Issue 2017.4 of Dutch Journal on Private International Law (NIPR)

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The fourth issue of 2017 of the Dutch Journal on Private International Law, Nederlands Internationaal Privaatrecht, contains contributions on the likely response of developing countries to the Principles on Choice of Law in International Commercial Contracts 2015 developed by the Hague Conference on Private International Law, the interpretation of Article 9(3) of the Rome I Regulation by the Court of Justice of the European Union in the case Nikiforidis v. Republik Griechenland, the consequences of a ‘hard Brexit’ for the Family Law areas currently covered by EU regulations, and new developments in China’s recognition and enforcement of foreign judgments.

Matthijs ten Wolde & Kees de Visser, ‘Editorial’, p. 725-726.

Akinwumi Ogunranti, ‘The Hague Principles – a new dawn for developing countries?’, 727-746

This paper focuses on the likely response of developing countries to the Principles on Choice of Law in International Commercial Contracts 2015 (hereafter: Principles) developed by the Hague Conference on Private International Law. It makes two claims: that Article 2(4) of the Principles which permits parties to make an unrelated choice of law in international contracts, without generally protecting weaker parties, may not be favourably received by developing countries. Second, that Article 3 of the Principles on non-state law may also not be viewed favourably by developing countries because such provisions are always seen with distrust. In effect, this paper examines the likely reactions of developing countries to these pivotal provisions of the Principles. It then asks the question of whether a new dawn has arrived in private international legislations relating to choice of law or whether developing countries should be charting roads that lead to more places than just The Hague.

A.E. Oderkerk, ‘Buitenlandse voorrangsregels in de context van de Griekse crisis: geen rol voor het unierechtelijk beginsel van loyale samenwerking’, p. 747-758

In its ruling of 18 October 2016, the Court of Justice of the European Union (CJEU) answers a number of questions related to the interpretation of Article 9(3) of the Rome I Regulation, two of which confirm the current legal doctrine on this matter. Firstly, it is confirmed that Article 9 should be interpreted restrictively; no other overriding mandatory rules than those of the forum State or the State where the obligations in the agreement are (to be) fulfilled can be applied. Secondly, it is acknowledged that a national court may take into account other overriding mandatory rules as facts in so far as this is in accordance with the lex causae. In this ruling the Court departs from the doctrine with regard to the temporal scope of the Regulation, holding that the phrase ‘the conclusion of the agreement’ in Article 28 must be interpreted autonomously. The Court also clarifies under which circumstances a long-term contract concluded before 17 December 2009 may fall within the temporal scope of the Regulation. Finally, it is of interest that the Court takes the position that the principle of loyal cooperation has no influence on the (strict) interpretation of Article 9(3).

Just van der Hoeven, ‘Zachte conclusies over de betekenis van een harde Brexit voor het internationaal personen- en familierecht’, p. 759-771

This article gives an overview of the consequences of a ‘hard Brexit’ for the Family Law areas currently covered by EU regulations. It examines the applicability of various international instruments in these areas, and gives a brief answer to the question how the current EU regulations differ from these international instruments.

Yahan Wang, ‘A turning point of reciprocity in China’s recognition and enforcement of foreign judgments: a study of the Kolmar case’, p. 772-789

In the case of Kolmar Group AG v. Jiangsu Textile Co. Ltd. (the Kolmar case), a Chinese court has for the first time recognized and enforced a foreign civil judgment based on reciprocity. This article regards this case as a turning point of reciprocity in China’s recognition and enforcement of foreign judgments. Before 2016, the reliance on treaty-based and factual reciprocity led to some defects in China’s judicial practice, which could be attributed to the strict standards of reciprocity and deficient judicial interpretations. Through the Belt and Road initiative, China is seeking to improve international transactions between China and foreign countries – including some EU countries. In line with this development, the Chinese Supreme People’s Court seems to be transforming the strict criteria of reciprocity, adopting presumed reciprocity in its judicial practice. This article argues that execution of the Belt and Road initiative, establishing an efficient court reporting system and participating in international conventions are essential to China’s judicial reform.

Proposed U.S. law could moot the Microsoft Ireland case — and have implications for private international law

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Professor Jen Daskal writes on Just Security about a potential legislative solution to the Microsoft Ireland case pending in the U.S. Supreme Court, which presents the question of whether a U.S. warrant requires Microsoft to hand over a user’s data that Microsoft stores in Ireland:

“A bipartisan group of Senators today introduced the Clarifying Lawful Overseas Use of Data (CLOUD) Act—a bill that moots the pending Supreme Court Microsoft Ireland case and authorizes the executive to enter into bilateral and multilateral agreements so as to facilitate cross-border access to data in the investigation of serious crime. Amazingly, the legislation has the support of both the Department of Justice and Microsoft – the dueling parties in the Microsoft Ireland case. It also has the support of many other tech companies.

As it should.

…”

Read the full post here.

For Professor Daskal’s thoughtful analysis of the conflicts of laws issues presented in the Microsoft case and their relationship to private international law issues, see her earlier analysis here.

German Workshop on Cross-Border Enforcement in the EU (“IC²BE”)

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On Friday, 13 April 2018, the Albert-Ludwigs-University of Freiburg (Germany) will host a workshop in the framework of the research project “Informed Choices in Cross-Border Enforcement” (IC²BE). Funded by the Justice Programme (2014-2020) of the European Commission, the project aims to assess the working in practice of the “second generation” of EU regulations on procedural law for cross-border cases, i.e. the European Enforcement Order, Order for Payment, Small Claims (as amended by Regulation (EU) 2015/2421) and the Account Preservation Order Regulations. As a result, it is intended to create a database of national case law. The project is carried out by a European consortium (the MPI Luxembourg and the universities of Antwerp, Complutense, Milan, Rotterdam, and Wroclaw) and is coordinated by Prof. Jan von Hein, Freiburg. Confirmed speakers include Professors Gerald Mäsch (University of Münster), Ivo Bach (University of Göttingen), Stefan Huber (University of Tübingen), as well as Dr. Denise Wiedemann (Max-Planck-Institute, Hamburg) and Dr. Bernhard Ulrici (University of Leipzig). Their presentations will be commented on by distinguished practitioners, such as Dr. Max Peiffer (Munich), Prof. Dr. Andreas Baumert (Achern), Dr. David Einhaus (Freiburg) and Dr. Nils H. Harbeck (Hamburg). The language of the workshop will be German. Partcipation is free of charge, but requires a registration. For further information about the program and the process of registration, please click here.

Court of Appeal of Ljubljana and implied consent to application of Slovenian law by not- contesting the application of Slovenian law in first and in appellate instance

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Written by Dr. Jorg Sladic, Attorney in Ljubljana and Assistant Professor in Maribor (Slovenia)

In judgment of 25 October 2017 in case I Cpg 1084/2016 (ECLI:SI:VSLJ:2017:I.CPG.1084.2016) published on 31 January 2018 the Slovenian Appellate Court ruled on a question of implied consent to application of Slovenian law. Read more

Workshop on the EU Matrimonial and Partnership Property Regulations at the University of Strasbourg (France), 7 February 2018

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On February 7th, a workshop on the EU Matrimonial and Partnership Property Regulations will take place at the University of Strasbourg. Coordinated by Prof. Estelle Naudin and Delphine Porcheron, the workshop will explore the strategies of anticipation provided by the new regulations and some of the practical issues raised by French-German situations.

Speakers include :

  • Richard Crône, Notary in Paris, Member of the Institut Notarial Europe et International (INEI)
  • Alain Devers, University of Lyon III
  • Claire Farge, Lawyer, Member of the Legal Committee of FNDP
  • Michel Farge, University of Grenoble-Alpes
  • Eric Fongaro, University of Bordeaux
  • Estelle Gallant, University Paris I
  • Estelle Naudin, University of Strasbourg
  • Delphine Porcheron, University of Strasbourg

Click here to access the full program.

EU Procedural Law Study: Consumer Protection General Report published by the European Commission

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On 26 January 2018, the European Commission published the second General Report of the study on procedural law undertaken by the Max Planck Institute Luxembourg. This strand of the study concerned the effect of divergences in national procedural laws on the equivalence and effectiveness of the procedural protection of consumers under EU consumer law.

For the first strand of the study, see here.

More information is available here.

Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 1/2018: Abstracts

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The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles: Read more

Commentary on the Service Regulation

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The first Commentary on the Service Regulation (1393/2007) in Greece has just been published. The volume sheds light on all aspects of cross border service within the EU, approaching the topic both from a domestic and an EU-case law viewpoint. Read more

Fifty Shades of (Facebook) Blue – ECJ Renders Decision on Consumer Jurisdiction and Assigned Claims in Case C-498/16 Schrems v Facebook

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Written by Tobias Lutzi, DPhil Candidate and Stipendiary Lecturer at the University of Oxford.

Yesterday, the ECJ has rendered its decision in Case C-498/16 Maximilian Schrems v Facebook Ireland Limited. The case will be of interest to many readers of this blog as its facts are not only closely linked to the ECJ’s well-known decision in Case C-362/14 Schrems but also could have come straight out of a conflict-of-laws textbook.

Maximilian Schrems has been litigating against Facebook and the way in which the company uses the personal data of its users since 2011, when he first submitted a range of complaints to the Irish Data Protection Commissioner. In 2013, he submitted another complaint, which ultimately lead to the annulment of the ‘Safe Harbour’ framework between the EU and the US in the aforementioned decision; the proceedings continued with a reformulated version of this complaint and have recently been referred to the ECJ for a second time. Over the course of this litigation, Schrems built a reputation as a privacy activist, publishing two books, giving talks and lectures, and founding a non-profit organisation that uses ‘targeted and strategic litigation’ to enforce privacy and data protection laws across Europe.

The proceedings that gave raise to yesterday’s decision by the ECJ are formally unrelated to the aforementioned litigation. In 2014, Schrems set out to bring a ‘class action’ against Facebook for numerous violations of privacy and data protection laws. For this purpose, 25,000 Facebook users assigned their claims to him. Only eight of these claims, regarding Schrems’ own Facebook account and Facebook ‘page’ as well as the accounts of seven other users from Austria, Germany, and India, formed the object of the present proceedings. The claims were brought at Schrems’ domicile in Vienna, Austria, based on the special head of jurisdiction for consumer contracts in Art 16(1) Brussels I (= Art 18(1) of the recast Regulation).

The proceedings raised two separate questions, which the Austrian Oberster Gerichtshof ultimately referred to the ECJ:

  • Can Schrems still be considered a consumer in the sense of Art 15(1) Brussels I, despite his continued activism and professional interest in the claims?
  • If so, can he also rely on the privilege of Art 16(1) Brussels I regarding claims that have been assigned to him by other consumers who are domiciled in (a) the same EU Member State; (b) another Member State; (c) a non-member State?

Following the Advocate General’s opinion (reported here), the Court answered the first question in the positive (I.) and the second one in the negative (II.). Both answers are testimony to a nuanced interpretation of the special rules of jurisdiction for consumer contracts (III.)

I. The Consumer Exception

According to the ECJ’s well-known decisions in Case C-269/95 Benincasa and Case C-464/01 Gruber, the assessment of whether a party is a ‘consumer’ in the sense of Art 15(1) Brussels I does not depend on their subjective qualities but on the ‘the position of the person concerned in a particular contract’ (Benincasa, [16]), which must have been ‘concluded for the purpose of satisfying an individual’s own needs in terms of private consumption’ (ibid, [17]); where a contract has been concluded for a purpose that is partly private and partly professional, the professional aspect of it must be ‘so slight as to be marginal’ for the contract to still fall under the provision (Gruber, [39]).

In the present case, this definition raised two questions. The Court first had to decide whether the assessment was to be made only at the moment when the contract was originally concluded or whether subsequent changes of circumstances must also be taken into account. It held that

[38] … a user of [a digital social network] may, in bringing an action, rely on his status as a consumer only if the predominately non-professional use of those services, for which the applicant initially concluded a contract, has not subsequently become predominately professional.

Second, the Court had to decide whether this was the case for Schrems, who had originally entered into a contract with Facebook for private purposes but subsequently developed a professional activity involving litigation against Facebook. According to the Court,

[39] … neither the expertise which [a] person may acquire in the field covered by those services nor his assurances given for the purposes of representing the rights and interests of the users of those services can deprive him of the status of a ‘consumer’ within the meaning of Article 15 [Brussels I].

[40] Indeed, an interpretation of the notion of ‘consumer’ which excluded such activities would have the effect of preventing an effective defence of the rights that consumers enjoy in relation to their contractual partners who are traders or professionals, including those rights which relate to the protection of their personal data. …

Interestingly, the Court put little emphasis on the possible distinction between Schrems’ private Facebook ‘profile’ and his arguably professional Facebook ‘page’ (see [34]–[36]). Instead, it seemed to generally exclude ‘representing the rights and interests of the users’ of a particular service from the range of professional activities that might prevent the contract for this service from being considered a consumer contract. The Court explicitly linked this interpretation to the objective of ensuring a high level of consumer protection in Art 169 TFEU. Thus, its decision might not even have been different had Schrems joined Facebook with the sole aim of enforcing his (and other users’) rights. This way, the Court effectively sidestepped the problems created by the increasingly wide range of uses to which social media and other online platform accounts can be put, which the Advocate General had so colourfully described as ‘fifty shades of (Facebook) blue’ (Opinion, [46]) – and which, for the time being, remain unaddressed.

II. Jurisdiction for Assigned Claims

With regard to using the second alternative of Art 16(1) Brussels I to bring claims that have been assigned to the claimant by other consumers at the claimant’s domicile, the Court held:

[45] The rules on jurisdiction laid down, as regards consumer contracts, in Article 16(1) of the regulation apply, in accordance with the wording of that provision, only to an action brought by a consumer against the other party to the contract, which necessarily implies that a contract has been concluded by the consumer with the trader or professional concerned ….

…

[48] … [T]he assignment of claims cannot, in itself, have an impact on the determination of the court having jurisdiction …. It follows that the jurisdiction of courts other than those expressly referred to by Regulation No 44/2001 cannot be established through the concentration of several claims in the person of a single applicant. … [A]n assignment of claims such as that at issue in the main proceedings cannot provide the basis for a new specific forum for a consumer to whom those claims have been assigned.

This interpretation seems to align well with earlier decisions by the Court, according to which the special head of jurisdiction in Art 16(1) Brussels I is only available personally to the consumer who is party to the consumer contract in question (Case C-89/91 Shearson Lehman Hutton, [23]; Case C-167/00 Henkel), [33]), and according to which the assignment of a claim does not affect international jurisdiction under the Brussels I Regulation (Case C-352/13 CDC Hydrogene Peroxide, [35]–[36]).

An interesting, and arguably unfortunate, side effect of this restrictive interpretation is that it may even exclude the consolidation of the claims of other Austrian consumers in the same forum, considering that the second alternative of Art 16(1) does not only contain a rule of international jurisdiction but also determines local (internal) jurisdiction. In this regard, the Advocate General argued that an additional forum in which such consumer claims could be brought could be created under national law (Opinion, [117]), a proposition that does not appear easily reconcilable with the clear wording of Art 16(1).

Contrary to the claimant’s press release, though, the fact that a consumer is not allowed to avail him- or herself of the privilege in Art 16(1) Brussels I in order to bring the claims 25,000 other consumers that have been assigned to him at his or her domicile does not mean that company’s can ‘divide and conquer’ and ‘block enforcement of consumer rights’. A claimant is free to rely on the first alternative of Art 16(1) Brussels I (which mirrors Art 2(1)) and bring all claims in the defendant’s Member State of domicile, the procedural law of which will then decide on whether the claims may be consolidated.

III. A Nuanced Approach to the Consumer Exception

What seems to emerge from the decision is a nuanced approach to the special provisions for consumer contracts. The Court applies a rather flexible interpretation to Art 15(1) Brussels I, allowing for changes of circumstances to be taken into account but also distinguishing the enforcement of (consumer) rights from other types of professional activities. At the same time, it interprets the special head of jurisdiction in Art 16(1) restrictively, limiting the privilege to each individual consumer and excluding the possibility of other consumers assigning their claims to one who is domiciled in what may appear as a more favourable forum.

Of course, there may well be strong arguments for the existence of such a possibility, especially in cases where each individual claim is too small to justify litigation but the sum of them is not. But it seems questionable whether Art 16(1) Brussels I would be the right instrument to create such a mechanism of collective redress – and, indeed, whether it should be the Court’s role to implement it.

Sharia law in Greece: Blending European values with Islamic tradition

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The Hellenic Republic is the sole EU Member State which provides for the application of Sharia law in its territory for more than a century. A recent amendment is granting Greek Moslems the right to opt-out, and resort to domestic civil law. At the same time, the new law respects the right to opt-in for the application of Sharia law, upon the condition of mutual agreement between the parties.

Law 4511/2018 was enacted on January 15. It contains only one article (the second simply declares that the law will be in force upon publication in the State Gazette), which amends the previous status of Sharia courts in Greece. A new Paragraph (4) is added to Art. 5 Law 1920/1991. By virtue of the new provision, the jurisdiction of the Mufti becomes the exception, whereas (until today) it was the rule for Greek Moslems living in the region of (Western) Thrace. The Mufti has jurisdiction for a vast number of family and succession matters, which are listed under Article 5.2 Law 1920/1991. A prerequisite is that the parties have submitted the above matters to Sharia law.

The new law grants the right to each party to seek Justice before domestic courts, and in accordance with Greek substantive and procedural law. The Mufti may exercise jurisdiction only if both parties file an application for this cause. Once the case is submitted to the Mufti, the jurisdiction of national courts is irrevocably excluded.

In addition, the new law paves the path for a more structured procedure before the Mufti: A drafting Committee will be authorized to prepare a decree, which will shape (for the first time) the Rules and Regulations of the Mufti ‘courts’. Signs of a formalized process are already clearly visible in the new law (Article 4.b).

Inheritance matters are also regulated by the new legislation: In principle they are subjected to Greek law, unless the testator solemnly states before a notary public his wish to submit succession matters to Sharia law. A parallel application of Greek and Sharia law is not permitted. However, revocation of the testator’s declaration is allowed, pursuant to Greek succession law provisions embedded in the Civil Code.

The new law has certainly conflict of laws ramifications too, most notably in light of the recent Sahyouni case of the CJEU. In this respect it is important to underline that all decisions rendered by the Mufti are passing through a hybrid process of domestic exequatur, which is rudimentarily regulated under Article 5.3 Law 1920/1991. Failure to submit the Mufti decisions to domestic courts’ scrutiny, deprives them of res iudicata and enforceability. Hence, EU Member States courts, whenever confronted with a request to recognize or enforce Mufti decisions within their jurisdiction, will always have to examine whether a Greek court has granted full faith and credit to the Mufti’s ruling.