EAPIL blog

The new issue of International & Comparative Law Quarterly (Volume 70, Issue 1) is out. Some of the articles relate to private international law. Their abstracts are provided below. The whole issue is available here.

Roy Goode, Creativity and Transnational Commercial Law: From Carchemish to Cap Town

This article examines the creative aspects of a range of international commercial law instruments which have in common that they seek to bypass traditional doctrine in order to increase commercial efficiency and ease of transacting. In short, the purpose of the harmonising measure is functional in that it seeks to overcome a serious obstacle to cross-border trade by providing commercially sensible solutions to typical problems regardless whether this disturbs established legal theory, which should always the servant of the law, not its master. Creativity applies not only to the formulation of an instrument but also to its interpretation. Those entrusted with preparing a commentary on the detail of such an instrument are likely to face difficult issues of interpretation which may take years to surface and may only be resolved by a willingness to risk error in order to provide the reader with clear guidance rather than sheltering behind the presentation of alternative interpretations, while at the same time resisting the temptation to ascribe to words in a convention the meaning they would have under one’s own national law.

At least one of the instruments examined was conceptually flawed; it is mentioned to highlight the danger of over-ambition in delineating the sphere of application of the convention concerned. Undisciplined creativity comes at a cost. Another convention, and a highly successful one, is referred to only to demonstrate the value of creative ambiguity.

Enrico Partiti, Polycentricity and Polyphony in International Law: Interpreting the Corporate Responsibility to Respect Human Rights

Complex multi-actors and multi-level governance structures have emerged in areas that were traditionally exclusively the preserve of the State and treaty-making. The adoption of the United Nations Guiding Principles on Business and Human Rights (UNGP) affirmed a corporate responsibility to respect human rights to be implemented through human rights due diligence (HRDD), ie via management processes. The open-ended character of the UNGP generated the emergence of other soft instruments offering guidance to corporations in structuring HRDD. This contribution conceptualises the UNGP from the perspective of regulation as a principles-based exercise in polycentric governance reliant on regulatory intermediaries for interpretation. It then assesses the role of various sui generis normative instruments in providing interpretation to the UNGP and, how the presence of an additional layer of interpretative material contributes to the institutionalisation of responsible corporate conduct. The analysis of instruments drafted by international, non-governmental and business organisations reveals both a decentralising tension between different intermediaries due to disagreements and divergence concerning the precise extent of corporate human rights responsibilities, as well as attempts to centralise the interpretation of the UNGP. The article concludes by recommending some caution towards the employment of polycentric governance regimes and their lack of centralised interpretive authority in this domain of international law and suggests possible ways to formally establish centralised interpretation.

Vid Prislan, Judicial Expropriation in International Investment Law

This article examines the notion of judicial takings in international law and its reflection in the practice of investment tribunals. It takes stock of the already significant body of arbitral jurisprudence dealing with expropriation claims grounded in, or relating to, the acts or omissions of courts, with a view to developing a coherent theory of judicial expropriations. It is suggested that, due to the courts’ specific role in the determination of the underlying proprietary rights that are the very object of international legal protection, judicial measures warrant different conceptual treatment from measures by other State organs. Traditional approaches to expropriation analysis do not take this sufficiently into account and therefore do not provide adequate tools for distinguishing legitimate judicial measures from undue interferences with investors’ rights. It is argued that a sui generisapproach is hence needed: where proprietary rights are primarily affected by the impugned judicial action, it is first necessary to determine whether such action is itself wrongful under international law, for only then can it be treated as an act of expropriation. However, the proper analytical approach will ultimately depend on the circumstances of each case and traditional approaches, such as the sole effects doctrine, may still be appropriate where the judicial injury actually flows from wrongful legislative or executive conduct.

Mmiselo Freedom Qumba, Assessing African Regional Investment Instruments and Investor-State Dispute Settlement

This article examines the rejection of the International Investor–State dispute (ISDS) system across the African continent and its replacement with a range of domestic and regional alternatives. It assesses the advantages of the two principal options for African countries: retaining the current ISDS system, or using local courts and regional tribunals. To this end, the dispute resolution mechanisms proposed in the Pan-African Investment Code, the 2016 Southern African Development Community Finance and Investment Protocol, the SADC model BIT, the Common Market for Eastern and Southern Africa, Economic Community of West African States and East African Community investment agreements and domestic approaches are critically examined. The argument is then advanced that African countries should not abandon ISDS because replacing it with isolated domestic or regional mechanisms does not reduce any of the risks. In particular, for foreign investors, the risk associated with the adjudication of investment disputes in potentially biased, politically influenced domestic courts may prove too high. African host nations, in turn, risk sending out the wrong message concerning their commitment to the protection of foreign investments. Instead of veering off course, perhaps the time has come for African States to display the political will to remain within the ISDS system and contribute to its reform from within.

The issue also contains review, by Nahel Asfour, of Contract Law in Contemporary International Commerce: Considerations on the Complex Relationship between Legal Process and Market Process in the New Era of Globalisation by Gianluigi Passarelli, Nomos: Baden-Baden 2019. Other views on the book have been expressed by Chukwuma Okoli on the Conflictoflaws blog.

The author of this post is Estelle Gallant, professor of private law at the University of Toulouse 1 Capitole.

On 30 September 2020, the French Supreme Court for civil and criminal matters ruled on the respective scopes of the Brussels II bis Regulation and the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children in a parental conflict between France and Switzerland (Cass. 1st Civil Chamber, 30 Sept. 2020, no. 19-14.761). The difficulty arose following a change in the habitual residence of the child while proceedings concerning his custody were pending before French courts.

Facts and Legal Issues 

The dispute concerned the divorce proceedings of a multinational couple: the husband was of French-Swiss national while the wife was of Swiss, Irish and Danish national. They lived in Switzerland before separating and setting up a cross-border alternating residence between Switzerland and France for their children. It was at that time that a petition for divorce was filed in France. However, after the father’s imprisonment, and with his agreement, the children’s residence was transferred exclusively to the mother’s home in Switzerland. This created an issue with respect to the international jurisdiction of French court.

Judgment of the French Supreme Court

French lower courts had concluded that they had jurisdiction on the basis of the Brussels II bis Regulation. But, before the Supreme Court, the mother invoked the jurisdiction of the Swiss authorities on the basis of the 1996 Hague Convention applicable in both Switzerland and France. In accordance with Article 5 of the 1996 Hague Convention and Article 61 of the Brussels II bis Regulation, the Supreme Court set aside the decision of the Court of Appeal which had retained jurisdiction on the basis of the Brussels II bis Regulation. According to the Supreme Court, since habitual residence had been lawfully transferred to a third State of the European Union but a Contracting State to the 1996 Convention, only that Convention was applicable and French courts therefore had no jurisdiction.

Assessment

How can this conflict between the Brussels II bis Regulation and the 1996 Hague Convention be resolved?

The 1996 Hague Convention has been in force in France since 1 February 2011. The Brussels II bis Regulation has been applicable since 1 March 2005. The two competing instruments have a common material scope of application since they both deal with conflicts of jurisdiction in matters of parental responsibility and child protection. Since both are applicable in France, it is necessary to find out which one should be preferred over the other: a rule of compatibility is therefore necessary.

Article 61 of the Brussels II bis Regulation provides a specific rule on the respective scopes of the Regulation and the 1996 Hague Convention. The Regulation provides that it prevails over the Convention “where the child concerned has his or her habitual residence on the territory of a Member State”.

In this case, the whole question was therefore where the children resided and then to determine the applicable instrument. If the habitual residence was in Switzerland – a third State to the European Union but a party to the Hague Convention –, the 1996 Hague Convention applied; if it were in France, however, the Brussels II bis Regulation applied.

However, the determination of the children’s habitual residence in this case was complicated by the change of habitual residence during the proceedings. At the time of the divorce petition filed in France in January 2016, the habitual residence was a cross-border alternating residence between Switzerland and France. But, when the French Court of Appeal ruled, the habitual residence had been exclusively and lawfully transferred to Switzerland. This new residence was not under discussion. The discussion in this case is therefore not about the location of the children’s habitual residence (initially alternating between France and Switzerland and then transferred exclusively to Switzerland), but about the time at which it should be assessed.

Thus, while the distributive criterion used in Article 61 of the Regulation is perfectly clear – habitual residence in or outside a Member State of the European Union – it does not offer any temporal rule, which would have been eminently useful in this case.

The only area where temporal details can be found is that of the rules of jurisdiction. The latter, based in both texts on the criterion of the child’s habitual residence, resolve the change in the connecting factor.  In this respect, two situations must be distinguished, depending on whether the change of habitual residence occurs outside any pending proceedings or, conversely during the proceedings.

In the event of a “classic” change of habitual residence, outside of any pending proceedings, the two texts resolve the difficulty in favour of the child’s new habitual residence (explicit solution in the Hague Convention ; resulting from a combined reading of Articles 8, 9 and 10 of the Regulation).

If, on the other hand, there is a change of habitual residence in the course of proceedings, the solution is not identical. While the Regulation states that the habitual residence must be assessed “at the time the court is seised” (Article 8(1)), the 1996 Hague Convention provides for the jurisdiction of the authorities of the “new habitual residence”. The difference in wording means that under the Brussels II bis Regulation, once seised, the court retains jurisdiction, even if the child is subsequently lawfully moved to another Member State, whereas under the 1996 Hague Convention, a change of habitual residence during the course of proceedings entails an immediate transfer of jurisdiction to the authorities of the new habitual residence.

The temptation might have been great, in order to resolve the question of the location of the habitual residence in the context of Article 61, i.e. for the purposes of determining the applicable instrument, to use the temporal criterion contained in the rules of jurisdiction. This seems to have been the reasoning of the Court of Appeal, which ruled that although the children’s habitual residence has since been transferred to Switzerland, the habitual residence was in France at the time the first court was seised, thus maintaining the jurisdiction of French courts on the basis of the Brussels II bis Regulation. However, while the reasoning is strictly correct from the point of view of jurisdiction based on the Brussels II bis Regulation, it is not correct from the point of view of the implementation of Article 61.

The Supreme Court does not go down this road. The solution it favours can be summarised as follows: admittedly, under the Brussels II bis Regulation, the French court had jurisdiction, since the children’s habitual residence was in France at the time the French court was seised. However, at the time when the court ruled, the Brussels II bis Regulation was no longer applicable under Article 61 of the Regulation, since the children’s habitual residence was in Switzerland, a third State of the European Union but a Contracting State of the Hague Convention. Under that Convention, and on the basis of Article 5 thereof, French courts therefore no longer had jurisdiction; Swiss courts did.

At last, in order for the change of habitual residence to be effective, both in terms of the relationship between the Regulation and the Convention and in terms of jurisdiction, the judgment suggests that there are two conditions.

Firstly, the new habitual residence must of course be in a Contracting State to the Hague Convention, which is the case of Switzerland. If not, it is not certain that the Brussels II bis Regulation would have ‘lost’ its applicability, but the situation would certainly have led to a conflict of proceedings. The solution provided by the French Supreme Court thus illustrates one of the benefits of judicial cooperation between states.

Secondly, the change of habitual residence must be lawful. In the event of a wrongful change of habitual residence to Switzerland, the Brussels II bis Regulation would have remained applicable and thus led to the French authorities retaining jurisdiction (Article 10). If the abductor brought the case before a Swiss court, the Swiss court could have adopted the same solution and declined jurisdiction on the basis of Article 7 of the 1996 Hague Convention.

Finally, it may be objected that, by reasoning in this way, the Court added criteria to Article 61, which does not contain any: a temporal criterion and a criterion of lawfulness of the change of habitual residence. The solution must, however, be approved, as it is both the most pragmatic and the most consistent with the spirit of the compatibility clause contained in Article 61 of the Regulation. It avoids the – undesirable – diversion through the rules of jurisdiction and allows account to be taken of the reality of the children’s actual situation, to which the criterion of habitual residence adopted by all the texts, undoubtedly aspires.

In 2020, the Court of Justice of the European Union (CJEU) ruled twice on whether sovereign immunities are relevant to define the material scope of the European law of jurisdiction. The first case was concerned with the immunity from jurisdiction of the state of Panama (Rina, case C-641/18: see reports here, here and here). The second was concerned with the immunity from enforcement of an international organisation, the headquarters of NATO (SHAPE, case C-186/19: see reports here and here).

Since the 1968 Brussels Convention, the European law of jurisdiction and judgments has been limited to civil and commercial matters. Most other instruments of European civil procedure have incorporated the same limitation. Since the Eurocontrol case in 1976, the European Court of Justice has consistently defined civil and commercial matters as excluding actions by public authorities acting in the exercise of their powers, i.e. powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals. This definition has now been codified in Article 1(1) of the Brussels I bis Regulation, which refers to “the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii)”.

The test of acta iure imperii is also widely used to define the scope of sovereign immunities and, in particular, the scope of jurisdictional immunities. It was only logical, therefore, to ask whether the concept of civil and commercial matters should be defined by reference to the definition of sovereign immunities. As explained (but not endorsed) by AG Szpunar in the Rina case, one could argue “that the concept of ‘civil and commercial matters’ should coincide with the negative scope of jurisdictional immunity” (para. 43). The consequence of such an analysis would be that the scope of the Brussels Ibis Regulation would not be defined autonomously, but by reference to other norms which are external to the EU. Sovereign immunities are governed by customary international law but also, to a large extent, by national laws.

The Relevance of International Law: Rina

In Rina, the CJEU seemingly endorsed the idea that international law is relevant to define the scope of the Brussels Ibis Regulation.

The Court started by recognising that “the immunity of States from jurisdiction is enshrined in international law”, which nobody doubts.

The Court, then, reached the troubling conclusion that the test for defining civil and commercial matters should depend on international law. The Court held:

57 In the present case, as the Advocate General stated in points 108 to 128 of his Opinion, the immunity from jurisdiction of bodies governed by private law, such as the Rina companies, is not generally recognised as regards classification and certification operations for ships, where they have not been carried out iure imperii within the meaning of international law.

58  Accordingly, it must be held that the principle of customary international law concerning immunity from jurisdiction does not preclude the application of Regulation No 44/2001 in a dispute relating to an action for damages against bodies governed by private law, such as the Rina companies, on account of the classification and certification activities carried out by them, upon delegation from and on behalf of a third State, where the court seised finds that such bodies have not had recourse to public powers, within the meaning of international law.

The idea that international law should influence the definition of civil and commercial matters raises a number of issues, many of which were pointed out by the AGs in both the Rina and SHAPE cases. In this post, I would like to insist on two of them.

The first is that the content of international law is unclear. As pointed out by AG Szpunar, the international conventions which were adopted in this field were either ratified by few Member States, or never entered into force. A number of courts have stated that the 2004 UN Convention on on Jurisdictional Immunities of States and Their Property is representative of customary public international law, but as the International Court of Justice itself has pointed out, a number of its provisions were hotly debated during the negotiations, and thus cannot be considered as representing any form of international consensus. The truth of the matter is that the international law of sovereign immunities is, on many issues, vague and not clearly defined. In addition, states have long regulated sovereign immunities at national level, whether by statutes or by the courts. If the CJEU were to interpret international law to define civil and commercial matters, it might contribute to the development of international law, but it would also displace the law of sovereign immunities of the Member States and, in effect, engage into a process of harmonisation for which its competence is doubtful.

Conceptually Different Questions Need Not Receive the Same Answer

The second reason why the international law of sovereign immunities should not influence the interpretation of the European law of jurisdiction is that sovereign immunities and international jurisdiction are conceptually different questions. One is concerned with the power of the national courts to entertain actions against foreign states. The other is concerned with the allocation of international cases as between the courts of different states based on the subject matter of the dispute and the connections of the parties with the relevant states. A contractual case like the SHAPE case raises two separate questions. One is whether an international organisation can be sued in the courts of the forum. Another is whether the relevant obligation of the contract was performed on the territory of the forum, or the organisation can be considered to be domiciled there.

This conceptual difference is better perceived in those states where immunities and jurisdiction are sanctioned by different rules.  This is the case, for instance, under French law. A court does not lack jurisdiction to entertain a claim against a foreign state enjoying an immunity, it lacks power. Lack of power may be raised at any point in the proceedings, while objections to jurisdiction must be raised in limine litis.

The Relevance of International law: SHAPE

The SHAPE Court might have wished to deviate from Rina and endorse a different analysis. The Court continued to apply the same test to define civil and commercial matters. However, it refrained from stating “within the meaning of international law“.

Indeed, it referred to, and partly repeated paragraph 58 of the Rina judgment (see above), but omitted those words.

60 So far as concerns, secondly, the immunity from jurisdiction of bodies governed by private law, the Court has held that it does not preclude the application of Regulation No 1215/2012, where the court seised finds that such bodies have not had recourse to public powers (see, to that effect, judgment of 7 May 2020, Rina, C‑641/18, EU:C:2020:349, paragraph 58).

The Court also underlined that immunities and international jurisdiction are two separate questions:

64 In this connection, as the Advocate General observed in point 67 of his Opinion, the mere fact that the national court has assumed international jurisdiction, in the light of the provisions of Regulation No 1215/2012, does not adversely affect the protection of immunity under international law invoked by the international organisation that is party to that dispute.

Let’s forget about international law when interpreting the concept of civil and commercial matters for the purposes of European procedural law.

Immunity from Enforcement

The issue raised in SHAPE was that of the immunity from enforcement of an international organisation. The creditors of the headquarters in Europe of NATO had attached monies on a bank account. The international organisation argued that the funds were covered by its immunity from enforcement, and that the action fell outside of the Brussels I bis Regulation.

The SHAPE Court replied without distinguishing between immunity from enforcement and immunity from jurisdiction. It seemingly considered that both raise the same issue with respect to the influence of sovereign immunities on the definition of civil and commercial matters.

Yet, there are important differences between the two types of immunities. For present purposes, the most important is that the purpose of each immunity is different. Immunity from enforcement does not prevent courts from deciding disputes, it prevents enforcement over assets. In SHAPE, the issue was whether the creditors of NATO could freeze its assets.  The question, therefore, was not whether the action on the merits could be entertained by the forum, but whether it could issue a provisional attachment. The CJEU has consistently held, however, that the question of whether provisional measures in general and provisional attachments in particular fall within the scope of the Brussels I bis Regulation is defined by the substantive rights that the the measures aim to protect (see, in particular, the De Cavel and Van Uden cases). In other words, provisional measures are transparent for defining the concept of civil and commercial matters. If this is the case, specific obstacles to carry out such measures must be irrelevant as well.

The only immunity which could be logically relevant for defining civil and commercial matters is immunity from jurisdiction. And even immunity from jurisdiction should not be.

All the recent studies I am aware of on the application in practice of the EU private international law instruments claim that legal practitioners are not aware of the regulations/directives, or do not know how to apply them. They conclude there is a need for training.

Having been a University professor for now some years, my first spontaneous reaction to such assertion is always inward-looking: we (lecturers, professors) are being told that what is done at the Universities is not enough. Indeed, it would be naïve to believe law schools alone produce PIL experts. However, I can’t help wondering where higher education stands in the Commission’s pursuit of the “correct and uniform application of EU law” which should “built mutual trust in cross-border judicial proceedings, thus helping to develop the EU area of justice”.

The quotes belong to the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions Ensuring justice in the EU — a European judicial training strategy for 2021-2024, published in December 2020, which explains the focus and scope of training in EU law for the years to come: the rule of law (upholding fundamental rights), upscaling the digitalisation of justice (prepare justice professionals to embrace digitalisation and the use of artificial intelligence ), keeping pace with developing EU law. A strategy addressed to judges, but this time also to other stakeholders: mediators, legal interpreters and translators, court experts, court staff, lawyers, even probation officers.

Higher education is not mentioned once. It does not necessarily mean that the Commission has not it in mind. Surely there are other initiatives one could find digging further. And then, most probably there are also issues of competence; the responsibility of educating future professionals lies primarily with the Member States (which is why the Bologna process will, in my view, never achieve its ultimate goal).

Be it as it may: for PIL fans in general (ie., beyond the University crowd) there is in the Communication a further fact to worry about. Cross-border cooperation is expressly mentioned and reference made to key EU instruments for cross-border judicial cooperation, at p. 3:

European judicial training should enable justice practitioners to see the role of EU law in their daily practice, give it full effect and secure the respect of rights and obligations stemming from EU law in national judicial proceedings. It is also important that they keep up to date with the development of EU law. Any new legislation and CJEU case-law developments necessitate training if they are to have the intended effects and justice professionals are to have the requisite knowledge and skills. In particular, this applies to the key EU instruments for cross-border judicial cooperation.”

Great, except that thereafter only cross-border cooperation in criminal matters is referred to.

Has the Commission forgotten judicial training regarding the EU regulations in civil and commercial matters? What does this absence entail in terms of funding of training activities?

A look into the website of the European Judicial Training Network shows how little place is left for European private international law and procedural law. Until June there is no activity planned on any of our core topics. In June, there will be a seminar on “Cross-border civil cases” (program not available yet; which kind of cases are meant is therefore not clear); and another one entitled “Jurisdiction, recognition, enforcement of judgments and determination of the applicable law under Regulation 1215/2012 (sic). The new Insolvency Regulation 848/2015”. Nothing else afterwards.

Of course, the EJTN is not the only training service provider. Three other well-known ones are the Academy of European Law (ERA), the European Institute of Public Administration (EIPA), and the European University Institute (EUI). In addition, the Justice Programme of the European Union supports as well national projects, such as FRICoRE. It may be that one or some of those offer seminars covering cross-border cooperation in civil and commercial matters. After consulting the program at the ERA until June, I am not too optimistic, though: there are many interesting activities, but only two relate directly to “our” topics.

In addition, I am not sure about what it means to be a “service provider”, in terms of how much of the training is publicly funded and how much attendants have to pay themselves; if I am not wrong, the seminars and workshops of the EJTN are for free, while the rest are not. On the side of the training experts there is probably not much difference: at least in our field colleagues are called to teach both by the EJTN and by the other providers; hence the quality of the training should be the same. But access to training is definitely not.

The European judicial training strategy of the Commission for the years to come foresees as well the launch of the European Training Platform (ETP), defined as “a search tool put at the service of legal practitioners and justice professionals who want to train themselves on any practice area of EU law or related matters”. It is too early to have an opinion on the platform. However, as of today, it is not a promise of open-access, neither to the courses nor to the materials. According to the information on the website, “The training providers inform potential trainees about the training activities they organise everywhere in the EU and in different languages.” So, at first sight the ETP will just be a repository of activities planned and undertaken by the four institutions indicated above. Not much of a step further regarding access to training.

On a less pessimistic note, it is true that the message goes on saying “The European Commission contributes to the platform with ready-to-use training materials or handbooks produced notably thanks to EU financial support”. And later in the webpage one can read “You will find many training courses on EU law advertised on the European Training Platform as well as training material for self-learning”. Maybe this means that training packages and publications will at some point be available to all stakeholders as in a public library. To be seen but… let’s hope.

Cecilia Rizcallah (ULB & University of Saint-Louis, Belgium) has just published a monograph on the principle of mutual trust in EU Law, based on her doctoral thesis: Le principe de confiance mutuelle en droit de l’Union européenne – Un principe essentiel à l’épreuve d’une crise de valeur, Bruylant, 2020.

The author has provided the following abstract in English:

The legal structure of the European Union “is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the Union is founded, as stated in Article 2 TEU”, states the Court of Justice of the European Union. Among these common values, fundamental rights, the rule of law and democracy occupy a central position. This “premiss”, according to the Court, “implies and justifies the existence of mutual trust between the Member States”.

Yet, as we all know, the European Union is currently facing a “crisis of values”. This crisis results from the increasingly frequent questioning, in the European Union, of the values on which it is allegedly based. The semantics of mutual trust between Member States has nevertheless never been more present in official speeches. Like the dictum according to which “we never talk as much about water as in the desert”, should the rise of the discourses on mutual trust be seen as an “excess of vocabulary” symptomatic of the climate of mistrust between Member States?

 This question, prompted by the success of the principle of mutual trust at a time when the context reveals fundamental divisions between Member States as to the meaning of European integration and the values on which it is based, is at the heart of this book.

In order to provide some answers, the first part of the book proposes to “clear the ground” and offer a cross-cutting definition of the principle of mutual trust in Union law, which applies both to internal market law and to the law of the Area of freedom, security and justice. It is the presumptive mechanism that seems, in this respect, to offer the best description of the principle under consideration.

The book then analyses the apparently consubstantial link between this principle and the founding values of the Union. Constituting an uncertain foundation and an imperfect limit to mutual trust, the EU founding values have an ambivalent relationship with the principle under consideration.

Finally, this book concludes with a third part which analyses the essential role played by the principle of mutual trust in Union law, at the crossroads of the imperatives of unity, diversity and equality. Because of the risks entailed by this principle regarding EU founding values, the book, however, argues in favour of moving mutual trust from the rank of postulate to that of method.

More details are available here, including a foreword by Eleanor Sharpston (Former Advocate General at Court of Justice of the European Union).

Since mutual trust is of particular interest for EU Private international law experts, Cecilia will soon provide the readers of this blog with a special focus on the principle of mutual trust in the field of EU judicial cooperation in civil matters, based on her doctoral research.

On 22 February 2021, from 5 to 7 pm CET, the Catholic University of the Sacred Heart in Milan will host a webinar titled The Fundamental Rights of Persons with Cognitive Disabilities in Cross-border Situations – Time for Italy and Spain to Join the Hague Adults Convention.

The Hague Convention of 13 January 2000 on the International Protection of Adults is currently in force for thirteen States. As the Hague Conference on Private International Law is preparing to host a Special Commission to review the practical operation of the Convention, scheduled to take place in 2022, other States – including Italy and Spain – are considering ratification.

The purpose of the webinar is to give an account of the domestic rules of private international law governing the protection of adults in Spain and Italy, and explore the benefits that joining the Convention would entail in the two countries for the adults concerned, the competent authorities and legal practitioners, including notaries.

In carrying out this exercise, regard will be had, in particular, to the experience of Portugal, which became a party to the Convention in 2018.

The organisers also seek to collect the views of stakeholders, notably human rights organisations with a focus on the rights of those with cognitive disabilities, regarding the issues surrounding the protection of such rights in cross-border situations, and the role that the Convention may play in enhancing such protection.

Speakers include Philippe Lortie (First Secretary of The Hague Conference on Private International Law), Salomé Adroher Biosca (Comillas Pontifical University), Pietro Franzina (Catholic University of the Sacred Heart) and Geraldo Maciel Rocha Mendes Ribeiro (University of Coimbra).

Attendance is free. No prior registration is required.

For more information, including the link to access the webinar, see here.

Horatia Muir Watt, Lucia Biziková, Agatha Brandão de Oliveira, Diego P. Fernández Arroyo and Megan Ma (Sciences Po Law School) have edited Le tournant global en droit international privé, published by Pedone.

This is the French version of Global Private International Law – Adjudication without Frontiers, that the same team of authors had published in 2019 with Edward Elgar.

Global Private International Law is a groundbreaking casebook, combining the expertise of over sixty international and interdisciplinary contributors who analyze key legal proceedings in order to provide a comprehensive study of the impact of globalisation on the law.

Providing a unique and clearly structured tool, this book presents an authoritative collection of carefully selected global case studies. Some of these are considered global due to their internationally relevant subject matter, whilst others demonstrate the blurring of traditional legal categories in an age of accelerated cross-border movement. The study of the selected cases in their political, cultural, social and economic contexts sheds light on the contemporary transformation of law through its encounter with conflicting forms of normativity and the multiplication of potential fora.

Key Features:

• the specific global scope allows the reader to gain a contextualised understanding of legal transformation

• each case has two commentaries from different viewpoints, ensuring a nuanced perspective on the implications of the global turn in private international law and its importance for adjudication

• an astute combination of theory and practice ensures readers gain an understanding of the relevance of innovative legal theories in interpreting concrete cases in a changing world

• comparative material and ground-breaking analysis make this book eminently suitable for use with students and a useful tool for researchers and courts confronted with novel topics or issues.

The French book includes a foreword of Paul Lagarde and an introductory chapter of Horatia Muir Watt which are freely available here, together with the table of contents.

The first chapter of the English book can be freely accessed here.

The Court of First Instance of Thessaloniki ruled on 24 June 2020 that an application by a psychological (non biological) mother to recognize and declare enforceable a UK custody order concerning a child born by the applicant’s partner contravenes Greek public policy (Ruling No. 6175, unreported).

Facts

The applicant [A] is a woman of Greek and American nationality. Her partner was a woman of American nationality [P]. They registered their partnership in the UK on 20 August 2013. Nearly a month later, P. gave birth to a child. The partners married in January 2015.

A. filed an application for child custody and parenting arrangements order in the UK. The court granted the application, and ordered that the child stays with the psychological mother on the basis of previous decisions concerning parental responsibility rights issued in the same country. In addition, the court ordered that the child reside with A., and it issued an order to remove the child permanently to Greece. Finally, the same court arranged the contact rights of the biological mother [P]. The information given in the Greek judgment is that the UK order was issued by the High Court – Family Division in Chelmsford, and that it was final. A. filed an application for the recognition and enforcement of the UK order before the Court of First Instance in Thessaloniki.

The Ruling

The Court of Thessaloniki began by acknowledging its jurisdiction and venue for the case at hand. It then entered into an analysis of the public policy defence, culminating in the conclusion, that the forum judge is obliged to defend national public policy, while at the same time demonstrating respect towards the state’s international obligations. To that end, a proportionality test of the domestic public policy with Article 8 ECHR standards is imperative. Following the above introduction, the court rushed to declare that same-sex marriage, and any subsequent relations emanating thereof are not allowed in Greece.

Public Policy

The first point raised by the court was a contradiction of the English order with established perceptions of Greek family law. By invoking Article 33 Greek Civil Code, i.e. the public policy defence in domestic Private International Law, the court held that Greek family law grants parental responsibility rights to the mother, if the child was born out of wedlock. In addition, the court stated that in the given situation, it was the biological mother who should be granted custody rights.

The second point raised by the court referred to the fundamental choice made by the domestic legislator and the Supreme Court, i.e. the prohibition of same-sex marriage. The public policy defence is the guarantor of this premise: Hence, an ontological change of a legal relationship within the country of destination, caused by the recognition of a foreign decision, affects state sovereignty. For a domestic standpoint, it is not acceptable to grant maternity rights to two women. It is also unbearable for the court that the birth of the child is a product of a same-sex marital relationship, which does not produce any legal effects in Greece.

In addition, the court held that the best interests of the child may not guarantee the preservation of a parental relationship with the biological mother, the latter being a situation not protected under Greek law. The bond worthy of protection emanates from constitutional provisions (equality / personality rights), the Fundamental Rights Charter, EU and ECHR standards. Consequently, the court ruled that the recognition and enforcement of the UK order would distort the legal pace of the country, because it is contrary to core domestic values and perceptions.

Assessment

The judgment follows a hard line under the strong influence of the harsh position taken by the Greek Supreme Court against same-sex couples. The factual situation is obviously not shaking the court’s foundation; even the best interests of the child did not motivate the court to soften its position. Hence, the child will have two mothers in the UK, and no mother in Greece.

What is also striking is the omission of the court to approach the matter from its European point of view. Out of the abundant material of legal scholarship, European and domestic case law concerning the matter, I will focus on the Coman case, which decided as follows:

In a situation in which a Union citizen has made use of his freedom of movement by moving to and taking up genuine residence, in accordance with the conditions laid down in Article 7(1) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, in a Member State other than that of which he is a national, and, whilst there, has created or strengthened a family life with a third-country national of the same sex to whom he is joined by a marriage lawfully concluded in the host Member State, Article 21(1) TFEU must be interpreted as precluding the competent authorities of the Member State of which the Union citizen is a national from refusing to grant that third-country national a right of residence in the territory of that Member State on the ground that the law of that Member State does not recognise marriage between persons of the same sex.

The case, of course, was not concerned with recognition of foreign judgments, but the rationale seems to make it relevant in this respect as well.

There are two more instances available for the applicant to alter the landscape. A first sign of progress has been already reported. It will be interesting to follow the developments and to report in due time.

Mateusz Grochowski (European University Institute) and Katarzyna Południak-Gierz (Jagiellonian University) have posted EU Private International Law in Internet-Related Disputes: The Polish Case Law Approach on SSRN.

The abstract reads:

The paper examines the way Polish courts apply EU private international law (EU PIL) rules in the disputes concerning online context. The analysis seeks, in particular, to better understand the patterns recurring in the judicial reasoning and to map the typical circumstances of internet-related disputes pled before Polish courts. The paper attempts to cluster the existing case law and to trace the use made of EU PIL and CJEU decisions by Polish judges. It also aims to identify how the courts perceive specificity of internet-related disputes from the perspective of conflict of laws and how they understand specific goals of EU PIL (especially consumer protection). The text delves also into the cases where – despite encountering transnational elements – courts did not address conflict of laws issues. It attempts to indicate the most common instances of such omission and hence, to elucidate further the possible barriers to full application of EU PIL.

The Universidade Portucalense, based in Porto, and its Research Center, in collaboration with the Universities of Vigo, Malaga, Salamanca and Granada as well as with the Federal University of Rio de Janeiro, organise an International Congress on Civil Procedural Law titled The Challenges of Sustainable Global and Digital Development, to be held on 20 and 21 May 2021, in virtual format.

The concept is as follows:

The pandemic caused by COVID-19 exposed the world to the positive and negative aspects of globalization; it also made evident the need for States to prepare for the challenges of global development; and, well, it showed us that the application and use of new technologies are fundamental. All these phenomena, of a transversal nature, are the motto of this Congress and motivate the study of procedural matters in the global and digital era, with a view to a result process.

In this context and also in the light of the United Nations 2030 Agenda Sustainable Development Goals, in particular those for promoting the rule of law at national and international level and ensuring equal access to justice for all, it is current and it is of practical and academic interest in critical analysis and the presentation of innovative proposals for procedural solutions that are part of this orientation. Above all, pay attention to the importance of consumer relations in sustainable development and in disputes with consumers.

This Congress aims to bring together researchers and professionals who, through their scientific studies and practical experiences, can contribute to the analysis of the impact of global and digital sustainable development in matters of procedural law, especially in civil proceedings, without excluding the application of the process to various branches of law.

Those interested in presenting a paper at the conference are invited to submit their abstracts on any of the following ‘thematic lines’: Transnational and European Civil Procedure. Global development process and challenges; Civil Procedure in the Digital Age – Challenges of technological development; Sustainable Consumption and Process.

The deadline for submissions is 28 February 2021.

See here for more information.

February starts with a hearing on 4 February in a PPU case. C-603/20 PPU MCP is a preliminary reference from the High Court of Justice, Family Division (United Kingdom), filed on November 2020 (that much for Brexit…), on the interpretation of Council Regulation (EC) No 2201/2003. The facts concern two Indian citizens habitually resident in the United Kingdom who share the parental responsibility for P, a British citizen aged three, born in the UK. P has been living in India since October 2018, when the mother took him there fleeing from (alleged) domestic violence. There has been no contact between the father and P since 2018.

The mother did not seise the English courts before removing P to India, nor did she obtain the consent of the father. On 26 November 2019, she seised the Family Court at Chelmsford for ‘permission to change jurisdiction of the child’. On 26 August 2020, the father filed an application in the High Court requesting in essence the return of the child to the UK. On 6 November 2020, the High Court (Family Division) addressed the issue of jurisdiction and determined that the English courts could not base jurisdiction neither on Article 8 on Article 12(3) of the Brussels IIa Regulation. Having doubts as to whether Article 10 of the Regulation applies where a child is wrongfully removed to or retained in a third country, it referred the following question for a preliminary ruling:

Does Article 10 of Brussels 2 retain jurisdiction, without limit of time, in a member state if a child habitually resident in that member state was wrongfully removed to (or retained in) a non-member state where she, following such removal (or retention), in due course became habitually resident?

The case is allocated to a chamber of five judges, with E. Regan as reporting judge. A. Rantos is the advocate general in charge.

The Opinion of AG Bobek in case C-800/19, reported in this blog some days ago, will be delivered on 23 February.

Finally, the judgment in C-804/19 Markt24 will be published on 24 February. The blog had informed about the questions referred here. The Opinion by AG Oe, of October 29, 2020, is not available in English. My tentative translation would be:

1. A claim for payment of the remuneration agreed in an employment contract, filed by a worker domiciled in a Member State against an employer domiciled in another Member State, falls within the scope of Regulation (EU) No. 1215/2012 (…) and, more specifically, section 5 of its chapter II, even when the worker has not, in practice, performed any work in compliance with the contract in question.
2. Regulation No. 1215/2012 precludes the application of the rules on jurisdiction established by the national law of the court seised, enabling an employee to bring an action in the place where his domicile or habitual residence is located during the employment relationship, or before the court in the place where the remuneration is to be paid.
3. When a employee and an employer have entered into an employment contract and, for whatever reason, no performance has been made in practice in compliance with that contract, ‘the place where or from where the employee habitually carries out his work’, within the meaning of Article 21, paragraph 1, letter b), subparagraph i), of Regulation No. 1215/2012, will coincide, in principle, with the workplace agreed in the aforementioned contract.

Although not directly related to PIL, I would like to draw the readers’ attention also to case C-490/20 Stolichna obshtina, Rayon “Pancharevo”. Hearing is taking place on 9 February. The questions referred by Administrativen sad Sofia-grad (Bulgaria) are:

Must Article 20 TFEU and Article 21 TFEU and Articles 7, 24 and 45 of the Charter of Fundamental Rights of the European Union be interpreted as meaning that the Bulgarian administrative authorities to which an application for a document certifying the birth of a child of Bulgarian nationality in another Member State of the EU was submitted, which had been certified by way of a Spanish birth certificate in which two persons of the female sex are registered as mothers without specifying whether one of them, and if so, which of them, is the child’s biological mother, are not permitted to refuse to issue a Bulgarian birth certificate on the grounds that the applicant refuses to state which of them is the child’s biological mother?

Must Article 4(2) TEU and Article 9 of the Charter of Fundamental Rights of the European Union be interpreted as meaning that respect for the national identity and constitutional identity of the Member States of the European Union means that those Member States have a broad discretion as regards the rules for establishing parentage? Specifically:

–    Must Art. 4(2) TEU be interpreted as allowing Member State to request information on the biological parentage of the child?

–    Must Article 4(2) TEU in conjunction with Article 7 and Article 24(2) of the Charter be interpreted as meaning that it is essential to strike a balance of interests between, on the one hand, the national identity and constitutional identity of a Member State and, on the other hand, the best interests of the child, having regard to the fact that, at the present time, there is neither a consensus as regards values nor, in legal terms, a consensus about the possibility of registering as parents on a birth certificate persons of the same sex without providing further details of whether one of them, and if so, which of them, is the child’s biological parent? If this question is answered in the affirmative, how could that balance of interests be achieved in concrete terms?

Is the answer to Question 1 affected by the legal consequences of Brexit in that one of the mothers listed on the birth certificate issued in another Member State is a UK national whereas the other mother is a national of an EU Member State, having regard in particular to the fact that the refusal to issue a Bulgarian birth certificate for the child constitutes an obstacle to the issue of an identity document for the child by an EU Member State and, as a result, may impede the unlimited exercise of her rights as an EU citizen?

If the first question is answered in the affirmative: does EU law, in particular the principle of effectiveness, oblige the competent national authorities to derogate from the model birth certificate which forms part of the applicable national law?

This will be (not surprisingly) a Grand Chamber decision.

The Private International Law Interest Group of the Italian Society of International Law and EU Law has organised a series of webinar, most of which will be conducted in English, under the title Private International Law in Europe: Current Developments in Jurisprudence.

The programme is as follows:

29 January 2021, 4 to 6 PM (CET): Limiting European Integration through Constitutional Law? Recent Decisions of the German Bundesvarfassungsgericht and their Impact on Private International Law – Speaker: Christian Kohler (Univ. Saarbrücken); Discussant: Giulia Rossolillo (Univ. Pavia).

19 February 2021, 4 to 6 PM (CET): State Immunity and Jurisdiction in Civil and Commercial Matters in Recent Court of Justice Rulings – Speaker: Alexander Layton (King’s College London); Discussant: Lorenzo Schiano di Pepe (Univ. Genova).

12 March 2021, 4 to 6 PM (CET): La trascrizione dell’atto di nascita nella recente giurisprudenza della Corte costituzionale italiana – Speaker: Sara Tonolo (Univ. Trieste); Discussant: Elena Rodriguez Pineau (Univ. Autonóma Madrid).

9 April 2021, 4 to 6 PM (CET): Law Governing Arbitration Agreements in a Recent Judgment of the UK Supreme Court – Speaker: Adrian Briggs (Univ. Oxford); Discussant: Pietro Franzina (Catholic Univ. of the Sacred Heart, Milan).

23 April 2021, 4 to 6 PM (CET) (TBC): Jurisdiction in Matters Relating to Cross-Border Torts according to the Recent Volkswagen Judgment of the Court of Justice – Speaker: Giesela Rühl (Humboldt Univ. Berlin); Discussant: Fabrizio Marongiu Buonaiuti (Univ. Macerata).

More information available here.

On 4 November 2020, the Austrian Supreme Court (OGH) ruled on the applicability of the consumer jurisdiction under Article 18 Brussels I bis Regulation to transactions related to Bitcoin.

Facts

The facts of this case were quite peculiar. An Austrian resident offered investment opportunities on a cross-border basis, which could only be paid for in Bitcoin. After being contacted by a German resident who expressed interest in the investment opportunities, the Austrian offeror sent three agents to the German customer.

The three agents brought with them a so-called Bitcoin ATM to carry out the transaction. Since the Bitcoin ATM did not function, they used the smartphone of the Austrian offeror, which they had also brought “just in case”, to transfer six Bitcoin belonging to the Austrian offeror to an investment account in the name of the German customer. It was agreed that the German customer would reimburse six Bitcoin within a month to the Austrian offeror.

When he failed to do so, he was sued by the Austrian offeror at the latter’s domicile in Austria.

In the proceedings, the German investor contested the jurisdiction of the Austrian courts.

Legal procedure

The Austrian courts at first and second instance dismissed the claim for lack of jurisdiction. They characterised the contract as a contract for the exchange of Bitcoin for the participation in the investment. This led them to apply Article 7(1)(a) Brussels I bis Regulation, with the consequence that (i) the place of performance for each obligation must be determined according to the governing national law and (ii) the governing national law must be identified through the use of the rules of private international law of the forum (see the now classic CJEU judgments in Tessili and De Bloos). The courts took the view that under both Austrian and German law, the place of performance of contracts of exchange is the place of domicile of the debtor of the respective obligation. Since the result was the same under both laws, it did not matter which of the two was applicable to the obligation to return the Bitcoin.

According to the same courts, it was of no relevance in this case if the contract were to be characterized not as a contract for exchange, but as a loan. In the latter case, the place of performance would still be the place of domicile of the debtor under Austrian and German law. This view, however, ignores that loan contracts are governed by the uniform jurisdiction rule of Article 7(1)(b) Brussels I bis Regulation (see CJEU C-249/16, Kareda). The place of performance for a Bitcoin loan would therefore be determined uniformly and in an autonomous way. The CJEU has also previously ruled that the place of performance for long-term contracts is uniformly located at the domicile of the lender (see again Kareda).

The decision by the Austrian Supreme Court

The Supreme Court of Austria cut short the legal debate. It ruled that the German investor acted for a purpose that could not be attributed to her professional or commercial activity, and that she was therefore a consumer in the sense of Article 17 Brussels Ibis Regulation. In the absence of evidence to the contrary, the Austrian offeror was to be assumed to have acted in a professional capacity and therefore as an entrepreneur. The Austrian offeror had also directed his activities to the consumer’s country of residence, as evidenced by the fact that he had marketed the investments in Germany and had recruited numerous investors there. Therefore, the consumer jurisdiction rules of Article 18 Brussels Ibis Regulation applied. As a result, the German investor could only be sued at her place of domicile in Germany (Article 18(2) Brussels Ibis Regulation). The Austrian courts therefore lacked jurisdiction. The action was dismissed.

Assessment

The case raises a number of interesting questions about Bitcoin transactions and jurisdiction. In particular, it illustrates the importance of the question of whether or not Bitcoin can be characterised as money for the purposes of EU Private International Law. If Bitcoin were money, the applicability of the rules on sales or service contracts for performances paid with Bitcoin could be envisaged. If, on the contrary, Bitcoin lacks the legal characteristics of money, any transaction in Bitcoin can only be qualified as a contract falling under Article 7(1)(a) Brussels I bis Regulation, with the result that jurisdiction will depend on the national rules governing the transaction and their characterisation of Bitcoin.

Unfortunately, the Austrian Supreme Court was able to avoid answering the questions on the legal nature of Bitcoin by resorting to the consumer jurisdiction rules. Given the considerable and growing economic importance of Bitcoin, it would be desirable to obtain legal certainty on these questions. But at the least, the ruling underlines the need for protecting Bitcoin investors, including at the level of jurisdiction. It can hardly be doubted that the result reached by the Austrian Supreme Court was appropriate. Investors should not have to sue at a place of domicile of the counterparty simply because an investment can only be paid for in cryptocurrency and not in legal tender.

The General Report on the second project led by the EAPIL Young EU Private International Law Research Network on Overriding Mandatory Rules in the Law of the EU Member States, under the supervision of Tamás Szabados (University of Budapest), has just been published in the ELTE Law Journal, along with the written versions of some of the contributions of the online conference on the topic, organised in November 2020.

The editorial by Tamás Szabados reads as follows:

The Young European Union Private International Law Research Network was established in 2019 in order to promote academic cooperation within the young generation of private international lawyers in the European Union. The activity of the Network centres around projects and the project theme for 2020 was the application of overriding mandatory norms.

Overriding mandatory norms are beloved subjects for private international lawyers. Most often, however, they are analysed in the context of EU private international law, and principally in contract law, without due regard to other situations where overriding mandatory provisions may equally claim application. Therefore, the primary goal of the project was to reveal whether and to what extent overring mandatory provisions are applied in the autonomous private international law of the Member States, i.e. outside the scope of application of the EU private international law regulations. Some findings have been made in the general report prepared in the framework of the project, based on the contributions of national reporters from seventeen Member States. The report, however, clearly demonstrates that the application or consideration of overriding mandatory rules is also admitted in the autonomous private international law of the Member States, and most notably they involve rules on personal status and family law, property law and company law.

This enquiry on the application of overriding mandatory provisions in autonomous private international law is supplemented by the discussion of topics related to the application of overriding mandatory rules in private international law and arbitration. Martina Melcher examines which substantive law rules of EU law may qualify as overriding mandatory provisions under the Rome I and Rome II Regulations. Katažyna Bogdzevič puts the application of overriding mandatory provisions in family law and regarding names under scrutiny. Markus Petsche addresses the application of mandatory rules in international commercial arbitration. Uglješa Grušić discusses the implications of some recent English conflict-of-laws cases concerning the application of overriding mandatory provisions, such as Lilly Icos LLC v 8PM Chemists Ltd and Les Laboratoires Servier v Apotex Inc. Finally, the approach of the new Hungarian Private International Law Act towards overriding mandatory norms is presented by Csenge Merkel and Tamás Szabados.

The recent COVID-19 pandemic sadly enlightens a further category of overriding mandatory norms: public health measures. Measures related to the prevention of the spread of the coronavirus, introduced by many states around the world, can be considered as overriding mandatory norms. They include closing borders, cities and workplaces, ordering the cancellation of large-scale events, such as theatre and cinema shows or concerts, a mandatory ban on flights or road transport and the expropriation of local face masks production and stocks.

It was planned to hold a conference at ELTE Eötvös Loránd University with the participation of the project participants in March 2020 to discuss the research outcomes. The coronavirus epidemic interfered with this plan. However, academic cooperation continued without interruption. The conference has been scheduled for a later date and moved to the online space. Moreover, the written versions of the planned conference lectures can now be published in the ELTE Law Journal. The disease could reimpose borders across Europe, but this cannot prevent scholarly exchange. This is proved in this issue of the ELTE Law Journal.

Contributors include Tamás Szabados, Melcher, Katažyna Bogdzevič, Markus Petsche, Uglješa Grušić, and Csenge Merkel.

The full issue is available here.

 

In July 2020, Luxembourg eventually adopted a statute on Civil Liability for Harm related to a Nuclear Accident. The statute imposes strict liability on operators of nuclear installations for any damage that a nuclear accident might cause.

There is, however, no nuclear installation in Luxembourg, and there will not be anytime soon. A constant source of disagreement and discussion between the Grand Duchy and France is the French nuclear power plant of Cattenom, which sits a few kilometers away from the border (France has the curious habit of sitting its nuclear plants on the border with neighbouring states). In other words, the new Luxembourg law is solely concerned with foreign nuclear facilities, and indeed essentially with the one in Cattenom (there are also nuclear plants in Belgium, but farther from the border with Luxembourg).

Cattenom: A view from Luxembourg (Picture: Paperjams News) 1960 Paris Convention

The first question arising from the adoption of this statute is why luxembourg did not join instead the 1960 Paris Convention on Nuclear Third Party Liability (Luxembourg signed the Convention, but did not ratify it). The Luxembourg lawmaker explained that it felt that the goal of the Convention was only to limit the liability of nuclear operators, and that it was therefore not in the interest of a country which did not have any nuclear facilities to join the Convention.

In particular, the Luxembourg lawmaker wanted to avoid the numerous limitation of the liability of nuclear operators laid down by the Convention (maximum amount for compensation, time limits, limitation to certain types of losses), but also the exclusive jurisdiction of the court of the place of the operation of the nuclear facility, which would obviously exclude the jurisdiction of Luxembourg courts.

The Luxembourg lawmaker noted that Austria had also adopted its own legislation, and that the goal was to follow this path. It also noted that major nuclear powers such as the U.S., Russia or Japan never joined the 1960 Convention anyway.

Jurisdiction

Article 5 of the statute provides that Luxembourg courts have jurisdiction to entertain

actions related to nuclear losses resulting from nuclear accidents insofar as the Luxembourg territory, Luxembourg residents or person on Luxembourg territory at the time of the torts are concerned.

Parliamentary procedure in Luxembourg includes a review of bills by an independent body, the Council of State (Conseil d’Etat). In its opinion, the Council of State remarked that the Brussels I bis Regulation applied, and therefore requested (but did not demand) that the provision clarifies that it would only apply subject to the Regulation. The opinion of the Council was not followed.

It is likely that the Regulation would grant jurisdiction to Luxembourg courts anyway on the ground of the place of the damage, but only if direct damage was suffered in Luxembourg. The first draft of the bill expressly provided that it would apply to “losses caused directly or indirectly” by nuclear accidents, but, after the Council of State pointed out that this would be hard to reconcile with the concept of causation under the Luxembourg law of torts (which would apply: see below), the referrence was eventually omitted.

This being said, it is a bit problematic that the Brussels Ibis Regulation could limit the power of a Member State to develop its nuclear policy. This was the goal of the exclusion of public matters from the scope of the Regulation, but in this context it seems quite narrow. The Rome II Regulation allows Member States to adopt overriding mandatory provisions, but who will apply them if the Member States may not grant jurisdiction to their courts to apply them?

Of course, the Regulation would not apply if the defendant was domiciled in a third state (say, Ukraine…).

Picture : Les Echos Applicable Law

Article 6 of the statute provides that “In case of nuclear accidents, actions for civil liability are governed by Luxembourg law“.

Unlike jurisdiction, the Rome II Regulation expressly excludes from its scope nuclear liability. Even if it had not, the statute could certainly have qualified as an overriding mandatory provision.

Enforcement of Luxembourg Judgments Abroad

The statute is silent on the enforcement of Luxembourg judgements abroad. Quite obvious, isn’t it? How could Luxembourg possibly think about regulating enforcement of judgments abroad?

Not as obvious in Luxembourg, it seems. The bill initially included an additional provision stating that “Any judgment from a Luxembourg court which is res judicata cannot be reviewed on the merits“. Fortunately, the Council of State explained in its opinion that it understood that the purpose of the provision was to bind foreign courts, and formally opposed its adoption on the ground that it would violate the sovereignty of foreign states and public international law.

Sovereign Immunity

The statute is silent on sovereign immunity. The initial bill was silent as well, but defined “operators” as including “international organisations” and “states or any other public authority”. The Council of State wondered what was the goal of the drafters of the bill, and whether they genuinely intended that foreign states could be sued in Luxembourg courts and their nuclear policy challenged, and if so on which basis. These express references were eventually omitted from the statute, which defines operators as any person who has a power of decision with respect to, or benefits economically from, a nuclear facility.

Irrespective of whether the final definition of operators excludes states and international organisations (the Nuclear Energy Agency?), it is easy to imagine that private operators could be closely linked to states, and thus appear as emanations of states and benefit from sovereign immunities.

Conclusion: Preparing Future Negotiations? Source: antiatomnetz-trier.de

France and Luxembourg established a Franco-Luxembourg Commission on Nuclear Safety in 1994 which has met 18 times since then. In the last meeting in February 2020, France made clear that Cattenom would not be closed before 2035. The Luxembourg government has long expressed its disagreement with the facility being further maintained in operation.

The Luxembourg press has reported that some Luxembourg politicians hope that the law will increase the costs of neighbouring states, including insurance premiums, to operate nuclear facilities near Luxembourg. Will this change the dynamics of future negotiations between France and Luxembourg?

In February 2019, Michael G. Faure (Maastricht University and Erasmus Law School Rotterdam) and Kévine Kindji (Maastricht University) presented to the European Parliament a Study on Cross-border nuclear safety, liability and cooperation in the European Union.

The abstract reads:

This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the PETI Committee, aims at gaining deeper insights into the legal aspects of cross border nuclear safety and cooperation in the European Union. It analyses the legal framework of nuclear safety as well as the liability and insurance schemes for nuclear accidents. The study examines the current liability and insurance framework and formulates possibilities for a further involvement of the EU in the liability regime. Specific attention is paid to citizen and NGO involvement in decision-making concerning nuclear power plants. The study analyses the case law in that respect and formulates various recommendations to improve the regime concerning cross-border nuclear safety, liability and corporation in the EU.

The study can be freely downloaded here.

An e-mail has been sent to those who registered for the second EAPIL Virtual Seminar, on Digital Teaching and Private International Law, scheduled to take place on 27 January 2021 from 5 to 7 p.m. (MET), with the details to join the seminar, via Zoom.

If you have registered, and don’t see our e-mail in your inbox, please check the spam folder.

For further queries, please refer to Susanne Gössl at sgoessl@law.uni-kiel.de.

For the first time since the entry into force of the 1968 Brussels Convention and the EU Regulations in the field of judicial cooperation in civil matters, the Greek Supreme Court was called recently to examine an application for recognition and enforcement of an English order awarding alimony to a wife, while at the same time regulating property issues between the spouses.

On 12 June 2020, the Supreme Court [Nr. 662/2020] ordered the reversal of the appellate judgment [Athens Court of Appeal 4789/2018, unreported], which in turn had rejected the husband’s appeal against the first instance decision granting the recognition and declaration of enforceability of the English order [Athens court of 1st Instance 420/2015, unreported].

The Ruling of the Supreme Court

The case at hand concerned an order of the Family Division of the High Court, which was issued upon the request of the wife in the course of divorce proceedings. In particular, the wife requested that she retain the ownership of the family house in London, and that she be granted the amount of ₤ 600.000 as a capitalised maintenance payment, plus 100% of the interests from a Merchant Investors assurance program, whereas the husband would retain the ownership of eight parcels of land in Greece.

The English court granted the request. The judge ruled as follows:

I consider that the wife’s need could be met by an even distribution of the assets listed in the KT list [i.e. the list prepared by the wife’s lawyer] and I therefore intend to issue a financial provision order in the form of a lump sum of 600,000 ₤ payable to the wife…  I am satisfied that the order I issue achieves the purpose of a fair distribution of assets between the parties.

The order to pay the lump sum raised an interesting issue of characterisation with far reaching consequences. It could either be regarded as a maintenance payment, or as distribution of the assets of the spouses, and thus related to their matrimonial property regime.

One of the consequences of the distinction is that separate legal regimes govern the enforcement of maintenance and matrimonial property judgments. Two different regulations apply: either the Maintenance Regulation, which provides for immediate enforcement (abolition of exequatur: Articles 17 et seq.), or the Matrimonial Property Regulation which has retained the ‘traditional’ requirement of a declaration of enforceability (Articles 36 et seq.). In this case, the application was filed prior to the entry into force of both regulations, but separate regimes already applied to each category. The Brussels I Regulation applied to maintenance, resulting in the simplified procedure of articles 38 et seq. Matrimonial property fell outside of the EU framework, and was thus governed by the common law of foreign judgments of the Member States (in Greece, Articles 323 & 905 of the Code of Civil Procedure), i.e. a more conservative regime, which, in addition to the international jurisdiction barrier (Article 323 No. 2), has a different starting point, as it is not bound by the famous principle of mutual trust and free movement of judicial decisions between EU Member States.

The Greek Supreme Court made the following characterisation:

The award of this lump sum does not have a supportive purpose; it does not seek to meet the basic needs of the applicant, so as to be considered a maintenance claim, but has a rather redistributive-compensatory purpose, leading to the distribution of assets between the spouses, as expressly stated in the reasoning of the foreign order.

In view of the above, the Supreme Court ruled that the dispute fell outside the scope of the Brussels I Regulation, pursuant to the exception under article 1 (2) (a) [rights in property arising out of a matrimonial relationship]. It allowed the appeal, and referred the case for retrial to the appellate court.

The Supreme court cited in support of its decision three judgments of the European Court of Justice, C-143/78, De Cavel, C-25/81, C.H.W. and C- 220/95, van den Boogaard. In van den Boogaard, the ECJ ruled:

a decision rendered in divorce proceedings ordering payment of a lump sum and transfer of ownership in certain property by one party to his or her former spouse must be regarded as relating to maintenance and therefore as falling within the scope of the Brussels Convention if its purpose is to ensure the former spouse’s maintenance.

Courts and scholars in other Member States have already  pointed out that the van den Boogaard ruling did not resolve the issue entirely, granting a margin of discretion to national judges.

Comparative Overview

A search of similar situations and their treatment by national courts of other Member States leads us to a ruling of the German Supreme Court from 2009 [BGH 12.08.2009, NJW-RR 2010, pp. 1 f = IPRax 2011, pp. 187 f]. Confronted with similar facts, the Bundesgerichtshof opted for a solution akin to the Judgment of Solomon: departing from the characterization of the case, it accentuated the dual function of the provision [Doppelfunktionalität der Vorschrift], and granted the request for recognition and declaration of enforceability of the part demonstrating qualitative features of a maintenance claim. Respectively, for the remaining part of the order, it proceeded in the fashion chosen by the Greek Supreme Court.

On the other hand, English scholarship tends to include similar cases under the category of maintenance claims, drawing an additional argument from Annexes I-IV of Reg. 4/2009, while at the same time taking into account the case law of the CJEU, and the possibility of separation, as opted by the German Supreme Court.

In a recent decision, the Swiss Court of Cassation overturned a decision which ruled that the Lugano Convention did not apply to an English Financial Remedy Order, and referred the case to the Zurich Supreme Court for resolving the crucial issue of distinction between maintenance and matrimonial property disputes. A comment on the ruling is available here

The Impact of the Ruling

The withdrawal of the United Kingdom from the EU does not undermine the importance of the Greek Supreme Court ruling for the future. The intentions of the English legislator are not yet revealed. As  is already widely known, a primary indication does not exist, given that the field of judicial cooperation in civil and commercial matters has been left outside the Agreement. The expected accession of the UK to the Lugano Convention has been recorded ad calendas Graecas. However, a specific instrument will continue to govern the enforcement of maintenance judgments. The Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance will substitute EU law in the relations between the UK and Greece. A change of course by the Greek Supreme Court is highly unlikely, however, and financial provision orders will be subject to domestic rules of recognition and enforcement.

It should also be underscored that the issue is not unique to the United Kingdom. Similar systems are to be found in the legislation of other Member States [e.g. the Republic of Ireland, and partly France]. Therefore, fresh applications are not to be ruled out. Prospective applicants are however advised to prepare the file more diligently: English orders are issued on the basis of a judgment. It is therefore considered necessary to produce a translated true copy of the foreign judgment, so that the judge is able to understand the peculiarities of the foreign system, and to decide upon having seen the whole picture in advance.

Private International Law in Poland has been recently released by Wolters Kluwer. The monograph is written by Ewa Kamarad and Anna Wysocka-Bar (one of this blog’s editors), both affiliated with Jagiellonian University (Poland).

The e-version of the monograph forms part of the International Encyclopaedia of Laws, the volume on Private International Law edited by Bea Verschraegen, available online (for subscribers, for example via Peace Palace Library e-resources).

Private international law rules in Poland are unified at the EU level to a great extent. However, this unification leaves certain areas to domestic PIL or international agreements, including numerous bilateral ones in force in Poland (for example, law applicable to rights in rem or recognition and enforcement of judgements coming from outside the EU). Additionally, certain areas are unified in the EU within the enhanced cooperation mechanism which means that not all EU Member States apply them (for example, law applicable to divorce, jurisdiction, applicable law, as well as recognition and enforcement of EU judgements in matrimonial property matters). Poland is an example of a Member State, which is not participating in this cooperation and continues to apply its own rules. Due to the above the book might be of interest to international public, academics and practitioners, as it constitutes a general sketch of the whole system of PIL in Poland.

On 30 September 2020, the French Supreme Court for private and criminal matters (Cour de cassation) issued a remarkable decision in the field of French international arbitration (Cass. Civ. 1st Chamber, 30 September 2020, no. 18-19.241).

The Court held that the power of the arbitral tribunal to determine its own jurisdiction based on Articles 1448 and 1506 of the French Civil Procedural Code shall not infringe consumers’ rights conferred by EU law. Therefore, an arbitration clause that is at odds with the requirements resulting form Directive 1993/13 concerning unfair terms in consumer contracts should be set aside by the courts.

EU Background

For those who are familiar with EU consumer law, the added-value of the decision may seem limited. Indeed, more than ten years ago, the European Court of justice ruled that national courts shall invalidate an unfair arbitration clause included in a B2C contract, on the basis of directive 1993/13 (Mostaza Claro, C-168/05 and Asturcom Telecomunicaciones SL, C-40/08). But the cases dealt with actions to set aside the arbitral award (for the first one) or to enforce it (for the second one); this means at the “post-award” procedural stage. Here, the French case concerns the prior phase of arbitration.

Facts and Issue

A French national sought the advice of a Spanish law firm for the succession of her father, opened in Spain. Despite the international reputation of the law firm’s mother company, the French client was not satisfied with the legal services provided for and sued the Spanish law firm for damages before French court. The law firm opposed an arbitration clause included within the legal services contracts concluded with her French client and, in the alternative, challenged the international competence of the court.

In response, the Court of Appeal set aside the arbitration clause on the basis of the prohibition of unfair terms in B2C contracts pursuant to Directive 93/13 (Article 3(1)) because the clause had not been individually negotiated. Then, the Court of Appeal recognised its jurisdiction pursuant to the Brussels I bis Regulation (Article 17(1)(c) and Article 18(1)). The law firm appealed to the French Supreme Court.

The main issue at stake, under French international arbitration law, was the implementation of the cornerstone principle of “jurisdiction to decide jurisdiction” (principe compétence-compétence) laid down in Article 1448 of the French Civil Procedure Code and applicable to international arbitration pursuant to Article 1506 of the same Code.

This principle has a twofold dimension. On the first hand, in case of dispute on the validity of an arbitration agreement, the arbitral tribunal has exclusive jurisdiction to assess its own jurisdiction. On the other hand, when such a dispute is brought before a court, such court shall decline jurisdiction. However, article 1448 provides for a narrow exception “if an arbitral tribunal has not yet been seized of the dispute and if the arbitration agreement is manifestly void or manifestly not applicable”.

Precedents and New Solution

Was the arbitration clause here “manifestly void”?

No, the law firm argued, as a comprehensive assessment by the Court of Appeal was needed to conclude to the unfair nature of the term. And this was indeed the position of the French Supreme Court so far, despite criticisms by the legal doctrine. In two famous cases, Jaguar (Cass. Civ., 1st Chamber, 21 May 1997) and Rado (Cass. Civ., 1st Chamber, 30 March 2004), related to B2C contracts, the French Supreme Court declined jurisdiction “in the absence of clear invalidity” of the arbitration clause and stated that the arbitral tribunal is entitled to apply any mandatory provisions commanded by the international public policy to assess its jurisdiction.

In the present case, the French Supreme Court overturns its jurisprudence and approves the decision of the Court of Appeal. However, the decision is taken outside the exception laid down in article 1448 (op. cit.). The solution is justified by the implementation of the “test of effectiveness” in the framework of the European principle of procedural autonomy. According to settled case-law of the Court of Justice:

“[…] in the absence of relevant Community rules, the detailed procedural rules designed to ensure the protection of the rights which individuals acquire under Community law are a matter for the domestic legal order of each Member State, under the principle of the procedural autonomy of the Member States, provided that they are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the Community legal order (principle of effectiveness)” (par. 24, Mostaza Claro, C-168/05).

As a consequence, the exclusive jurisdiction of arbitrators to assess the validity of an arbitration clause makes it more difficult for a claimant, in his/her capacity as European consumer, to benefit from his/her European rights, in particular in the present case the assessment of an arbitration clause under Directive 93/13. This is obviously a change of perspective, strongly documented by European case-law references in the ruling.

Assessment

In the present case, the French Supreme Court extends the principle of effectiveness into the prior stage of international arbitration proceedings. The control of an alleged violation of a European mandatory requirement by an arbitration clause shall therefore be undertaken ex ante to ensure the effectiveness of EU law.

It emerges from this decision that the autonomous nature of arbitration vis-à-vis State justice and national legal orders is incompatible with the autonomy of the European legal order. As arbitrators do not belong to any jurisdiction, shall we therefore assume, more globally, that they can never be trusted to implement European mandatory provisions, such as European consumer rights?

This decision is a key development from the French Supreme Court within a local legal framework that has traditionally shown a liberal as well as a favourable approach to international arbitration.