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Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 1/2020: Abstracts

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

H. Schack: The new Hague Judgment Convention

This contribution presents the new Hague Convention on the recognition
and enforcement of foreign judgments in civil or commercial matters adopted on
2 July 2019 by the Hague Conference on Private International Law. This
Convention simple with a positive list of accepted bases for recognition and
enforcement supplements the 2005 Hague Convention on choice of court
agreements. The benefit of the 2019 Convention, however, is marginal, as its
scope of application is in many ways limited. In addition, it permits
declarations like the “bilatéralisation” in Art. 29 further reducing the
Convention to a mere model for bilateral treaties. If at all, the EU should
ratify the 2019 Convention only after the US have done so.

F. Eichel: The Role of a Foreign Intervener in Establishing
a Cross-Border Case as a Requirement for the Application of European
Legislation on Civil Procedure

The Small-Claims Regulation (No. 861/2007) is only applicable in
crossborder cases. The European Court of Justice (ECJ) in its judgment in ZSE
Energia has decided that the foreign seat of an intervener does not turn an
otherwise purely domestic case into a cross-border case. The IPRax article
agrees with this decision, but criticizes the reasons given by the ECJ. Without
specific need, the ECJ stated that the participation of an intervener would be
inconsistent with the Small-Claims Regulation at all, although general
procedural issues are governed by the procedural law of the lex fori (cf.
article 19 Small-Claims Regulation). In addition, the article analyses the
impact of the ECJ’s ruling on other European legal acts such as the European
Order for Payment Regulation (No. 1896/2006), the European Account Preservation
Order Regulation (No. 655/2014), the Directive on the right to legal aid (RL
2002/8/EC), and the Mediation Directive (RL 2008/52/EC).

C.A. Kern/C. Uhlmann: When is a court deemed to be seised under
the Brussels Ia Regulation? Requirements to be met by the claimant and
pre-action correspondence

In the aftermath of the VW-Porsche takeover battle, an investor based on
the Cayman Islands announced to sue Porsche SE in the High Court of England and
Wales. Probably in an attempt to secure a German forum, Porsche initiated a
negative declaratory action in the Landgericht Stuttgart. However, the
complaint could not be served on the investor for lack of a correct address.
The German Federal Supreme Court held that Porsche had not met the requirements
of Art. 32 no. 1 lit. a of the recast Brussels I Regulation and asked the lower
court to determine whether the „letter before claim“ sent by the investor had
already initiated proceedings in England so that parallel proceedings in
Germany were barred. The authors agree that Art. 32 no. 1 must be interpreted
strictly, but doubt that a „letter before claim“ is sufficient to vest English
courts with priority under the Brussels Regulation.

C. Thomale: Treating apartment-owner associations at
Private International Law

In its recent Brian Andrew Kerr ./. Pavlo Postnov and Natalia Postnova
decision, the CJEU has taken a position on how to handle apartment owners’
obligations to contribute to their association in terms of international
jurisdiction and choice of law. The casenote analyses the decision, notably
assessing the relationship of international jurisdiction and choice of law, the
concept of “services” as contained in the Brussels I Regulation and the Rome I
Regulation respectively, as well as the company law exception according to Art.
1 (2) (f) Rome I Regulation.

H. Roth: The Probative Value of Certificates as per Art 54
Brussels I and Art 53 Brussels Ia

According to the European rules on recognition and enforcement of
judgments in civil and commercial matters, the probative value of both
certificates is determined as mere information provided by the court of origin.
At the second step of assessing whether there are grounds to refuse recognition
(appeal or refusal of enforcement), the court of the member state in which
enforcement is sought will have to verify itself the factual and legal
requirements for service of process.

M. Brosch: Public Policy and Conflict of Laws in the Area of
International Family and Succession Law

The public policy-clause is rarely applied in private international law
cases. Relevant case law often concerns matters of international family and
succession law. This also applies to two recent decisions of the Court of
Appeal in Berlin and the Austrian Supreme Court relating, respectively, to the
recognition of a Lebanese judgement on the validity of a religious marriage and
the applicability of Iranian succession law. Although systemically coherent,
the courts’ findings give rise to several open questions. Furthermore, it is
argued that two opposite tendencies can be identified: On the one hand, the
synchronisation between forum and ius as well as the prevalence of the habitual
residence as connecting factor in EU-PIL leave little room for the application
of the public policy-clause. On the other hand, its application may be
triggered in areas where the nationality principle still prevails, i.e. in
non-harmonised national PIL and PIL rules in bilateral treaties.

E.M. Kieninger: Vedanta v Lungowe: A milestone for human
rights litigation in English courts against domestic parent companies and their
foreign subsidiary

In Vedanta v Lungowe, a case involving serious health and environmental damage
due to emissions into local rivers from a copper mine in Sambia, the UK Supreme
Court has affirmed the jurisdiction of the English courts, in relation to both
the English parent company and the subsidiary in Sambia. In the view of the
Supreme Court, the claim against the parent company has a real issue to be tried
and denying access to the English courts would equal a denial of substantive justice.
The decision is likely to have consequences not only for the appeal against the
Court of Appeal’s denial of access to the English courts in Okpabi v Royal Dutch
Shell, but also for the development of a more general duty of care of parent companies
towards employees and people living in the vicinity of mines or industrial
plants run by subsidiaries.

B. Lurger: How to Determine Foreign Legal Rules in Accelerated
Proceedings in Austrian Courts

In a rather lengthy proceeding initiated in 2014 in the district court
Vienna Döbling the wife claimed maintenance from her husband. The Austrian
Supreme Court (OGH) examined the special conditions of the application of
foreign law in accelerated proceedings (motion for injunctive relief). The
Court first clarified the construction of Art. 5 Hague Maintenance Protocol in
relation to a pending divorce proceeding in which Austrian law applied, whereas
the habitual residence of the claimant was situated in the United Kingdom. The
OGH held that in accelerated proceedings, the question of whether foreign law
had to be applied (the choice of law question) can regularly be answered
without considerable effort. As the next step, the determination of the content
of the foreign law must be undertaken by the lower courts with reasonable means
and effort. As in ordinary proceedings, the parties do not have any particular
duties to assist the court in this determination. Considering the special
circumstances of the case, which consisted in the considerable wealth of the
parties and the divorce and maintenance proceedings going up and down the
instances in Vienna already for years, the Supreme Court arrived at the conclusion
that the application of English law by the Austrian courts was appropriate even
in the accelerated proceeding at hand.