EAPIL blog

The Research Center on Private International Law (EDIEC – EA 4185) of the University of Lyon III – Jean Moulin (France) will host a three-day conference to understand whether EU Private International Law should be considered as a comprehensive system (Existe-t-il un système de droit international privé de l’Union européenne?), organised by Ludovic Pailler and Cyril Nourissat, on 17 to 19 November 2021.

The presentation of the conference reads as follows:

The ambitious program proposed by the organizers does not only aim to take stock of a vicennial construction of the law of judicial cooperation in civil matters. It should also allow the speakers to assess whether this field of Union law is merely a pile of autonomous texts (at most likely to constitute a few large blocks – family, obligations, etc.) or whether, beyond that, a comprehensive work is taking shape, a true “system” of private international law, in particular thanks to the many judgments handed down by the Court of Justice of the European Union. This event will also be an opportunity to question the necessity of a system of private international law in order to constitute the area of civil justice called for by the European Commission. In order to take up this major scientific challenge, the colloquium brings together eminent European authors, specialists in Private international law and Union law. Their analysis will be usefully completed by a comparative approach from points of view from outside the Union (China, Maghreb, USA) and by the intervention of practitioners (lawyers, bailiffs, notaries), better able to evaluate the usefulness of a system for their daily work.

Speakers include numerous PIL specialists, scholars as well as senior officials and practitioners:

Louis d’Avout (Paris II Panthéon-Assas), Etienne Farnoux (Strasbourg), Marie Vautravers (European Commission), Tania Jewczuk (French Ministry of Justice) Sandrine Clavel (Paris Saclay), Laurence Idot (Paris II Panthéon-Assas), Edouard Treppoz (Paris 1 Panthéon-Sorbonne), Yves El Hage (Lyon 3), Hélène Gaudin (Toulouse 1 Capitole), Bernard Haftel (Sorbonne Paris Nord), Lukas Rass-Masson (Toulouse 1 Capitole), Carine Brière (Rouen), Jean-Baptiste Racine (Paris II Panthéon-Assas), Malik Laazouzi (Paris II Panthéon-Assas), Emmanuelle Bonifay (Aix-Marseille), Mathias Audit (Paris 1 Panthéon-Sorbonne), Johanna Guillaumé (Rouen), Marie-Elodie Ancel (Paris II Panthéon-Assas), Stéphanie Francq (UCLouvain), Samuel Fulli-Lemaire (Strasbourg), Amélie Panet (Lyon 3), Marion Ho-Dac (Artois), Laurence Usunier (Cergy-Pontoise), Kamalia Metiyeha (Paris 1 Panthéon-Sorbonne), Pierre Callé (Paris-Saclay), Fabienne Jault-Seseke (Paris-Saclay), Michael Wilderspin (former administrator, European Commission), Blandine de Clavière (Lyon 3), Sylvaine Poillot Peruzzetto (French Cour de Cassation), Alain Devers (Lyon 3), Marc Cagniart (Notary, Paris), Alice Meier-Bourdeau (Lawyer, Paris Bar), Mathieu Chardon (Baillif), Emmanuel Guinchard (Liverpool), Sami Bostanji (Tunis), Claudia Lima Marques (Porta Alegre), Gustavo Cerqueira (Nîmes), Nicolas Nord (Strasbourg), Fabien Marchadier (Poitiers) and Jérémy Heymann (Lyon 3).

The full programme is available here.

For registration, please write to marie.brossard@univ-lyon3.fr

It had to be anticipated that Brexit would have detrimental consequences for private litigants. Some have nurtured the hope, however, that the UK-EU Trade and Cooperation Agreement would mitigate some of the damage. This idea was dealt a blow by a recent judgment by the Higher Regional Court (Court of Appeal) of Munich. The court dismissed a suit brought by a British Private Limited Company (Ltd.) for the company’s supposed lack of legal personality.

A UK Ltd. based in Berlin sought injunctive relief for alleged price fixing against a German competitor before the courts of Munich. While the Munich Regional Court (LG München I), as the lower court, in its decision (LG München I, 37 O 3787/21) ruled on the merits of the case, the Munich Higher Regional Court (OLG München), in a non-appealable ruling at second instance (OLG München, 29 U 2411/21 Kart), squarely denied the capacity of the Ltd. to be a party of the proceedings.

The Court of Appeal argued as follows: Since the UK Ltd. as the claimant was not incorporated in an EU Member State, its legal capacity was to be assessed under German international company law using the real seat theory, according to which a company is subject to the law of the place of its headquarters. This was German law since the Ltd. had its basis in Berlin according to the court’s assessment.

After the Munich court had clarified the applicability of German substantive company law to non-EU companies based in Germany, it further ruled that the UK Ltd. would be legally non-existent as such since it does not fulfill the conditions of any of the corporate forms provided by German law. These corporate forms are exhaustive because of the principle of numerus clausus, and they do not include a Ltd.

The court admitted that a Ltd. based in Germany may have to be considered as a partnership under German law (Gesellschaft bürgerlichen Rechts or offene Handelsgesellschaft), or in the case of a single shareholder, as a merchant. Nevertheless, it rejected the action brought by the Ltd. as inadmissible because of its non-existence as a Ltd.

Some German authors had opined that the Trade and Cooperation Agreement between the EU and the UK would call for a different conclusion.  Particularly the clauses on national and most-favoured-nation treatment therein would require the recognition of companies incorporated under English law.

Not so, said the Munich court. It stressed that Articles 128(b), 129 and 130 of the Trade and Cooperation Agreement merely guarantee the free movement of trade goods and services, capital and investment, but not the freedom of establishment. It also pointed to Annex 20 Headnotes No. 9 of the Agreement, according to which the obligation of national treatment does not extend to legal persons incorporated in the UK and having their seat in the EU (paras. 21-22).

The judgment seems particularly stern, rigid, and ultimately misguided. Already the indiscriminate application of the real seat theory to all third countries is debatable: Some German authors rightly question whether the non-recognition of companies incorporated in such evolved legal systems as the Swiss or the British is indeed justified.

But it is even more wrong to reject such recognition under the EU-UK Trade and Cooperation Agreement. The freedom to provide goods and services explicitly guaranteed in this Agreement is hardly worth anything if the provider will not be legally recognised and cannot assert its rights in court. How should it bring a claim e.g. for an unpaid service?

The fact that the principle of national treatment does not apply to companies based in the EU does not suggest otherwise. It may justify a different treatment for companies incorporated in the UK and based in the EU with regard to the applicable corporate law rules. For example, the liability of shareholders or the rights of management could be subject to the law of the member state in which the company has its seat. But the principle of national treatment certainly does not permit the outright rejection of actions brought by UK companies based in the EU.

The decision of the Munich Higher Regional Court shows the unforeseeable consequences that Brexit may have, even for persons situated within the European Union. The model of operating as a Ltd., which was popular for a while in Germany, especially among small companies, harbours far-reaching dangers and can become a boomerang for many of the companies incorporated in this way, which were supposed to shield the shareholders from personal liability.

It would have been desirable if the Munich Higher Regional Court had removed further uncertainties by departing from the seat theory for British companies and granted these companies legal capacity. At least the Court should have given the Ltd. the chance to correct its corporate denomination in the action and bring the claim as a partnership or merchant. Under German procedural law, the Court is obliged to inform the party about this possibility, and it is unclear whether it has done so.  Outrightly rejecting the claim amounts to barring access to court. Such practice could be questioned under Article 6 of the ECHR.

In November 2021 the activity of the Court of Justice in the field of Private International Law appears to be limited to two decisions, both expected on the 25.

The first judgement corresponds to the request for a preliminary ruling from the Paris Court of Appeal in C- 289/20, IB, on Article 3 of Regulation Brussels II bis:

Where, as in the present case, it is apparent from the factual circumstances that one of the spouses divides his time between two Member States, is it permissible to conclude, in accordance with and for the purposes of the application of Article 3 of Regulation 2201/2003, that he or she is habitually resident in two Member States, such that, if the conditions listed in that article are met in two Member States, the courts of those two States have equal jurisdiction to rule on the divorce?

AG Campos Sánchez-Bordona’s opinion was published on 8 July 2021. It is not yet available in English. My translation:

Article 3, paragraph 1, letter a), of Council Regulation (EC) No. 2201/2003 (…) must be interpreted in the sense that, for the purposes of the attribution of jurisdiction, only one habitual residence of each spouse can be recognized.

When a spouse shares his life between two or more Member States in such a way that it is not possible, in any way, to identify one of them as that of his habitual residence within the meaning of Article 3 (1) (a) of the Regulation No. 2201/2003, international jurisdiction will have to be determined in accordance with other criteria of the Regulation and, where appropriate, the residuals fora in force in the Member States.

In the same hypothesis, and provided the application of Regulation No. 2201/2003 and the residual fora above-mentioned does not confer international jurisdiction to any Member State, jurisdiction may be exceptionally attributed to the courts of the Member States of a non-habitual residence of a spouse.

The judgement is to be delivered by a chamber of five judges – A. Prechal, J. Passer, F. Biltgen, N. Wahl and S. Rossi, the latter as reporting judge.

The decision on C-25/20, Alpine Bau, corresponds to a request by the Višje sodišče v Ljubljani (Slovenia), on Article 32(2) of the old insolvency regulation:

Is Article 32(2) of Regulation No 1346/2000 to be interpreted as meaning that the rules on the time limits for lodging creditors’ claims, and the consequences of lodging claims out of time under the law of the State in which the secondary proceedings are being conducted, apply to the lodgement of claims in secondary proceedings by the liquidator in the main insolvency proceedings?

Last May, AG Campos Sánchez-Bordona had proposed the following answer:

Article 32(2) of … Regulation (EC) No 1346/2000 … is to be interpreted as meaning that where the liquidator for the main insolvency proceedings lodges claims in secondary proceedings, the time limits for the lodgement of those claims, and the consequences of lodging claims out of time, are governed by the law of the State in which the secondary proceedings were opened.

The judgement will be delivered by judges K. Jürimäe (acting as juge rapporteur), S. Rodin and N. Piçarra.

This post was written by Thomas Mastrullo, Associate Professor at University of Luxembourg.

The European Commission has for several years expressed its desire to increase the range of supranational structures. Thus, the creation of a European Association has been considered since the beginning of the 2000s (Communication from the Commission to the Council and the European Parliament, Modernising Company Law and Enhancing Corporate Governance in the European Union – A Plan to Move Forward, p. 26).

This project, which has made no progress in 20 years, has now been given new relevance.

Indeed, on 15 September 2021, the European Parliament has published a Draft Report with recommendations to the Commission on a statute for European cross-border associations and non-profit organisations. This Proposal of Regulation on a statute for a European Association is furthermore complemented by a Proposal for a directive on common minimum standards for non-profit organisations in the EU (so called “Minimum standards” Directive).

This initiative is part of a wider project of integration and development of democracy in the European Union.

According to the Proposal, cross-border projects and other forms of cooperation involving civil society in particular contribute in a decisive way to the achievement of the Union’s objectives. In these conditions, the Proposal of Regulation seeks to promote cooperation across borders between citizens and representative associations because such a cooperation is “essential for creating an overarching European civil society, which is an important element of European democracy and European integration” (Prop. Reg., Recital 1 and 2).

More widely, European Parliament wants to incitate citizens to “actively participate in the democratic life of the Union” thanks to Associations which “play a key role in helping and encouraging individuals” (Prop. Reg., Recital 5).

However, economic considerations are also present in the Proposal of Regulation: European Parliament points out that “many associations play a significant role in the economy and in the development of the internal market, by engaging on a regular basis in economic activity” (Prop. Reg., Recital 3).

The main objective of the Proposal of Regulation is therefore to provide a supranational instrument to facilitate the pursuit of transnational objectives and activities by associations within the internal market.

Several reasons explain why this proposal is now being made.

Firstly, a legal policy element: the need to defend associations and associative freedom in the Union, at a time when these may appear to be under threat from the governments of some Member States. In this sense, the Proposal of Regulation expressly refers to the Judgment of the Court of Justice of 18 June 2020, C-78/18, European Commission v Hungary, from which it follows that Article 63 TFEU and Articles 7, 8 and 12 of the Charter of Fundamental Rights of the European Union protect non-profit organisations against discriminatory, unnecessary and unjustified restrictions to access to resources and the free movement of capital within the Union.

Secondly, an element of legal technique is invoked: the existing supranational structures, i.e. the European Company (SE) based on Regulation (EC) No. 2157/2001, the European Cooperatives Society (SCE) based on Regulation (EC) n° 1435/2003, the European grouping of territorial cooperation (EGTC) based on Regulation (EC) No. 1082/2006 and European Economic Interest Grouping (EEIG) provided by Regulation (EEC) No. 2137/85 either do not address associations, or do not meet the specific needs of civil society associations.

Hence the need, for the European Parliament, to establish at Union level appropriate rules which will permit the creation of European Associations.

The Regulation would lay down the conditions and procedures governing the formation, governance, registration and regulation of legal entities in the form of a European Association (Prop. Reg., Article 1).

The European Association would be defined as “an independent and self-governed cross-border entity established on a permanent basis within the territory of the Union by voluntary agreement between natural or legal persons for a common non-profit purpose” (Prop. Reg., Article 1(2)).

Several key notions would be clarified (Prop. Reg., Article 2). For instance, “non-profit” purpose would mean that “it is not the primary aim of the association to generate a profit, while it may still exercise economic activities”. And when profit would be generated, it would not be distributed among members, founders or private parties but invested in the organisation for the pursuit of its objectives. Another example: the “independence” would mean that the European Association must be free from State interference and not part of government or administrative structure.

In a general way, The European Association would be governed by freedom in the frame of European requirements:  freedom to determine its objectives and activities, provided that respect and support the promotion of the objectives and values on which the Union is founded; freedom to determine its membership in respect of the principle of non-discrimination (Prop. Reg., Article 1(3) to (5)).

Concerning the applicable law, Proposal of Regulation is based on a classical combination between material rules laid down at the European level and conflict-of-law rules designating national applicable law. Thus, on the well-known model of European entities such as SE, European Association would be ruled in priority by Regulation’provisions. For matters not dealt with the Regulation, it would be governed by the law of the Member State in which the European Association would have its registered office (Reg., Article 3(1)). As a consequence, Member States would have to identify the legal entity or the category of legal entities to which a European Association would be deemed (Prop. Reg., Article 3(2)). Therefore, like the others European structures, European Association would be conceived as a hybrid entity.

The application of the Regulation, and thus the regime of European Association, would be monitored by two authorities.

First, at a national level, the Regulation would provide the creation of a national supervisory authority defined as “an independent public authority” designated by each Member States. The aim of the authority would be to protect the fundamental rights and freedoms of European Associations while acting across borders (Prop. Reg., Article 4). These supervisory authorities would cooperate within the framework of a European Association Authority.

Second, at a supranational level, the Regulation would create a European Association Authority (Prop. Reg., Article 5). Certainly, it is one of the most remarkable provision of the Proposal. European Association Authority would be thought as a body of the Union with legal personality. The role of the European Association Authority would be to ensure that the Regulation is applied “in a consistent manner”.

Several important tasks would be given to the European Association Authority, such as (Prop. Reg., Article 5(6)):

• develop a single e-registration procedure for European Associations and manage a digital e-Registry of European Associations at Union level;
• process notices of registration, dissolution and other relevant decisions concerning European Associations for the purpose of publication in the Official Journal of the European Union;
• process applications for the granting of “public benefit status” (cf. infra Reg., Article 19);
• assess the adequacy of the identification of the comparable legal entities by the Member States concerning the applicable law (cf. supra Reg., Article 3(2));
• receive, examine and follow-up on complaints concerning the application of the Regulation
• take binding decisions;
• examine any question relating to the application of this Regulation and issue guidelines, recommendations and best practices for national supervisory authorities and European Associations;
• advise the Commission on any issue related to European Associations;
• consult the Commission regarding structuring and operationalising funds aimed at financing civil society as well as protecting and promoting Union rights and values, sustaining and furthering the development of open, rights-based, democratic, equal and inclusive societies based on the rule of law;
• promote the cooperation and the effective bilateral and multilateral exchange of information and best practices between national supervisory authorities and with the European Associations Authority;
• promote common training programmes and facilitate personnel exchanges between national supervisory authorities.

The dialogue and exchanges between national supervisory authority and the European Association Authority would be one of the main features of the new status of European Associations.

A European Association would be formed by three means, either contractual or corporate. In all cases, the European Association should have a strong legal link with the EU (Prop. Reg., Article 6). That is said, the European Association would be created:

• by agreement of at least three founding members. The founding members would be natural persons, that are citizens or residents of at least two Member States, or legal persons that have their registered office in at least two Member States, or
• by a conversion into a European Association of an existing entity formed under the law of a Member State and which would have its registered office within the Union, or
• by a merger between at least two entities belonging to the categories identified pursuant to Article 3(2) of the Regulation proposed (cf. supra). These entities would have to be formed under the laws of Member States and would have to have their registered office within the Union, provided that at least two of them would be governed by the law of different Member States.

The formation of the European Association would need the signature of statutes whose mentions of the statutes would be listed by the Regulation (Prop. Reg., Article 8). The statutes would provide, inter alia, for the rights and obligations of members (Prop. Reg., Article 7)

Concerning the registered office of a European Association, two conditions would be required: on a formal aspect, the place of the registered office would be indicated in the statutes; on a material aspect, the registered office would be within the territory of Union. Moreover, following the material rule providing by model of the European company, the registered office would be located at the place where the European Association has its central administration (Prop. Reg., Article 9).

For registration of a European Association, the Regulation would rely on digital tools. Within 30 days of the date of its formation, a European Association would submit an application for registration in the digital e-Registry of European Associations (Prop. Reg., Article 10). Registration would occur via a standardised registration procedure to be developed and set up by the European Associations Authority. Besides, the registration procedure would be electronic and free of charge. The applicants would be allowed to use the official language or one of the official languages of the Member State where the European Association would have its registered office. A national “registering authority” would be designated by each Member States for processing applications for registration of European Associations that have their registered office in its territory.

European Association would be given two main prerogatives. First, on the model of others European entities, it would be able to transfer its registered office without creation of a new legal person to change its applicable law (Prop. Reg. Article 11). Second, it would have the legal personality acquired on the day of the publication of its registration as a European Association in the Official Journal of the European Union (Prop. Reg. Article 12). This legal personality would give European Associations “the capacity to exercise, in their own name, the powers, rights and obligations that are necessary for the pursuit of their objectives”, under the same conditions as a legal entity among those identified pursuant to Article 3(2) of the Regulation and formed in conformity with the law of the Member State in which the European Association would have its registered office. But some prerogatives would be expressly guaranteed at the European Level, no matter where the registered office is located, such as: conclude contracts, receive donations and legacies, employ staff, be a party to a legal proceedings and access financial services.

A European Association would be free to determine its internal management structures and governance in its statutes, provided that it would be rule by at least two bodies (Prop. Reg., Article 13): the Board of Directors, which would manage the European Association in the interests of the European Association and in pursuit of its objectives (Prop. Reg., Article 14), and the General Assembly which would gather all members (Prop. Reg., Article 15) and would be competent for amendments of the statutes (Prop. Reg., Article 17).

To pursue its objectives within Union, and give a real supranational dimension to its activities, a European would be able to have regional chapters which would not be considered as possessing a distinct legal personality but could organize and manage activities on behalf of the association (Prop. Reg., Article 16).

The treatment of European Associations in Member States is framed by several cardinal principles.

Firstly, the principle of non-discrimination from which it follows that any discrimination based on the place where the European Association would have its registered office would be prohibited and that (Prop. Reg., Article 18).

Secondly, a European Association could be granted public benefit status if four conditions would be met (Prop. Reg., Article 19):

• the organisation’s purpose and actual activities would pursue a public benefit objective which would serve the welfare of society or of part of it, and is thus beneficial for the public good (arts, culture, environmental protection, social justice, humanitarian assistance, protection of animals, science, research and innovation, education and training, protection of health, consumer protection, amateur sports, for instance);
• surplus from any economic or other income-earning activity generated by the non- profit organisation would be used solely to promote the organisation’s public benefit objectives;
• in the case of dissolution of the non-profit organisations, statutory safeguards would guarantee that all assets would continue to serve public benefit objectives;
• members of the organisation’s governing structures that are not employed as staff would be not eligible to remuneration beyond adequate expense allowance.

Thirdly, the principle of national treatment, from which it follows that European Association registered in a Member State would be subject to the provisions applicable to the legal entity or the category of legal entities to which a European Association would be deemed comparable by the Member State in application of Article 3-2 (Prop. Reg., Article 20). This principle seems very close to the principle of non-discrimination.

Fourthly, the principle of non-arbitrary treatment from which it follows that A European Association “would not be subjected to differential treatment by Member States based solely on the political desirability of its purpose, field of activities or sources of financing” (Prop. Reg., Article 21).

Two texts are dedicated to this issue.

The first text concerns the fundraising and free use of assets (Prop. Reg., Article 22). It is provided that European Associations would be able to solicit, receive, dispose of or donate any resources, and solicit and receive human resources, from or to any source (public bodies, private individuals or private bodies, in any Member State of the Union and in third countries). In return, European Associations would be subject to the provisions of Union and national law concerning customs, foreign exchange, money laundering and terrorist financing, as well as to the rules regulating the funding of elections and political parties. We can see here that Democratic considerations are at the heart of the Proposal of Regulation’s preoccupations.

The second text concerns accounting and auditing (Prop. Reg., Article 23). It provides that rules on accounting would be regulated by the statutes, subject to the provisions of the Regulation and to the provisions applicable to the legal entities identified pursuant to Article 3(2) in the Member State in which the European Association would have its registered office. Besides, the Regulation would demand that European Association draws up at least once a year: annual accounts, consolidated accounts, if any, and a budget estimate for the forthcoming financial year. This text underline the hybrid nature of the European Association which would be governed by the Regulation, its statutes and the law of the Member State where its registered office would be located. It confirms also that Proposal of Regulation is based on a combination between material rules and conflict-of-law rules.

The supervision of a European Association would be assumed by a national supervision authority within the framework of European Associations Authority (Prop. Reg., Article 24). The Proposal of Regulation draws up a complete scheme of supervision. The supervisory authority would consult the supervisory authorities of other Member States within the framework of the European Associations Authority on any substantial issues regarding the lawfulness and liability of European Associations registered in the Member State’s territory. The recommendations of supervisory authorities would be communicated and reviewed by the European Associations Authority. If the supervisory authority would fail to reconsider its recommendation in the light of the European Associations Authority’s recommendation, the European Associations Authority could adopt a binding decision. In case of the supervisory authority would fail to comply with a decision taken by the European Associations Authority, the latest would inform the European Commission, which would take action as appropriate. European Associations would have the possibility to obtain judicial review of any decisions taken by the supervisory authority.

Concerning liability, Proposal of Regulation provides once again a combination between of a conflict-of-law rule and a material rule. On a conflictual point of view, the liability of the European Association would be governed by the provisions applicable to the legal entities deemed comparable in application of Article 3(2) by Member State in which the European Association would have its registered office. On a material point of view, the Proposal of Regulation states that the members of the Board would be jointly and severally liable for loss or damage sustained by the European Association as a result of a breach of the obligations attaching to their functions. Proceedings against the members of the Board would be laid down by the statutes.

First of all, the Proposal of Regulation provides a voluntary dissolution (Prop. Reg., Article 26). More precisely, the European Association could be dissolved by decision of the Board pursuant to provisions in the European Association’s statutes, with the agreement of the General Assembly, or by decision of the General Assembly – with a possibility to annul such decision before any dissolution or liquidation of a European Association. The supervisory authority would inform the European Associations Authority of any dissolution and The European Associations Authority would, immediately after such notification, publish a notice of dissolution of the European Association in the Official Journal of the European Union and remove the European Association from the digital e-Registry of the Union.

The Regulation would also lay down an involuntary dissolution (Prop. Reg., Article 27). In that circumstance, the dissolution would result from a binding decision of the European Associations Authority, taken on its own initiative or at the request of the supervisory authority of the Member State in which the European Association would have its registered office. Three kind of circumstances could justify such a binding decision: the transfer of the registered office outside the territory of the Union; the conditions for the formation of the European Association, as set out in the Regulation, would be no longer fulfilled; the activities of the European Association would cease to be compatible with the objectives and values of the Union or would “pose a serious threat to public policy, public security or public order”. The binding decision would be taken after the national supervisory authority has communicated a reasoned opinion concerning the European Association’s dissolution. The European Association would be granted a “reasonable period of time” to regularize its position before the decision takes effect. The decision to dissolve the European Association would be reflected in the digital e-Registry of European Associations and publish it in the Official Journal of the European Union.

Finally, the Proposal of Regulation deals with liquidation and insolvency of European Associations (Prop. Reg., Article 28). The Proposal states that the winding up of a European Association would entail its liquidation. Such liquidation would be governed by the law applicable to the legal entities identified pursuant to Article 3(2) in the Member State in which the European Association would have its registered office.

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.

T. Maxian Rusche, Available actions in the German courts against the abuse of intra-EU investor-State arbitration proceedings

The Court of Justice of the European Union ruled in Achmea that intra-EU investment arbitration violates fundamental rules of EU law. However, arbitration tribunals have revolted against that judgment, and consider in constant manner that they remain competent to decide cases brought by EU investors against EU Member States. German law offers an interesting option for States to defend themselves against new intra-EU investment arbitration cases. Based on § 1032 paragraph 2 Civil Procedure Code, the German judge can decide on the validity of the arbitration agreement if a case is brought prior to the constitution of the arbitration tribunal. Recently, Croatia has successfully used that possibility in an UNCITRAL arbitration initiated by an Austrian investor on the basis of the Croatia-Austria BIT. The Netherlands have recently brought two cases in ICSID arbitrations based on the Energy Charter Treaty. If the investor refuses to comply with a finding that there is no valid arbitration agreement, Member States can seek an anti-arbitration injunction.

F.M. Wilke, German Conflict of Laws Rules for Electronic Securities

In June 2021, Germany introduced the option of electronic securities, doing away with the traditional principle that securities must be incorporated in a piece of paper. The blockchain-ready Electronic Securities Act (Gesetz über elektronische Wertpapiere: eWpG) comes with its own conflict of laws provision. This paper addresses the subject matter, connecting factors, and questions of the applicable law of said rule. One main challenge consists in reconciling the new rule with an existing (much-discussed, yet still quite opaque) conflict of laws provision in the Securities Account Act. While the connecting factor of state supervision of an electronic securities register may appear relatively straightforward, it is shown that it can actually lead to gaps or an accumulation of applicable laws. While the Electronic Securities Act contains a solution for the former issue, the latter proves more complicated. Finally, it is not obvious whether the new rule allows a renvoi. The author tentatively suggests a positive answer in this regard.

M. Pika, The Choice of Law for Arbitration Agreements

Ever since 2009, when the German choice-of-law provisions for contracts were removed and the Rome I Regulation with its carve-out for arbitration agreements entered into force, the choice of law for arbitration agreements has been debated in Germany. On 26 November 2020, the German Federal Court of Justice addressed this matter, albeit inconclusively. The court held that the enforcement provision Article V (1) lit. a New York Convention applies already before or during arbitral proceedings. Pursuant to this provision, the arbitration agreement is governed by the law chosen by the parties and, subsidiarily, the law of the seat. This leads to an internationally well-known follow-up problem: whether the parties, when choosing the law applicable to the main contract, have impliedly chosen the law applicable to the arbitration agreement. This matter was left open by the Federal Court of Justice.

F. Rieländer, Joinder of proceedings and international jurisdiction over consumer contracts: A complex interplay between the Brussels Regime and domestic law of civil procedure

Whether the “international nature” of a contractual relationship between two parties to a dispute established in the same Member State might possibly stem from a separate contract between the claimant and a foreign party, for the purposes of determining jurisdiction according to the Brussels Ibis Regulation, continues to be a contentious issue ever since the ECJ ruling on the Maletic case (C-478/12). Particularly illuminating are two recent decisions given by the Bayerisches Oberstes Landesgericht. Whilst the Court, understandably enough, did not wish to deviate from the case law of the ECJ, it probably unnecessarily extended the purview of the dubious Maletic judgment in Case 1 AR 31/20. With regard to division of labour on part of the defendants there is no need for an overly expansive interpretation of the term “other contracting party” within the meaning of Article 18(1) Brussels Ibis Regulation because the “international element” of a contractual relationship between a consumer and a trader established in the Member State of the consumer’s domicile simply derives from the subject-matter of the proceedings where the contractual obligation of the trader is to be performed in another State. Taken in conjunction with its decision in Case 1 AR 56/20, the Court seemingly favours a subject-matter-related test of “international character”, while the Court at the same time, in Case 1 AR 31/20, respectfully adopts the authoritative interpretation of the ECJ in Maletic. Simply for the sake of clarity, it should be mentioned that even if the legal relationship between a consumer and one of the defendants, considered alone, bears no international character, a subsequent joinder of proceedings at the legal venue of the consumer’s place of residence is nonetheless possible pursuant to § 36(1) No 3 ZPO (German Code of Civil Procedure) if jurisdiction is established in relation to at least one of the defendants according to Article 18(1) Brussels Ibis Regulation and the general place of jurisdiction of all other defendants is situated in the Federal Republic of Germany.

M. Andrae, For the application of Art. 13 (3) No. 2 EGBGB, taking into account the spirit and purpose of the law against child marriage

Art. 13 (3) No. 2 EGBGB (Introductory Law to the Civil Code) stipulates that a marriage can be annulled under German law if the person engaged to be married was 16 but not 18 years of age at the time of the marriage. The legal norm relates to a marriage where foreign law governs the ability to marry and where the marriage has been effectively concluded under this law. The rule has rightly been heavily criticized in the scientific literature. As long as the legal norm is applicable law, it should be interpreted in a restrictive manner, as far as the wording and the purpose of the law against child marriage allow. The article focuses on the intertemporal problem. In addition, it is discussed whether the legal norm is to be applied universally or only if there is a sufficient domestic reference. The article follows the restrictive interpretation of the BGH of Section 1314 (1) No. 1 BGB, insofar as it concerns marriages that are covered by Art. 13 (3) No. 2 EGBGB. According to this, the court can reject the annulment of the marriage in individual cases, if all aspects of the protection of minors speak against it.

D. Looschelders, Cross-border enforcement of agreements on the Islamic dower (mahr) and recognition of family court rulings in German-Iranian legal relations

The cross-border enforcement of agreements on the Islamic dower (mahr) can present significant difficulties in German-Iranian legal relations. These difficulties are compounded by the fact that mutual recognition of family court rulings is not readily guaranteed. Against this background, the decision of the Higher Regional Court of Celle deals with the recognition of an Iranian family court ruling concerning a claim for recovery of the Islamic dower. The Higher Regional Court of Hamburg on the other hand discusses in its decision whether a husband can sue his wife for participation in a divorce under Iranian religious law as contained in their divorce settlement agreement on the occasion of a divorce by a German court. The recognition of a judicial divorce is not per se excluded in Iran; however, the husband required his wife’s participation due to Iranian religious laws in order for her waiver on the Islamic dower to gain legal effectiveness under Iranian law. The court rejected the claim as it drew upon the state divorce monopoly contained in Art. 17 (3) EGBGB (Introductory Act to the German Civil Code) and § 1564 BGB (German Civil Code). Consequently, despite the waiver declared in Germany, the respondent is free to assert her claim for recovery of the Islamic dower in Iran.

M. Andrae, HMP: Maintenance Obligations between ex-spouses if the parties lived together as an unmarried couple for a long time before the marriage

The main focus is on the relationship between Art. 3 (general rule on applicable law) and Art. 5. (special rule with respect to spouses and ex-spouses) of the 2007 Hague Maintenance Protocol. The following legal issues are discussed: Are maintenance obligations arising out of unmarried relationships included within scope of the HMP? Is Art. 5 HMP to be interpreted as an exception in relation to Art. 3 HMP? How is the phrase “closer connection with the marriage” in the Art. 5 HMP to be interpreted? Should a period of time in an unmarried relationship before a marriage be taken into account in relation to Art. 5 HUP? What is the significance of the last common habitual residence during the marriage with regard to the escape clause if the parties previously lived in different countries for professional reasons?

C. von Bary, Recognition of a Foreign Adoption of an Adult

In its decision on the recognition of a foreign adoption of an adult, the German Federal Court of Justice addresses questions concerning procedure and public policy. The special provisions for proceedings in adoption matters do not apply in recognition proceedings, which has consequences for the remedies available. Considering the effect on the ground for refusal of recognition due to a lack of participation (§ 109(1) No. 2 FamFG), courts only have to hear the other children of the adopting person rather than them being a party to the proceedings. The Court also sets strict criteria for a violation of public policy in the case of a foreign adoption of an adult. It only amounts to a violation of public policy when the parties deliberately seek to evade the prerequisites under German law by going abroad, which seems to imply that there are no fundamental principles specific to the adoption of an adult.

H. Roth, Enforcement issues due to a decision repealed in the State of origin

The decision of the German Federal Court of Justice was handed down pursuant to intertemporal civil procedure law and also to the Brussels I Regulation, which requires a declaration of enforceability for enforcement in another Member State. The court rightly upheld its settled case-law that a decision subsequently repealed in the State of origin cannot be authorized for enforcement. The ruling of the German Federal Court of Justice has significance for future cases examined on the basis of the new Brussels Ia Regulation, which states that enforcement can occur in another Member State without a declaration of enforceability. If the decision in the State of origin is subsequently repealed, a debtor in the executing State can choose for this fact to be taken into account either in the refusal of enforcement proceedings pursuant to Articles 46 et seq. Brussels Ia Regulation or in the execution itself by the competent executing body pursuant to Section 1116 of the German Code of Civil Procedure (ZPO).

O. Remien, Étroitement liée? – On jurisdiction for a damages action against an arbitrator after setting-aside of the award and artt. 1 (2) (d) and 7 (1) (b) Brussels Ibis-Regulation

In Saad Buzwair Automotive Co, Cour d’appel and Tribunal Judiciaire de Paris were of opposite opinions on the question which courts are competent to decide on a damages action against an arbitrator after setting-aside of the award. In an ICC arbitration with seat in Paris but hearings and domicile of the three arbitrators in Germany, the Qatari claimant had been unsuccessful against the Emirati respondent, but later the award had been set aside by the Cour d’appel de Paris and this setting-aside been confirmed by the Cour de cassation. The Qatari company sued one of the German arbitrators for damages before the Paris courts. The first instance Tribunal Judiciaire found that the arbitration exception of art. 1 (2) (d) Brussels Ibis did not apply to the action for damages based on an alleged breach of the arbitrator’s contract; further, it held that the place of performance under art. 7 (1) (b) Brussels Ibis was in Germany where the arbitrators lived and had acted. The Cour d’appel disagreed, the leitmotiv being that the damages action is closely connected (étroitement liée) to the arbitration. It found that the arbitration exception applied, so that the Brussels Ibis Regulation was inapplicable, and that under the autonomous French place of performance rule the place of performance was in Paris. After recalling the importance of the arbitrator’s contract this note distinguishes the damages action against the arbitrator from the arbitration between the original parties, points out that the courts of the seat of the arbitration are not necessarily competent for damages actions against an arbitrator and stresses the negative consequence of the ruling of the Cour d’appel – an eventual judgment awarding damages would not fall under the Brussels Ibis Regulation and thus not necessarily be enforceable in other Member States! Further, it is unclear whether the arbitration exception would also apply to an action for payment of the arbitrator’s fees. Finally, the situation where an arbitral award is not set-aside, perhaps even cannot be set aside, by the courts of the seat but where its enforcement is denied in another state is taken account of and can in case of a damages action lead to the competence of a court other than that of the seat of the arbitration. As to the place of performance, the two courts apply similar autonomous French respectively EU-rules, but with diverging results: the Cour d’appel stressing again the close connection, the Tribunal Judiciaire applying a more concrete fact-based approach. In sum, there are good arguments in favour of the decision of the Tribunal Judiciaire and a judgment of the ECJ on these questions would be welcome.

The table of contents of the issue is available here.

On 27 October 2021, the Supreme Court of the United Kingdom delivered its ruling in Kabab-Ji SAL (Lebanon) (Appellant) v Kout Food Group (Kuwait) (Respondent) ([2021] UKSC 48).

At issue was again the law applicable to arbitration agreements. In Enka Insaat Ve Sanayi AS v OOO “Insurance Company Chubb“, the court had addressed the issue of the law governing the validity and scope of an arbitration agreement before any arbitration had taken place. This case is concerned with the question of which law governs the validity of the arbitration agreement in the different context where the arbitration has already taken place and enforcement proceedings are brought in England.

The appellant (“Kabab-Ji”), a Lebanese company, entered into a Franchise Development Agreement (“FDA”) with Al Homaizi Foodstuff Company (“Al Homaizi”), a Kuwaiti company, granting Al Homaizi a licence to operate its restaurant franchise in Kuwait for ten years. In 2005, Al Homaizi became a subsidiary of the respondent, Kout Food Group (“KFG”), following a corporate reorganisation. A dispute arose under the FDA and linked Franchise Agreements, which Kabab-Ji referred to arbitration under the rules of the International Chamber of Commerce in Paris. The arbitration was commenced against KFG only, not Al Homaizi.

KFG argued that it was not a party to the FDA, the arbitration agreements contained in the FDA, or the Franchise Agreements, and that they took part in the arbitration under protest. The majority arbitrators found that, applying French law, KFG was a party to the arbitration agreements. They also found that, applying English law, KFG was an additional party to the FDA by “novation by addition” and was in breach of the FDA and linked agreements. They made an award against KFG for unpaid licence fees and damages in the principal sum of US$6.7 million. KFG applied to the Paris Court of Appeal to set aside the award. Soon afterwards, Kabab-Ji issued proceedings in the Commercial Court in London to enforce the award. KFG made a cross application for an order that recognition and enforcement be refused.

On a trial of preliminary issues relating to the FDA (which would be determinative of the like issues arising under the linked agreements), the Commercial Court held that the validity of the arbitration agreement in the FDA was governed by English law and that, subject to a point left open, as a matter of English law KFG was not a party to the FDA or the arbitration agreement. The court postponed making a final decision on enforcement pending the decision of the Paris Court of Appeal. Both parties appealed to the Court of Appeal which upheld the judge’s decision, save that it held that the judge should have made a final determination. It held that that there was no real prospect of it being shown that KFG became a party to the arbitration agreement and that summary judgment should be given refusing recognition and enforcement of the award.

Kabab-Ji appeals to the Supreme Court.

The Supreme Court unanimously dismisses the appeal on all issues. It holds: (i) that the arbitration agreement is governed by English law (the “choice of law issue”); (ii) that in English law there is no real prospect of a court finding that KFG became a party to the arbitration agreement (the “party issue”); and (iii) that, procedurally, the Court of Appeal was right to give summary judgment refusing recognition and enforcement of the award (the “procedural issue”). Lord Hamblen and Lord Leggatt give the sole joint judgment, with which the other Justices agree.

On the choice of law issue, the Court rules that the recognition and enforcement of foreign arbitral awards is governed by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“the Convention”), which contains provisions that have been transposed into English law by Part II of the Arbitration Act 1996 (the “1996 Act”). This provides a limited and exclusive list of grounds on which the recognition and enforcement of an award may be refused. The grounds relevant to this case are (i) that the award is based on an invalid arbitration agreement and (ii) that the award has been set aside or suspended by the competent authority of the country in which, or under the law of which, it was made. Because the Paris Court of Appeal, the competent authority in this case, has not annulled the award, KFG’s only ground for resisting enforcement is the alleged invalidity of the arbitration agreement [10]-[16].

As discussed in the Supreme Court’s recent judgment in Enka Insaat Ve Sanayi AS v OOO “Insurance Company Chubb“ [2020] USKC 38 at para 128, Article V(1)(a) of the Convention establishes two uniform international conflict of laws rules. First, that the validity of the arbitration agreement is governed by “the law to which the parties subjected it” – i.e. the law chosen by the parties. Second, where no law is chosen, the applicable law is that of “the country where the award was made” – generally the place of the arbitration seat. When assessing whether an agreement exists or is valid the Court uses the law that would apply if it exists or is valid [26]-[27]. As stated in Enka at para 129, a general choice of law to govern a contract containing an arbitration clause will normally be a sufficient “indication” of the law to which the parties subjected the arbitration agreement for the purposes of Article V(1)(a) [35]-[36]. The principles for identifying the applicable law should be the same whether the question is raised before or after an award has been made.

Applying these principles to the present case, the effect of the relevant clauses in the FDA is plain. The FDA’s governing law clause provides that “this Agreement” shall be governed by English law and this clearly extends to the arbitration agreement [39].

Kabab-Ji advanced two arguments against this conclusion. First, that a reference in the FDA to the arbitrator applying “principles of law generally recognised in international transactions” (i.e. UNIDROIT Principles of International Commercial Contracts) meant that the arbitration clause was governed by a composite of national law and international principles, which did not qualify as “law” for the purposes of the Convention and the 1996 Act. The present case, however, is concerned with what law governs the validity of the arbitration agreement, not the rules of law to be applied by the arbitrators to the merits of the dispute [40-48]. Second, that because the parties should be presumed to intend that the arbitration agreement will be valid and effective, where applying English law would invalidate that agreement, one should infer that the choice of English law does not extend to it. The validation principle, however, is a principle of contractual interpretation which presupposes that an agreement has been made. It does not apply to questions of validity in the expanded sense in which that concept is used in article V(1)(a) of the Convention and section 103(2)(b) of the 1996 Act to include an issue about whether any contract was ever made between the parties to the dispute [49-52].

Magdalena Pfeiffer, Jan Brodec, Petr Bříza and Marta Zavadilová have edited a collection of essays in honour of professor Monika Pauknerová, recently published by Wolters Kluwer.

The 47 contributions in this liber amicorum cover a broad range of issues in the field of private international law and international trade law. Some are written in English, others in Czech and in Slovak.

Contributos include Nadia de Araujo and Marcelo De Nardi, Jürgen Basedow, Paul Beaumont and Jayne Holliday, Alexander J. Bělohlávek, Karel Beran, Michael Bogdan, Jan Brodec, Petr Bříza, Giuditta Cordero-Moss, Elizabeth B. Crawford and Janeen M. Carruthers, Stanislava Černá, Lucie Dolanská Bányaiová, Kateřina Eichlerová, Richard Fentiman, Zuzana Fišerová, Cristina González Beilfuss, Trevor Hartley, Elena Júdová, Zdeněk Kapitán, Catherine Kessedjian, Zdeněk Kühn, Ivana Kunda, Tuula Linna, Alena Macková and Filip Crnčević, Peter Mankowski, Milan Müller, Hans Ulrich Jessurun d’Oliveira, Jan Ondřej, Daniel Patěk, Marta Pertegás Sender, Magdalena Pfeiffer, Fausto Pocar, Helena Prášková, Ilaria Pretelli, Elena Rodríguez Pineau, Naděžda Rozehnalová, Květoslav Růžička, Pavel Simon, Michal Skřejpek, Josef Staša, Pavel Svoboda, Pavel Šturma, Zbyněk Švarc, Michal Tomášek, Aukje A.H. van Hoek, Spyridon Vrellis, and Marta Zavadilová.

The full table of contents can be found here.

See here for more information.

This post was written by Felix M. Wilke, University of Bayreuth, Germany.

The most relevant aspects were squarely in the sights of European Court of Justice. As it states in para 53 of the judgment: “relating to the predictability of the rules of jurisdiction and to the risk that consumers might ‘take the forum of protection with them’, it must be borne in mind that…” But the Court proceeds to brush aside these valid concerns in merely one and a half, partially enigmatic sentences. The rest of the judgment consists in more formal arguments that fail to engage with the interests at stake.

But let us start at the beginning. Case C-296/20, Commerzbank v. E.O., started in German courts in 2016 when a consumer had not settled his current account with a branch of Commerzbank in Dresden (Germany). The bank alleged a debit balance in its favour of almost 5,000 € and sued the consumer before the Local Court of Dresden. At the time of conclusion of the contract, the consumer had had his domicile in Dresden as well. In the meantime, however, he had moved to Switzerland. The Local Court dismissed the action due to lack of jurisdiction. The Regional Court of Dresden upheld this judgment. On appeal, the German Federal Supreme Court decided to refer two questions to the Court of Justice regarding the application of the rules for jurisdiction over consumer contracts of the Lugano II Convention in situations where a consumer relocates to another State bound by the Convention after the conclusion of a contract. The Federal Supreme Court later withdrew one of the questions in light of the Court of Justice’s decision in mBank.

The case, thus, essentially is about whether (or, at least, under which additional conditions) a consumer can rely on the forum of protection of Art. 16(2) Lugano II even after moving abroad after the conclusion of the contract. Under that provision, which of course corresponds to Art. 18(2) Brussels Ibis Regulation, the courts of the State in which the consumer is domiciled have exclusive jurisdiction concerning contracts meeting the requirements of Art. 15 Lugano II. “Domicile” in Art. 18(2) Brussels Ibis/Art. 16(2) Lugano II designates the consumer’s domicile at the date on which the court action is brought (mBank). Hence, a change of the consumer’s domicile would force the other party to sue wherever the consumer’s new domicile is, as, in particular, the application of Art. 5(1) Lugano II/Art. 7(1) Brussels Ibis would be barred. In this sense, consumers would not only take their belongings with them when they move, but also the forum of protection.

For jurisdictional instruments based on the idea of predictability, this consequence is not obviously appropriate. The only way to avoid it seems to lie in Art. 15 Lugano II, as the temporal dimension of Art. 16(2) Lugano II had already been set in stone in mBank. The German Federal Supreme Court indicated that it wanted to read Art. 15(1)(c) Lugano II – the category of contracts where the trader “pursues” or “directs” its activities in/to the State of the consumer’s domicile – in such a way as to condition its application on the trader’s intention to establish commercial relations with consumers from one or more other States. In situations where the trader and the consumer have a domicile in the same State at the conclusion of the contract, Art. 15 Lugano II would not (regularly) apply. It should be noted that this approach would not help traders who do conclude a consumer contract in a cross-border situation and whose contractual partner then relocates to yet another (Contracting/Member) State. A more general way out would have been to condition Art. 16(2) Lugano II upon the trader pursuing his trade or profession in the State of the consumer’s new domicile or directing this activity to it. This, in fact, was the gist of the question withdrawn later because of mBank. In my opinion, however, the answer was not necessarily preordained – a view apparently shared by Advocate General Campos Sánchez-Bordona. He proposed a quite similar additional criterion as an alternative to his main opinion in Commerzbank, having pointed out that the Court had avoided to face this issue by reformulating the questions in mBank in a rather restrictive manner.

The Court now seems to close the door to such approaches. The judgment is limited to the interpretation of Art. 15(1)(c) Lugano II for situations of initially purely internal consumer contracts. The proposal by the Advocate General just mentioned does not appear anywhere. The Court relies, first, on the wording of the provision, noting that it contains no indication of any additional condition. This comes as no surprise, for otherwise there would not really have been much to refer to the Court. Second, the Court talks about its case-law concerning consumer jurisdiction pursuant to Brussels I(bis), including mBank. Indeed, the Court appears to have had no qualms about applying the pertinent provisions to circumstances that began as purely internal situations. But it never faced the present question head-on because it was always concerned with special features of the other cases.

The Court also refers to Art. 17(3) Lugano II, noting that it presupposes a purely internal situation at the time of the conclusion of the contract. The nod to the Advocate’s General opinion in this context (para 51) strikes me as disingenuous (or sloppy), though. For the Advocate General actually concluded that Art. 17(3) Lugano II cannot be used as an argument in favour of the interpretation preferred by the Court.

Finally, the Court addresses the lingering issue of predictability. I am at a loss what to make of its point that “the rule of the jurisdiction of the court [actually: the courts of the State] of the consumer’s domicile, notwithstanding any change of domicile, is … the result of the process of legislative integration”. It seems to be an obvious petition principii. By the way, the German version has “normative integration” here, which arguably is less circular but also opaquer. The following argument is much easier to understand and somewhat more persuasive: International jurisdiction of the courts of the consumer’s (current) domicile corresponds to the general rule of Art. 2(1) Lugano II (Art. 4(1) Brussels Ibis). The Court seems to say that having to sue at the defendant’s domicile can never be an unpredictable rule as actor sequitur forum rei is the basic principle of Lugano II. Yet the Court fails to mention that Art. 2(1) Lugano II does not exclude jurisdiction under Art. 5 Lugano II as Art. 16(2) Lugano II does. This could be a relevant difference.

Even if one accepts this final line of reasoning and thus considers Commerzbank to have come out the right way, there is one more layer to the problem: Art. 16(1) Lugano II. Here, the consumer has a forum actoris. Arguments referring to Art. 2(1) Lugano II do not work in this context. How should a trader foresee that a consumer can sue him before the courts of the latter’s new domicile? I still think the answer should be: only if the trader pursues his trade or profession in the State of the consumer’s new domicile or directs this activity to it. Then, the trader at least has an abstract idea that, one day, he might have to appear before the Courts of that State. But, after Commerzbank, this would mean to interpret Art. 15(1)(c), 16(1) Lugano II differently than Art. 15(1)(c), 16(2) Lugano II. In light of the Court’s arguments outlined above, this has not exactly become more likely.

Under the auspices of the project “Time to Become Digital in Law” (DIGInLaw), funded by the Erasmus+ Partnerships for Digital Education Readiness, the University of Aberdeen organizes a PhD Book Club titled European Private International Law in a Digital World, in collaboration with the Universities of Osijek, Zagreb, and Milan.

The PhD Book Club will be held online on 8 December 2021. The goal of the book club is to raise awareness and expand knowledge through a discussion on contemporary private international law issues that stem from digitalization.

Participants can choose among the following discussion panels:

• Topic 1 – Jurisdiction in Digital World: Focus on the Extraterritorial Effects of the General Data Protection Regulation and the EU Commission’s Proposal AI Act: 10.00 – 11.30 UK time
• Topic 2 – Cross-Border Family Law in Digital World: Judicial & Administrative Co-operation and the Use of High-Risk AI Tools in Cross-Border Family Litigation: 12.30 – 14.00 UK time

The reading list will be distributed in advance to allow participants to prepare for discussion, which will be moderated by law professors and lecturers from the above-mentioned universities. All PhD researchers are eligible to apply. Please follow the registration link available on the event webpage here.

Pilar Jimenez Blanco (University of Oviedo) has published a monograph on cross border matrimonial property regimes (Regímenes Económicos Matrimoniales Transfronterizos).

The book is an in-depth study of Regulation 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes.

The author has kindly provided the following abstract in English:

Regulation (EU) No 2016/1103 is the reference Regulation in matters of cross-border matrimonial property regimes. This book carries out an exhaustive analysis of the Regulation, overcoming its complexity and technical difficulties.

The book is divided in two parts. The first is related to the applicable law, including the legal matrimonial regime and the matrimonial property agreement and the scope of the applicable law. The second part is related to litigation, including the rules of jurisdiction and the system for the recognition of decisions. The study of the jurisdiction rules is ordered according to the type of litigation and the moment in which it arises, depending on whether the marriage is in force or has been dissolved by divorce or death. The conclusions include an overview of the guiding principles of the Regulation and specific solutions for different problems related to matrimonial property regimes (such as the treatment of prenuptial agreements, effects in respect of third parties, the relationship between the matrimonial property regimes or the civil liability of the spouses).

The study merges the rigorous interpretation of UE rules with practical reality and includes case examples for each problem area. The book is completed with a lot of references on comparative law, which show the different systems for dealing with matters of the matrimonial property regime applied in the Member States. It is, therefore, an essential reference book for judges, notaries, lawyers or any other professional who performs legal advice in matrimonial affairs.

The table of contents can be accessed here.

Today, the Court of Justice has published its judgement in C 393/20, a request for a preliminary ruling from the Sąd Rejonowy dla Krakowa-Śródmieścia w Krakowie (Poland).

The subject matter of the proceedings in the joined cases concerns the claims of two commercial operators, T.B. and D. sp. z o.o., with seat in Poland, against the defendant G.I. A/S, which has its seat in Denmark. In each of the two joined cases, the applicant seeks compensation for the damage resulting from a road accident caused by persons who are insured by the defendant. In both cases the accident occurred in Poland, the vehicles involved in the collision were registered in the territory of Poland, and the drivers of the vehicles are Polish citizens.

T.B. is a businessman; he engages professionally in risk assessment and loss assessment activities. D. sp. z o.o. presents itself as a repair workshop offering vehicle repair services without payment and accepting claim assignment as settlement of repair costs. G.I. A/S contests the jurisdiction of the Polish courts seized in both cases.

The questions referred to the Court were:

(1)         Must Article 13(2), in conjunction with Article 11(1)(b), of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters be interpreted as meaning that it may be relied on by a person who, in return for services provided to a party directly injured in a road accident in connection with the damage caused, has acquired a claim for compensation, but does not carry out the professional activity of recovering insurance indemnity claims against insurance companies and who brought an action, in the court for the place where he is established, against the third-party liability insurer of the party responsible for that accident, which insurer has its seat in another Member State?

(2)         Must Article 7(2) or Article 12 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters be interpreted as meaning that it may be relied on by a person who acquired, under an assignment agreement, a claim from a party injured in a road accident in order to bring a civil-liability action before a court of the Member State in which the accident occurred against the insurer of the party responsible for that accident, which insurer has its seat in a Member State other than the Member State in which the accident occurred?

In a decision taken by the 8th Chamber (N. Wahl, F. Biltgen, L.S. Rossi as juge rapporteur), without prior opinion of the advocate general in charge, the Court has replied as expected. Regarding the first question, it states that (my translation) Article 13 (2) of Regulation 1215/2012, read in conjunction with Article 11 (1) (b) of that regulation,

“must be interpreted as meaning that it cannot be invoked by a company which, in return for the services it provides to the victim direct from a road traffic accident related to the damage resulting from this accident, has acquired from it the claim for insurance compensation, for the purpose of claiming payment from the insurer of the author of the said accident, without however exercising a professional activity in the field of recovery of such debts.”

On the second query, the answer reads:

“Article 7 (2) of Regulation No 1215/2012 must be interpreted as meaning that it may be invoked by a trader who has acquired, by virtue of an assignment contract, the debt of the victim of a road traffic accident, with the aim of bringing before the courts of the Member State of the place where the harmful event occurred, a tort or quasi-tort action against the insurer of the author of this accident, which has its registered office in the territory of a Member State other than that of the place where the harmful event occurred, provided that the conditions for the application of this provision are met, which is for the referring court to verify.”

On 20 October 2021, the Supreme Court of the United Kingdom delivered its judgment in FS Cairo (Nile Plaza) LLC (Appellant) v Brownlie (as Dependant and Executrix of Professor Sir Ian Brownlie CBE QC) (Respondent).

The most important issue before the court was whether English court should be able to retain jurisdiction in tort cases on the ground that an indirect damage was suffered in the United Kingdom. The applicable provision (CPR Practice Direction 6B) refers to “damage” suffered in England, and the court held that as it does not distinguish between direct and indirect damage, it should be considered as including both.

Interestingly, the argument was made that the English rule was drafted on the model of EU law, which limits jurisdiction to the court of the place of direct damage. It is rejected as an overgeneralisation.

So much for those who thought that EU law would continue to influence the development of English private international law.

Bye bye Brussels, bye bye Marinari.

On 3 January 2010, Lady Brownlie’s husband was killed in a car accident in Egypt during an excursion booked through the Four Seasons Hotel Cairo, a hotel operated by FS Cairo. Lady Brownlie was injured in the same accident. The driver was convicted of involuntary manslaughter. In December 2012, Lady Brownlie brought claims in tort and contract in the High Court against Four Seasons Holdings Incorporated, a Canadian company, for damages for injury and losses suffered as a result of the accident.

In 2018 the Supreme Court held that the evidence showed that Four Seasons Holdings Incorporated was a non-trading holding company which neither owned nor operated the Hotel and that therefore the courts of England and Wales had no jurisdiction to try the claims against it. The Supreme Court remitted ancillary matters to the High Court and ordered that the Claimant had permission to apply to correct the name of the Defendant, to substitute or to add a party to the proceedings.

Lady Brownlie applied to the High Court to amend her claim so that it could be brought against FS Cairo instead. Permission to amend her claim was granted but, because FS Cairo is an Egyptian company, Lady Brownlie also requires permission to serve her claim out of the jurisdiction.

In order to serve her claim outside the jurisdiction, English law requires Lady Brownlie to show, in respect of each claim in contract and tort, that: (1) it falls within a ‘jurisdictional gateway’ under CPR Practice Direction 6B; (2) it is a claim that has a reasonable prospect of success; and (3) England and Wales is the proper place in which to bring the claim. The High Court and a majority of the Court of Appeal (Arnold LJ dissenting) decided that Lady Brownlie had met all three elements of this test in respect of her claims in tort and contract. Lady Brownlie was therefore granted permission to serve her claims on FS Cairo. FS Cairo appeals to the Supreme Court only against the decisions concerning the first two elements of the test.

Before permission may be given for service of a claim form outside the jurisdiction, the claimant must establish that: (1) the claim falls within one of the gateways set out in paragraph 3.1 of Practice Direction (“PD“) 6B to the CPR; (2) the claim has a reasonable prospect of success; and (3) England and Wales is the appropriate forum in which to bring the claim [25]. Those conditions are the domestic rules regarding service out of the jurisdiction; they may be contrasted with the EU system [28-29].

Lady Brownlie submits that her tortious claims meet the criterion for the gateway in paragraph 3.1(9)(a) of PD 6B, namely that “damage was sustained… within the jurisdiction” [30]. The appellant submits that paragraph 3.1(9)(a) only founds jurisdiction where the initial or direct damage was sustained in England and Wales. Lady Brownlie instead maintains that the requirements of the gateway are satisfied if significant damage is sustained in the jurisdiction [33-34].

The Supreme Court considers that the word “damage” in paragraph 3.1(9)(a) refers to actionable harm, direct or indirect, caused by the wrongful act alleged [81]. Its meaning should not be limited to the damage necessary to complete a cause of action in tort because such an approach is unduly restrictive [49-51]. The notion that paragraph 3.1(9)(a) should be interpreted in light of the distinction between direct and indirect damage which has developed in EU law is also misplaced [81]. It is an over generalisation to state that the gateway was drafted in order to assimilate the domestic rules with the EU system. In any event, there are fundamental differences between the two systems [52-56]. The additional requirement that England is the appropriate forum in which to bring a claim prevents the acceptance of jurisdiction in situations where there is no substantial connection between the wrongdoing and England [77-79]. Lady Brownlie’s tortious claims relate to actionable harm which was sustained in England; they therefore pass through the relevant gateway [83].

Lord Leggatt dissents on this issue. He favours a narrower interpretation of paragraph 3.1(9)(a) [208]. He considers that Lady Brownlie’s tortious claims do not pass through the relevant gateway because Egypt is the place where all of the damage in this claim was sustained [209].

It is common ground that Lady Brownlie’s claims are governed by Egyptian law [98]. One of the requirements for obtaining permission for service out of the jurisdiction is that the claim as pleaded has a reasonable prospect of success [99-100]. The appellant argues that Lady Brownlie has failed to show that certain of her claims have a reasonable prospect of success because she has not adduced sufficient evidence of Egyptian law. Lady Brownlie submits that it is sufficient to rely on the rule that in the absence of satisfactory evidence of foreign law the court will apply English law [102-103, 105-106].

The Supreme Court distinguishes between two conceptually distinct rules: the ‘default rule’ on the one hand and the ‘presumption of similarity’ on the other. The default rule is not concerned with establishing the content of foreign law but treats English law as applicable in its own right when foreign law is not pleaded [112]. The justification underlying the default rule is that, if a party decides not to rely on a particular rule of law, it is not for the court to apply it of its own motion [113-116]. However, if a party pleads that foreign law is applicable they must then show that they have a good claim or defence under that law [116-117]. The presumption of similarity is a rule of evidence concerned with what the content of foreign law should be taken to be [112]. It is engaged only where it is reasonable to expect that the applicable foreign law is likely to be materially similar to English law on the matter in issue [126]. The presumption of similarity is thus only ever a basis for drawing inferences about the probable content of foreign law in the absence of better evidence [149]. Because the application of the presumption of similarity is fact-specific, it is impossible to state any hard and fast rules as to when it may properly be employed (although some general observations may nonetheless be made) [122-125, 143-148].

Lady Brownlie’s claims are pleaded under Egyptian law. There is thus no scope for applying English law by default [118]. However, the judge was entitled to rely on the presumption that Egyptian law is materially similar to English law in concluding that Lady Brownlie’s claims are reasonably arguable for the purposes of establishing jurisdiction [157-160].

This post was contributed by Hans van Loon, a member of GEDIP and of the Institut de Droit International and a former Secretary General of the Hague Conference on Private International Law. 

The European Group for Private International Law at its annual – virtual – meeting in September 2021 adopted a Recommendation to the EU Commission concerning the PIL aspects of corporate due diligence and corporate accountability.

The GEDIP adopted this Recommendation although the Commission has not yet published its legislative initiative on mandatory human rights and environmental due diligence obligations for companies, to which EU Commissioner for Justice, Didier Reynders, committed on 19 April 2019. Meanwhile, however, on 10 March 2021 the European Parliament adopted a Resolution “with recommendations to the Commission on corporate due diligence and corporate accountability”.  As the Commission will likely draw inspiration from this document, the GEDIP considered the EP Resolution when drafting its Recommendation. The GEDIP also took into account various legislative initiatives taken by Member States such as the 2017 French Loi sur le devoir de vigilance and the 2021 German legislative proposal for a Sorgfaltsplichtengesetz (see II Background to the Proposal, 3), as well as recent case law in the UK and the Netherlands (See II Background to the Proposal 2).

The Recommendation starts from the premise that the future EU Instrument (whether a Regulation or a Directive) will have a broad, cross-sectoral scope, and will apply both to companies established in the EU and those in a third State when operating in the internal market. In order to accomplish its aim, the Instrument, in addition to a public law monitoring and enforcement system, should create civil law duties for the relevant companies. Since such duties may extend beyond Member States’ territories, they will give rise to issues of private international law. To be effective, the Instrument should not leave their regulation to the differing PIL systems of the Member States. Ultimately, the proposed rules may find their place in revised texts of EU regulations, including Brussels I recast, Rome I and Rome II. But since revisions of those regulations are unlikely to take place before the adoption of the Instrument, and as these rules are indispensable for its proper operation, the proposal is to include them in the Instrument itself.

The Recommendation therefore proposes that the Instrument extends the current provision on connected claims (Art. 8 (1) Brussels I) to cases where the defendant is not domiciled in a Member State, creates a forum necessitatis where no jurisdiction is available within the EU, determines that the Instrument’s provisions have overriding mandatory effect whatever law may apply to contractual and non-contractual obligations and companies, and extends the rule of Art. 7 of Rome II to claims resulting from non-compliance in respect of all matters covered by the Instrument, while excluding the possibility of invoking Art. 17 of Rome II by way of exoneration (The Annex to the Proposal contains suggestions concerning the form and the substantive scope of the future EU instrument).

On 15 October 2021, the two Rapporteurs of the European Parliament, Emil Radev and Nuno Melo (following a Joint committee procedure, i.e. Committee on Legal Affairs and Committee on Civil Liberties, Justice and Home Affairs) released a Report on the Proposal for a Regulation of the European Parliament and of the Council on a computerised system for communication in cross-border civil and criminal proceedings (e-CODEX system, already mentioned on the blog here and here), amending Regulation (EU) 2018/1726 eu-LISA (see the Regulation Proposal here).

The Explanatory Statement presenting the main reasons for the proposed amendments on the Regulation Proposal reads as follows:

Introduction

E-Justice is one of the cornerstones of the efficient functioning of judicial systems in the Member States and at the European level. It is an essential instrument to facilitate the access to justice and provide legal protection to European citizens and companies in the digital era. It is thus important that appropriate channels are developed to ensure that justice systems can efficiently cooperate in a digital way.

The Commission’s Communication on the digitalisation of justice, A toolbox of opportunities, of 2 December 2020, sets out a new approach to the digitalization of justice based on a comprehensive set of financial and IT legal instruments to be used by various actors in the judicial systems. The Commission also presented the “Proposal for a Regulation on a computerised system for communication in cross-border civil and criminal proceedings (e-CODEX system)”, the e-CODEX Regulation.

On 29 April 2021 it was announced that the file shall be dealt with jointly by two committees – the Civil Liberties, Justice and Home Affairs Committee (LIBE), and the Legal Affairs Committee (JURI). MEP Emil Radev (JURI) and MEP Nuno Melo (LIBE) were appointed rapporteurs for the referred Regulation. E-CODEX is a golden standard/key technological enabler for modernising, through digitalisation, the communication in the context of cross-border judicial proceedings. Since the start of the project in December 2010, e-CODEX has transformed from an ambitious project to an operational Digital Service Infrastructure (DSI) in the judicial domain. Currently, the focus lies on the transition of the e-CODEX project towards a long-term sustainable and secure solution for the maintenance of e-CODEX.

The Rapporteurs believe that this Regulation, as an instrument which is directly applicable in all Member States and binding in its entirety, will guarantee a uniform application of the rules on e-CODEX across the EU and their entry into force at the same time. They welcome the aim to offer legal certainty by avoiding divergent interpretations in the Member States, thus preventing legal fragmentation. By establishing the e-CODEX system, the adoption of the Regulation will contribute to the uptake of e-CODEX by more Member States for procedures in which the system is already used as well as for future ones. The E-CODEX project aims to improve the cross-border access of citizens and businesses to justice in European Union as well as to improve the interoperability between judicial authorities within the European Union. It is designed as a decentralized system based on a distributed architecture that enables connectivity between national systems.

The rapporteurs believe that the e-CODEX system should be seen as a preferred solution for the establishment of interoperable and secure decentralised communication networks between national IT systems in cross-border judicial cooperation in civil and criminal  matters. The Proposal aims to entrust the further development and maintenance of e-CODEX to the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA) as of July 2023.

1. Scope

The scope of this Regulation is the electronic exchange of data in the context of cross-border judicial cooperation in civil and criminal matters (Article 2). The e-CODEX system should be viewed as the preferred solution for an interoperable, secure and decentralised communication network between national IT systems in this field.  The rapporteurs are of the opinion that Annex I, containing a list of instruments providing for judicial procedures subject to eCodex, should be deleted. The scope of the Regulation should instead be established by reference to the judicial cooperation in civil and criminal matters (Article 2). This allows for avoiding any risk of leaving out of the scope judicial procedures for which it is appropriate to foresee the possibility to use e-Codex. Moreover, a simple reference to Article 81 and 82 TFEU would have not been sufficient as instruments predating the Lisbon Treaty would not have been covered. Finally, the Regulation should only deal with the use of e-Codex for procedures in civil and criminal matters. Other uses of e-Codex that may be established by future legislative acts should not be addressed by this Regulation as they would require adaptations that cannot be foreseen at present (Recital 11; Article 2).

2. Definitions

The Commission proposal does not contain clear and concrete provisions regarding the operating conditions of access points. The rapporteurs further developed the terminology of e-Codex to give more clarity to the following expressions: “authorised e-Codex Access point”, “e-Codex correspondents” and “digital procedural standards” (Article 3).

3. Allocation of responsibilities

It is necessary to ensure the long-term sustainability of the e-CODEX system and the efficiency of its governance while ensuring the independence of the national judiciaries; therefore, an appropriate entity for the operational management of the system is to be designated. The proposal provides for the creation of an e-CODEX Advisory Group and a Programme Management Board for e-CODEX (Article 12). Safeguards have been introduced for the independence of the judiciary that shall never be negatively impacted on by the e-CODEX system (recitals 7 and 9; Article 12a new). For a sound and clear operation of the eCodex system, further amendments have been tabled to precisely delineate the roles of the Commission, the Member States and eu-Lisa (Recitals 5, 12, 15, 21; Articles 3(1)b, 3(1)ba new, 6(4)a new, 7, and 16a new).

4. Optimisation of the e-CODEX system

The rapporteurs introduced, for the sake of efficiency of e-Codex, some specifications on the authorized access points and on the designation of correspondents by Member States (Article 3(1)b, Article 3(1)ba new and Article 7).

5. Delegation of powers to COM

Since the scope of the eCodex Regulation should be limited to the judicial cooperation in civil and criminal matters, but given that in the future it could be appropriate to make other procedures subject to the eCodex system, the two Rapporteurs are of the view that a certain flexibility is needed when it comes to the scoping of the Regulation itself. This is why provisions on delegated acts have been introduced. These provisions allow for further expanding the operation of eCodex while fully preserving the prerogatives of the Parliament on the scoping of the Regulation (Article 5(3a) new and 16a new). 

In the Commission Financial Statement, reference is made to the expansion of the eCodex system to other procedures via implementing acts (point 2.2.3). This would be neither desirable nor legally appropriate. However, since the Financial Statement cannot be amended by the co-legislators, the insertion of the provisions empowering the Commission to adopt delegated acts is sufficient to keep parliamentary scrutiny intact.

6. Private entities operating the access points and data protection

Judicial authorities and public prosecutors in many Member States usually have recourse to the services of contractors. Therefore, providing for the involvement of private entities and limiting it to the functioning of the e-Codex system does not set a dangerous precedent. However, safeguards should be in place given the sensitivity of the administration of justice and of the data and information dealt with by judicial authorities. This is the reason why the two Rapporteurs have foreseen that private entities can operate the access points only if authorised by Member Stated and provided that they fully comply, like public authorities possibly charged with that same task, with existing legislation on data protection (Recital 15, 15a new, 17; Article 12a new).

7. e-Justice Core Vocabulary

With a view to strongly and thoroughly encourage judicial cooperation and mutual trust, interoperability should be ensured not only as regards Information and Communication Technology, but also in relation to terminology. Otherwise, even the most efficient system of interconnection would not be sufficient to make judicial authorities, legal practitioners, citizens, businesses and stakeholders properly understand each other. It is in the light of this that the two rapporteurs have chosen to insert the reference to the e-Justice Core Vocabulary in the definition of the “digital procedural standard” (Article 3, paragraph 1, point ga, new).

Conclusion

The two rapporteurs find that the proposal put forward by the Commission goes in the right direction by putting the question of interoperability at the heart of the EU efforts to stimulate and enhance the judicial cooperation across the continent.The proposal itself can be considerably improved to find a delicate and vital balance between interoperability and judicial independence, efficiency and data protection, speed and fundamental rights, technology and the rule of law.

More information here.

On 12 October 2021, the European Court of Human Rights (ECtHR) delivered its judgment in J.C. and Others v. Belgium (only available in French, so far).

The case has been widely reported in the general media, as it is concerned with the immunity of the Holy See in a sexual abuse case brought in Belgian courts.

The ECtHR reiterates that it does not consider that the current state of public international law supports the proposition that sovereign immunities would not apply to severe violations of human rights. The Court confirms that it does not see itself as a progressive force in the field of sovereign immunities, but rather as an authority which will follow the development of public international law.

In this context, the claim against the Holy See was unlikely to succeed. There was no allegation that officials of the Vatican had perpetrated acts of sexual abuse themselves. Rather, it was argued that they should be responsible for failing to supervise adequately the Belgian Catholic Church. If the immunity would stand for the direct perpetrator, why would it not for an indirect one?

The applicants were 24 Belgian, French and Dutch nationals. They allege that they were victims of sexual abuse by Catholic priests when they were children.

In July 2011 the applicants filed a class action in a Belgian first instance court, complaining of the structurally deficient way in which the Church had dealt with the known problem of sexual abuse within it. The action was brought against the Holy See as well as an archbishop of the Catholic Church in Belgium and his two predecessors, several bishops and two associations of religious
orders.

Basing their action on general tort law provisons (Articles 1382 and 1384 of the Civil Code), the applicants requested primarily that the defendants be held jointly and severally liable for the damage they claimed to have sustained as a result of the alleged sexual abuse by Catholic priests or members of religious orders. They also claimed that the defendants should be jointly and severally liable to pay compensation of EUR 10,000 to each of them because of the Catholic Church’s policy of silence on the issue of sexual abuse.

In October 2013 the Belgian court declined jurisdiction in respect of the Holy See. In February 2016 a Belgian Court of Appeal upheld the judgment. It found, in particular, that it did not have a sufficient jurisdictional basis to rule on the claimants’ action because of the Holy See’s immunity from legal proceedings. It also stated that Belgium’s recognition of the Holy See as a foreign sovereign with the same rights and obligations as a State was conclusively established. This recognition resulted from a series of commonly agreed elements of customary international law, foremost among which were the conclusion of treaties and diplomatic representation. The Holy See therefore enjoyed diplomatic immunity and all State privileges under international law, including jurisdictional immunity. The Court of Appeal also noted that the dispute did not fall within any of the exceptions to the principle of State immunity from jurisdiction.

In August 2016 a lawyer at the Court of Cassation gave a negative opinion on the chances of success of a possible appeal to the Court of Cassation.

Subsequently, all but four claimants who did not apply were able to obtain compensation through the arbitration centre for sexual abuse claims set up within the Catholic Church. Relying on Article 6 § 1 (right of access to a court), the applicants complained that the application to the Holy See of the principle of State immunity from jurisdiction had prevented them from asserting their civil claims against it.

The Court noted that the Court of Appeal had found that the Holy See was recognised internationally as having the common attributes of a foreign sovereign, with the same rights and obligations as a State. The Court of Appeal had noted in particular that the Holy See was a party to some major international treaties, that it had signed agreements with other sovereign entities and that it enjoyed diplomatic relations with some 185 States worldwide. As regards Belgium, more specifically, diplomatic relations with the Holy See dated back to 1832 and it was recognised as a State.

The Court did not find anything unreasonable or arbitrary in the detailed reasoning which led the Court of Appeal to reach that conclusion. It pointed out that it had itself previously characterised agreements between the Holy See and other States as international treaties. Therefore the Holy See could be recognised as having characteristics comparable to those of a State. The Court of Appeal had thus been justified in inferring from those characteristics that it was a sovereign power with the same rights and obligations as a State.

The Court pointed out that it had also accepted that the granting of State immunity in civil proceedings pursued the legitimate aim of observing international law for the sake of comity and good relations between States, by ensuring respect for the sovereignty of another State.

As to the proportionality of the limitation sustained by the applicants in their right of access to a court, the Court found that the Court of Appeal’s approach corresponded to international practice in such matters. It had not noted anything arbitrary or unreasonable in the Court of Appeal’s interpretation of the applicable legal principles, or in the way it had applied them to the facts of the case, taking account of the basis of the applicants’ action.

The Court also noted that the question whether the case could fall within one of the exceptions to the application of the jurisdictional immunity of States had also been discussed before the Court of Appeal. The exception invoked by the applicants applied to proceedings relating to “an action for pecuniary compensation in the event of the death or physical injury of a person, or in the event of damage to or loss of tangible property”. The Court of Appeal had rejected this exception on the grounds, among others, that the misconduct of which the Belgian bishops were accused could not be attributed to the Holy See, as the Pope was not the principal in relation to the bishops; that the misconduct attributed directly to the Holy See had not been committed on Belgian territory but in Rome; and that neither the Pope nor the Holy See had been present on Belgian territory when the misconduct attributed to the leaders of the Church in Belgium had been committed. It was not for the Court to substitute its own assessment for that of the national courts, since their assessment on this point had not been arbitrary or manifestly unreasonable.

The Court also noted that the proceedings brought by the applicants in the Ghent Court of First  Instance had not been directed solely against the Holy See, but also against officials of the Catholic Church in Belgium whom the applicants had identified. However, the applicants’ claim on this ground was unsuccessful owing to the applicants’ failure to comply with procedural rules laid down in the Judicial Code and substantive rules concerning civil liability in summoning the other defendants. The reason why the applicants’ action had been totally unsuccessful had thus been the result of procedural choices that they failed to cure in the course of the proceedings in order to specify and individualise the facts submitted in support of their claims.

Consequently, the Court found that the dismissal of the proceedings by the Belgian courts in declining jurisdiction to hear the tort case brought by the applicants against the Holy See had not departed from the generally recognised principles of international law in matters of State immunity and the restriction on the right of access to a court could not therefore be regarded as disproportionate to the legitimate aims pursued. There had therefore been no violation of Article 6 § 1 of the Convention.

In the last decades, Spanish academia has seen a growing number of journals devoted, exclusively or not, to PIL issues. The editorial principles of them all have also quickly evolved and may are open access and downloadable from the very moment of publication, or only some months afterwards. Most of them follow a strict double-blind peer-review, almost all provide for a summary of the contributions in English, and some accept to publish in languages other than Spanish.

Cuadernos de Derecho Transnacional, of the University Carlos III of Madrid, has already a place in the EAPIL blog. In this and following entries I will present other relevant current Spanish PIL journals, starting with those belonging to the Asociación Española de Profesores de Derecho Internacional y Relaciones Internacionales (AEPDIRI): the Spanish Yearbook of International Law (SYbIL), the Revista Electrónica de Estudios Internacionales (REEI) and the Revista Española de Derecho Internacional (REDI).

The SYbIL, founded in 1991, provides an annual report on new developments in international law. From 1991 to 2012 (vols. 1-17), the Yearbook was published by Martinus Nijhoff/Brill. From vol. 18 onwards, the Editor decided to go entirely on-line under a complete open-access philosophy. The contents of volumes 1-17 in PDF format have been kindly made freely accessible by Brill to all readers, thus all them can be freely downloaded too.

Since its first volume, the Yearbook has endeavoured to make a significant academic contribution to the on-going development of international law, with a particular focus on Spanish doctrine and practice. The SYbIL is the only publication edited by AEPDIRI completely written in English in order to reach the largest possible international audience. Its rules of governance have been adopted by AEPDIRI (a résumé may be found here, in Spanish).

In 2013, with the election of a new Editorial Board, a new editorial plan was adopted and the SYbIL changed its purpose, structure and editorial model. This new website tries to offer the contents of this new epoch of the Yearbook. This editorial decision will enable the Yearbook to be accessible to the entire international readership, offering current research in Spanish academic institutions but other research of what Oscar Schachter labelled as the “invisible college of international law” as well.

Fully aware of the paramount importance of international practice, the Spanish Yearbook publishes contributions from active practitioners of international law on a regular basis. The Yearbook also includes critical comments on Spanish State practice relating to international and EU law, as well as international reactions to that practice.

The last issue of the SYbIL can be access here. The next one will be published in January 2022. Contributions for each forthcoming issue need to be sent by July 31 of the previous year at the latest to editor@sybil.es following the editorial guidelines.

Volume 415 of the Collected Courses of the Hague Academy of International Law published with Brill is dedicated to Mr. Trooboff’s Hague Academy general course lectures on ‘Globalization, Personal Jurisdiction and the Internet’.

The author reviews how courts in the United States, the European Union and a number of countries such as Canada, Japan, India and Latin America have responded to the challenge of adapting settled principles and precedents to cases arising from Internet usage. Trooboff examines the recent U.S. Supreme Court cases addressing general and specific personal jurisdiction and how U.S. appellate courts have applied the Court’s holdings in disputes arising out of the use of the Internet in Chapter 2. Eleven decisions of the European Union Court of Justice and related scholarship that interpret the jurisdictional provisions of Brussels I Regulation and its successor in the context of Internet usage and that arise from tort and contract claims (including infringement of intellectual property and related rights) are discussed in Chapter 3. Similarly selected decisions and scholarship addressing analogous personal jurisdiction issues in decisions of courts of Canada, Japan, China, Latin America and India are analysed in Chapter 4. The last part of the volume – Chapter 5 – is dedicated to an overview of the important projects that incorporate the principles emerging from the many judicial decisions and that have been undertaken by Hague Conference on Private International Law, the American Law Institute, the European Max Planck Group on Conflict of Laws in Intellectual Property, the International Law Association and the International Law Institute.

Further details about the volume are available here.

A new version of the Insolvency Registers Interconnection search interface is now available on the e-Justice Portal.

The EU-wide interconnection of national insolvency registers (IRI 2.0) has been developed in accordance with article 25 of the Regulation (EU) 2015/848 on insolvency proceedings across EU borders. EU Member States are required to publish relevant information on cross-border insolvency cases in a publicly accessible online register (see here) and these registers shall be interconnected via the European e-Justice Portal.

The decentralised system allows searches for insolvent debtors, either natural or legal persons, within the EU Member States registers that completed the implementation according to the Insolvency Regulation. It aims at ensuring that creditors and national courts receive relevant information and at preventing parallel proceedings to be opened within the EU.

Since 1 September 2021, the new system has replaced the current version based on voluntary participation under the insolvency Registers Interconnection search (IRI 1.0) and applicable in the following Member States: Austria, the Czech Republic, Estonia, Germany, Italy, Latvia, the Netherlands, Slovenia and Romania (see here).

The new system applies (for now) in the following Member States: Belgium, Estonia, Spain, Croatia, Cyprus, Latvia, Lithuania, The Netherlands, Portugal, Romania, Slovakia, Finland, Sweden and Germany (see here).

More information here.

Ghent University (Belgium) and its Center for the Future of Dispute Resolution organise an online conference titled Transnational Dispute Resolution in an Increasingly Digitalized World, to be held on 24 March 2022.

A call for abstracts is open through 1 December 2021.

The concept is as follows:

The increased digitalization in the field dispute resolution, which received a boost from the Covid-19 pandemic, raises a number of important questions in terms of privacy, cybersecurity, data protection and artificial intelligence, going from rather practical concerns (how to protect the information exchanged, how to organize the taking of evidence, how to comply with the various obligations, etc.) to more fundamental inquiries (does it scare litigants off, does it foster or rather compromise efficiency, etc.).

The goal of the conference is to bring together academics, practitioners and policy makers with expertise in the field of dispute resolution (arbitration, transnational litigation, mediation, other ADR mechanisms) and technology law. That is why we are particularly (but not exclusively) interested in contributions that focus on :

• Obligations of the actors of justice
• Challenges and opportunities of (partial) online proceedings
• Evidentiary issues related to cybersecurity and data protection
• The (ab)use of these instruments as a dispute resolution strategy

and discuss these forward-looking dispute resolution topics in light of the various privacy, data protection, cybersecurity and AI regulations.

See here for more information.

The most recent issue of the Uniform Law Review contains a number of articles that are interesting from a PIL perspective.

The first, authored by Michiel Poesen, has the provocative title Is specific jurisdiction dead and did we murder it? An appraisal of the Brussels Ia Regulation in the globalizing context of the HCCH 2019 Judgments Convention (abstract here). It is basically a critique of the rigid application of Art 7 Brussels I bis Regulation by the CJEU. The author claims that the Hague Judgments Convention would not follow this approach but rather require a more flexible assessment of jurisdiction through its jurisdictional filters. He points in this context to Art 5(1)(g) Hague Judgments Convention, which makes indirect jurisdiction for contractual claims dependent on the caveat that “activities of the defendant in relation to the transaction clearly did not constitute a purposeful and substantial connection to that State”. This formula is indeed clearly inspired by the minimum contacts test under U.S. constitutional law. Still, in Art 5(1)(g) it is combined with a performance-of-the-obligation test, which is strongly reminiscent of Art 7(1) Brussels I bis. Rather than “murdering” special jurisdiction, the Hague Convention thus provides for a compromise of the EU and U.S. approaches, with the former defining the core and the latter the outer limit of contractual jurisdiction.

The second article, written by Garth J Bouwers, is titled Tacit choice of law in international commercial contracts: an analysis of Asian jurisdictions and the Asian Principles of Private International Law (abstract here). He points to an interesting Chinese practice direction which assumes a tacit choice of the lex fori where none of the parties has pleaded foreign law. This reminds of the approach under French law (for recent case-law and analysis see here and here). In the analysis of the other jurisdictions examined (Hong Kong, Japan, South Korea, Singapore), this possibility is not mentioned. It seems that the latter rather rely on an ex officio application of foreign law. The author thankfully describes their methods in detail.

Third, Johanna Hoekstra examines the Political barriers to the ratification of international commercial law conventions (free access to full article here). She takes the Swiss proposal to reform the CISG as an example of the obstacles that legal uniformisation may encounter. To this end, she relies on insights from political science, which she applies to the specific context of legal harmonisation. Her conclusion that “international private law can have low political priority” is sad but probably true. Equally important is her observation that lobbying and interest groups may change this setting.

There are also three articles written in French, one on the liability of an arbitrator for the damages caused by preliminary measures (abstract here), and two on legal harmonisation in West Africa under the auspices of OHADA (here and here).

A further article by the author of the present post is entitled National Blockchain Laws as a Threat to Capital Markets Integration (full free access here). It compares recent private law reforms concerning digital assets in France, Liechtenstein, the UK, the US (U.C.C.) and the (deviating) law of Wyoming. The comparison also encompasses the conflict-of-laws rules for the blockchain in these systems.

Of special interest is a presentation of the new Uruguay Act on PIL (Ley general de derecho internacional privado) (abstract here). The Act allows the choice of non-state law to the extent that it is generally recognised on the international level, neutral and balanced, and emanates from an international organisation to which Uruguay is a member (Article 45). Also of interest is the special place the Act gives to international commercial law (Article 13), which is reminiscent, but not identical to, old musings about the existence of a “lex mercatoria“.

Finally, this rich treasure of PIL insights also informs about new developments in the law of secured transactions in China (abstract here) and UNCITRAL’s 53d Commission session (abstract here).