Postponement of the next global Journal of Private International Law Conference

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The 9th Journal of Private International Law Conference was due to be hosted by the Singapore Management University in 2021. Due to the ongoing pandemic, the Editors of the Journal (Professor Jonathan Harris QC of King’s College, London and Professor Paul Beaumont FRSE of the University of Stirling) and the conference organiser (Associate Professor Adeline Chong, Singapore Management University) have decided to postpone the conference to 2022 (tentatively June 2022). We will announce further details in due course.

Out now: Rome I and Rome II in Practice

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Rome I and Rome II in Practice, a volume edited by Emmanuel Guinchard focusing on the application of the theoretically uniform rules of Rome I and Rome II by the national courts of the Member States, has recently been published by Intersentia. A true treasure trove for scholars of comparative private international law, the book features national reports from 20 Member States and the UK drafted by specialist authors as well as a review of the case law of the CJEU and extensive conclusions by the editor. Each national report contains both general remarks on the jurisprudence of the national courts as well as a structured review of the application of the two Regulations to a wide range of specific questions.

Several of the national reports have been provided by current or former editors of this blog, including Apostolos Anthimos (Greece), Matthias Weller (Austria & Germany), and Pietro Franzina (Italy).

Further information and the table of contents can be found here.

Save the date -27 November 2020- HOPINEU Lecture Series: Covid-19 & Business Interruption (BI) Insurance

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You are kindly invited to the webinar “HOPINEU Lecture Series: Covid-19 & Business Interruption (BI) Insurance” on 27 November 2020 at 4:00pm (GMT+3).

This event is supported by the Erasmus+ Programme of the European Union and organised as part of the Jean Monnet Module project “Harmonisation of the Principles of Insurance Law in Europe” (HOPINEU) run at Koç University.

For updates on this Jean Monnet Module, please follow @hopineu1 #HOPINEU on Twitter.

 

 

Out now: Recent Developments in Turkish Family Law, edited by Fatih Ibili and Zeynep Derya Tarman.

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Recent Developments in Turkish Family Law, edited by Prof. dr. Fatih Ibili and Prof. dr. Zeynep Derya Tarman is now available.

This book gives an overview of recent developments in Turkish family law for legal practitioners in Europe. Both the private international law and the substantive law aspects of Turkish family law is explained, with a special focus on the recognition and enforcement of foreign divorce decisions, the role of fault in divorce proceedings, the dissolution of the matrimonial regime of participation in the acquisition, the surname of women and children and joint custody after divorce. It contains up-to-date information based on recent amendments in legislation and recent case law of the Court of Cassation and the Constitutional Court.

 

Online Conference (November 18, 2020) “Towards a Global Cooperation Framework for Temporary and Circular Migration”

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You are kindly invited for the conference on “Towards a global cooperation framework for temporary and circular migration” by Hans van Loon (Former Secretary General of the Hague Conference on Private International Law) on November 18, 2020, Wednesday between 12.30-13.30 (GMT+3). The conference is organised by Bilkent University as a part of the Talks on Migration Series within the Jean Monnet Module on European and International Migration Law. It will be held via zoom, free of charge.

Click here to view the event poster

Join Zoom Meeting
https://zoom.us/j/96734230354
Meeting ID: 967 3423 0354

On-line expert seminars: Revised Brussels II ter regime, 25 & 26 November; 3 & 17 December 2020  

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You are kindly invited to a series of six online expert seminars on the Brussels II ter Regulation (EU Regulation 2019/1111). This new Regulation on jurisdiction, recognition and enforcement in matrimonial matters and in matters of parental responsibility will only become fully applicable on 1 August 2022. Time enough, it would seem, but with its 105 articles, 98 recitals and ten annexes, the organisers considered it not too early to start preparing. Cristina González Beilfuss (University of Barcelona), Laura Carpaneto (University of Genoa), Thalia Kruger (University of Antwerp), Ilaria Pretelli (Swiss Institute of Comparative Law) and Mirela Župan (University of Osijek) will be presenting their first thoughts on the Regulation, its new enforcement regime, international parental child abduction, child protection, judicial and administrative cooperation, provisional measures and parallel proceedings. They have invited academics and practitioners to react to their thoughts and provided time for discussion. 

The seminars will be conducted on Zoom, free of charge. They are aimed at practitioners, civil servants and academics alike. Each will last 1 hour and 15 minutes.  

Please enrol if you wish to join. You will notice that the form allows you to enrol for each of the seminars separately. Only persons enrolled will be provided with the Zoom link for the event.  

Programme:

Session I: 25 November 2020

12.30 – 13.45  New Challenges under Brussels IIter

Prof. Cristina González Beilfuss, University of Barcelona

Dr. Máire Ní Shúilleabháin, University College Dublin

Mr. Michael Wilderspin, legal service of the European Commission

 

Session II: 25 November 2020

14.00 – 15.15  Enforcement

Dr. Ilaria Pretelli, Swiss Institute of Comparative Law Lausanne

Prof. Vesna Lazic, T.M.C. Asser Institute Den Haag

Advocate Véronique Chauveau, Véronique Chauveau & Associés, Paris

 

Session III: 26 November 2020

 12.30 – 13.45 Child Abduction

Prof. Thalia Kruger, University of Antwerp

Dr. Katarina Trimmings, University of Aberdeen

Advocate Kamila Zagorska, NWS-MCB Prawo Rodzinne, Warsaw

 

Session IV: 26 November 2020

14.00 – 15.15 Children under Brussels IIter

Prof. Laura Carpaneto, University of Genova

Prof. Giacomo Biagioni, University of Cagliari

Mr. Robert Fucik, Central Authority Austria

 

Session V: 3 December 2020

12.30 – 14.00  Cooperation between central authorities and between judges

Prof. Mirela Župan, J. J. University Strossmayer of Osijek

Dr. Gian Paolo Romano, University of Genève

Mr. Christian Hohn, Federal Office of Justice – Central Authority Germany

Stephan Auerbach, Médiateur FSM/SDM, assermenté par l’Etat de Genève

 

Session VI: 17 December 2020

12.30 – 13.45  Provisional measures, transfer, lis pendens 

Dr. Ilaria Pretelli, Swiss Institute of Comparative Law Lausanne & Prof. Mirela Župan, J. J. University Strossmayer of Osijek

Prof. Costanza Honorati, University of Milano-Bicocca

Judge Myriam de Hemptinne, Family Judge at the Court of Appeal of Brussels, seconded to the Permanent Bureau of the Hague Conference on Private International Law and Belgian Network judge in family matters (EJN and IHNJ)

 

No reciprocity for Swiss and German judgments in Jordan

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Two recent rulings of the Supreme Court of the Hashemite Kingdom of Jordan refused recognition and enforcement of  German and Swiss judgments on maintenance on grounds of no reciprocity.

I. First case: No reciprocity with Germany

  1. The facts

The applicant was the wife of the respondent, both Jordanian nationals. She filed several applications before German courts in Stuttgart, and obtained a number of final judgments ordering payments for alimony to her benefit. Due to non payment by the husband, she filed an application for the recognition and enforcement of the German judgments in Jordan.  The Court of first instance declared the judgments enforceable in Jordan in 2009. The husband appealed. The Amman Court of Appeal issued its decision January 2015, revoking the appealed decision. The wife filed a second appeal (cassation).

  1. The ruling of the Supreme Court of Cassation

Initially, the Supreme Court underlined the lack of a judicial cooperation agreement between the Hashemite Kingdom of Jordan and Germany, which leads to the application of the Jordan law on the recognition and enforcement of foreign judgments. The Supreme Court stressed out that for the purposes of a foreign judgment being executed in Jordan, the conditions stipulated in the Law on Execution of Foreign Judgments No. (8) of 1952 must be met. It then referred to the provisions of Article (7/2) of the law, which states that the court may reject the application requesting the execution of a judgment issued by a court of any country whose law does not allow the recognition of judgments issued by the courts of the Hashemite Kingdom of Jordan.

The Supreme Court refers then to the order of the Amman Court of Appeal to the applicant, by virtue of which the latter was invited to provide evidence whether German laws allow the recognition of judgments issued by Jordanian courts. Based on the letter received by the Ministry of Justice in December 2014, the Court of Appeal concluded that there is no reciprocity between Jordan and Germany to recognize judgments issued by their courts.

On the grounds aforementioned, the Supreme Court dismissed the cassation and confirmed the ruling of the Amman Court of Appeal [Jordan Court of Cassation, the Hashemite Kingdom of Jordan, Ruling issued at 9/2 /2020].

II. Second case – No reciprocity with Switzerland

  1. The facts

The parties were a Romanian wife (applicant in Jordan and claimant in Switzerland) and a Jordanian husband (defendant in Switzerland and appellant in Jordan). The applicant obtained a set of decisions against the respondent, including the right of guardianship over the child resulting from their marriage, and maintenance. In 2019, the wife filed an application for the recognition and enforcement of a number of judgments issued by Zurich courts. Both the North Amman Court of First Instance and the Amman Court of Appeal allowed the recognition of the Swiss judgments. The husband lodged a second appeal in March 2020, invoking a number of grounds for cassation. The focus is on the 9th and 10th ground, namely the following:

a.       The instance courts erred and violated the text of Article 7/2 of the Foreign Judgment Execution Law by not responding to his request, that Swiss courts do not recognize judgments issued by Jordanian courts.

b.      The Court of Appeal was mistaken by not allowing evidence to be presented, demonstrating that Swiss courts do not accept rulings issued by Jordanian courts

  1. The ruling of the Supreme Court of Cassation

In response to the above, the Supreme Court stated that for the purposes of the foreign judgment being executed within the Kingdom, it is imperative that the recognition meets the conditions stipulated in the Law on Execution of Foreign Judgments No. (8) of 1952. By referring to the provisions of Article (7/2) of the same law, the Supreme Court reproduced the wording of the provision, namely, that the court may also reject the application requesting the execution of a judgment issued by one of the courts of any country whose law does not permit the recognition of judgments issued by the courts of the Hashemite Kingdom of Jordan. What is learned from this text, the Supreme Court continues, is that reciprocity must be available, and the ruling does not violate public order.

The Supreme Court granted the appeal with the following reasoning:

  • the Court of Appeal omitted to examine whether there was reciprocity between Jordan and Switzerland to mutually recognize judgments issued by their courts;
  • it also failed to address the Ministry of Justice to clarify whether there was reciprocity, and that the judgments issued by the Jordanian courts are recognized by the courts of Switzerland, and then to evaluate the respective evidence.

Based on the above, the Supreme Court decided to refuse recognition of the Swiss judgments [Jordan Court of Cassation, the Hashemite Kingdom of Jordan, Ruling issued at 21/9/2020].

Canada’s Top Court to Hear Enforcement Dispute

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By Stephen G.A. Pitel, Western University

The Supreme Court of Canada has granted leave in H.M.B. Holdings Limited v Attorney General of Antigua and Barbuda.  Information about the appeal is available here. The decision being appealed, rendered by the Court of Appeal for Ontario, is available here.  In the usual course the appeal will be heard in the late spring or early fall of 2021.  The grant of leave is notable because Canada’s top court only hears a small handful of conflict of laws cases in any given year.

In 2014 the Privy Council rendered a judgment in favour of HMB against Antigua and Barbuda for over US$35 million including interest.  In 2016 HMB sued at common law to have the Privy Council judgment recognized and enforced in British Columbia.  Antigua and Barbuda did not defend and default judgment was granted in 2017.  HMB then sought to register the British Columbia decision (not the Privy Council decision) under Ontario’s statutory scheme for the registration of judgments of other Canadian common law provinces.  This required the Ontario courts to engage in a process of statutory interpretation, with one of the central issues being whether the scheme applied to the recognition and enforcement judgment or only to what have been called “original judgments”.

The procedure used by HMB for getting the Privy Council decision enforced in Ontario might seem odd.  The Ontario application judge referred to the process as involving a “ricochet judgment”.  As to why HMB did not bring a common law action on the Privy Council judgment in Ontario, as it had done in British Columbia, there appears to be some issue that such an action could be outside the applicable limitation period.  British Columbia (10 years) has a longer limitation period than Ontario (2 years) for common law actions to enforce foreign judgments.

The Ontario courts held that the scheme did not apply to the British Columbia judgment or, in the alternative, if it did, Antigua and Barbuda were entitled to resist the registration on the basis that it was not “carrying on business” in British Columbia (which is a defence to registration under the Ontario scheme).  The majority of the Court of Appeal for Ontario, perhaps proceeding in an inverted analytical order, held that because Antigua and Barbuda was not carrying on business in British Columbia it did not need to address the (more fundamental) issue of the scope of the scheme.  The dissenting judge held Antigua and Barbuda was carrying on business in British Columbia and so did address the scope of the scheme, finding it did apply to a recognition and enforcement judgment.

In my view, it is unfortunate that all of the Ontario judges focused quite particularly on the language of various provisions of the statutory scheme without greater consideration of the underlying policy question of whether the scheme, as a whole, truly was meant to allow knock-on or ricochet enforcement.  Ontario’s scheme is explicitly limited to allowing registration of judgments of other Canadian common law provinces.  It strikes me as fundamentally wrong to interpret this as covering all foreign judgments those other provinces themselves choose to enforce.  Nevertheless, it will be interesting to see whether the Supreme Court of Canada resolves the appeal solely on the basis of the intended scope of the registration scheme or instead devotes significant attention to addressing the meaning of “carrying on business”.

ECJ in the case of Ellmes Property Services, C-433/19, on Article 24(1) and Article 7(1)(a) of the Brussels I bis Regulation

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On 11 November 2020, the ECJ decided in the case of Ellmes Property Services, C-433/19, on Article 24(1) and Article 7(1)(a) of the Brussels I bis Regulation (for our post on AG Szpunar’s Opinion on the case see here). The Court held that:

“1.      Point 1 of Article 24 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that an action by which a co-owner of immovable property seeks to prohibit another co-owner of that property from carrying out changes, arbitrarily and without the consent of the other co-owners, to the designated use of his or her property subject to co-ownership, as provided for in a co-ownership agreement, must be regarded as constituting an action ‘which has as its object rights in rem in immovable property’ within the meaning of that provision, provided that that designated use may be relied on not only against the co-owners of that property, but also erga omnes, which it is for the referring court to verify.

2.      Point 1(a) of Article 7 of Regulation No 1215/2012 must be interpreted as meaning that, where the designated use of immovable property subject to co-ownership provided for by a co-ownership agreement cannot be relied upon erga omnes, an action by which a co-owner of immovable property seeks to prohibit another co-owner of that property from carrying out changes, arbitrarily and without the consent of the other co-owners, to that designated use must be regarded as constituting an action ‘in matters relating to a contract’, within the meaning of that provision. Subject to verification by the referring court, the place of performance of the obligation on which that action is based is the place where the property is situated.”

The full text of the judgment is here.

The Italian Supreme Court on Competence and Jurisdiction in Flight Cancellation Claims

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The case

In a recent decision deposited 5 November 2020 (ordinanza 24632/20), the Italian Supreme Court has returned on the competent court in actions by passengers against air carriers following cancellation of flights.

The case is quite straightforward and can be summarized as follows: (i) passengers used a travel agency in Castello (province of Perugia) to buy EasyJet flight tickets; (ii) the Rome(Fiumicino)-Copenhagen fight was cancelled without any prior information being given in advance; (iii) passengers had to buy a different flight from another air carrier to Hamburg, and travel by taxi to their final destination – thus sustaining additional sensitive costs.

Before the Tribunal (Tribunale) in Perugia, the passengers started proceedings against the air carrier asking for both the standardized lump-sum compensation they were entitled under the Air Passenger Rights Regulation following the cancellation of the flight (art. 5 and art. 7), and for the additional damages sustained due to the cancellation.

 

 

The relevant legal framework: an overview

Passengers requested Italian courts to adjudicate two different set of claims, each of which has its own specific legal basis.

One the one side, the specific right for standardized lump-sum compensation in case of cancellation of flight is established by the EU Air Passenger Rights Regulation; on the other side, the additional damage for which they sought compensation did fall within the scope of application of the 1999 Montreal Convention for the Unification of Certain Rules for International Carriage by Air.

As it has already been clarified by the Court of Justice of the European Union (see ex multis Case C-464/18, para. 24), the Air Passenger Rights Regulation entails no rule on jurisdiction – with the consequence that this is entirely governed by the Brussels I bis Regulation. On the contrary, to the extent the Brussels I bis Regulation and the 1999 Montreal Convention overlap in their respective scope of application, the latter is to be granted primacy due to its lex special character (under the lex specialis principle). Hence, the questions of jurisdiction for the two claims have to be addressed separately and autonomously one from the other – each in light of the respective relevant instrument (see CJEU Case C-213/18, para. 44).

 

 

The decision of the Italian court

Focusing on international civil procedure aspects of the decision, claimants did start one single proceedings against the air carrier before the Tribunale in Perugia, the place where the flight ticket was bought though a travel agency.

The air carrier contested this jurisdiction and competence (as the value of individual claims rather than the value of aggregated claims pointed to the competence rationae valoris of the Giudice di pace – Justice of the peace – of Castello in the province of Perugia) up to the Supreme court invoking the Brussels I bis Regulation.

The air carrier supported the view that the competent courts where either those having territorial competence over the airport of departure (i.e. the court in Civitavecchia, under art. 7, Brussels I bis) or arrival (in Copenhagen, always under art. 7 Brussels I bis; cf CJEU Case C-204/08), or courts in London (under art. 4 Brussels I bis).

The passengers insisted on their position invoking the 1999 Montreal Convention assuming that proceedings were brought at the “place of business through which the contract has been made”, one of the heads of jurisdiction under art. 33 of the Convention. Moreover, the passengers argued that the Convention only contained rules on international jurisdiction and not on territorial competence, this aspect being entirely governed by internal civil procedure.

 

a. On UK Companies

As a preliminary matter, the Italian Supreme court acknowledges ‘Brexit’ and the Withdrawal Agreement, yet proceeds without sensitive problems in the evaluation and application of EU law as the transition period has not expired at the time of the decision according to artt. 126 and 127 of the agreement (point 1, reasoning in law).

 

b. Autonomous actions: the proper place for starting proceedings

Consistently with previous case law (CJEU Case C-213/18, para. 44), the Italian Supreme court concludes for the autonomy of the legal actions brought before the courts, arguing that jurisdiction has to be autonomously addressed (point 3, reasoning in law).

Actions based on lump-sum standardized compensation in cases of cancellation of flights deriving from the Air Passenger Rights Regulation do entirely and exclusively fall under the scope of application of the Brussels I bis Regulation – art. 7 being applicable. In this case, the Italian territorial competent court is the one having territorial jurisdiction over the airport of departure – (Rome Fiumicino), i.e. the Giudice di pace of Civitavecchia.

Actions for additional damages connected to long delays or cancellation of flights, the right for compensation deriving from the Montreal Convention, remain possible before the courts identified under art. 33 of the 1999 Montreal Convention (point 3, reasoning in law).

Here, two elements are of particular interests.

In the first place, the Italian Supreme court apparently changes its previous understanding of the Convention as it concedes that rules on jurisdiction therein enshrined are not merely rules on international jurisdiction, but are also rules on territorial competence (point 6, reasoning in law; consistent with Case C-213/18; overrules Cassazione 3561/2020 where territorial competence was determined according to domestic law).

In the second place, the court dwells – in light of domestic law – on the notion of “place of business through which the contract has been made” ex art. 33 of the Convention, which grounds a territorial competence (point 6.3, reasoning in law). Distinguishing its decision from cases where passengers directly buy online tickets from the air carriers, it is the court’s belief that a travel agency operates under IATA Sales Agency Agreements, hence as an authorized “representative” of the air carrier business for the purposes of the provision at hand. According to the court, the fact that a travel agency may be considered as a ticket office of the air carrier for the purposes of art. 33 of the 1999 Montreal Convention is nothing more than a praesumptio hominis; yet such a circumstance was not challenged by the air carrier and thus, under Italian law, considered proven and final. This, with the consequence that competence for damages related to the cancellation of the flight, other than the payment of compensation under the Air Passenger Rights Regulation, is reserved to the Justice of the peace (giudice di pace) competent rationae valoris of the place where the travel agency (in Castello, near Perugia) is located, as this place is the “place of business through which the contract has been made”.

 

c. Connected actions

The Italian Supreme court acknowledges the impracticalities that may follow from the severability of closely related actions grounded on same facts (point 6.3, reasoning in law), in particular where compensation for damages granted from one court under the 1999 Montreal Convention must deduct compensation already granted by another court under the Air Passenger Rights Regulation. In this sense, in fine the court mentions the possibility to refer to art. 30 Brussels I bis Regulation, presumably having in mind also art. 30(2).

 

 

Open questions

Whereas the decision of the Italian Supreme court largely follows indications of the Court of Justice of the European Union, some passages appear to leave room for discussion.

Firstly, even though correctly primacy to the 1999 Montreal Convention over the Brussels I bis Regulation is granted, the proper disconnection clause is not analyzed at all in the decision. In a number of previous decisions, the court did address the disconnection clause, arguing in favor of the lex specialis invoking art. 71 Brussels I bis Regulation – a provision that grants priority to international conventions in specific matters to which Member States are party to (cf Cass 18257/2019, and Cass 3561/2020). However, given that the EU has become part to the 1999 Montreal Convention by way of a Council Decision in 2001, other courts have invoked art. 67 to solve the coordination issue – as this provision is destined to govern the relationship between Brussels I bis and rules on jurisdiction contained in other “EU instruments” (cf LG Bremen, 05.06.2015 – 3 S 315/14). A position, the latter, that appears consistent with art. 216(2) TFEU, according to which “Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States”. In this sense, the Italian Supreme court could have dwelled more on the proper non-affect clause to be applied when it comes to the relationships between the Brussels I bis Regulation and the 1999 Montreal Convention.

Secondly, the final remarks of the Italian Supreme court on related actions in the Brussels I bis also should impose a moment of reflection. In the case at hand there were no parallel proceedings, so the “indications” of the court were nothing more than that.

However, recourse to the rules on related actions of the Brussels I bis Regulation should be allowed only so far no specific rule is contained in the lex specialis. Again, an evaluation on the existence of such rules is completely missing in the decision.

More importantly, even though it is generally accepted that Brussels I bis rules on coordination on proceedings can be subject to a somewhat “extensive” interpretation (as current art. 30 on related actions has been deemed applicable regardless of whether courts ground their jurisdiction on domestic law or on the regulation itself – cf Case C-351/89, para. 14), it remains that art. 30 refers to parallel proceedings pending “in the courts of different Member States”. A circumstance that would not occur where proceedings are pending before two courts of the same Member State, as the one dealt with by the Italian supreme court in the case at hand.

 

 

The present research is conducted in the framework of the En2Bria project (Enhancing Enforcement under Brussels Ia – EN2BRIa, Project funded by the European Union Justice Programme 2014-2020, JUST-JCOO-AG-2018 JUST 831598). The content of the Brussels Ia – EN2BRIa, Project, and its deliverables, amongst which this webpage, represents the views of the author only and is his/her sole responsibility. The European Commission does not accept any responsibility for use that may be made of the information it contains.