EAPIL blog

John Coyle (University of North Carolina) has posted Cruise Contracts, Public Policy, and Foreign Forum Selection Clauses on SSRN.

The abstract reads:

This Essay critiques the analytical framework used by the U.S. Court of Appeals for the Eleventh Circuit to determine when to enforce foreign forum selection clauses in cruise ship passenger contracts. In Estate of Myhra v. Royal Caribbean Cruises, Ltd., the Eleventh Circuit held that such clauses should be enforced even when the foreign court is likely to give effect to provisions in the Athens Convention that limit the liability of the cruise company. This approach is flawed, the Essay argues, because it fails to account for the fact that 46 U.S.C. § 30509 expressly prohibits cruise companies from utilizing contract provisions to limit their liability in passenger contracts. The Essay then looks to analogous cases from other areas of the law to propose a new analytical framework for evaluating when the courts should enforce foreign forum selection clauses in the cruise ship context.

The paper is forthcoming in the University of Miami Law Review.

After the semaine blanche, the Court of Justice will deliver some judgments and opinions, starting on 11 November 2020, with C-433/19, Ellmes Property Services. The request has been referred by the Oberster Gerichtshof (Austria), in a case where the applicant seeks to prevent the use of the apartment for tourist purposes, contrary to its designated use and in the absence of consent of the other co-owners; he claims the touristic use interferes with the applicant’s rights of co-ownership. He relies on Article 24(1) of the Brussels I bis Regulation; the defendant objects on the basis of the lack of local and international jurisdiction. The questions read as follows:

1. Is the first alternative in the first subparagraph of Article 24(1) of [the Brussels I bis Regulation] to be interpreted as meaning that actions brought by a co-owner seeking to prohibit another co-owner from carrying out changes to his property subject to co-ownership, in particular to its designated use, arbitrarily and without the consent of the other co-owners, concern the assertion of a right in rem?
2. If the first question should be answered in the negative: Is Article 7(1)(a) of the [Brussels I bis Regulation] to be interpreted as meaning that the actions referred to in paragraph 1 concern contractual obligations to be performed at the location of the property?

According to AG Szpunar (Opinion of June 18, 2020), the Court should reply:

1. Article 24(1) of [the Brussels I bis Regulation] must be interpreted as meaning that an action by a co-owner seeking to prevent the use of an apartment by another co-owner for tourist purposes, on the ground that such use is not that agreed in the co-ownership agreement, only falls under that provision if that use is enforceable erga omnes. It is for the national court to carry out the final appraisal in that respect.
2. Article 7(1)(a) of that regulation must be interpreted as meaning that, where the use agreed in the co-ownership agreement is not enforceable erga omnes, such an action falls within the concept of ‘matters relating to a contract’ within the meaning of that provision. In those circumstances, the contractual obligation at issue is an obligation not to do something, specifically, not to change the designated use of a property, in breach of the co-ownership agreement, at the place where the property is situated. In order to ascertain whether the place of performance of that obligation is the place where the apartment subject to co-ownership is situated, it is for the national court to determine that place of performance in accordance with the law governing that obligation on the basis of the conflict of law rules of the court seised.

The decision corresponds to the 1st Chamber (judges Bonichot, Silva de Lapuerta, Toader, Safjan, Jääskinen, with Ms. Silva de Lapuerta as reporting judge).

On 12 November 2020, AG Hogan’s Opinion on C-729/19, Department of Justice for Northern Ireland will be published. The request, from the Court of Appeal in Northern Ireland, is related to a dispute between a Polish national and the Department of Justice for Northern Ireland (the Central Authority for the purpose of the Maintenance Regulation). The questions for the Court focus on the temporary scope of application of the Regulation, and on the consequences of the incorporation of the Hague Protocol on the law applicable to maintenance obligations to the system of the Regulation:

1. Must Article 75(2) of the [Maintenance Regulation] be interpreted as applying only to “decisions” which were given in States that were member States of the EU at the time those decisions were made?
2. Bearing in mind that Poland is now a Member State of the European Union which is bound by the Hague Protocol, are maintenance decisions made by a Court in Poland in 1999 and 2003, that is, prior to Poland becoming a member state of the European Union, now capable of being registered and enforced in another EU Member State pursuant to any part of [the Maintenance Regulation], and in particular:
   (a) Pursuant to Article 75(3) and Article 56 of the Maintenance Regulation;
   (b) Pursuant to Article 75(2) and Section 2 of Chapter IV of the Maintenance regulation;
   (c) Pursuant to Article 75(2)(a) and Section 3 of Chapter IV of the Maintenance regulation;
   (d) Pursuant to any other Articles of the Regulation?

A hearing was held on 14 October 2020 where the parties, among other, explained their position, in the light of the judgment in C-283/16, S., on whether Article 75(3) of the maintenance regulation covers the situation where the Central Authority of the requested Member State has lodged with a court of a Member State an application for recognition of a decision in matters relating to maintenance obligations given in a third State that was transmitted to it, after the accession of that State to the European Union and after the date of application of the Maintenance Regulation, via the Central Authority of that new Member State.

Case C-519/19, DelayFix, a preliminary reference where the AG’s opinion was not requested, will be delivered on 18 November 2020. The reference was sent by the Regional Court in Warsaw in a dispute concerning the unfair character of a term (a choice of court clause) included in a consumer’s contract. The case involves the interpretation of Directive 93/13/EEC on unfair terms in consumer contracts and Article 25 of the Brussels I bis Regulation. As the claim had been assigned, the claimant was not the consumer himself, thus the question from the Polish Court. The judgment will be a 1st Chamber one (judges Bonichot, Bay Larsen, Toader, Safjan, Jääskinen; Ms. Toader is the reporting judge).

The much awaited judgment in C-59/19, Wikingerhof, is scheduled for 24 November 2020. It will be a Grand Chamber decision (judges Lenaerts, Silva de Lapuerta, Bonichot, Arabadjiev, Prechal, Piçarra, von Danwitz, Toader, Safjan, Šváby, Rodin, Jürimäe, Lycourgos, Xuereb, Rossi; Mr. Safjian as reporting judge). Here the question, submitted by the Bundesgerichtshof (Germany):

Is Article 7(2) of [the Brussels I bis Regulation] to be interpreted as meaning that jurisdiction for matters relating to tort or delict exists in respect of an action seeking an injunction against specific practices if it is possible that the conduct complained of is covered by contractual provisions, but the applicant asserts that those provisions are based on an abuse of a dominant position on the part of the defendant?

AG Saugmandsgaard Øe delivered his opinion last September. Here my translation (the official English one is not yet available):

Article 7, point 2, of Regulation (EU) No. 1215/2012 of the European Parliament and of the Council, of 12 December 2012, on jurisdiction, recognition and enforcement of judicial decisions in civil and commercial matters must be interpreted in the sense that a civil liability action, based on the infringement of competition law, is a matter relating to “delict or quasi-delict”, within the meaning of the provision, even in the in the event that the plaintiff and the defendant are parties to a contract and the anti-competitive behavior the plaintiff attributes to the defendant is reflected in their contractual relationship.

Finally, AG Bobek’s opinion in C-307/19, Obala i lučice – a preliminary reference from the Commercial Court of Appeal, Croatia – will be delivered on 26 November 2020. Not a short request, in relation to a civil proceedings to recover the principal amount of HRK 84 (some 11 Euros), owed as payment for a daily parking ticket for a car parked on the public highway in Zadar (Croatia):

1. Are notaries authorised to effect service of documents under [the Service Regulation] when they serve notice of their decisions in cases in which [the Brussels I bis Regulation] does not apply, bearing in mind that, in Croatia, notaries acting within the framework of the powers conferred on them by national law in enforcement proceedings based on an ‘authentic document’ do not fall within the concept of ‘court’ within the meaning of [the Brussels I bis Regulation]? In other words, given that notaries do not fall within the concept of ‘court’ for the purposes of [the Brussels I bis Regulation], are they able, when acting within the framework of the powers conferred on them by national law in enforcement proceedings based on an ‘authentic document’, to apply the rules governing service of documents established in [the Service Regulation]?
2. Can parking in the street and on the public highway, where the right to collect payment is conferred by the Zakon o sigurnosti prometa na cestama (Law on Road Safety) and the legislation governing the performance of municipal activities as public authority activities, be considered a civil matter within the meaning of [the Brussels I bis Regulation], which governs the question of the jurisdiction of the courts and the recognition and enforcement of judgments in civil and commercial matters, especially having regard to the fact that, where a vehicle is found without a parking ticket or with an invalid ticket, it is immediately subject to a requirement to pay for a daily ticket, as though it had been parked for the whole day, regardless of the precise length of time for which it was parked, meaning that this daily parking charge has a punitive effect, and that in some Member States this type of parking constitutes a traffic offence?
3. In court proceedings of the type referred to above concerning parking in the street and on the public highway, where the right to collect payment is conferred by the Law on Road Safety and the legislation governing the performance of municipal activities as public authority activities, can the courts effect service of a document on the defendants in another Member State under [the Service Regulation]?

If, based on the above questions, this type of parking is ruled to be a civil matter, the following further questions are referred.

4. In the present case, there is a presumption that a contract is concluded in respect of the aforesaid on-street parking in a space designated by horizontal and/or vertical markings; in other words, by parking there one is deemed to enter into a contract, and if one fails to pay the correct hourly parking charge one has to pay for a daily ticket. The question is therefore raised as to whether that presumption, that parking gives rise to a contract and entails consent to pay for a daily ticket if one does not buy a ticket in accordance with the hourly parking tariff or if the parking period on the ticket has expired, is contrary to the basic stipulations on the provision of services in Article 56 of the Treaty on the Functioning of the European Union and to the other provisions in the EU acquis.
5. In the present case the parking took place in Zadar, Croatia, and there is therefore a connection between that contract and the Croatian courts. But does this parking constitute a ‘service’ within the meaning of Article 7(1) of [the Brussels I bis Regulation], bearing in mind that the concept of service implies that the party who provides the service carries out a particular activity, that is, that the said party carries out that particular activity in return for remuneration. The question is therefore whether the activity carried out by the appellant is sufficient for it to be considered a service. If the Croatian courts do not have special jurisdiction under Article 7(1) of [the Brussels I bis Regulation], jurisdiction to hear the case would lie with the court of the respondent’s domicile.
6. Can parking in the street and on the public highway, where the right to collect payment is conferred by the Law on Road Safety and the legislation governing the performance of municipal activities as public authority activities, and charges are levied only during a specified period during the day, be considered a tenancy agreement for immovable property under Article 24(1) of [the Brussels I bis Regulation]?
7. If the aforementioned presumption that the parking entails the conclusion of a contract (fourth question referred) cannot be applied in this case, can this type of parking, where authority to collect parking charges is conferred by the Law on Road Safety and a daily ticket must be purchased if a ticket for the parking period is not purchased in advance or if the parking ticket has expired, be deemed to constitute a matter relating to tort, delict or quasi-delict within the meaning of Article 7(2) of [the Brussels I bis Regulation]?
8. In the present case, the parking took place before Croatia joined the European Union, specifically at 13.02 on 30 June 2012. Therefore, the question is asked whether the regulations governing applicable law, namely [the Rome I Regulation] or [the Rome II Regulation], apply in the present case, having regard to their temporal validity.

If the Court of Justice of the European Union has jurisdiction to provide a response on the application of the material law, the following question is referred.

9. Is the presumption that this type of parking gives rise to a contract and entails consent to pay for a daily ticket if one does not pay the hourly parking charges or if the ticket expires, contrary to the basic stipulations on the provision of services in Article 56 TFEU and to the other provisions of the acquis, irrespective of whether the owner of the vehicle is a natural or a legal person? In other words, for the purposes of determining the material law, can the provisions of Article 4 of [the Rome I Regulation] apply in this case (given that there is no evidence in the proceedings to show that the parties came to an agreement on the applicable law)?
   • If a contract is held to exist, would it be a contract for the provision of services in the present case, that is to say, can the parking contract be considered a service within the meaning of Article 4(1)(b) of [the Rome I Regulation]?
   • In the alternative, could the parking be considered to constitute a tenancy agreement in accordance with Article 4(1)(c) of [the Rome I Regulation]?
   • In the alternative, if the parking comes under the provisions of Article 4(2) of [the Rome I Regulation], the question arises as to what constitutes the characteristic performance in the present case, bearing in mind that, in essence, the appellant merely marks the parking area on the roadway and collects parking charges, while the respondent parks and pays for the parking. In practice, if the characteristic performance is considered to be that of the appellant, Croatian law would apply, whereas if the characteristic performance is that of the respondent, Slovenian law would apply. However, given that in this case the right to collect parking charges is regulated by Croatian law, with which, therefore, the contract is more closely connected, can the provisions of Article 4([3]) of [the Rome I Regulation] nevertheless also apply?
   • If the case is considered to involve a non-contractual obligation within the terms of [the Rome II Regulation], could this non-contractual obligation be considered to constitute damage, meaning that the applicable law would be determined in accordance with Article 4(1) of [that Regulation]?
   • In the alternative, could this type of parking be considered to constitute unjust enrichment, meaning that the applicable law would be determined in accordance with Article 10(1) of [the Rome II Regulation]?
   • In the alternative, could this type of parking be considered to constitute negotiorum gestio, in which case the applicable law would be determined in accordance with Article 11(1) of [the Rome II Regulation]?
   • In the alternative, could this type of parking be considered to constitute liability on the part of the respondent for culpa in contrahendo, in which case the applicable law would be determined in accordance with Article 12(1) of [the Rome II Regulation]?

A hearing was foreseen which could not be held (questions and answers were thus in written form). The decision will be taken by the 1st Chamber (judges Bonichot, Bay Larsen, Toader, Safjan, Jääskinen, with Ms. Toader as reporting judge).

In May 2019 a seminar took place in Madrid on the occasion of the 90th anniversary of UNIDROIT. A book has followed edited by Alfonso Luis Calvo Caravaca (Universidad Carlos III, Madrid) and Ignacio Tirado Martí (Universidad Autónoma, Madrid, current Secretary General of UNIDROIT), with contributions in English and Spanish from Lena Peters, Alfonso Luis Calvo Caravaca and Javier Carrascosa González, Marta Requejo Isidro, Carlos Fernández Liesa, Celia Caamiña Domínguez, Anna Veneziano, Teresa Rodríguez de las Heras, and William Brydie-Watson, recalling some of the main achievements of the organization. The introductory words by Prof. Calvo summarize his intervention a the seminar:

UNIDROIT emerged within the League of Nations in 1926. Its cradle is the origin and meaning of its mandate. The spirit of cooperation between nations, as a method of overcoming the differences that had plagued much of the world during the First World War, had its corollary in bringing the different legal systems closer together and promoting socio-economic exchanges between citizens. of the world. In large part, the idea that was beating was none other than the consideration of commercial relations as the axis on which to build a world in peace.

The founding ideas remain in the DNA of the institution, which began as predominantly European (since the Great War had been predominantly European) and gradually became global. Currently, UNIDROIT gathers 63 countries, including all members of the G-20 and covering 80% of the world’s population. There has never been a better time for the unification of private law. UNIDROIT is part of the list of international organizations known as “Las Tres Hermanas” (the Three Sisters), together with the Hague Conference on Private International Law and the United Nations Commission for International Trade Law. The three institutions are currently developing an almost frenetic activity of great practical and academic relevance. This relationship, synergistic and sustained over time, entails a reciprocal benefit that we aspire to reinforce with this initiative, which we hope will be followed by many others.

For more information, see here.

We are happy to announce that Alina Ontanu, of the University of Rotterdam, has joined the team of the EAPIL blog! Check her first post, which is out today.

As indicated in the inaugural issue of the EAPIL Newsletter, we wish to further expand the team. Interested EAPIL members are encouraged to get in touch with the managing editor, Pietro Franzina, at pietro.franzina@unicatt.it.

Applications from scholars or practitioners willing to report about developments in countries other than the countries currently covered by the team are especially welcome (the team is now covering Cyprus, France, Germany, Greece, Italy, Luxembourg, the Netherlands, Poland, Romania, and Spain).

The Blog is also seeking to appoint a social media manager, to improve and consolidate the Blog’s presence on LinkedIn, Twitter etc. Those applying for editor are encouraged to state whether they would also be happy to take care of the latter aspects.

On 6 November 2020 (13:30 – 16:30 CET) the Royal Netherlands Society of International Law (KNVIR) will be holding its Annual Meeting online via Zoom. This year the invited legal experts will be focusing on the theme of adaptability of (private) international law to the digital environment.

In their presentations Marjolein Busstra, Wieteke Teeuwen (Dutch Ministry of Foreign Affairs), Ybo Buruma (Netherlands Supreme Court and Radboud University Nijmegen), and Jerker B. Svantesson (Bond University; Swedish Law & Informatics Research Institute, Stockholm University, Sweden and Masaryk University) will be discussing whether the concepts and ideas developed in the ‘predigital era’ still fit the digital world. In doing so the speakers will analyse whether international law (both public and private) is ready for the digital era or whether law has been a rather ‘fragmented follower of developments’ and we should be fundamentally rethinking a number of notions and approaches.

Marjolein Busstra and Wieteke Teeuwen will focus on International Law in the Context of Cyber Operations. Ybo Buruma will look at internet from the perspective of International Law and Cyberspace – Issues of Sovereignty and the Common Good. Finally, Jerker B. Svantesson will be discussing whether International Law [Is] Ready for the (Already Ongoing) Digital Age: Perspectives from Private and Public International Law.

Registration is open until 3 November 2000 at info@knvir.org.

The reports (preadviezen) prepared by the legal experts have been published in November by Asser Press under the title International Law for a Digitalised World. You can find more information about this here.

The author of this post is Jorg Sladič, associate professor of International and European Law at the European Faculty of Law in Ljubljana.

On 11 August 2020, the Slovenian Supreme Court dismissed an appeal challenging the enforcement of an Austrian judgement compelling the judgment debtor to pay levies to the Austrian Construction Workers’ Annual Leave and Severance Pay Fund, known as BUAK (Bauarbeiter-Urlaubs- und Abfertigungskasse). The sums (claims for wage supplements regarding annual leave pay) to be paid to BUAK even though rather a matter of Austrian public law are under interpretation of Brussels I bis Regulation a civil and commercial matter (case Cpg 8/2020, ECLI:SI:VSRS:2020:CPG.8.2020).

A Slovenian judgment debtor was condemned by an Austrian court upon application of the Austrian person of public law BUAK to pay a sum of money as capital and a levy for claims for wage supplements regarding annual leave to BUAK on 3 May 2018.

The Austrian judgment-creditor moved to enforce the judgment. A Slovenian court granted a writ of execution on 16 June 2019. The judgement-debtor appealed and the appeal arrived at the Slovenian Supreme Court and raised among others a plea in law according to which such an Austrian judgement is contrary to Slovenian public policy. As it was alleged that the liabilities to be paid under the Austrian judgement were already paid under Slovenian law, the enforcement would mean a double payment of the same obligation. Anyhow, according to the judgment-debtor the said Austrian judgment is not a civil or commercial matter governed by Brussels I bis Regulation as the judgment-creditor BUAK is a legal person of public law, the obligation to be paid under the said Austrian judgement (claim for wage supplements regarding annual leave pay) is an obligation of public law or even a levy

The Supreme Court dismissed the appeal on the following grounds.

Article 1(1) of the Brussels I Regulation provides that it applies to civil and commercial matters, but does not cover tax, customs or administrative matters or the State’s liability for acts and omissions in the exercise of State authority (acta iure imperii). Point (c) of the second paragraph of Article 1 of the Regulation explicitly states that it does not apply to social security.

As the Court of First Instance rightly explained, the question of the applicability of the Brussels I bis Regulation has already been settled by the Court of Justice in a preliminary ruling in the case of Korana, decided in 2019 (Case C-579/17). The Court of Justice clarified that the term “civil and commercial matters” must be interpreted autonomously under the regulation and that the fact that BUAK has the status of a collective body governed by public law is not decisive. The legal basis of the relationship from which the claim originates shall be decisive.

The employer’s obligation to pay wage supplements regarding annual leave claimed by BUAK before the Austrian forum is inextricably linked to the employees’ right to annual leave paid under civil law, so the nature of BUAK’s claim is also that of a right under civil law. In addition, a distinction must be made between cases where BUAK itself can issue a certificate of unpaid debts, which is an enforceable title, and cases – such as the case under consideration – where BUAK has to claim unpaid wage supplements regarding annual leave belonging to posted workers not having their habitual place of work in Austria before a court, which is also an argument in favour of the nature of the claim as being a claim of civil law.

The Court of Justice of the EU has in addition also ruled that this is not a benefit in the sense of the“social security” exception, which would also be excluded from the scope of the Brussels I bis Regulation. A social security benefit exists where it would be granted to beneficiaries on the basis of a legally defined position without any individual or discretionary assessment of personal needs. In the present case, however, the issue is the remuneration for annual leave, which in turn depends on the wage supplements, which are the legal basis for employer’s payment. Remuneration for annual leave in connection with work performed by a posted worker must be paid by the employer, even if the payment is made through the BUAK.

Decisions of the Court of Justice of the EU on preliminary questions are binding on the national courts of the Member States, therefore the applicants’ disagreement with the position of the Court of Justice cannot lead to different conclusions than those already reached by the Court of First Instance in the contested order. The Brussels I bis Regulation also applies to claims of BUAK for wage supplements regarding annual leave of posted workers, as these claims are of a civil nature.

The applicants’ plea that the levies or contributions claimed by the judgement-creditor in the enforcement proceedings referring to the Austrian judgment had already been paid in Slovenia, as a result the recognition and enforcement of the judgment of the Republic of Austria is allegedly contrary to Slovenian ordre public does not have any merits. In the appeal, the appellants (judgment-debtors) themselves claim that the Slovenian legal order does not provide for the payment wage supplements regarding annual leave of posted workers in the construction sector, as foreseen in Austrian law, therefore as a consequence the performance of obligations under the challenged judgement cannot already notionally constitute a double payment of the same claim. The mere fact that the Slovenian legal system does not legislate on a certain contribution or that it enacts contributions differently does not mean that the payment of a claim under the impugned judgment is contrary to the Slovenian ordre public. Namely, ordre public does not include all mandatory provisions of domestic law, but only those imperative legal norms and moral rules, the violation of which would endanger the integrity of the Slovenian legal order. However, the payment of contributions in favour of workers does not justify such opposition.

The ruling does completely comply with the judgment of the Court of Justice in the 2019 Korana case. The Slovenian and the ECJ cases both refer to Slovenian posted workers in the construction sector in Austria (Slovenia and Austria are neighbouring countries). At the economic level both cases show how the freedom of movement and freedom to provide services operate between East- and West EU. Whereas the Korana case concerned a litigation before the Labour and Social Court of Vienna, the discussed Slovenian case shows the next stage, i.e. the enforcement of Austrian rulings in Slovenia.

The only surprising element in this case is the timing. The Korana case was decided by the ECJ on 28 February 2019, the first ruling by the highest national court of another EU Member State where an enforcement of Austrian judgements based on that ruling is sought was handed down already on 11 August 2020. Considering the translation issues, the service of judicial and extrajudicial documents in civil or commercial matters between two EU Member States and then the Coronavirus pandemics, the cross-border cooperation between Slovenia and Austria seems to work quite fast.

A webinar, organised by the Young EU Private International Law Research Network (an EAPIL activity), will take place on 16 November 2020, from 9.15 to 15.30. The webinar’s topic is Overriding Mandatory Rules in the Law of the EU Member States.

Speakers include Katarzyna Bogdzevič (Mykolas Romeris University), Stefano Dominelli (University of Genoa), István Erdős (ELTE), Uglješa Grušić (University College London), Holger Jacobs (University of Mainz), Martina Melcher (University of Graz, co-chair of the Network), Markus Petsche (Central European University), Ennio Piovesani (University of Turin/University of Cologne), Johannes Ungerer (University of Oxford), Tamás Szabados (ELTE, co-chair of the Network), Dora Zgrabljić Rotar (University of Zagreb).

The sessions will be chaired by Florian Heindler (Sigmund Freud University Vienna) and Eduardo Alvarez-Armas (Brunel University London).

The full of programme of the event is available here.

Attendance is free of charge, but those interested in attending are asked to register via email at youngeupil@gmail.com before 12 November 2020.

Complaints about the inefficiency of enforcement mechanisms at national and transnational level are not new. The insufficiency of existing national and international legal frameworks is a growing cause for concern at all levels. Academics and practitioners acknowledge the fundamental importance of procedures and mechanisms for the effective enforcement of creditors’ claims both in domestic and in cross border situations. They also agree on the existence of numerous obstacles for enforcement in most jurisdictions, and on the need for a comprehensive and  detailed international instrument providing for guidance for national legislators to overcome such challenges.

In the agenda UNIDROIT (the International Institute for the Unification of Private Law) has published for the triennial period 2020 – 2022, transnational principles of civil procedure are included with
– high priority:  Formulation of regional rules;
– medium priority : Principles of effective enforcement (NoA: priority was moved to “high” by the UNIDROIT Governing Council at its 99th session);
– low priority:  International Civil Procedure in Latin America.

As a matter of fact, UNIDROIT has been actively working towards a soft harmonisation of civil procedural rules – mainly to be applied in transnational disputes but also meant to provide guidance in domestic law reforms- already for a while. In 2004, the Governing Council of UNIDROIT adopted the so-called ALI/UNIDROIT Principles of Transnational Civil Procedure (ALI=American Law Institute), which the organization itself defines as its “landmark instrument in this area”.

The ‘Principles’ consist of 31 provisions accompanied by a commentary. They aim to reconcile differences among various national rules of civil procedure, taking into account the peculiarities of transnational disputes as compared to purely domestic ones. They are intended to serve as guidelines for code projects in countries without long procedural traditions; also, as a basis for reform in countries with long and high-quality procedural traditions. They may also be applied by analogy in international commercial arbitration.

In 2013, UNIDROIT and the European Law Institute (ELI) started working together towards the development of European Rules of Civil Procedure. The ELI – UNIDROIT Rules were presented in an International Workshop Webwinar held as a closing event of the 99th session of the UNIDROIT Governing Council, on 25 September 2020.

In addition, UNIDROIT Work Programme 2017-2019 envisaged the preparation of Transnational Principles of Effective Enforcement to bridge the gaps of the ALI/ UNIDROIT Principles of Transnational Civil Procedure in this regard. A preliminary feasibility study was conducted by Rolf Stürner, Emeritus Professor at the University of Freiburg (Germany) and former co-reporter of the ALI/UNIDROIT Principles of Transnational Civil Procedure, and submitted to the Governing Council at its 95th session (2016). According to its final conclusion

Principles will set common minimum standards of enforcement, they will motivate legislatures to evaluate and improve the quality of their laws and thereby strengthen the efficiency of enforcement in foreign countries. Common minimum standards will be a source of increasing harmonization of enforcement laws, as well as predictability of the results of enforcement measures in foreign countries and facilitation of enforcement in cross border cases. A certain degree of harmonization is a necessary precondition of international cooperation in the field of cross border enforcement, which is designed to avoid conflicts of sovereignty and conflicting or superfluous parallel and cost intensive enforcement measures. Worldwide, there is sufficient common ground for specific principles of individual modes of enforcement and for overarching general principles of an overall system of efficient civil enforcement. The variety of organizational structures should not be considered a decisive obstacle to harmonizing principles. It will be possible to develop principles, which define managerial standards to be met by the enforcement mechanisms and the individual enforcement authorities and which at the same time leave necessary leeway for successful regional traditions and local needs. Co-operation with other organizations dealing with the harmonization of law could result in a helpful increase of human and financial resources. The experience of the first joint project with the American Law Institute was very encouraging.

At the time, the topic was nevertheless accorded low priority, which meant the work would only commence after the completion of the preparation of European Rules of Civil Procedure. In this context, the Secretariat received in December 2018 a proposal for the 2020-2022 Work Programme by the World Bank regarding a project on the “Development of a Working Paper to Outline Best Practices on Debt Enforcement”, which it presented on the occasion of the discussion of the 2020-2022 Work Programme at the 98th Session of the Governing Council. The proposal was discussed as a continuation, and a refinement, of the scope of the  “Principles of Effective Enforcement”, and eventually included in the new Work Programme by the General Assembly.

On 21 September 2020, the UNIDROIT Secretariat, as mandated by the Governing Council at the first meeting of the 99th  session, convened an internal consultation workshop on the project on Best Practices of Effective Enforcement. The UNIDROIT Governing Council, at its 99th session, approved the guidelines provided by the Secretariat regarding the proposed scope of the project, and authorised the establishment of a Working Group, to meet in Rome and on Zoom on 30-November – 2 December 2020. The composition of the group has not yet been disclosed; the MPI Luxembourg will be represented as an observer.

If the initial schedule is kept, the project will be a quick one, coming to an end already in 2022. No doubt it is worth to follow its development and to reflect on its potential impact on the law and practice of cross-border enforcement within the EU and beyond.

A collection of essays edited by Florian Heindler (Sigmund Freud University, Vienna) has recently been published by Jan Sramek Verlag, in its Interdisciplinary Studies of Comparative and Private International Law series. The book celebrates the 40th birthday of the Austrian Private International Law Act.

The essays collected are authored by scholars for various countries and focus on the possible reform of the Act and its current value.

Authors include Andrea Bonomi, Axel Flessner, Fabienne Jault-Seseke, Thomas John, Caroline Sophie Rupp, Thomas Bachner, Ena-Marlis Bajons, Wolfgang Faber, Edwin Gitschthaler, Florian Heindler, Helmut Heiss, Brigitta Lurger, Martina Melcher, Andreas Schwartze, and Bea Verschraegen.

More details available here.

The Russian Legal Information Agency has announced that Russia’s Justice Ministry, acting jointly with the Foreign Ministry and the Supreme Court of the Russian Federation, proposed that the Government pass a recommendation to sign the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (the ‘Convention’).

Although there were previously fake news circulating on the internet in this respect, it seems that Russia may well ratify the Convention or, at the very least, that Russian elites are contemplating doing so.

But why would Russia do that?

According to the Russian Agency, the answer seems to be that Russia would want to “create conditions for the recognition and enforcement of decisions taken by Russian courts in all [contracting States] of the new Convention.”

So, Russia hopes to improve the enforcement of Russian judgments abroad. This seems quite logical. Improving the enforcement of the forum’s judgments abroad is a common rationale for entering into bilateral treaties on the enforcement of foreign judgments and for having a reciprocity requirement in the forum’s law of foreign judgments.

There is, however, a downside: by entering into a treaty on the enforcement of foreign judgments, the contracting States also commit themselves to enforcing judgments rendered by other contracting States. In other words, if Russia ratifies the 2019 Convention, it will also promise to enforce in Russia judgments rendered by the courts of other contracting States.

The Russian law of foreign judgments is not liberal. The basic rule is that Russia only enforces judgments on the basis of a treaty. While Russian courts have sometimes accepted to enforce foreign judgments in the absence of treaty under the principle of comity, Russian law remains conservative in this respect.

In contrast, many other States have a very liberal law of foreign judgments, and have enforced Russian judgements on the basis of their common law of foreign judgments, without caring for any form of reciprocity. These liberal States include, among many others, the United States and France. In the US, in particular, courts have enforced Russian judgments on numerous occasions (in 2018, Russian judgments were enforced by New York and California courts, for instance). The 2019 Convention will not improve the prospects of enforcement of Russian judgments in those states.

So the main effect of entering into the 2019 Convention may well be that Russia will commit to enforce judgments that it would not enforce today. In other words, the 2019 Convention would certainly liberalize the Russian law of foreign judgments, but it is unclear to which extent it would improve the enforcement of Russian judgments abroad.

Surely, there are other States with a conservative law of foreign judgments. If these other States ratify the Convention, Russia will have improved the prospects of enforcing its judgments in these states. But who are these states and are they planning to sign the 2019 Convention? And are these states Significant trading partners of Russia? Otherwise, why should Russia care?

Germany is no doubt one of the biggest trading partners of Russia, and there is a reciprocity requirement under the German law of foreign judgments. Maybe German courts have denied enforcement to Russian judgments, but maybe they have considered that the prospects of enforcement of German judgments in Russia were such that German courts should enforce Russian judgments. Our German readers will tell.

A major judicial partner of Russia has been, lately, England. The English common law of judgments is pretty conservative, in particular with respect to the assessment of the jurisdiction of foreign courts. Because of Brexit, England is likely to sign the 2019 Convention. By entering into the Convention as well, the enforcement of Russian judgments in England would then improve. This might be enough of an incentive for Russia to enter into the Convention.

It would be great news for the rest of the world if Russia ratified the 2019 Judgments Convention. Whether it would be good news for Russia remains to be seen.

Ronald A. Brand (University of Pittsburgh School of Law) has published a paper titled Comparative Method and International Litigation on the Journal of Dispute Resolution 273 (2020).

The abstract reads:

In this article, resulting from a presentation at the 2019 Annual Meeting of the American Society of Comparative Law, I apply comparative method to international litigation. I do so from the perspective of a U.S.-trained lawyer who has been involved for over 25 years in the negotiations that produced both the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters. The law of jurisdiction and judgments recognition is probably most often taught in a litigation context. Nonetheless, that law has as much or more importance to the transaction planning lawyer as to the litigator, and affects my focus here for comparative study of developments both in the Hague Conference process and in national (and regional) legal systems during the negotiation of the two treaties with which I have been involved. I look not only at domestic law, but also at treaties and other international legal instruments – the comparative evolution of the law. Moreover, I look at both legal rules and legal systems, addressing the comparative evolution of the institutions that make the law. This includes a comparison of the most influential legal systems at the start of the Hague negotiations. The differences resulting from that comparison ultimately affected the focus of the negotiations and the text of the resulting legal instruments. I end with a set of four conclusions based on these observations and comparisons.

See also here.

Matthias Weller (University of Bonn) has posted The HCCH 2019 Judgments Convention: New Trends in Trust Management on SSRN.

The abstract reads:

On its 22nd Diplomatic Session on 2 July 2019, the Hague Conference on Private International Law concluded its Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. The adoption of this Convention completes intense efforts of the HCC and the participating State Parties since 1992. One of the controversial issues in the last steps before the adoption was what has been called, in other contexts, “trust management”. This concept refers to the question how to embark on meaningful judicial cooperation in civil matters with participating states whose administration of justice is perceived as not sufficiently trust-worthy by other participating states – the “real elephant in the room”. At the same time, judicial integration in civil matters is an indispensable part of regulating transnational trade relations. Undoubtedly, international commercial arbitration should have the fullest possible freedom and support. However, without any effective alternative, there is no “alternative” dispute resolution and no “freedom of choice”. Rather, nations and regions, particularly those trading within frameworks of economic integration and thus on an intensified scale, should strive for an “integrated approach”. Against this background, the text explores new trends of trust management of the new HCCH instrument.

The article was published in the Festschrift für Herbert Kronke zum 70. Geburtstag.

The EAPIL Blog hosts today two posts on the ruling of the Court of Justice in E.E., a case regarding the Succession Regulation decided on 16 July 2020. The firs post, by Matthias Lehmann, appeared this morning. The second post, by Carlos Santaló Goris, a research fellow at the MPI Luxembourg and a Ph.D. candidate at the University of Luxembourg, is featured below.

On 16 July 2020, the Court of Justice of the European Union (“CJEU”) delivered its sixth judgment on Regulation No 650/2012 (the Succession Regulation): C-80/19, E. E.

The preliminary reference allowed the CJEU to address several questions about the
Succession Regulation’s rules on jurisdiction, applicable law, and recognition and enforcement. It also gave the CJEU the opportunity to clarify certain elements of the Succession Regulation: some of them new (such as the determination of the habitual residence), others already familiar to the Court (e.g. are notaries ‘courts’ for the purposes of the Succession Regulation?).

E.E.’s mother – the deceased – was a Lithuanian national who, in 2013, got married to a German national and moved to Germany. The same year she made a will before a Lithuanian notary. In 2017, she passed away in Germany. E.E., also of Lithuanian nationality, requested a notary in Kaunas (Lithuania) to open the succession and issue a certificate of succession rights. The notary rejected the requests arguing the deceased was habitually resident in Germany: therefore, according to the jurisdictional rules of the Succession Regulation, it was up to German authorities to open the succession. E.E. challenged the notary’s refusal. The case ended up before the Supreme Court of Lithuania, which referred the following questions to the CJEU:

(1) Is a situation such as that in the case under examination — in which a Lithuanian national whose habitual place of residence on the day of her death was possibly in another Member State, but who in any event had never severed her links with her homeland, and who, inter alia, had drawn up, prior to her death, a will in Lithuania and left all of her assets to her heir, a Lithuanian national, and at the time of the opening of the succession it was established that the entire estate comprised immovable property located solely in Lithuania, and a national of that other Member State surviving his spouse expressed in clear terms his intention to waive all claims to the estate of the deceased, did not take part in the court proceedings brought in Lithuania, and consented to the jurisdiction of the Lithuanian courts and the application of Lithuanian law — to be regarded as a succession with cross-border implications within the meaning of [the Succession Regulation]?

(2) Is a Lithuanian notary who opens a succession case, issues a certificate of succession rights and carries out other actions necessary for the heir to assert his or her rights to be regarded as a ‘court’ within the meaning of Article 3(2) of [the Regulation]?

(3) If the second question is answered in the affirmative, are certificates of succession rights issued by Lithuanian notaries to be regarded as being decisions within the meaning of Article 3(1)(g) of [the Succession Regulation] and must jurisdiction for that reason be established for the purpose of issuing them?

(4) If the second question is answered in the negative, should the provisions of Articles 4 and 59 of [the Succession Regulation] be construed as meaning that Lithuanian notaries are entitled to issue certificates of succession rights without following general rules on jurisdiction and that such certificates will be held to be authentic instruments which also give rise to legal consequences in other Member States?

(5) Must Article 4 of [the Succession Regulation] (or other provisions thereof) be construed as meaning that the habitual place of residence of the deceased can be established in only one specific Member State?

Should the provisions of Articles 4, 5, 7 and 22 of [the Regulation] be construed and applied in such a way that, in the present case, in accordance with the facts as set out in the first question, it must be concluded that the parties concerned agreed that the courts in Lithuania should have jurisdiction and that Lithuanian law should be applied?

The CJEU addressed first whether a deceased may have more than one habitual residence for the purposes of the Succession Regulation. Indeed, in the case at hand, there were data suggesting that the habitual residence of the de cujus could have been located in two Member States: she had lived for a while in Germany when she passed away, but she held Lithuanian nationality and all her assets were in Lithuania. However, the CJEU made it clear that there can be only one habitual residence. A different answer would lead to a fragmented succession, something that the Succession Regulation aims at avoiding (para. 41).

Was the habitual residence of the deceased in Germany, or rather in Lithuania? The Regulation itself acknowledges that determining the place of habitual residence is not always easy. Some domestic courts have already struggled with this issue. The CJEU relies on the guidance offered by the Regulation’s Preamble, Recitals 23 and 24, inviting the referring court to consider both in order to establish the habitual residence of the deceased in the case at hand.

It is here submitted that by relying on the recitals, the CJEU has vested them with some kind of normative value. From now on, domestic authorities shall consider recitals 23 and 24 of the Succession Regulation when confronted with the need to determine the habitual residence of a deceased. Moreover, the Court’s reasoning indicates how to apply the recitals. First, the national authorities shall rely on Recital 23 to try and establish a close and stable connection with a Member State, taking into account both subjective factors (e.g., why the deceased lived in that Member State) and objective factors (e.g., how long the deceased spent in that Member State). Only if they fail can domestic authorities rely on Recital 24 and consider other data, such as the nationality or the location of the assets.

The CJEU was asked as well whether the succession of E.E.’s mother qualified as one with cross-border implications. Indeed, as the CJEU recalls, the Succession Regulation only applies to such successions (paras. 34 – 35). However, there is no definition of what the European legislator meant by ‘cross-border implications.’ In this sense, the CJEU states: “it must be assessed whether the succession has a cross-border nature due to the location of another element of it in a State other than that of the deceased’s last habitual residence” (para. 42). But what are these other elements? In a non-exhaustive manner, the CJEU referred to the location of the deceased’s assets in a Member State other than the one of habitual residence of the deceased (para. 43). Therefore, in the present case, the succession of E.E.’s mother would fall under the scope of the Regulation if Germany prevails as “habitual residence”, for the estate assets (an apartment) are located in Lithuania.

By contrast, if ultimately (very unlikely, though) the national court prefers Lithuania as place of habitual residence, both the assets and habitual residence would be located in the same Member State. Would the succession be a purely internal one, then? The question arises whether other factors confer a cross-border dimension to a succession; the E.E. judgment is of little help here. Instead, one should look at the AG Opinion, where reference is made as well to the heirs’ habitual residence as a significant element to determine the succession’s cross-border implications (para. 65). In the present case, both potential heirs (E.E. and his stepfather) had their habitual residence in Germany. Therefore, should the deceased’s habitual residence be deemed to be Lithuania, the succession would still be one of interest for the Regulation.

The referring court also asks whether Lithuanian notaries are “courts” within the meaning of the Succession Regulation. A positive answer would have meant that they are subject to the Succession Regulation’s jurisdictional rules. The question is not new for the CJEU. In C-658/17, WB, a similar one had been referred concerning Polish notaries. The CJEU answered in the negative: the Polish notaries lack “judicial functions” (para. 61), i.e., “the power to rule of [their] own motion on possible points of contention between the parties concerned“(para. 55).

The CJEU applied the same logic in E.E. It appears from its reasoning that Lithuanian notaries in functions like the one deployed in the case at stake are not courts within the meaning of Article 3 of the Succession Regulation (para. 53). However, the CJEU does not say it so in so many words, but leaves it to the referring court to decide (para. 54).

Since the CJEU follows WB, the same critical remarks the judgment has met within scholarly circles will probably apply to E.E.. The CJEU did not fully elaborate on the notion of court, but simply referred to one of the characteristics mentioned in Article 3(2). Additionally, the notion of “jurisdictional functions” retained appears to be inconsistent with C-20/17, Oberle, where the CJEU ruled that the issuance of a domestic certificate of succession by a German court was subject to the Succession Regulation’s jurisdictional rules, in spite of the fact that the proceeding were not “judicial” in the sense of WB (and, now, E.E.). Several scholars have expressed their surprise that a certificate of succession rendered by a German court fall within the Succession Regulation’s jurisdictional scheme, but one rendered by a Lithuanian or a Polish notary does not.

One may wonder whether E.E. was actually a suitable occasion to work out a comprehensive notion of “court”. True, in E.E., the question was formulated in slightly broader terms than in WB. In the latter, the referring court asked whether a Polish notary issuing a certificate of succession is a ‘court’. Conversely, in the latter, the referring court asked whether a Lithuanian notary was a court when it “issues a certificate of succession rights and carries out other actions necessary for the heir to assert his or her rights.” This notwithstanding, it seems that Lithuanian and Polish notaries are quite similar. Thus, it is not surprising that the CJEU followed the same approach. There might be better occasions to address the issue again.

The CJEU was also requested to determine whether a Lithuanian domestic certificate of succession was a judgment (if notaries are regarded as courts), or an authentic instrument (if notaries are not regarded as courts). The Court explored both possibilities:

Should the notaries be “courts” in the sense of the Regulation, they would be subject to its jurisdictional rules (para. 62), and the national certificate of succession would be a judgment within the meaning of Article (para. 63).

Conversely, if notaries are not ‘courts’, the certificate of succession would be an ‘authentic instrument,’ as long as it fulfils the characteristics imposed by the Succession Regulation on this type of instruments (paras. 72 – 73).

The CJEU’s outcome is hardly surprising considering that it had already explored this point in WB, on the Polish domestic certificate of succession.

In principle, under the Succession Regulation, the courts’ jurisdiction and the applicable law corresponds to the Member State of the deceased’s habitual residence. However, the Regulation grants a certain degree of autonomy to the deceased and to the heirs to opt for a different applicable law and another jurisdiction, respectively. This freedom is nonetheless limited: the deceased can only choose the law of the State his/her nationality (Article 22); the heirs can only opt for the courts of a Member State whose law had been chosen by the deceased (Article 5, Article 7). In E.E., the referring court was uncertain as to whether the deceased had actually opted for the law of her nationality, and the heirs for the jurisdiction of the Lithuanian courts.

Concerning the applicable law, E.E.’s mother had not expressly chosen the law of her nationality. Nonetheless, Article 83(4) of the Regulation creates a fiction according to which “if a disposition of property upon death was made prior to 17 August 2015 in accordance with the law which the deceased could have chosen in accordance with this Regulation, that law shall be deemed to have been chosen as the law applicable to the succession”. Since E.E.’s mother drew up her will before a Lithuanian notary in 2013 according to Lithuanian law, the fiction applies (para. 26) .

Lithuanian law being applicable, the referring court wondered if the potential heirs (E.E. and the deceased’s husband) had chosen the jurisdiction of Lithuanian courts. According to the Succession Regulation they could have done it through a choice-of-court agreement (Article 5); or through express declarations in which they accepted the jurisdiction of the court seized (Article 7). In the present case, unilateral declarations had been made by the deceased’s husband in Germany waiving any claim to the estate, consenting to the jurisdiction of the Lithuanian court and refusing to enter an appearance before it in the proceedings under way in that State. It is clear that these declarations do not amount to an Article 5 choice-of-agreement (para. 85); could they be an “express declaration” in the sense of Article 7? One more time, the CJEU leaves the question open, to be decided by the referring court. AG Campos Sánchez-Bordona went a step further, suggesting a flexible reading of the party’s autonomy. In his words, “it is appropriate to recall that the Regulation must not be read in such a way as to prevent parties from settling a succession out of court in a Member State which they have chosen, if that is possible under the law of that Member State” (para. 122).

E.E. will hardly be seen as a landmark case on the Succession Regulation. The main contribution/output of this judgment is the elaboration on an autonomous concept of “habitual residence”, based on the Preamble of the Regulation; and the characterization of Article 83(4) as a fiction, and not a presumption. Beyond that, the answer to the other questions is relatively basic, sometimes even disappointing . The CJEU either relies on what it had already said in previous cases without moving forward (e.g., Oberle; WB); or it paraphrases the text of the Succession Regulation. The referring court may find the AG’s Opinion more instructive than the judgment: something not unusual, and – even if not aimed at by the CJUE’s procedural and estructural rules- a good example of teamwork.

At any rate, E.E. remains an interesting case in that it reflects common difficulties faced by the domestic authorities when dealing with the Succession Regulation.

The EAPIL Blog hosts today two posts on the ruling of the Court of Justice in E.E., a case regarding the Succession Regulation decided on 16 July 2020. Matthias Lehmann and Carlos Santaló Goris, the authors of the two contributions, approach the judgment from different angles and express different views (the post by Carlos Santaló Goris will be out later today). Readers are encouraged to join the discussion!

Sometimes the Directorates for Legal Translations of the Court can take forever to translate a judgment into the other official languages. The bottleneck is increasingly the English language, as there seems to be a draught of English interpreters. An illustration of the phenomenon is the judgment in E.E. (Case C-80/19), which was rendered on 16 July 2020, and for which, to this day, no English translation is yet available.

This should not stop us from taking a closer look at the judgment. In fact, it is the first one to deal with several fundamental issues of the Succession Regulation. Let’s take them one by one after having recapitulated the facts.

A Lithuanian national had married a German national and lived with him in Germany. In 2013 she made a will before a notary in Lithuania, designating her son E.E. as her only heir. When she died, her estate basically consisted of a piece of real estate in Lithuania.

After the death of his mother, E.E. applied to a Lithuanian notary for a certificate of succession. The notary refused to deliver it on the ground that the deceased’s habitual residence had been in Germany. E.E. brought a claim against the notary before the Lithuanian tribunals. During the proceedings, the German spouse of the deceased declared to have no interest in the succession and agreed to the jurisdiction of the Lithuanian tribunals.

Based on these facts, the Lithuanian Supreme Court decided to refer a number of preliminary questions to the CJEU.

The first question raised related to the applicability of the Succession Regulation. The Lithuanian Supreme Court asked whether a succession like the one underlying the reference for preliminary ruling could be considered as having cross-border implications. The notion “succession with cross-border implications” is not used in the rules of the Regulation, but rather in its Preamble (Recitals 1, 7 and 67) as well as in the legal basis on which the Regulation was enacted (Art. 81 TFEU).

To ask whether a case like the present one has cross-border implications may seem factitious, given that the deceased had lived in Germany and owned an asset in Lithuania.

But the Lithuanian Supreme Court highlighted that despite having her last habitual residence in Germany, the deceased had never broken her links with her country of origin, where she had drawn up a will and were almost all her estate was located. The referring court therefore also raised the (fifth) question whether the habitual residence of the deceased can only be located in a specific Member State.

This implied the possibility of multiple habitual residences under the Regulation, which would have been ground-breaking indeed.

The CJEU takes the opportunity to underline that the Regulation is built on the concept of a single habitual residence of the deceased (para 40). Any other interpretation would lead to a fragmentation of the succession (para 41).

Unsurprisingly, the Court of Justice found that a succession has cross-border implications where the habitual residence of the deceased and her major assets were located in different Member States (para 45). One might even say that this is a paradigm case falling within the scope of the Regulation. Thus, the first and the fifth questions were essentially smokescreens which were easily dealt with by the court.

The next set of questions (2 to 4) concerned the jurisdiction of the notary to issue an authentic instrument of succession.

The CJEU first clarified helpfully that a Lithuanian notary is not to be regarded as a “court” within the meaning of Art. 3(2) of the Regulation because it does not have the right to exercise judicial functions (para 54). The only exception is where it acted pursuant to a delegation of power by a judicial authority or under the control of such an authority (para 55). The CJEU left it to the national court to ascertain whether this is the case.

If the notary is not to be regarded as a court – which seems highly likely –, she would not be bound by the rules on jurisdiction enshrined in Art. 4 to 19 of the Regulation (paras 66 and 80). In particular, she can issue a national succession certificate regardless of the habitual residence of the deceased (para 80).

The Court rightly emphasises in this context that the principle of unity of succession is not absolute (para 69). Nothing therefore stops authorities from different Member States to issue certificates regarding the same succession. Article 64 of the Regulation is an outlier because it concerns the European Certificate Succession, which indeed can only be issued by the authorities of one Member State (para 70).

Although the notary issuing a national certificate of succession is not bound by the rules on jurisdiction of the Regulation, the authentic instrument she issues under national law will have the same evidentiary effects in other Member States as it has in the Member State of origin (paras 75 to 77). This is clearly set out in Art. 59 of the Regulation, which has no link whatsoever to the provisions regarding jurisdiction in Art. 4 to 19 of the Regulation. National authentic instruments will therefore freely circulate within the Union independently of the Member State in which they are made.

 Perhaps the most interesting part of the decision (question 6) concerns the conditions of a choice of law in a will. The deceased had drawn up the will in Lithuania before the entry into force of the Regulation in 2015. The Court concludes that this disposition is deemed to be a choice of law under Art. 83(4) of the Regulation given that the will was made in accordance with Lithuanian law.

Interestingly, the Court bases the conclusion that the will was made “in accordance with Lithuanian law” on the simple fact that the will was made in Lithuania. No other conditions, such as an expression of the testator’s intent or an allusion or reference to the law of Lithuania in the text of the will, seem to be required.

This generous interpretation by the Court greatly facilitates the determination of a choice of law before the entry into force of the Regulation. In future cases, it will be sufficient to prove that the will has been made before a notary of a certain Member State in order to show that the deceased chose the law of this Member State.

Even bad references can make good law. The CJEU has used the opportunity of the somewhat confused reference for preliminary ruling by the Lithuanian Supreme Court to clarify some important issues regarding the Succession Regulation. In particular, it is now clear that a single habitual residence of the deceased has to be identified, that notaries issuing national certificates of succession are not bound by the rules on jurisdiction of the Regulation, and that wills made before a notary prior to the entry into force of the Regulation amount to a choice of the law of the notary’s Member State. If we could finally get this decision in English, the situation would be even clearer. 

A free webinar on Access to Justice in cross-border Litigation: Lugano v. the Hague will take place on 27 October 2020, at 12.00 CET, organised by the UK Law Societies Joint Brussels Office.

The webinar aims at exploring the implications of the UK leaving the EU system of enforcement and recognition of judgments in civil and commercial matters on access to justice for citizens.

In particular, the speakers will examine what the future relationship of the UK and EU regarding the enforcement of judgments in civil and commercial matters will look like under both the Lugano Convention and alternatively, The Hague Judgments Convention. The panel will discuss the consequences of both scenarios on citizens and businesses.

The panellists are Philip Thorsen (Partner at Mazanti-Andersen Korso Jensen, Copenhagen), Christopher Deacon (Partner at Stewart & Stewart, London) and Guido Callegari (Partner at De Berti Jacchia Franchini Forlani, Milan).

The discussion will be moderated by Diana Wallis (University of Hull, former President of the European Law Institute and former Vice-president of the European Parliament).

More details and advance registration here.

Joseph William Singer (Harvard Law School) has published a new casebook on the American Conflict of Laws (Choice of Law – Patterns, Arguments, Practices). As its titles makes clear, its focus is on choice of law, but the book also includes two chapters on Procedure and Constitutional Law which present issues related to jurisdiction and foreign judgments.

The book is different from other American casebooks on conflict of laws in many respects. For foreign scholars, the most important will probably be that it is far more readable and accessible. US casebooks typically offer extracts of cases followed by questions. This might be good to teach American students to think like a lawyer, but for those who will not attend the class, it is not easy to know what American law actually is. Singer summarises the cases instead, and offers comments and his own views on the development of the law.

In particular, the book is a great source on the trends of the emerging Third Restatement, that Singer presents and assesses. The Restatement is still very much a work in progress, but some chapters have now been approved by the council of the American Law Institute, in particular on choice of law and torts, and the drafts are not freely available. The book offers an excellent insight in the most recent version of December 2019, in particular the new choice of law rules on torts.

The book also promotes a different type of learning. More specifically, it promotes experiential learning through persuasion, and includes for that purpose 11 moot courts exercises.

This book provides a new way to learn about the topic of conflicts of law through experiential learning. Most books describe the approaches that have been adopted over time to decide conflicts of laws. This book describes those approaches and includes the emerging Third Restatement. To promote experiential learning, it does more: First, it explains patterns of cases so that students can fit new cases into established frames of reference. Second, it distinguishes between easy cases and hard cases so students can determine when a case cannot be easily resolved. Third, it provides detailed arguments that are typically made on both sides of hard cases that fit the typical patterns. Fourth, it concludes with moot court exercises that students could perform in class to practice advocacy in this field and judging.

With new requirements to provide students with experiential learning opportunities, this text enables any teacher to give students the tools they need to understand the issues in the field, the reasons why cases are hard, the arguments that are available on both sides, and justifications that judges can give for resolving cases one way or the other.

Finally, the book ends with a chapter addressing the issues arising out of the existence of Indian nations and tribal sovereignty in the US, which add 573 governments in the conflicts equation, and are typically neglected in US conflicts books.

A new commentary on the Brussels I bis Regulation, in Greek, has recently been published.

The book is edited by Paris S. Arvanitakis and Evangelos Vassilakakis, and forms part of a series devoted to the ‘Interpretation of European Regulations on Private and Procedural International Law’. The previous volumes in the series cover the Brussels II bis Regulation (2016), the Service Regulation (2018), and the Small Claims Regulation (2019) Regulations. Commentaries on the Succession and Maintenance Regulations are scheduled for publication in the near future.

Academics, judges and other practitioners contributed to the commentary to the Brussels I bis Regulation, including Eyangelos Vasilakakis, Paris S. Arvanitakis, Apostolos M. Anthimos, Panagiotis S. Giannopoulos, Ioannis S. Delikostopoulos, Stefania Kapaktsi, Vasileios Kourtis, Dimitrios Kranis, Salomi Mouzoura, Kyriakos Oikonomou, Ioannis Revolidis, Konstantinos Ir. Rigas, Christos Triantafyllidis, Antonios D. Tsavdaridis, Sofia Fourlari and Christina Chatzidandi.

More info available here (in Greek).

As announced earlier on this blog, the Working Group on International Property Law will hold a webinar on the suitability and feasibility of a European Regulation on International Property Law via Zoom on Tuesday, 20 October 2020 at 12:30 CEST.

The current members of the Working Group will shortly discuss the various facets of the topic. A discussion will follow, open to participants.

The programme of the webinar is as follwos:

• Teun Struycken (Amsterdam/Utrecht): The Significance of International Property Law (case study)
• Teemu Juutilainen (Turku): The Impact of Free Movement of Goods and Services on International Property Law
• Gilles Cuniberti (Luxembourg): The Impact of the Acquis Communautaire on International Property Law
• Janeen M Carruthers (Glasgow): Global Measures for the Unification of Private International Rules pertaining to Property
• Eva-Maria Kieninger (Würzburg): The Way Ahead: Topics and Goals of the Working Group

Use this link to attend the webinar (meeting ID: 722 581 7358; password is 493028).

Ilaria Viarengo and Francesca Villata (both University of Milan) have edited Planning the Future of Cross Border Families – A Path Through Coordination, which has just been published by Hart.

This book is built upon the outcomes of the EUFam’s Project, financially supported by the EU Civil Justice Programme and led by the University of Milan. Also involved are the Universities of Heidelberg, Osijek, Valencia and Verona, the MPI in Luxembourg, the Italian and Spanish Family Lawyers Associations and training academies for judges in Italy and Croatia. The book seeks to offer an exhaustive overview of the regulatory framework of private international law in family and succession matters. The book addresses current features of the Brussels IIa, Rome III, Maintenance and Succession Regulations, the 2007 Hague Protocol, the 2007 Hague Recovery Convention and new Regulations on Property Regimes. The contributions are authored by more than 30 experts in cross-border family and succession matters. They introduce social and cultural issues of cross-border families, set up the scope of all EU family and succession regulations, examine rules on jurisdiction, applicable law and recognition and enforcement regimes and focus on the current problems of EU family and succession law (lis pendens in third States, forum necessitatis, Brexit and interactions with other legal instruments). The book also contains national reports from 6 Member States and annexes of interest for both legal scholars and practitioners (policy guidelines, model clauses and protocols).

Authors include Christian Kohler, Thomas Pfeiffer, Rosario Espinosa Calabuig, Diletta Danieli, Mirela Župan, Martina Drventic, Carmen Azcárraga Monzonís, Pablo Quinzá Redondo, Guillermo Palao Moreno, Thalia Kruger, Jacopo Re, Stefania Bariatti, Elena D’Alessandro, Cristina González Beilfuss, Maria Caterina Baruffi, Paul Beaumont, Patrick Kinsch, Laura Carballo Pineiro, Andrea Schulz, Hrvoje Grubišic, Cinzia Peraro, and Marta Requejo Isidro.

More information here.

On 2 September 2020, the French Supreme Court for private and criminal matters (Cour de cassation) issued an interesting decision on both service of judicial documents and international jurisdiction (Cass., First Civil Chamber, 2 September 2020, no. 19-15.337, unreported).

Although elementary at first view, the case provides a good opportunity to discuss the global understanding and acceptance of European private international law rules by French courts.

Private investors living in France suffered financial losses following financial services contracts concluded with a company governed by English law, established in London. They sued the company before French courts. Despite an agreement conferring jurisdiction in favour of English courts provided for in the general conditions, the Parisian tribunal accepted its jurisdiction. The Parisian Court of appeal confirmed the judgement. The company appealed to the French Supreme Court.

First, the company disputed, on the basis of (inter alia) the Service of documents Regulation, the validity of the writ of summons which was served to the branch manager of the company in France, pursuant domestic procedural rules and not at its head office in London. Second, the company challenged the French jurisdiction by virtue of the jurisdiction clause, pursuant Brussels I bis Regulation, while the first judges had applied the French jurisdictional rules to invalidate the clause.

Were these two EU regulations the relevant legal basis in this case, instead of the domestic PIL rules?

Responding to the first litigious item, the French Supreme Court precludes the application of the Service of documents Regulation and confirms the decision of the Court of appeal. The presence in France of a representative of the foreign company eliminates the cross-border dimension of the transmission of documents. Therefore, the transmission of the writ of summons to the branch manager of the company in France was valid since it complied with French domestic procedural law. Then, regarding the competent jurisdiction, the validity of the agreement conferring jurisdiction shall be assessed pursuant Brussels I bis Regulation and not pursuant to national PIL. EU law prevails on national rules. The French Supreme Court invalidates the decision of the Parisian Court of appeal on that latter ground.

Behind these two legal issues, the case deals with the articulation between EU and national PIL rules. Despite the well-known principle of primacy of EU law, French judges still have difficulties to implement EU PIL. More globally, they are maybe not fully aware of the multilevel sources in the field and, in particular, how their articulation works

But why? How could we explain this “judicial malfunction” regarding EU PIL? Without being dramatic, nor prophetic, I would like to suggest two possible lines of thought.

The non-application of the Service of documents Regulation is not surprising regarding the case law of the French Supreme Court. The Commercial Chamber of the Court ruled exactly the same in 2012, regarding another London-based company having a representative in France (Comm. Chamber, 20 November 2012, no. 11-17.653). Domestic procedural rules on service of documents regain the upper hand thanks to the legal representation ad agendumin France. But the French Supreme Court does not give any explicit grounds for its ruling regarding EU law. The European Regulation is set aside without consistent legal explanations. It surely contributes to the lack of awareness of French judges regarding EU PIL instruments in procedural and cooperation matters.

Some scholars have mentioned an implicit reference to recital 8 of the Regulation, which lays down that it “should not apply to service of a document on the party’s authorised representative in the Member State where the proceedings are taking place regardless of the place of residence of that party”. Recital 8 should provide for a kind of subsidiarity of the European regime on cross-border transmission of documents, vis-à-vis national rules.

However, the European Court of Justice had the opportunity to clarify the scope of this recital in Adler (C-325/11). The ECJ ruled that

from a systematic interpretation of the regulation […] [it] provides for only two circumstances in which the service of a judicial document between Member States falls outside its scope, namely (i) where the permanent or habitual residence of the addressee is unknown and (ii) where that person has appointed an authorised representative in the Member State where the judicial proceedings are taking place (para 24).

In order to support a uniform application of the regulation, the circumstances in which a judicial document has to be served in another Member State should not be conducted by reference to the national law of the Member State in which the proceedings take place (see paras 26-27). This is, however, the core reasoning of the French Supreme Court.

When should it be considered that the litigant (here the London-based company) has appointed an “authorised representative”? Should the manager of the branch of the company be considered a “representative” within the meaning of the Service of documents Regulation? In the end, the French Supreme Court could have referred a question to the Court of Justice. Its ruling takes the opposite direction.

At least, it shows that a legal explanation from the French Supreme Court of its solution would have not been superfluous.

On the contrary, when explaining why French PIL rules are not the relevant legal basis to control the validity of the prorogation, the French Supreme Court  takes a true educational approach towards  the lower courts (see already Civ. First Chamber, 23 January 2008, no. 06-21.898 under Article 23 of Brussels I regulation). The validity of the agreement conferring jurisdiction had to be assessed under Article 25 of the Brussels I bis Regulation, applicable to prorogations of jurisdiction in favour of the national Court of an EU Member State (including the UK at the time of the dispute) in civil and commercial matters.

Why did the lower courts did not apply EU PIL? Quite ironically, the absence of French PIL codification can be an explanation for the faulty reasoning of the lower courts. It should be recalled that the French rules of international jurisdiction do not formally exist. They are the result of an extension of the domestic territorial jurisdiction rules into international disputes (see Civ. First Civil Chamber, 30 October 1962, Scheffel). This could explain why the lower courts applied the French Civil Procedural Code, mixing up domestic and international disputes, and the related applicable procedural rules.

Such a basic legal mistake grounded on the oversight of EU PIL requires all the attention of the French expert group on French PIL codification recently created by the French Ministry of Justice. A future Code should probably recall that the validity of an agreement conferring jurisdiction in a cross-border relationship has to be assessed pursuant supra-national sources, in particular the 2005 Hague Convention and the Brussels I bis Regulation and, by default only, pursuant national PIL rules. Clarity regarding multilevel sources in PIL (and their articulation) is crucial for operational legal practice.

Last but not least, Brexit will add more complexity in such a case as it will require applying the 2005 Hague Convention instead of the Brussels I bis Regulation. The London-based company will have to be regarded as located in a third State which is a Contracting Party to the Convention (Article 26(6) of the 2005 Hague Convention).

French courts, get ready!