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That London is a global capital for dispute resolution is well known. But even by London standards, Corinna zu Sayn-Wittgenstein-Sayn v His Majesty Juan Carlos Alfonso Victor Maria De Borbón Y Borbón is a spectacular litigation. Like in all complex international litigation, private international law has a role to play in this case. This is the aspect of the case that the High Court (Rice J) addressed in its judgment of 6 October 2023.

This case is complex, as is the High Court judgment, which spans 307 paragraphs or 92 pages. This post will present the key facts of the case, before addressing the four issues of relevance for private international law that the court addressed, namely submission to the court’s jurisdiction, Article 7(2) of the Brussels I bis Regulation, immunity under the State Immunity Act 1978, and the territorial scope of the Protection from Harassment Act 1997.

Facts

The defendant was King of Spain between 1975 and 2014, when he abdicated the throne. The claimant is an international businesswoman. Both parties have a cosmopolitan lifestyle and maintain homes around the world. The parties agreed that the defendant was domiciled in Spain for the purposes of the proceedings, even though he had been living in Abu Dhabi since August 2020. The claimant is a Danish national with a residence in Monaco and a home in England.

The parties were in an intimate relationship between 2004 and 2009. Their relationship came to public attention in April 2012 in the aftermath of an elephant-hunting trip to Botswana. In June 2012, the defendant paid €65m to the claimant, the purpose of which is a matter of dispute and controversy. Shortly thereafter the defendant allegedly started to harass the claimant. Harassment allegedly continued after the defendant’s abdication.

The facts pleaded by the claimant are complex, but are conveniently summarised at [259]:

the Defendant (a) intimidated and pressured the Claimant over the use of the June 2012 payment, (b) threatened and intimidated her more generally, (c) made allegations of stealing, untrustworthiness and disloyalty with a view to disrupting her relations with friends and family, (d) made similar defamatory statements to her clients and business associates, (e) supplied false information to the media, with a view to publication, relating to her financial probity and alleging she was a threat to the Spanish national interest and/or was trying to blackmail the royal family, and (f) placed her and her advisers under surveillance, trespassed onto and damaged her Shropshire property and intercepted or monitored the mobile and internet accounts of herself and her advisors.

These acts of harassment were alleged to have occurred in different countries, including Austria, the Bahamas, England, Monaco, Saudi Arabia, Spain, Switzerland, Tahiti, United Arab Emirates, and the United States.

It is on the basis of these facts that the claimant brought a claim in England under the Protection from Harassment Act 1997 on 16 October 2020, two and a half months before the expiry of the Brexit transition period on 31 December 2020. This, coupled with the fact that the defendant was domiciled in Spain, meant that Brussels I bis applied.

The defendant’s first line of defence was sovereign immunity. On 6 December 2022, the Court of Appeal held that the defendant enjoyed immunity from the jurisdiction of the English courts under the State Immunity Act 1978 with respect to the allegations about his pre-abdication, but not post-abdication conduct. This paved the way for the issues that the High Court addressed in its judgment of 6 October 2023.

Submission

Submission is a recognised basis of jurisdiction under Article 26 of Brussels I bis. As a matter of High Court procedure, jurisdictional challenge and submission to jurisdiction are dealt with generally by Civil Procedure Rule 11. CPR 11(4)(a) provides that an application under this rule must be made within 14 days after filing an acknowledgment of service. Otherwise, the defendant is to be treated as having accepted that the court has jurisdiction to try the claim pursuant to CPR 11(5)(b).

The defendant filed an acknowledgment of service on 4 June 2021 and ticked the box ‘I intend to contest jurisdiction’. The claimant argued that the defendant should have disputed the court’s jurisdiction under Brussels I bis within 14 days. Instead, the defendant made a general challenge to the court’s personal jurisdiction in his application notice of 18 June 2021 ‘on grounds that England is not the appropriate forum’ and sought ‘to set aside the service on the Defendant out of the jurisdiction, which was improperly effected’. On 21 February 2023, the defendant abandoned his objection to the service of the claim. A specific challenge to the court’s jurisdiction under Brussels I bis was not made until 22 March 2023. This specific challenge was made pursuant to case management directions that followed the Court of Appeal’s judgment on the immunity issue.

The court held that the defendant did not submit on the basis that his jurisdictional challenge was not abusive, that his general challenge to the court’s personal jurisdiction of 18 June 2021 was sufficient at that stage, and that extension of time and relief from sanctions should be granted to cure any deemed submission that might have arisen by virtue of CPR 11(5)(b) from the lapse of a month between the abandonment of the service challenge and its replacement by the Brussels I bis challenge.

Article 7(2) of Brussels I bis

The heart of the judgment concerns the interpretation and application of Article 7(2) of Brussels I bis to a harassment claim and is found at [51]-[134]. This part of the judgment deals with four key points: the relationship between an autonomous interpretation of Article 7(2) and the domestic law under which the claim is pleaded; the elements of the tort of harassment under English law; whether the event giving rise to the damage occurred in England; and whether the damage occurred in England.

Relationship between Autonomous Interpretation and Domestic Law

It is undisputed that the concept of the ‘place of the harmful event’ in Article 7(2) requires an autonomous interpretation. But the question arose whether the domestic law under which the claim was pleaded had a role to play in this respect. The court provided a positive answer to this question. It quoted with approval [32]-[33] of the Supreme Court judgment in JSC BTA Bank v Ablyazov:

However, the requirement of an autonomous interpretation does not mean that the component elements of the cause of action in domestic law are irrelevant. On the contrary, they have a vital role in defining the legally relevant conduct and thus identifying the acts which fall to be located… In particular, whether an event is harmful is determined by national law.

This led the court to conclude that, for the purposes of determining whether the event giving rise to the damage occurred in England and whether the damage occurred in England, ‘the relevant “event” and “damage” are determined by English tort law, [which] requires consideration of whether the relevant components of an actionable tort, occurring in England, have been made out’ to the standard of a good arguable case ([63]-[64]).

Elements of the Tort of Harassment

This brought the Protection from Harassment Act 1997, which introduced the tort of harassment into English law, to the spotlight. According to the court, the essence of the tort of harassment is that

it as ‘a persistent and deliberate course of unreasonable and oppressive conduct, targeted at another person, which is calculated to and does cause that person alarm, fear or distress’. The conduct ‘must cross the boundary between that which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the border from the regrettable to the objectionable, the gravity of the misconduct must be of an order which would sustain criminal liability’. ([69], referring to [40] of the High Court judgment in Hayden v Dickinson)

Importantly:

a course of conduct is something more than a series of events attributed to the same person. A ‘course of conduct’ is more than the additive sum of its parts. A nexus between the activities complained of is required; a court must assess whether the acts complained of are separate or linked together to form a specific and coherent whole. ([72])

Armed with this insight, the court proceeded to determine whether the event giving rise to the damage occurred in England and whether the damage occurred in England.

Event Giving Rise to the Damage

The parties clearly had a deep and multifaceted relationship that went spectacularly sour. It was also clear that the parties’ relationship, including its most unpleasant aspects and their consequences, spanned multiple jurisdictions. Two issues of relevance concerning the interpretation of the ‘event giving rise to the damage’ limb of Article 7(2), however, were not clear.

The first issue concerns the fact that acts of harassment can be done by a defendant directly or by another person on the defendant’s behalf. The question arose whether the acts of another person acting on the defendant’s behalf in England could amount to an act of the defendant in England for the purposes of Article 7(2). To answer this question, the court relied on the Melzer judgment of the Court of Justice:

I do not, and do not need to, take from this any clear principle that the acts of an agent cannot constitute the acts of a principal for the purposes of the ‘cause’ limb of the jurisdictional test where the agent acts in one jurisdiction on the authority of a principal in another. But I was shown no clear authority for the contrary principle either. And I do take from Melzer at least the thoughts that (a) the BRR concerns itself in principle with the issue of a causal act by one person being attributed to another under national law for the purposes of determining jurisdiction, because that tends against the fundamental principles of certainty, predictability and the proximity of a defendant’s conduct to the courts of another country and (b) great care needs to be taken with appeals to intuition as to the ‘right’ outcome in such matters, when the starting point is the fundamental principle of a defendant’s entitlement to be sued in his place of domicile, subject only to limited exceptions of a predictable nature made in the interests of the effective administration of justice. ([104])

The second issue is whether Article 7(2) required an English course of conduct to confer jurisdiction on the English courts, or whether an international course of conduct with acts of harassment in England sufficed. The court held that the former approach was right:

The jurisdictional test cannot be satisfied by doing no more than identifying a collection of English acts featuring in a pleaded international course of conduct and inviting an inference that they themselves add up to an actionable course of conduct in their own right… The right approach works the other way around. It has to start with the pleaded identification of an English course of conduct and then establish that, through pleaded constituent acts of the Defendant in England. Whether any ‘English subset’ of a pleaded international course of conduct amounts to an actionable tort in its own right must itself be pleaded and evidenced. It cannot be assumed as matter of logic to have that quality: harassment is a distinctively cumulative tort, and pleading a whole course of conduct as harassment does not imply pleading that any subset of it must itself constitute harassment (even though it may). ([106])

The court ultimately held that the claimant failed to identify and evidence a tortious course of conduct by the defendant with the necessary coherence, connectivity, persistence, and gravity constituting harassment that occurred in England.

Damage

The question of whether the relevant damage occurred in England raised related issues. Does Article 7(2) require that the claimant became aware of harassing events and experienced alarm, fear, and distress in England, that the proximate and direct damage occurred in England, or perhaps that something else occurred in England?

The court held that:

The impact of any individual constituent episode of that course of conduct is simply not the legally relevant ‘damage’ as defined by English tort law. Any individual episode need have no particular effect at all – it is the cumulative, oppressive effect of the total course of conduct which is of the essence of the tort. ([109])

In other words, the legally relevant damage is ‘just “being harassed”’ ([111]).

The claimant failed to identify and plead any specific experience of harassment in England. Instead, she pleaded an indivisible, ambulatory, and international experience of being harassed, which was not recognisable as distinctively English. Consequently, no relevant damage occurred in England. The court suggested that had the claimant had an English domicile, habitual residence, or physical presence in England throughout, she might have satisfied the requirements of the ‘damage’ limb of Article 7(2) ([118]).

Immunity

As mentioned, the Court of Appeal held on 6 December 2022 that the defendant enjoyed immunity from the jurisdiction of the English courts under the State Immunity Act 1978 with respect to the allegations about his pre-abdication, but not post-abdication conduct. Before the High Court, the claimant had another go at this by seeking permission to amend her pleadings to include pre-abdication matters on two bases: that these matters concerned the defendant’s motives for his post-abdication course of conduct; and these matters were part of the relevant background. The court refused permission because these matters were covered by immunity.

Extraterritoriality

Finally, the court addressed the issue of territorial scope of the Protection from Harassment Act 1997. As is well-known, common law courts apply the presumption against the extraterritorial application of domestic statutes. Since the case contained international elements, the question arose whether it fell outside the territorial scope of the Act.

The court indicated briefly that the Act had territorial limits and that the case fell outside those limits:

It is one thing to say that regard may arguably be had to an extraterritorial ‘act of a defendant’ in an otherwise securely pleaded and evidenced ‘course of conduct’ within the jurisdiction. It may also be right that ultimately…some sort of test of preponderance or ‘significant proportion’ might conceivably evolve to meet the facts of a particular case. But there is no authority at present which comes close to giving any basis for concluding that fully ‘international harassment’ is comprehended within the geographical scope of the Act and I was given no contextual basis for inferring a Parliamentary intention to achieve that as a matter of public policy. ([291])

Comment

This is a complex and rich case and it is impossible to examine it fully within the confines of a blog post that is already too long. I want, nevertheless, to mention three points by way of commentary.

The first point concerns Brexit and the civil law/common law divide in international civil litigation. Civil law jurisdiction rules, epitomised by Brussels I bis, allocate jurisdiction in a rigid way. Jurisdictional bases are limited in number and relatively narrow. Common law jurisdiction rules are flexible, and jurisdictional bases are more numerous and relatively broad. These two approaches to jurisdiction, and how they play out in tort disputes, were recently discussed by the UK Supreme Court in Brownlie 2. Mrs zu Sayn-Wittgenstein-Sayn was in a unique position in that she could choose the jurisdictional system under which to bring her claim. By commencing her proceedings in October 2020, she effectively opted for Brussels I bis. Had she waited a few months and commenced her proceedings after the expiry of the Brexit transition period on 31 December 2020, she could have sued the defendant under the common law rules. It is possible that the claim would have passed the tortious jurisdictional gateway, but the forum conveniens doctrine would have presented a significant challenge. That is probably why the claimant chose to sue the defendant under Brussels I bis.

The second point concerns the court’s interpretation and application of Article 7(2) of Brussels I bis. In Shevill, the Court of Justice confirmed that the domestic law under which the claim is pleaded is of relevance for the application of Article 7(2):

The criteria for assessing whether the event in question is harmful and the evidence required of the existence and extent of the harm alleged by the victim of the defamation are not governed by the Convention but by the substantive law determined by the national conflict of laws rules of the court seised, provided that the effectiveness of the Convention is not thereby impaired. ([41])

The court seised on the opportunity created by Shevill to limit the jurisdiction of English courts over harassment claims. Through section 9 of the Defamation Act 2013, Parliament sought to end London’s position as the global libel litigation capital. The High Court judgment in Corinna zu Sayn-Wittgenstein-Sayn v His Majesty Juan Carlos Alfonso Victor Maria De Borbón Y Borbón can be seen as a related development in the field of harassment.

Finally, the third point concerns the choice-of-law aspect of the case. Even though this was a jurisdictional dispute, the court nevertheless opined on the issue of extraterritoriality. It is interesting, however, that the court approached the issue of application of the Protection from Harassment Act 1997 purely as an issue of statutory construction. There was no mention of the possibility that the choice-of-law rules of the Rome II Regulation (which is retained EU law) might have a role to play in this respect. I think that Rome II, at least if it is applied as directly applicable EU law, requires a different approach. The court should have started its analysis by applying the choice-of-law rules of Rome II. If English law applied, the court could have checked whether the case fell within the territorial scope of the Act. If English law did not apply, the court could have checked whether the Act should nevertheless apply on an overriding basis. A further question could then be asked, namely whether Rome II effects in any way the process of statutory construction.

The parties are in a bitter dispute. The claimant is likely to appeal the High Court judgment. The next chapter in this litigation is keenly awaited.

This national conference will be held on 21 February 2024 at The University of Sydney Law School in Australia.

Business compliance in international transactions across the Asia-Pacific region holds immense importance for organizations seeking to expand their activities within this dynamic and evolving landscape. Multinational corporations operating in Asia Pacific often confront unique compliance challenges due to the swiftly changing regulatory and geopolitical environment in the region.

We welcome scholars, irrespective of their career stage, to submit paper or panel proposals for presentation at the conference. The event will take place at the Camperdown campus of the University of Sydney Law School in Sydney, Australia, on February 21, 2024 in a hybrid format (in-person or online presentation). The conference is specifically designed to provide researchers with the opportunity to present their work-in-progress papers to fellow scholars. The primary language of the conference will be English.

We are enthusiastic about receiving proposals that delve into various aspects of business compliance in international business transactions, especially:

• Key Compliance Risk Areas:
  • Criminal Law Compliance: corporate crime, anti-corruption law, fraud and cyber fraud, anti-money laundering and counter terrorism financing, etc.
  • Data Protection and Digital Trade Compliance: cross-border privacy protections, data security laws, crypto asset regulatory frameworks, governance of AI and digital trade, etc.
  • Dispute Resolution related Compliance: complex private international law issues associated with jurisdiction, choice of law, and judgement recognition and enforcement, arbitration and mediation, sanctions, foreign state sovereign immunity, etc.
  • Environmental, Social and Governance (ESG) Disclosure and Traceability Compliance: climate change disclosure regulations, modern slavery laws, regulations for sustainability of international supply chains in circular economy, etc.
• Compliance Expectations in these Risk Areas
• Recommended Best Practices

Other legal issues related to Business Compliance in International Commercial Transactions in Asia Pacific are also welcome.

Requirements for Abstract Submission:

For paper proposals, please submit a title and max 200-word abstract, along with a one-page CV. For panel proposals, please submit a title and max 800-word abstract, along with a three-page CV covering 3-4 panel members.

Proposal Due: 17 November 2023.
Announcement of successful submission: 4 December 2023.
Conference Date: 21 February 2024

More information can be found here.

Originally posted today on the NGPIL website.

On the 23rd November 2023, 5pm (WAT/Lagos/Abuja) the NGPIL will host our guest speaker Professor Wale Olawoyin SAN, FCIArb at this year’s conference. The event will explore the coming into force of the Arbitration and Conciliation Act 2023 and how, from a private international law perspective, the arbitration appeal process in Nigeria can be enhanced. Discussions will build on practice thus far, and will allow practitioners, judges and academics alike to develop knowledge and insight into its utility.

To register: https://us06web.zoom.us/webinar/register/WN_q5pY1JWARiaUxi1TIw8xBQ

These two volumes celebrate the 30th anniversary of the Japan Association of International Economic Law (JAIEL), which was founded in 1991. The Volumes include 30 contributions written by eminent Japanese scholars from different background, in particular, private international law, public international law, international economic law, competition law, intellectual property law etc.

 

                 

 

The blurb of the book reads as follows:

 

These two groundbreaking volumes look at complex legal issues in the changing global economy from the perspective of Asia and/or Japan. Contributors scrutinize the past, present, and future and discuss what the global legal order in economic fields could be like by navigating uncertain and turbulent times.

 

The books address six main themes: (1) Polarization and diversification of values, progress of regionalism and restructuring of multilateral rules, (2) Full-scale arrival of the digital economy and its impact, (3) Empowerment of private persons/entities, (4) Reconsideration of the concept of “territorial jurisdiction”, (5) Law of national security and rule in emergency situations, and (6) Values of Sustainable Development Goals (SDGs) in trade and investment liberalization rules. The books also examine various legal problems under the COVID-19 crisis and suggest how the post-COVID-19 global economic order will be from the perspective of Asia and/or Japan.

 

This comprehensive insight will shed light on the intertwined and complex phenomena of world economy and allow readers of business law and international law to have a better understanding of this volatile era.

 

The two volumes are particularly interesting as they make accessible to the global community of scholars and practitioners the remarkable Japanese scholarship of international economic law. In his Preface, Prof. Takao Suami (Waseda University), pointed out three features of the two volumes’ contributions: “Firstly, all of them are characterized by their Japanese perspectives. Since all lawyers cannot avoid bringing up their understanding of law including international law in their local contexts, it is unavoidable that approaches to international economic law are not identical in different places. These articles expose such non-Western perspectives to the world. Secondly, many of them deal with newly emerging issues. Japanese scholars are sensitive to change in a global society. Therefore, they deal not only with the digitalization of the global economy but also with the impact of COVID-19 or national security on the international economic order. Thirdly, they cover subjects concerning both public and private international laws (conflict of laws). Their combination constitutes a tradition of Japanese academic approaches. Japanese scholars understand that this combination has become more important than ever under the progress of globalization.”

 

The table of content and the contributions’ abstracts are found here (Volume 1) and here (Volume 2).

The eighth meeting of the Special Commission set up in the framework of the Hague Conference on Private International Law to discuss the practical operation of the 1980 Child Abduction Convention and the 1996 Child Protection Convention kicked off on 10 October 2023.

As reported by Mayela Celis on Conflict of Laws, a broad range of issues will be addressed during the meeting, such as delays in return process under the 1980 Convention, the relationship of the 1980 Convention with other international instruments, in particular the 1989 UN Convention on the Rights of the Child, exceptions to the return of the child under the 1980 Convention and protective measures upon return, including with respect to domestic and family violence, child abduction and asylum claims, mediation as relevant to the 1980 and 1996 Conventions, and transfer of jurisdiction under the 1996 Convention, to name just a few (the draft agenda of the meeting can be found here).

The European Association of Private International Law was invited to take part in the meeting as an observer, as it occurred on the occasion of the first meeting of the Special Commission on the practical operation of the 2007 Child Support Convention and on the 2007 Maintenance Obligations Protocol, and the first meeting of the Special Commission on the practical operation of the 2000 Adults Convention.

An EAPIL Working Group was set up for the purposes of contributing to the meeting on the 1980 and 1996 Conventions. The Group, chaired by Costanza Honorati and consisting of Sabine Corneloup, Mónica Herranz Ballesteros, Katarina Trimmings, and Mirela Zupan, prepared a position paper focused on protective measures, which the Scientific Council of the Association endorsed on 10 October 2023.

The conclusions reached by the Working Group are as follows:

I. Protective measures amount to a fundamental tool to achieve compliance with the Convention’s obligation, while guaranteeing physical and psychological safety of the child and thus ensuring respect of the child’s fundamental rights. 

II. The Treaty’s main obligation to return the child is only discharged when such court is convinced that the return is safe and that the return shall not cause any harm, either physical or psychological, to the child. 

III. Ensuring the child’s safe return must be construed as a treaty obligation set on all Contracting States. This requires that all States, i.e. the State of the child’s habitual residence and the State of refuge, shall cooperate one with each other to ensure the physical and psychological safety of the child when implementing the main obligation of returning the child. 

IV. In the context of abduction proceedings the best interests of the child implies that, when pursuing the aim of returning the abducted child to the place of his/her habitual residence, the court in the State of refuge should pay particular attention to safeguarding the overall physical and psychological safety of the child. 

V. A protection measure in the light of the above is only a court order which is capable of being enforced in the State of habitual residence. The requirement of enforceability in the State where protection is sought, i.e. in the State of habitual residence, thus becomes a constitutive element of any measure which aims to effectively protect the child’s on his or her return. 

VI. Even where protective measures are enforceable in the State of habitual residence, caution is needed when determining whether a civil protection order would be appropriate in an individual child abduction case. In the light of concerns over the effectiveness of protective measures, protective measures should not be employed where credible allegations of severe violence have been made and there is a future risk of violence of such severity.

VII. There are several ways which can guarantee the enforceability of a protective measure. It is for the court in the State of refuge, in cooperation with the court in the State of habitual residence, to choose and implement the most appropriate measures.

VIII. Protective measures, if not triggered ex parte, should be considered by the court on its own motion, ex officio. 

IX. A genuine consideration of adopting or requiring protective measures should be strongly encouraged every time the court is satisfied there is a grave risk of harm, and provide an explanation on facts, risks and measures that were considered should be provided. 

A report on the conclusions and recommendations of the eighth meeting of the Special Commission will appear on this blog in due course.

Professor William S. Dodge, John D. Ayer Chair in Business Law; Martin Luther King Jr. Professor of Law, University of California, Davis, School of Law, will give a seminar entitled ‘U.S. Extraterritorial Jurisdiction-Myths and Reality’ at the Wuhan University School of Law on 15 Oct. at 15:00-16:30pm Beijing Time. This seminar will be chaired by Professor Sophia Tang, the Associate Dean of the Wuhan University Academy of International Law and Global Governance. Associate Professor Wenliang Zhang at the Renmin University, Associate Professor Xiongbin Qiao, Associate Professor Yong Gan, and Associate Professor Wenwen Liang at the Wuhan University will act as discussants. You can attend the seminar online through Tencent Meeting. Please follow the information below:

Time?2023/10/15 15:00-17:00 (GMT+08:00) Beijing Time

Meeting link?
https://meeting.tencent.com/dm/KADluwLhfmfc

Tencent Meeting ID: 991-898-184
Password: 89456

The Court of Justice delivered today its judgment in case C‑21/22 (OP v Notariusz Justyna Gawlica), which is about the Succession Regulation:

“1. Article 22 of Regulation (EU) No 650/2012 […] must be interpreted as meaning that a third-country national residing in a Member State of the European Union may choose the law of that third State as the law governing his or her succession as a whole.

2. Article 75 of Regulation No 650/2012, read in conjunction with Article 22 of that regulation, must be interpreted as not precluding – where a Member State of the European Union has concluded, before the adoption of that regulation, a bilateral agreement with a third State which designates the law applicable to succession and does not expressly provide for the possibility of choosing another law – a national of that third State, residing in the Member State in question, from not being able to choose the law of that third State to govern his or her succession as a whole”

Source: https://curia.europa.eu/juris/document/document.jsf?mode=DOC&pageIndex=0&docid=278536&part=1&doclang=EN&text=&dir=&occ=first&cid=283716

AG De La Tour delivered today his opinion in case C‑566/22 (Inkreal s. r. o. v Dúha reality s. r. o.), which is about Article 25 Brussels I bis:

“Article 25 of Regulation (EU) No 1215/2012 […] must be interpreted as meaning that in a purely internal situation, it is not applicable based solely on the fact that the parties domiciled in the same Member State have designated a court or courts of another Member State to settle any disputes between them which have arisen or which may arise”.

Source: https://curia.europa.eu/juris/document/document.jsf?docid=278538&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=220250

By Moses Wiepen, Legal Trainee at the Higher Regional Court of Hamm, Germany

In its decision of 21 July 2023 (V ZR 112/22), the German Federal Court of Justice confirmed that Art. 26 Brussels Ia Regulation applies regardless of the defendant’s domicile. The case in question involved an art collector filing suit against a Canadian trust that manages the estate of a Jew who was persecuted by the German Nazi regime. The defendant published a wanted notice in an online Lost Art database for a painting that the plaintiff bought in 1999. The plaintiff considers this as a violation of his property right.

In general, following the procedural law principle of actor sequitur forum rei, the Canadian trust should be brought to court in Canadian courts. Special rules are required for jurisdictions that deviate from this principle. The lower German court confirmed its authority based on national rules on jurisdiction. Under sec. 32 German Civil Procedure Code, tort claims can be brought to the court where the harmful act happened regardless of the defendant’s domicile. The German Federal Court of Justice established its jurisdiction on Art. 26 Brussels Ia Regulation as the lex specialis.

This may appear surprising as the scope of the Brussels Ia Regulations is generally limited to defendants domiciled in a member state of the EU, Artt. 4, 6 Brussels Ia Regulation. Exceptions to this rule are stated in Art. 6 Brussels Ia Regulation and – relying on its wording – limited to the Artt. 18 I, 21 II, 24 and 25 Brussels Ia Regulation. Nevertheless, due to the common element of party autonomy in Art. 25 and Art. 26 Brussels Ia Regulation, some parts of the literature – and now the German Federal Court of Justice – apply Art. 26 Brussels Ia Regulation to non-EU-domiciled defendants as well. The German Federal Court of Justice even considers this interpretation of Art. 26 Brussels Ia Regulation as acte clair and thus, it sees no need for a preliminary ruling of the CJEU under Art. 267 TFEU.

However, the Court’s argumentation is not completely persuasive. Firstly, the wording of Art. 26 Brussels Ia Regulation is open to other – even opposing – interpretations. Secondly, although it contains a party-autonomous element, Art. 26 Brussels Ia Regulation does not depend on the defendant’s choice of court. In fact, courts are not required to verify defendant’s awareness of jurisdictional risks in order to proceed in a court lacking jurisdiction. And unlike Art. 25 Brussels Ia Regulation, Art. 26 Brussels Ia Regulation can be part of a litigation strategy detrimental to the defendant

A detailed analysis on the court’s ruling in German is available here.

A Friday in early December is reserved for RIDOC: Rijeka Doctoral Conference, organised by the University of Rijeka, Faculty of Law. Doctoral students in law or law-related area who wish to join colleagues from different countries to test their research hypothesis and arguments before the expert panel are welcome to apply for the 2023 edition.

The call is open until 20 October and abstracts should be sent to ridoc@pravri.uniri.hr. More information is available here.

Anabela Susana de Sousa Gonçalves (University of Minho) has posted The material limits of the European Succession Regulation on SSRN.

The abstract reads:

Cross-border successions have their legal framework in the European Union (EU) in Regulation No 650/2012 of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (European Succession Regulation). About this Regulation, there are sometimes some expectations, not always realistic, about the answers that it can provide, in an area where there are many divergences between the substantive law of the Member States. It is therefore important to know the limits that circumscribe the material scope of application of the Regulation, bringing to the discussion the jurisprudence of the European Union Court of Justice (ECJ).

On 24 November 2023, the Institute for the History of Law at the University of Heidelberg (Institut für geschichtliche Rechtswissenschaft) is hosting a symposium on the new German Sales Law in cooperation with the Université de Lorraine. Further information can be found here (French version).

On 19-20 October 2023 the Conference Sustaining Access to Justice in Europe: New Avenues for Costs and Funding will take place live at Erasmus University Rotterdam. Renowned speakers from academia, policy, business and consumer associations from Europe, the US and Asia will discuss developments in funding, including third-party litigation funding and crowdfunding, collective actions, public interest litigation, ADR and ODR and entrepreneurial lawyering. Keynotes by Rachael Mulheron (Queen Mary University of London) and Andreas Stein (European Commission, DG Justice & Consumers)

You can register till Sunday 15 October! The program is available here and further information and registration is available here.

Description

Access to civil justice is of paramount importance for enforcing citizens’ rights. At the heart access to civil justice lies litigation funding and cost management. Yet, over the past decades, access to justice has been increasingly put under pressure due to retrenching governments, high costs of procedure, and inefficiency of courts and justice systems. Within this context, the funding of litigation in Europe seems to be shifting from public to private sources. Private actors and innovative business models have emerged to provide new solutions to the old problem of financial barriers to access to justice.

With the participation of academics, policymakers, practitioners, academics and representatives of civil society from all over Europe and beyond, the conference seeks to delve deeper into the financial implications of access to justice and the different ways to achieve sustainable civil justice systems in Europe. The topics addressed in this international academic conference include different methods of financing dispute resolution and regulating costs, such as third-party funding, crowdfunding, blockchain technologies, public interest litigation, developments in ADR/ODR to enhance access to justice, new business models of legal professionals as well as law and economics perspectives on litigation funding.

This conference is organised by Erasmus School of Law in the context of the NWO Vici Project: ‘Affordable Access to Justice’, funded by the Dutch Research Council.

On 20 June 2022, the CJEU rendered its judgment in London Steam-Ship Owners’ Mutual Assistance Association Ltd v Spain. The judgment, which dramatically altered the understanding of the arbitration exception under the Brussels instruments, gave rise to heated comments and debates, including an on-line symposium on this blog.

On 6 October 2023, the English High Court rendered a new judgment in the case where Justice Butcher discussed, inter alia, the meaning of the CJEU jugdment and the extent to which he was bound by it.

Interestingly, the insurers had initiated a second arbitration in 2019 which was still in progress when the CJEU delivered its judgment. As a result, the arbitrator, Sir Peter Gross, also had to express views on the meaning of the CJEU judgment in the two partial awards he made on 6 January 2023 and 27 March 2023.

The English proceedings are highly complex, with a number of challenges initiated by each of the parties against the various arbitral awards and application to enforce the Spanish judgment. Without getting into all these details, I focus below on the issues addressed by the CJEU and how they were perceived and addressed by the English court.

Concept of Judgment in Article 34(3) Brussels I

A first argument made by Spain before the English court was that the English judgments on the arbitral awards were no relevant ‘local’ judgments for the purposes of Article 34(3), as they were not judgments of ‘a judicial body of a Contracting State deciding on its own authority on the issues between the parties’. (Solo Kleinmotoren GmbH v Emilio Boch [1994] ECR I-2237).

Justice Butcher ruled that the CJEU confirmed that the argument based on Solo Kleinmotoren was incorrect.

123. In the judgment of the CJEU, at paras. [48-50], the CJEU said that a judgment entered in terms of an arbitral award was capable of being regarded as a ‘judgment’ within the meaning of Article 34(3). In that regard, the CJEU pointed out at para. [49] that the concept of a ‘judgment’ set out in Article 32 was a broad one and ‘covers any judgment given by a court of a Member State, without its being necessary to draw a distinction according to the content of the judgment in question, provided that it has been, or has been capable of being, the subject, in the Member State of origin and under various procedures, of an inquiry in adversarial proceedings’. At para. [50] the CJEU said that this interpretation of the concept of ‘judgment’ in Article 34(3) was supported by the purpose of the provision, which was to protect the integrity of a Member State’s internal legal order. At para. [53] the CJEU said that, ‘a judgment entered into in the terms of an arbitral award is capable of constituting a ‘judgment’ within the meaning of Article 34(3) …’.

A second argument made by Spain before the English Court was that the whole of the English proceedings, and the resulting English s. 66 Judgments (declaring the first arbitral awards enforceable in England), fell within the arbitration exception to the applicability of the Brussels Regulation enshrined in Article 1(2)(d). Spain’s contention was that a non-Regulation judgment, or at least a judgment which is a non-Regulation judgment because it falls within the arbitration exception, did not count as a relevant ‘home’ judgment for the purposes of Article 34(3).

Again, Justice Butcher ruled that the CJEU confirmed that the argument, that he labelled ‘the material scope point’, was incorrect.

142. (…) the Court’s reference, at para. [50], to the purpose of Article 34(3) as being the protection of the integrity of a Member State’s legal order is relevant to this point as it is to the ‘Solo’ point. Further at paras [51-52], the CJEU said that it was ‘apparent from the Court’s case-law that the exclusion of a matter from the scope of Regulation No.44/2001 does not preclude a judgment relating to that matter from coming within the scope of Article 34(3) of that regulation and, accordingly, preventing the recognition of a judgment given in another Member State with which it is irreconcilable’, and made reference to Hoffmann v Krieg. 

Jurisdictional Qualifications of the CJEU

The most novel, far reaching and debatable aspects of the ruling of the CJEU were, however, the introduction of new requirements relating to lis pendens and the privity of jurisdiction clauses.

Readers will recall that the CJEU ruled that where a judicial decision resulting in an outcome equivalent to the outcome of an arbitral award could not have been adopted by a court of the Member State of enforcement without infringing the provisions and the fundamental objectives of the Brussels I regulation, in particular as regards the relative effect of an arbitration clause included in the insurance contract in question and the rules on lis pendens contained in Article 27 of that regulation, the judgment on the arbitral award cannot prevent the recognition of a judgment given by a court in another Member State.

The issue before both the arbitrator and the English court was whether this part of ruling had deprived the arbitrator from its jurisdiction and thus prevented the operation of Art. 34(3), as the relevant arbitral awards should be set aside for lack of jurisdiction.

Both of them rejected the argument on the ground that they were not bound by answers to questions not referred to the CJEU.

209. I have also reached the conclusion (as did Sir Peter Gross at paragraph [122(3)] of the Gross First Award) that, if the CJEU purported to answer a question not or falling outside those referred to it, the national court would not be bound to follow any such purported answer, though it would not lightly so hold. This appears to me to be the corollary of the limited jurisdiction established by Article 267 of the TFEU. (Reference to precedents omitted)

Justice Butcher then concluded:

214. Applying the principles set out above, in my judgment the CJEU, in paragraphs [54] to [73] of its Judgment, gave answers to questions which had not been referred to it, and which this Court had refused to refer. In doing so, it trespassed on the facts of the case.

215. Thus, the first two questions referred to the CJEU in relation to Article 34(3) raised clearly defined issues of EU law. They asked whether a s. 66 judgment was capable of falling within Article 34(3) in light of two specific points, the ‘Solo point’, and the material scope point. The nature of the questions and the reasons why they were asked were set out both in the Reference Judgment, and very clearly in the Reasons for the Reference section of the Order for Reference.

216. There was no question aimed at whether there were other reasons why Article 34(3) might be inapplicable, and specifically no question directed at whether Article 34(3) might be inapplicable because the English s. 66 Judgments had been entered in circumstances where the English Court could not have entertained the claim which was the subject of the Spanish proceedings. That, in my view, raised different questions (including but certainly not limited to different questions of EU law).

Justice Butcher then wondered whether, although he was not bound, he would still want to follow the CJEU. He ruled he would not.

236. Further, while I am clearly entitled to have regard to the reasoning of the CJEU in those paragraphs, if I am not bound by them I would not follow them. In my judgment they fail to give effect to the exclusion of arbitration from the Regulation, and they fail to have regard to the jurisprudence of the ECJ/CJEU which has recognised that the arbitration exception is effective to exclude arbitration in its entirety, including proceedings in national courts the subject matter of which is arbitration, in particular the decisions in Marc Rich & Co AG v Società Italiana Impianti PA (The ‘Atlantic Emperor’) (Case C-190/89), and Proceedings Concerning Gazprom OAO (Case C-536/13).

237. Instead I would follow, and may be bound by, the reasoning of the Court of Appeal in The Prestige (Nos. 3 and 4), in relation to an argument which was raised there with reference to Assens Havn, to the effect that an analogy with that case indicated that the Award Claims there under consideration did not fall within the ‘arbitration exception’ to the Regulation. The argument of the States was that the reasoning in Assens Havn, which was to do with an exclusive jurisdiction clause in a liability insurance policy, was ‘equally applicable to an arbitration clause’. At [79]-[84] the Court of Appeal said this:

(…)

[84] For these reasons we hold that the reasoning in Assens Havn cannot apply to an arbitration clause. We note that this is also the view of Professor Briggs (Civil Jurisdiction and Judgments, 7th ed (2021), para. 9.05). Accordingly the “arbitration” exception applies to the Award Claims and jurisdiction must be determined in accordance with domestic law principles.’

Res Judicata as English Public Policy

The English judgment also addressed the argument of whether res judicata was a principle of English public policy, and whether the Spanish judgment could be denied recognition under the public policy exception in Article 34(1), on the ground that the English judgments declaring enforceable the first arbitral awards were res judicata.

Justice Butcher found that the Spanish judgments would also be contrary to public policy on that ground, but the argument was subsidiary, given that he had already found that the Spanish judgments should be denied recognition on the ground of Article 34(3).

Assessment

The most interesting part of the English judgment is its interpretation and treatment of the most controversial aspects of the CJEU judgment, namely the jurisdictional qualifications.

The debates before the English court show how far reaching the CJEU judgment might be and raise the issue of whether the CJEU has indeed laid down jurisdictional requirements for arbitrators.

On the one hand, a narrow reading of the CJEU judgment could be that nowhere does it expressly say that it has a bearing on the jurisdiction of arbitrators. And that, in the case at hand, it had not ruled on the issue of whether Spain was bound to arbitrate. This, I understand, was the position of the arbitrator. Justice Butcher reported:

77. At [126] Sir Peter Gross considered whether the CJEU Judgment had any bearing on his jurisdiction as an arbitrator. He concluded that, whatever its ambit in other respects, the CJEU Judgment said nothing at all about his jurisdiction; and that he entertained no doubt at all about his having jurisdiction.

78. At [127]-[132] Sir Peter Gross considered whether the CJEU Judgment had decided that Spain had not been obliged to arbitrate its dispute with the Club and hence was not in breach of any equitable obligation by pursuing its Article 117 claims and seeking to enforce the Spanish Judgment. The Arbitrator found that the CJEU Judgment did not contain any such decision. He said (at [130]) that ‘Part 2’ of the CJEU Judgment went to the status of English court judgments, not whether Spain was in breach of its obligation to arbitrate. He said (at [131]) that the CJEU Judgment had said nothing about whether Spain had been obliged to pursue its dispute in arbitration, and that he could see no proper basis for reading in any such decision.

On the other hand, a less cautious reading of the CJEU judgment is that it has indeed laid down jurisdictional requirements for arbitrators. Spain made the argument repeatedly (which is fair enough).

Justice Butcher avoided addressing the issue by ruling that he was not bound by that part of the CJEU judgment. But the views he expressed when he declined to consider the CJEU judgment persuasive enough to follow it may well reveal that he did think that the CJEU has indeed laid down jurisdictional requirements.

Debate to be continued, on the Continent.

The latest issue of the Dutch Journal on Private International Law (NIPR) has been published.

NIPR 2023 issue 3

EDITORIAL

M.J. de Rooij, Het leed van de circulerende Unieburger en het Europese begrip van de favor divortii [The suffering of the circulating Union citizen and the European concept of favor divortii] / p. 381-384

ARTICLES

C. Vanleenhove, The Hague Judgments Convention versus national regimes of recognition and enforcement: a comparison between the Convention and the Belgian Code of Private International Law / p. 385-399

Abstract
The adoption of the Hague Judgments Convention marks a landmark step in the Judgments Project that the Hague Conference on Private International Law has undertaken since 1992 in the context of transnational disputes in civil and commercial matters. The creation of a uniform set of core rules on the recognition and enforcement of foreign judgments in a cross-border civil and commercial setting promotes effective access to justice and facilitates multilateral trade, investment, and mobility. As far as Belgium is concerned, in the relationship with other non-EU Contracting States the Convention will replace the Code of Private International Law that since 2004 has governed the recognition and enforcement of third State judgments in Belgium. The entry into force of the Convention calls for a comparison of the Convention’s regime with that of the Code of Private International Law. As the two instruments fall within the same ballpark in terms of their openness and given the Convention’s deferral to more favourable domestic rules, the Convention adds another avenue through which a successful party can enforce its foreign judgment in Belgium. From the Belgian perspective the potential circulation of Belgian judgments in other Contracting States with stringent national rules on enforcement perhaps constitutes the most considerable benefit of the Convention.

G. van Calster, Brussels Ia and the Hague Judgments Convention: a note on non-domiciled parties and on reflexive jurisdictional rules / p. 401-407

Abstract
The process that led to the Hague Judgments Convention was inspired by the ‘Brussels regime’ (the EU’s approach to encouraging the free movement of judgments in civil and commercial matters). In the present note I explore two likely areas of tension between Brussels Ia and the Hague Convention: the limited circumstances where non-EU domiciled defendants will nevertheless be captured by the EU jurisdictional rules; and the developing ‘reflexive effect’ of exclusive jurisdictional gateways. I suggest that the EU would do well seriously to consider a reflexive application of its exclusive jurisdictional rules, and that the current review of Brussels Ia would be a good opportunity to do so.

A.A.H. van Hoek, F. van Overbeeke, Over open eindes en nauwere banden: een nieuw hoofdstuk in de Van den Bosch/Silo-Tank-saga / p. 409-420

Abstract
In this brief contribution we pay attention to the latest judgment of the Dutch Supreme Court in the protracted litigation over the employment conditions of Hungarian truck drivers who perform international transport operations on behalf of a Dutch logistics company while being officially employed by a Hungarian sister company of the Dutch firm. The case led to the CJEU judgment FNV/Van den Bosch, C-815/18, ECLI:EU:C:2020:976 (NIPR 2021-55) where the application of the Posting of Workers Directive to this scenario was discussed. The current case pertains to the law that is applicable to the individual employment contracts under Article 8 Rome I.

We comment on the problem of identifying the place from where the work is habitually performed in the case of highly mobile transport operations, the root of which lays in pertaining EU caselaw. We also discuss the fact that the Dutch Supreme Court applied the criteria mentioned in the Schlecker case (C-64/12, ECLI:EU:C:2013:551, NIPR 2013-347) in a strict manner, without taking the specific context of the Schlecker case fully into account. Finally, we recommend that the Court of Appeal of Amsterdam (to which the case has been referred) should submit further preliminary questions to the CJEU: 1. Should the reason why workers are covered by the social security system of their home country be taken into account when weighing the relevance of this criterion – and more particularly, what relevance does the insurance status have in transport cases?; 2. Which factors should (or may) be taken into account to establish a closer connection when the applicable law is determined on the basis of the establishment through which the worker was employed?

European Law Institute (ELI) has recently launched a new project devoted to the proposal of the EU Regulation on the Recognition of Foreign Filiations.

The ELI Project Team wants to scrutinise the rules of the proposal  from four specific perspectives: children’s, LGBTI persons’ and women’s fundamental rights, and the underlying EU primary law, especially concerning the free movement of citizens.

The works within the project will be conducted under the accelerated procedure, with the aim of having results by February 2024. Based on its analysis, the Project Team wants to develop a Position Paper, in which provisions of the proposal will be scrutinized and alternative formulations proposed. Additionally, the Position Paper will be supplemented with explanations and comments. Model Rules in the form of desirable amendments to the proposal will also be drafted.

The ELI Project Team consists of Claire Fenton-Glynn, Cristina Gonzalez Beilfuss, Fabienne Jault-Seseke, Martina Melcher, Sharon Shakargy, Patrick Wautelet, Laima Vaige with Susanne Gössl and Ilaria Pretelli acting as Reporters.

On 2 October 2023 the Kick-Off Webinar of the Project was held. Here is a summary of discussions and a recording of the whole meeting.

Posts on this blog devoted to the same proposal and academia’s reactions to it may be found here, here and here.

Written by Mayela Celis

The eighth meeting of the Special Commission on the Practical Operation of the 1980 Child Abduction Convention and the 1996 Child Protection Convention will be held from 10 to 17 October 2023 in The Hague, the Netherlands. For more information, click here.

One of the key documents prepared for the meeting is the Global Report – Statistical study of applications made in 2021 under the 1980 Child Abduction Convention, where crucial information has been gathered about the application of this Convention during the year 2021. However, these figures were perhaps affected by the Covid-19 pandemic as indicated in the Addendum of the document (see paragraphs 157-167, pp. 33-34). Because it refers to a time period in the midst of lockdowns and travel restrictions, it is not unrealistic to say that the figures of the year  2021 should be taken with a grain of salt. For example, the overall return rate was the lowest ever recorded at 39% (it was 45% in 2015). The percentage of the combined sole and multiple reasons for judicial refusals in 2021 was 46% as regards the grave risk exception (it was 25% in 2015). The overall average time taken to reach a final outcome from the receipt of the application by the Central Authority in 2021 was 207 days (it was 164 days in 2015). While statistics are always useful to understand a social phenomenon, one may only wonder why a statistical study was conducted with regard to applications during such an unusual year – apart from the fact that a Special Commission meeting is taking place and needs recent statistics -, as it will unlikely reflect realistic trends (but it can certainly satisfy a curious mind).

Other documents that are also worth noting are the following (both Preliminary Documents and Information Documents):

Child abduction and asylum claims

• Prel. Doc. No 16 of August 2023 – Discussion paper on international child abduction return applications where the taking parent lodged a parallel asylum claim. This document submits the following for discussion and includes a useful annex with decisions rendered in the UK, Canada and USA about this issue (SC stands for Special Commission):

43. The SC may wish to discuss how the issue of delays in processing the asylum claims could be addressed when a return application is presented, and what the solutions could be to avoid such delays ultimately pre-empting a return application under the 1980 Child Abduction Convention, in particular:

a. Bearing in mind the confidentiality rules that apply to asylum proceedings, consideration can be given to whether general information can be shared, where possible and appropriate, (between authorities of the requested State/country of asylum only) for example, regarding timeframes and average duration periods, steps or stages of such proceedings.

b. Where possible and appropriate, consideration can be given to whether asylum claims can be treated and assessed on a priority basis when a return application is presented under the 1980 Child Abduction Convention.

c. Consideration can be given to whether stays of return proceedings can be avoided in order to prevent that allegations are made concerning the settlement of the child in the new environment, and whether an eventual stay can only be considered regarding the implementation and enforcement of the return order. 

44. The SC may wish to discuss to what extent it is possible to have some level of coordination or basic exchange of information between the different spheres of the government and competent authorities that process the different proceedings, when/if allowed by the relevant domestic laws and procedures and respectful of confidentiality and judicial independence principles. Where possible and appropriate, such coordination could:

a. Encompass, for example, that the competent authority responsible for the return application informs the competent authority responsible for the asylum claim of the return application.

b. Include establishing procedures, guidelines or protocols to ensure that both proceedings are dealt with expeditiously.

This is a sensitive topic that deserves attention, as disclosing that a child is present in a specific State can have a great impact on the safety of the person seeking asylum (usually, the parent).

Transfer of jurisdiction under 1996 Child Protection Convention

• Prel. Doc. No 17 of August 2023 – Transfer of jurisdiction under the 1996 Child Protection Convention (Arts 8 and 9). It is submitted the following:

55. The SC may wish to consider adopting the following Conclusions and Recommendations:

a. The SC invited Contracting States, which have not done so already, to consider designating, in accordance with the Emerging Guidance regarding the Development of the IHNJ, one or more members of the judiciary for the purpose of direct judicial communications within the context of the IHNJ.

b. Recalling Article 44 of the 1996 Convention, the SC encouraged Contracting States to designate the authorities to which requests under Articles 8 and 9 are to be addressed, as such a designation could greatly assist in improving the processing times of requests for a transfer of jurisdiction. Depending on domestic policies and requirements relating to the judiciary, Contracting States may choose to designate a member of the IHNJ (if applicable) and / or the Central Authority to receive requests for transfers of jurisdiction.

c. The SC encouraged authorities requesting a transfer of jurisdiction to, in the first place, informally consult their counterparts in the requested State, to ensure that their requests are as complete as possible and that all necessary information and documentation is furnished from outset to meet the requirements of the requested State.

d. Recalling Principle 9 of the Emerging Guidance regarding the Development of the IHNJ,139 the SC encouraged Central Authorities that are involved in a transfer of jurisdiction request and judges engaging in direct judicial communications pertaining to a request for a transfer of jurisdiction to keep one another informed regarding the progress and outcome of such a request. Doing so could further assist in addressing delays and enhance the efficiency of processing requests under Article 8 or 9 of the 1996 Convention.

e. The SC invited the PB to circulate the questionnaire annexed to Prel. Doc. No 17 of August 2023 to all Contracting States to the 1996 Convention, with a view collecting information from judges and Central Authorities regarding requests under Article 8 or 9. The SC further invited the PB to review Prel. Doc. No 17, in the light of the responses from Contracting States, and to submit the revised version of Prel. Doc. No 17 to the Council on General Affairs and Policy (CGAP). The SC noted that it will be for CGAP to determine the next steps in this area (e.g., whether there is a need to form a Working Group consisting of judges and representatives from Central Authorities to identify good practices pertaining to requests for a transfer of jurisdiction under the 1996 Convention). 

The transfer of jurisdiction (as foreseen in those articles) is sometimes little known in some civil law States (in particular, Latin America) so these suggestions are very much welcome.

Placement or provision of care of a child (incl. kafala) under the 1996 Child Protection Convention

• Prel. Doc. No 20 of September 2023 – Placement or provision of care of the child in another Contracting State under the 1996 Child Protection Convention (Art. 33). Interestingly, this document includes as annex Working Document No 10 Proposal from the delegation of Morocco about “The Kafala procedure as established by the law of 10 September 1993 on abandoned children” of 30 September 1996. This Prel. Doc. suggests the following:

64. The SC may want to discuss what clearly falls within the scope of application of Article 33 of the 1996 Convention and what clearly falls out of the scope of application of Article 33. 

65. The SC may want to consider discussing the use of the term “approved” in C&R No 42 of the 2017 SC as it does not appear in Article 33 of the 1996 Convention. 

66. The SC may want to consider whether additional information should be provided in the Country Profile for the 1996 Convention in addition to what appears under Sections 16 to 19 and 36 of the draft Country Profile to assist with the implementation of Article 33.

67. The SC may want to consider developing a Guide, illustrated by examples, to assist Contracting States with the implementation and operation of Article 33. In addition to covering issues relating to the scope of application of Article 33, the Guide could cover the different issues of procedure relating to Article 33 as presented in this Prel. Doc. Such a Guide would raise awareness as to the mandatory nature of Article 33. The SC may wish to recommend that such a Guide be developed by a Working Group. 

68. The SC may want to consider the need to develop a model recommended form for the purpose of requests under Article 33.

The conclusions suggested in this document are very much needed, in particular given that the operation of Article 33 of the 1996 Convention in the Contracting States is far from ideal (the FAMIMOVE project is studying this Article in the context of kafala).

The Guide to Good Practice on the grave risk exception (art. 13(1)(b)) under the Child Abduction Convention – pointing to a mistake in the Guide

• Info. Doc. No 6 of October 2023 – “A mistake waiting to happen: the failure to correct the Guide to Good Practice on Article 13(1)(b)” – Article by Professor Rhona Schuz and Professor Merle Weiner. I fully endorse the position adopted by Professors Schuz and Weiner and have included my views on this issue in a previous post see here and have discussed this at length in my recent book on international child abduction.

The Note of the International Social Service (ISS) where it highlights (perhaps rightfully), among other things, that the Malta Process and the Central Contact Points are underutilized

• Info. Doc. No 1 of February 2023 – ISS – General information & Response to Prel. Doc. No 2 of October 2022

The Note of the International Association of Child Law Researchers showcases the new publication Research Handbook on International Child Abduction: The 1980 Hague Convention (Cheltenham: Edward Elgar Publishing, 2023) – We will be preparing a book review, which will be posted on CoL – stay tuned!

• Info. Doc. No 4 of September 2023 – International Association of Child Law Researchers (IACLaR) – Observer Note

 

The judgment by the CJEU in Club la Costa (decision of 14 September 2023, Case C-821/21), has already been analysed from a jurisdictional perspective in a previous post. In the same decision, the court also addresses an important issue regarding the applicable law under the Rome I Regulation.

Facts

Remember that a British resident had entered for private purposes into a timeshare contract with a British company (Club La Costa) through the latter’s Spanish branch. This contract concerned tourist accommodation in Spain. Subsequently, the British resident had brought a suit in Spain.

The standard terms of the contract stipulated that it shall be governed by English law. However, Spanish law, as the law of the place of the immovable, was more favourable for the British resident than English law. (In particular, Spanish law requires the contract to be entered into the land registry as well as to specify the accommodation and the precise duration of the time-share, see the parallel decision rendered on a similar contract on the same day in Case C-632/21, JF and NS v Diamond Resorts Europe et al.)

Legal Issues

In essence, the Spanish court wanted to know whether it could apply Spanish law to the dispute. For this, it had to overcome the choice of law in the contract as well as the consumer protection provisions, which both pointed to English law. If the choice of law was incompatible with Article 3, and Article 6 Rome I did not apply because it was unfavourable to the consumer, the application of Spanish law might have been justified, e.g. under Article 4(1)(c) Rome I (for a discussion whether this provision governs timeshare contracts, see Case C-632/21, JF and NS v Diamond Resorts Europe et al.).

The Spanish court therefore asked the CJEU (1) whether it would be compatible with Article 3 Rome I to consider a choice-of-law clause in standard terms as valid, (2) whether the business partner could also rely on the consumer protection provision of Article 6 Rome I, and (3) whether it could ignore the law of the consumer’s habitual residence where the law that would normally govern the contract (in the absence of consumer protection) is more favourable to the consumer in the particular case.

The Validity of the Choice of Law in Standard Terms

For the first question, concerning the validity of a choice-of-law clause in a standard contract term, the CJEU could refer to its precedent in VKI v Amazon (Case C-191/15). There, it had held that such a clause is valid only if it does not lead the consumer into error about the continued application of the mandatory rules of the law of its habitual residence.

In the present case, the law of the habitual residence of the consumer was selected in the standard term. Hence, there was no risk of any error of the consumer. The CJEU thus deemed the clause to be valid.

Can Businesses Rely on Consumer Protection and can the Consumer Waive such Protection?

The second and third question were answered together by the CJEU. In this regard, it held that the consumer protection provision of Article 6 Rome I is

not only specific, but also exhaustive, so that the conflict-of-law rules laid down in that article cannot be amended or supplemented by other conflict-of-law rules laid down in that regulation, unless they are expressly referred to in that article” (para 78).

This is an important ruling with potential relevance for many disputes (e.g. it was also applied in the parallel case in Case C-632/21, JF and NS v Diamond Resorts Europe et al.). From a theoretical perspective, this ruling means that the law designated by Article 6 Rome I is an objective conflict-of-laws rule and not merely a unilateral defence by the consumer.

Assessment

This decision has two consequences.

First, the consumer protection provision can also be relied upon by the business party to the contract. This makes a lot of sense. If it were otherwise, the business would have to wait for the consumer to choose her preferred law before it could assess the legal situation.

Second, the ruling means that the consumer cannot waive the protection of Article 6 Rome I. Indeed, this is just the mirror image of the first consequence, because if the consumer could waive the protection, then  it would be impossible for the business to rely on the provision. Therefore, this consequence must be applauded too.

It should be noted, however, that the situation in the law of jurisdiction is different on the latter point. According to the CJEU, the consumer can waive the protection by Article 18(1) Brussels I bis Regulation (see decision in Wurth Automotive, Case C-177/22 and the comment by Marion Ho-Dac). This can be easily explained, though, because already the wording of this provision makes it clear that it benefits exclusively the consumer and that the business cannot rely on this protective head of jurisdiction. It is different with Article 6 Rome I, which determines the law governing consumer contracts objectively, and thus for both parties.

— Thanks to Verena Wodniansky-Wildenfeld, Felix Krysa and Paul Eichmüller for reviewing this post.

Magdalena Pfeiffer (Charles University Prague) and Anatol Dutta (Ludwig-Maximilians-Universität München) will be hosting a workshop on the Proposal for a EU Regulation on Parenthood and the Creation of a European Certificate of Parenthood (discussed here) on 24 November 2023 in Prague.

Further information can be found on the flyer.

Caroline Sophie Rapatz, University of Kiel, has just published her German-language Habilitationsschrift on “European Union Private International Law – Role Model or Hegemony? Delimitations and Effects in Relation to National and International Conflict of Laws” (Das Internationale Privatrecht der EU – Vorbild oder Vormacht? Abgrenzungen und Wirkungen im Verhältnis zum nationalen und völkerrechtlichen Kollisionsrecht, Beiträge zum ausländischen und internationalen Privatrecht 139, Mohr Siebeck 2023 (XXVI, 693 p.)  The book analyses the consequences of the Europeanisation of private international law (PIL) for the traditional regulatory levels of national and international (treaty and convention) conflict-of-laws rules and for the system of conflict-of-laws as a whole. The author has kindly provided has with the following summary of her insights:

Originally, PIL was a national matter: Legal systems provided their own conflict-of-laws rules as a supplement to their substantive private law. In the course of the 20th century, harmonised rules for individual issues or areas of PIL were created through numerous bilateral treaties and multilateral conventions. As specific supplements and narrow exceptions, these could be integrated smoothly into the overall systematic structure of the national PIL concepts. Since the turn of the millennium, however, the unification of PIL in Europe through EU Regulations, directly applicable and replacing the Member States’ national rules, has added a new regulatory level – leading to today’s complex multi-level system. Within a few years, the EU conflict-of-laws Regulations have cut wide swathes into both national and international PIL, with considerable consequences triggered by their implementation. Simultaneously, the EU Regulations are incomplete with regard to several key issues and an overall system at the European level can only be surmised – it is left to the other regulatory levels to provide solutions for the problems caused by these lacunae. On the other hand, an increasingly strong influence of the assertion of European values can be observed.

The monograph examines EU PIL’s expansive claim to application vis-à-vis the traditional regulatory levels, focusing on the direct and indirect effects of the European instruments in the current network of conflict-of-laws rules. What consequences does the Europeanisation of various areas of PIL entail for the national conflict-of-laws concepts of the individual Member States and for the existence and the future of PIL treaties and conventions? An in-depth analysis based on representative examples shows that after only a decade, the initial approach to the European unification of PIL through separate, area-specific Regulations is already causing massive difficulties in practice. In the near future, a fundamental reorientation and reconceptualization of EU PIL will be unavoidable.

The introduction (Part I – Das EU-IPR als neue Regelungsebene [EU Conflict-of-Laws as a New Regulatory Level]) places the objective of the study in the current context of academic discussion and outlines its structure and method. The current state of the interplay of national, treaty/convention and European conflict-of-laws rules is presented and the basic relationships between the different regulatory levels established.

The first step of the in-depth analysis explores the direct effects of EU PIL (Part II – Konturen des EU-Kollisionsrechts [Contours of EU Conflict-of-Laws]). The intention for the European PIL instruments to be applied is outlined by their material scope of application. More or less clearly formulated positive demands for application entail a displacement of the Member States’ conflicts rules previously applicable; negative delimitations limit each EU Regulation’s application with regard to certain issues in favour of national rules, treaties and conventions or other European instruments. Frequently these European gaps are motivated by the endeavour to avoid conflicts – resulting, however, in selective exceptions with regard to problematic aspects.

Due to the primacy of the EU Regulations over the Member States’ PIL, the relationship between these two levels focuses on the scope of the different conflicts rules determined at the European level – crystallized in questions of characterisation with regard to individual legal institutions. On the one hand, under the European Regulations some areas have been expanded considerably compared to the previous understanding in Member States’ national PIL, to the detriment of the latter. On the other hand, politically sensitive issues which in principle fall within the material scope of the European PIL instruments are often deliberately excluded from them. This unilateral European determination of the scope of the EU instruments results in a considerable curtailment of the areas left to the national regulatory level – but at the same time the Member States need to close the gaps of the European PIL Regulations, the extent of which is not always clearly determined.

For the relationship between European Regulations and international agreements, an initial practical challenge lies in the identification of the existing bilateral treaties and multilateral conventions. An exemplary overview illustrates the diversity and variety of the conflict-of-laws rules of international origin competing with the EU rules. A remedy to the current information deficit in this regard is urgently needed; a solution might lie in the creation of a European central information platform. The interplay of European and international conflicts rules is subject to a broad spectrum of different coordination mechanism. Generally, it is characterised by the primacy of pre-existing agreements between Member States and Third States over EU Regulations, which necessitates exceptions of varying scope from the EU conflicts rules.

Additional difficulties arise with regard to intertemporal issues as the application of European and national conflict-of-laws rules overlaps in transitional phases and the coordination of the temporal scope of application of European and international instruments is not always entirely smooth.

On the whole, the material scope of application of European PIL proves to be fragmentary. Shifts and gaps on the EU level force the Member States to react within their remaining ambit, the prima facie unaffected conflict-of-laws rules in treaties and conventions are facing highly complex coordination issues in their interplay with the new European rules. EU PIL self-determines its scope of application, motivated by European interests. This proves dangerous in several respects – first and foremost because it hardly takes into account the repercussions that a scope of Europeanisation “according to the EU’s taste” entails for the formally unaffected other regulatory levels.

A second step of analysis scrutinises the influences of Europeanisation on national and international PIL that go beyond the European Regulations’ direct application (Part III – Wirkungen des EU-Kollisionsrechts [Effects of EU Conflict-of-Laws]). The Member States’ conflicts systems cannot limit their reaction to simple deletions, but constantly need to ensure the compatibility of the remaining national rules with EU PIL and fill the gaps of the latter. In the Member States’ PIL, various approaches can be identified: an upholding or establishment of independent national conflicts rules, an orientation of the national rules towards their new European context, or a renunciation of national rules in favour of an extended or analogous application of the EU Regulations. A closer look at these mechanisms shows that the issues remaining for the national regulatory level can only be solved with a view to the European developments. In addition to this “pull effect” of European PIL, an increasingly strong influence of EU primary law has to be taken into account. The requirements the ECJ is deriving from the fundamental freedoms have an ever-growing impact on the Member States’ national PIL. A primary law duty to recognise (personal) status would lead to a fundamental upheaval of the conception of conflict-of-laws, which could ultimately only be implemented reasonably on the European level. The discussion of controversial questions of legal policy is currently shifting to the establishment of limits for the consequences of the fundamental freedoms for conflict-of-laws rules – which frequently entails the direct confrontation of European and Member State national values. In the meantime, the PIL rules formally remaining at the national level are under the de facto compulsion to adapt to the European circumstances and requirements in all regards and areas: genuine national conflict-of-laws rules are increasingly disappearing.

The impact of Europeanisation on treaty and convention PIL is more subtle, but no less momentous. The unchanged conflicts rules of the international instruments are no longer applied in their original context of national PIL, but now interact with EU PIL. Different approaches led to coordination problems and friction losses; the direct comparison with the modern European rules frequently makes the older treaty and convention PIL appear outdated and disadvantageous. In the case of multilateral conventions, the necessity of a uniform interpretation in all Member States harbours the additional danger of a shift in interpretation caused by European predominance. Concerning the further developments on the international level, the EU holds a considerable power position. In terms of competence, it increasingly replaces its Member States; in terms of content, reforms and new instruments at the international level only have a realistic chance if they are compatible with EU approaches and values. The EU’s participation in multilateral conventions can contribute to a global harmonisation of PIL – but the de facto supremacy of the European positions and the current lack of an effective institutional counterweight are cause for concern. The explosive potential of these imbalances for both legal technique and legal politics should not be overlooked, and more attention granted to the frequently overlooked relationship between the European and international regulatory levels.

In addition, the effects of the Europeanisation of PIL reach beyond conflict of laws – as a look at some exemplary consequences for substantive law and international civil procedure illustrates.

At all levels, EU PIL thus results in extensive “long-distance effects” far beyond the technical scope of its legal instruments. It proves to be a deceptive pretence that the other regulatory levels remain unaffected: in practice, the leeway formally remaining for national, treaty and convention PIL rules is rapidly dwindling. Resistance against the replacement and pulling mechanisms in favour of European approaches and ideas is hardly possible.

These findings lead to the conclusion that the current European approach to unifying PIL by selective legal instruments is not suitable for the future (Part IV – Die Zukunft des EU-Kollisionsrechts [The Future of EU Conflict-of-Laws]). The relationship between the different regulatory levels needs to be redefined with awareness of the far-reaching European influence on all conflict-of-laws areas. In relation to the Member States’ PIL, the EU must either exercise self-restraint and permanently leave clearly delineated areas to the national level, or it must resolutely take the step towards full harmonisation. Building on this decision, the international instruments of PIL can then be re-evaluated and restructured in relation to Third States. While a critical review and streamlining of the Member States’ inventory of treaties and conventions is desirable, their primacy must not be undermined. For the creation of new global instruments, an active European participation is to be hoped for – but not a unilateral EU dominance. Finally, the first decade of practical application of EU conflict-of-laws has brought to light some need for improvement also within the European regulatory level.

In the 21st century, conflict-of-laws cannot be imagined without EU PIL. At the moment, its relationship to national, treaty and convention PIL is at a conceptual crossroads. In the very near future, the failed approach of individual EU Regulations will have to be replaced by a coherent and flexible model of coordination which takes into account the interests and needs of all participants and regulatory levels.