice-of-law clauses are routinely omitted—insurance contracts. All of the available evidence suggests that most insurance contracts lack choice-of-law clauses. This is surprising because insurance companies are the epitome of the sophisticated contract drafter. To unravel the mystery of why so many insurance contracts do not contain choice-of-law clauses, the Article draws upon more than thirty interviews and email exchanges with industry experts. It argues that the absence of these provisions is attributable to a complex amalgam of legislative and regulatory hostility, judicial skepticism, standard forms, and strategic maneuvering on the part of insurers. The Article argues further that manuscript policies—which are negotiated between insurers and policyholders—sometimes lack choice-of-law clauses due to a perceived first-mover disadvantage and the absence of any body of truly neutral insurance law within the United States.
Solving the mystery of the missing choice-of-law clause in insurance contracts unlocks three important insights. First, it informs the efforts of state legislators and insurance commissioners called upon regulate the terms of insurance policies. Second, it suggests that insurance companies should adopt a differentiated approach to drafting choice-of-law clauses that accounts for the relative favorability of the law in the policyholder’s state. Third, and most importantly for contract scholars, solving the mystery sheds light on the nature of the contract production process, the drafting acumen of insurance companies, and the stickiness of absent contract terms.