Australian Information Commission v Facebook Inc: Substituting the Hague Service Convention during the Pandemic?

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by Jie (Jeanne) Huang, Associate Professor of the University of Sydney Law School, Jeanne.huang@sydney.edu.au

Recently, in Australian Information Commission v Facebook Inc ([2020] FCA 531), the Federal Court of Australia (‘FCA’) addresses substituted service and the Hague Service Convention in the contexts of the COVID-19 pandemic. This case is important on whether defendants located outside of Australia in a Hague Convention state can be served by substituted service instead of following the Convention.

1. Facts:

Facebook Inc is a US company (‘Facebook US’) and Facebook Ireland is incorporated in Ireland. Due to the Analytica scandal, the office of the Australian Information Commission has investigated Facebook since April 2018 and hauled Facebook into the FCA on 9 March 2020.[1] According to the Commission, Facebook Inc and Facebook Ireland breached the Privacy Act (Cth) from 12 March 2014 to 1 May 2015.

Both defendants appointed King & Wood Mallesons (‘KWM’) to respond to the Commission’s inquiries before the FCA proceeding was initiated. However, KWM indicated that it had no instructions to accept the service of the originating process.

Consequently, the Commission sought orders under Federal Court Rules (‘FCR’) 2011 rr 10.42 and 10.43(2) for leave to serve Facebook US and Facebook Ireland through the central authorities according to Article 5 of the Hague Convention and by substituted service under r 10.24. The proposed substituted service was to email the judicial documents to the named persons at KWM and the Head of Data Protection and Privacy and Associate General Counsel at Facebook Ireland.

2. Ruling

On 22 April 2020, the FCA granted both leave to serve outside Australia and the order for substituted service.

Leave to serve outside Australia was granted pursuant to FCR 2011 rr 10.42, 10.43(2) and (4). This is because the court held that it had original jurisdiction in the proceeding. As the proceeding was related to the Privacy Act, it fell into the item 14 of r 10.42 for service outside Australia. Moreover, the Commission established a prima facie case for the reliefs claimed in the proceeding. Further, the proposed method of service via the central authorities in the US and Ireland complied with Article 5 of the Hague Convention.

Relying on FCR 2011 r 10.24, the court considered the impact of the pandemic on service of process in the US and Ireland and consequently granted the order for substituted service. On one hand, the court held that it was not presently practicable to effect service on Facebook US pursuant to Article 5 of the Hague Convention. This is because ABC Legal has ‘suspended service of process nationwide’ across the US according to its website. ABC Legal is the contractor for the US Department of Justice in charge of serving foreign processes on private individuals and companies in the US under the Hague Convention. On the other hand, regarding Facebook Ireland, the court acknowledged that Ireland’s High Court and postal services remained operative.[2] Nevertheless, the court held that ‘it is impracticable to do so in the rapidly changing and evolving environment caused by the current pandemic; the present situation may have changed by the time service in the relevant way would be sought to be effected’.[3] Paragraph 66 contains the most important legal reasoning in the judgment concerning substituted service[4]

‘[t]his Court has held, in circumstances analogous to the present, that an order for substituted service may be made under either r 10.24 or r 10.49 : Commissioner of Taxation v Zeitouni (2013) 306 ALR 603 at [60] (Katzmann J); see also: Australian Competition and Consumer Commission v Kokos International Pty Ltd [2007] FCA 2035 at [18] (French J); Commissioner of Taxation v Oswal [2012] FCA 1507 at [32] (Gilmour J). Even if that position is incorrect, I would have ordered substituted service under r 10.49, with a dispensation from the implicit requirement to attempt service under r 1.34, for equivalent reasons to those for which I will order substituted service under r 10.24, explained next.’

3. Comments

Before discussing the court’s reasoning, we need to differentiate FCR 2011 r 10.49 from r 10.24.

FCR 2011 r 10.49 requires that the attempt to serve a defendant in a Hague Convention state according to the Convention should be made before a plaintiff applies to substituted service:

‘If service was not successful on a person in a foreign country, in accordance with a convention, the Hague Convention or the law of a foreign country, a party may apply to the Court without notice for an order:

(a) substituting another method of service; or

(b) specifying that, instead of being served, certain steps be taken to bring the document to the attention of the person; or

(c) specifying that the document is taken to have been served:

(i) on the happening of a specified event; or
(ii) at the end of a specified time.’

FCR 2011 r 10.24 states:

‘If it is not practicable to serve a document on a person in a way required by these Rules, a party may apply to the Court without notice for an order:

(a)    substituting another method of service; or

(b)    specifying that, instead of being served, certain steps be taken to bring the document to the attention of the person; or

(c) specifying that the document is taken to have been served:

(i) on the happening of a specified event; or
(ii) at the end of a specified time.’

In light of the differences between rr 10.49 and 10.24, the court’s reasoning is questionable in three respects.

First, the Hague Convention is not applicable to all the three cases cited in Paragraph 66 of the judgment. Zeitouni[5] and Kokos[6] are cases where the defendants’ addresses were unknown. The Oswal court noted that it was unclear who might be present at the address to accept service on behalf of the defendant.[7] Article 1 of the Hague Convention explicitly indicates that these are circumstances where the Convention is not applicable.[8] In contrast, Facebook is subject to the Hague Convention. Notably, it is widely accepted that the Hague Convention is of the ‘non-mandatory but exclusive’ nature.[9] That is, service in Convention states must be conducted in a method permitted by the Convention. Therefore, in Facebook, the attempt requirement of r 10.49 should not be lightly dispensed with unless the rare instance under r 1.34 is satisfied.

Second, the facts of Facebook does not warrant the court to invoke the rare instance of r 1.34 in disregarding the usual attempt requirement contemplated in r 10.49. There is a long-standing legal doctrine holding that substituted service should not be used to extend the court’s jurisdiction in the absence of any other power to do so. In Laurie v Carroll, the High Court of Australia held that substituted service should not be used to replace personal service if the defendant was out of the jurisdiction when a writ was issued. In Facebook, no real urgency for service exists. The claim is about the defendants’ conduct in 2014 and 2015. There is also no evidence showing that the two defendants may liquidate their assets in Australia or that any third party should be joined swiftly. Although due to the COVID-19 pandemic, service according to the Hague Convention may cause uncertain delay of the proceeding at the FCA, this reason alone is unlikely to justify the substitution of the Hague Convention. This is because, as a Hague Convention member state, Australia is obliged to serve foreign defendants in a Convention state according to the ‘non-mandatory but exclusive’ nature of the Convention. Moreover, a delay of proceeding is distinct from the urgency of proceeding contemplated in r 1.34, as per Swan Brewery Co Ltd v Atlee. In this case, the defendant was in the Philippines, where service through diplomatic channels could take six months or considerably more. However, the court rejected the plaintiff’s application for an order to serve a sequestration order by post. The court held that, while the utilisation of the diplomatic channel was impractical, it was not established on the evidence that personal service was not impractical. Similarly, in Facebook, although the ABC Legal Service in the US suspended its service, no evidence showed that service via the US post was impractical. The COVID-19 pandemic’s effect in delaying the proceedings alone cannot justify the dispense of the attempt requirement in r 10.49.

Third, more evidence should be required to prove that rr 10.24 and 10.45 are satisfied in Facebook. Because Ireland’s High Court and postal services are operative amid the COVID-19 pandemic, serving Facebook Ireland in accordance with Hague Convention is possible. The court described how the environment is ‘rapidly changing and evolving’ due to the pandemic.[10] However, the curve of confirmed COVID-19 cases in Ireland has flattened, thereby indicating a realistic possibility that the environment may recover, not worsen. Further, ‘being not practical’ should be determined by ‘whether at the date on which the application regarding service is made, the applicant, using reasonable effort, [was] unable to serve the respondent personally (emphasis added)’[11] Additionally, the mere fact that Facebook was aware of the proceeding cannot suffice to satisfy the requirement of ‘not practicable’ in r 10.24.[12] Therefore, the court’s reasoning that it is not practical to serve Facebook Ireland by forecasting the future change is not without doubts.

In conclusion, the Facebook court granted substituted service too lightly.

 

[1] The dispute centered on the ‘This is your digital life’ App (hereinafter ‘APP’). The defendants allowed the APP to request information from the Facebook accounts of 305,000 Facebook Users globally who installed the APP, of which approximately 53 were Australian. They also allowed the APP to request the personal information of approximately 86,3000,000 Facebook Users globally (approximately 311,074 of whom were Australian Facebook Users) who were friends of the installers (that is, they did not install the APP themselves). The personal information the APP obtained from the defendants were released to third parties, including the Cambridge Analytica Ltd, and/or its parent company, for profit.

[2] The Hague Service Convention website page relating to Ireland describes the prescribed methods as ‘[p]ersonal or by post.’ Ireland permits service of the court documents on individuals and entities in Ireland (e.g. Facebook Ireland) by post under the Hague Convention.

[3] Facebook [71].

[4] Facebook, [66].

[5] Zeitouni, [65]. There was no dispute that the Commissioner did not know the address(es) of the defendants. Though presumably in a position to provide information on the whereabouts of the defendants, their lawyers refrained from doing so. The Australian Federal Police had been looking for one brother who was in Indonesia for six months without success. For the other brother, the Commissioner only knew he was not in Australia but did not know where he went.

[6] Australian Competition & Consumer Commission v Kokos International Pty Ltd [2007] FCA 2035, [18]. Although ACCC knew that the defendant was likely in Japan, it had been unable to obtain an address at which he could be served. Neither the defendant nor his solicitors would provide an address for service. The Department of Foreign Affairs and Trade and Australia Embassy in Japan were unable to make inquiries on the ACCC’s behalf. Therefore, the plaintiff could not make an attempt to serve the defendant in Japan. The court held that service was not practical, and a substitute service was granted under ord 7 r 9 of FCR 1979.

[7] Oswal, [35]–[36]. Mrs. Oswal was not in Australia. Her last known address was in the UAE, but she is also an Indian national and has business interests in Singapore. Consequently, it is not possible to know with certainty her whereabouts to effect personal service.

[8] Hague Service Convention art 1.

[9] Hague Conference on Private International Law, Practical Handbook on the Operation of the Service Convention, ed Christophe Bernasconia and Laurence Thébault (Wilson & Lafleur, 2006) [24]-[41].

[10] Facebook [66].

[11] Foxe v Brown [1984] HCA 69, [547] as applied in O’Neil v Acott (1988) 59 NTR 1, 2.

[12] Morris v McConaghy Australia (No 4), [2018] FCA 1516, [16]. The second defendant MC2 was in the Cayman Islands. There was no dispute that MC2 was aware of the originating process and had notice of the relevant court documents. However, the court required that the service must be conducted under the Hague Convention because the mere fact that the document has been brought to the attention of the party being served cannot suffice to satisfy r 48(a) (i.e. the requirement of ‘not practical’).

Call for Papers: Third German-Speaking Conference for Young Scholars in PIL

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Following successful events in Bonn and Würzburg, the third iteration of the conference for young German-speaking scholars in private international law will take place – hopefully as one of the first events post-Corona – on 18 and 19 March 2021 at the Max Planck Institute for Comparative and International Private Law in Hamburg. The conference will focus on the theme of PIL for a better world: Vision – Reality – Aberration?; it will include a keynote by Angelika Nußberger, former judge at the European Court of Human Rights, and a panel discussion between Roxana Banu, Hans van Loon, and Ralf Michaels.

The organisers are inviting contributions that explore any aspect of the conference theme, which can be submitted until 20 September 2020. The call for papers and further information can be found on the conference website.

Now reviewed: new book (in Spanish) on surrogacy

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written by Michael Wells-Greco

(Note: publication of this book was announced earlier.)

 

La gestación por sustitución en el derecho internacional privado y comparado

Instituto de Investigaciones Jurídicas UNAM – Centro de Investigación y Docencia Económicas (CIDE)

México, 2020

 

This highly informative and timely book edited by María Mercedes Albornoz addresses the pressing challenges presented by surrogacy arrangements. With contributions from Nuria González Martín, Verónica Esparza, Ximena Medellín Urquiaga, Isabel Fulda, Rebeca Ramos, Regina Tamés, Mónica Velarde, Federico Notrica, Cristina González Beilfuss, Rosa Elvira Vargas, María Virginia Aguilar, Francisco López González, María Mercedes Albornoz and Nieve Rubaja, and a thought provoking preface by Eleonora Lamm,  this collection contains a remarkable wealth of comparative Ibero-America legal materials on surrogacy. While comparisons are made with the diverse national surrogacy approaches in other parts of the world, much of the comparative discussion centres on the experience of surrogacy in the Americas (in Mexico and Argentina, in particular). The careful analysis demonstrates the challenges for many states arising from surrogacy arrangements.

The book contains a number of contributions that provide international perspectives on surrogacy. These include, for example, a careful consideration of the impact and relevance of the case law of the European Court of Human Rights (the discussion begs the question whether the Inter-American Court of Human Rights will be seised to consider surrogacy in ways similar to its European cousin) and two reflective discussions on the work and aims of international surrogacy projects. The current situation in the Americas highlights ever more starkly the need for the international community to come together to consider whether a multilateral framework might be agreed upon which enable states to work together to uphold the human rights of all concerned. Only a holistic analysis by the global community can begin to determine whether international frameworks can achieve these aims.

Yet there are limitations with possible international approaches. There are also limits to what is considered to be morally acceptable. It is rightly posited that it is for each state to consider its national approach to surrogacy (which may include prohibition) but public policy is not an empty vessel and it cannot be deployed as a blanket defence when legal parent-child relationships are established abroad. There is an acceptance that surrogacy is not going to go away, so consideration ought to be given to the more complex and important human rights considerations it raises, which means focusing on the interests of children, as well as those of the surrogate (who in the volume is intentionally not referred to as the surrogate mother) herself.

The book returns, as it were, to Mexico and concludes with a proposed model of regulation in Mexico of cross-border surrogacy arrangements through a private international law lens.

The book is a fascinating read – it would interest anyone from lay readers with an interest in surrogacy to academics, lawyers and other professionals.

Dr. Michael Wells-Greco

Hague Academy Centre for Studies and Research: Online Session on Epidemics and International Law

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In lieu of its originally scheduled programme, the Hague Academy of International Law recently announced its first online programme, the invitation to which reads as follows:

The Hague Academy of International Law is pleased to announce the launch of its very first online programme: an entirely online session of its Centre for Studies and Research. This session will take place between September 1st, 2020, and June 1st, 2021, on the theme of Epidemics and International Law.  The working language will be English.

The Directors of Research, Professor Shinya Murase (Sophia University, Tokyo) & Ms. Suzanne Zhou (McCabe Centre for Law and Cancer, Melbourne) invite applications from researchers including students in the final phase of their doctoral studies, holders of advanced degrees in law, political science, or other related disciplines, early-stage professors and legal practitioners.

Selected participants will each write an article on a sub-topic related to the overall theme of Epidemics and International Law. The research work will start in September 2020 and, following a very strict planning, the articles should be finalized in April/May 2021. Interested applicants must therefore be available to conduct their research and write their contribution in the coming months. The best articles will be included in a book to be published in August 2021 approximately.

Applications can be sent in between July 1st and September 1st, 2020. As the Academy expects to receive a large number of applications, the application deadline might already close on August 1st, 2020. Interested candidates are therefore encouraged to apply as soon as possible using the appropriate online form.

For more information on this programme, please consult the poster, as well as the web pages related to the Centre for Study and Research – Online.

New book (in Spanish) on Surrogacy

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La gestación por sustitución en el derecho internacional privado y comparado
A new book (in Spanish) on surrogacy in private international law and comparative law, edited by the indefatigable Mercedes Albornoz, and freely available online.

 

Humboldt-University Berlin: PhD fellowship in private (international) law

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The Graduate Programm “Dynamic Integration” at the Faculty of Law of Humboldt-University Berlin offers a PhD fellowship in private (international) law. The fellowship is (generously) funded by the German Research Foundation (Deutsche Forschungsgemeinschaft). In addition, Humboldt-University offers an outstanding research environment.

For more information see here.

Conference and Call for Papers Frontiers in Civil Justice, Erasmus University Rotterdam

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Save the date

The conference Frontiers in Civil Justice will take place at Erasmus University Rotterdam on 16 and 17 November 2020. The conference will address four key issues in civil justice, which require a deeper and renewed reflection in light of their contribution of facilitating access to justice. These are the shaping of the interaction between formal and informal justice, the digitalization of consumer dispute resolution (ODR), the collectivizing and monetizing of civil litigation and efforts of bringing justice closer to citizens. The conference will bring together academics, policymakers, practitioners and representatives of civil society to critically reflect on the opportunities and possible drawbacks ensuing from these paramount developments.

The outline of the conference, including confirmed keynote speakers, is avaible here. Further details will be made available soon.

Call for papers

For the last part of the conference we welcome abstracts on the topic ‘Innovations in Civil Justice – Bringing Justice Closer to Citizens’. Please send your abstract of max. 500 words before 31 July. Further details can be found here.

This conference is organised by Erasmus School of Law in the context of the ERC-Consolidator Research Project ‘Building EU Civil Justice: Challenges of Procedural Innovations – Bridging Access to Justice’. More information at: www.euciviljustice.eu.

Have your say: the EU opens Public Consultation into the possible accession to the 2019 HCCH Judgments Convention

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The EU has opened a Public Consultation into a possible accession to the 2019 HCCH Judgments Convention. The Consultation will run from 22 June 2020 – 05 October 2020 (midnight, Brussels time).

The Consultation is expansive and the target audience is described as follows: businesses and citizens involved or likely to get involved in international trade and investment; public authorities (including justice professionals); social partners organisations (trade unions and employers organisations), trade, business and professional associations, including consumer and business organisations, as well as professional organisations representing lawyers and members of research or academic institutions.

Importantly, the Consultation is not limited to EU Stakeholders. Rather, the EU expressly invites non-EU Stakeholders to participate and have their say.

Given the importance of being able to manage cross-border enforcement risks and validate rights through a predictable, effective and efficient international enforcement mechanism, this Consultation should attract many submissions from around the globe.

The questionnaire, which is available, and can be filled in, in any official EU language, as well as further information concerning the Consultation, can be found following this link.

 

Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 4/2020: Abstracts

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

E. Schollmeyer: The effect of the entry in the domestic register is governed by foreign law: Will the new rules on cross-border divisions work?

One of the most inventive conflict-of-law rules that secondary law of the European Union has come up with, can be discovered at a hidden place in the new Mobility Directive. Article 160q of the Directive assigns the determination of the effective date of a cross-border division to the law of the departure Member State. The provision appears as an attempted clearance of the complicated brushwood of the registration steps of a cross-border division of a company. This article explores whether the clearance has been successful.

F. Fuchs: Revolution of the International Exchange of Public Documents: the Electronic Apostille

The Apostille is of utmost importance for the exchange of public documents among different nations. The 118 states currently having acceded to the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents issue, altogether, several millions of Apostilles per year in order to certify the authenticity of public documents emanating from their territory. Some years ago, the electronic Apostille was implemented, which allows states to issue their Apostilles as an electronic document. Interested parties may verify the authenticity of such an electronic document via electronic registers which are accessible on the internet. Whereas Germany has not yet acceded to that new system, 38 other jurisdictions already have done so.

G. Mäsch: Third Time Lucky? The ECJ decides (again) on the place of jurisdiction for cartel damages claims

In three decisions now the ECJ has dealt with the question of where the “place of the causal event” and the “place where the damage occurred” are to be located in order to determine, based on the ubiquity principle enshrined in Article 7(2) of the Brussels Ibis Regulation, the place of jurisdiction for antitrust damages (tort) claims. In this paper the overall picture resulting from the ECJ decisions in CDC Hydrogen Peroxides, flyLAL-Lithuanian Airlines and now Tibor-Trans is analysed. The place of the “conclusion” of a cartel favoured by the ECJ to determine the place of the causal event is not only unsuitable in the case of infringements of Art. 102 TFEU (abuse of a dominant market position), but also in cases of infringement of Art. 101 TFEU (prohibition of cartels). The same criticism applies to the ECJ’s localisation of the place where the damage occurred at the place where the competition is impaired and the victim of the cartel or the abuse of the dominant market position (claimant) sustained the financial loss. In this paper it is suggested to dock the place of the causal event to the actual seat(s) of the cartel offender(s) and the place where the damage occurred exclusively to the affected market.

J. Kleinschmidt: Jurisdiction of a German court to issue a national certificate of succession (‘Erbschein’) is subject to the European Succession Regulation

The European Succession Regulation provides little guidance as to the relationship between the novel European Certificate of Succession and existing national certificates. In a case concerning a German “Erbschein”, the CJEU has now clarified an important aspect of this relationship by holding that jurisdiction of a Member State court to issue a national certificate is subject to the harmonised rules contained in Art. 4 et seq. ESR. This decision deserves approval because it serves to avoid, as far as possible, the difficult problems ensuing from the existence of conflicting certificates from different Member States. It remains, however, an open question whether the decision can be extended to national certificates issued by notaries.

K. Thorn/K. Varón Romero: The Qualification of the Lump-Sum Compensation for Gains in the Event of Death Pursuant to Section 1371 (1) of the German Civil Code (BGB) in Accordance with the Regulation (EU) No. 650/2012

In “Mahnkopf” the CJEU had to decide whether the material scope of application of the Regulation (EU) No. 650/2012 of the European Parliament and of the Council of 4/7/2012 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 also covers national provisions which, like Section 1371 (1) of the German Civil Code (BGB), grant the surviving spouse a lump-sum compensation for gains after the death of the other spouse by increasing his or her inheritance. Hence, this was a question of the qualification of Section 1371 (1) BGB, which had been discussed controversially in Germany for a long time and had only been clarified on a national level in 2015. The CJEU decided in favour of a qualification under inheritance law at the level of Union law, and thus took a view which contradicts that of the Federal Court of Justice (BGH) for national conflict of laws. The authors agree with the result of the CJEU but criticise the methodical approach to the implementation of the functional qualification. The article identifies the new questions and problems that will now have to be clarified by the German courts as a result of the CJEU decision and in this context analyses two recent decisions of Higher Regional Courts. The authors note that in the context of Section 1371 (1) BGB, the question of the (temporal) scope of application of the Regulation is likely to become more important in the future, asotherwise, in their opinion, the BGH case law will still have to be considered. Accordingly, in the opinion of the authors, for future German jurisdiction much will depend on whether the BGH adapts its previous case law to that of the CJEU.

P. Mankowski: Recognition and free circulation of names ‘unlawfully’ acquired in other Member States of the EU

The PIL of names is one of the strongholds of the recognition principle. The touchstone is whether names “unlawfully” acquired in other Member States of the EU must also be recognised. A true recognition principle implies that any kind of révision au fond is interdicted. Yet any check on the “lawfulness” or “unlawfulness” of acquiring a certain name abroad amounts to nothing else than a révision au fond.

M. Gernert: Termination of contracts of Iranian business relations due to US sanctions and a possible violation of the EU Blocking Regulation and § 7 AWV

US secondary sanctions are intended to subject European economic operators to the further tightened US sanctions regime against Iran. In contrast, the socalled Blocking Regulation of the European Union is intended to protect European companies from such extraterritorial regulations and prohibits to comply with certain sanctions. In view of the great importance of the US market and the intended uncertainty in the enforcement of US sanctions, many European companies react by terminating contracts with Iranian business partners in order to rule out any risk of high penalties by US authorities. This article examines if and to what extent the Blocking Regulation and § 7 AWV influence the effectiveness of such terminations.

B. Rentsch: Cross-border enforcement of provisional measures – lex fori as a default rule

Titles from provisional measures are automatically recognised and enforced under the Brussels I-Regulations. In consequence, different laws will apply to a title’s enforceability (country of the rendering of the provisional measure) and ist actual enforcement (country where the title is supposed to take effect). This sharp divide falls short of acknowledging that questions of enforceability and the actual conditions of enforcement are closely entangled in preliminary measure proceedings, especially the enforcement deadline under Sec. 929 para. 2 of the German Code of Civil Procedure (ZPO). The European Court of Justice, in its decision C-379/17 (Societ  Immobiliare Al Bosco Srl) refrained from creating a specific Conflicts Rule for preliminary measures and ruled that the deadline falls within the scope of actual enforcement. This entails new practical problems, especially with regard to calculating the deadline when foreign titles are involved.

A. Spickhoff: “Communication torts” and jurisdiction at the place of action

Communication torts in more recent times are mostly discussed as “internet torts”. Typically, such torts will be multi-state torts. In contrast, the current case of the Austrian Supreme Court concerns the localisation of individual communication torts. The locus delicti commissi in such cases has been concretised by the Austrian Supreme Court according to general principles of jurisdiction. The locus delicti commissi, which is characterised by a falling apart of the place of action and place of effect, is located at the place of action as well as at the place of effect. In the event of individual communication torts, the place of effect is located at the victim’s place of stay during the phone call or the message arrival. The place of action has to be located at the sending location. On the other hand, in case of claims against individual third parties, the place of effect is located at the residence of the receiver. The Austrian Supreme Court remitted the case to the lower court for establishing the relevant facts for jurisdiction in respect of the denial of the plaintiff’s claim. However, the court did not problematise the question of so-called “double-relevant facts”. The European Court of Justice, in line with the judicial practice in Austria and Germany, has accepted a judicial review of the facts on jurisdiction only with respect to their conclusiveness.

R. Rodriguez/P. Gubler: Recognition of a UK Solvent Scheme of Arrangement in Switzerland and under the Lugano Conventions

In recent years, various European companies have made use of the ability to restructure their debts using a UK solvent scheme of arrangement, even those not having their seat in the UK. The conditions and applicable jurisdictional framework under which the scheme of arrangement can be recognised in jurisdictions outside the UK are controversial. In Switzerland doctrine and jurisprudence on the issue are particularly scarce. This article aims to clarify the applicable rules of international civil procedural law as well as the requirements for recognition of a scheme of arrangement in Switzerland. It is held that recognition should be generally granted, either according to the 2007 Lugano Convention or, in a possible “no-deal Brexit” scenario, according to the national rules of private international law, or possibly even the 1988 Lugano Convention.

T. Helms: Foreign surrogate motherhood and the limits of its recognition under Art. 8 ECHR

On request of the French Court of Cassation the Grand Chamber of the European Court of Human Rights has given an advisory opinion on the recognition of the legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and its intended mother who is not genetically linked to the child. It held that Art. 8 ECHR requires that domestic law provides a possibility of recognition of a legal parent-child relationship with the intended mother. But it falls within states’ margin of appreciation to choose the means by which to permit this recognition, the possibility to adopt the child may satisfy these requirements.