The Organization of American States (OAS) is hosting a webinar entitled updated principles on privacy and the protection of personal data of the Inter-American Juridical Committee today at 10 am (DC time), 4 pm CEST time – in Spanish. More information is available here.
In its judgments delivered in the cases WB, C-658/17 and E.E., C-80/19, the Court of Justice already addressed the question whether a notary dealing with succession-related matters is a “court” for the purposes of the Succession Regulation. In these cases, however, the requests for a preliminary ruling originated from the proceedings pending before the national courts.
By contrast, in the case OKR, C-387/20, the request for a preliminary ruling is brought before the Court by a Polish notary [or, to be more specific, by a notarial clerk/assistant (fr. “clerc de notarie”, pl. “zastepca notarialny”), yet this nuance does not seem to affect the outcome of the case at hand].
Last week Costa Rica signed the HCCH Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (2019 HCCH Judgments Convention). The HCCH news item is available here.
It should be noted that in order to consent to be bound by the treaty, Costa Rica would need to deposit an instrument of ratification, acceptance or approval. In the meantime, a signatory State has the obligation not to defeat the object and purpose of a treaty prior to its entry into force (article 18 of the UN Vienna Convention on the Law of Treaties).
Costa Rica made the following declaration: “in accordance with article 14, paragraph 3, of the Convention, the Republic of Costa Rica declares that it shall not apply Article 14, paragraph 1, of the Convention.”
Article 14(1) of the HCCH 2019 Judgments Convention states the following: “No security, bond or deposit, however described, shall be required from a party who in one Contracting State applies for enforcement of a judgment given by a court of another Contracting State on the sole ground that such party is a foreign national or is not domiciled or resident in the State in which enforcement is sought.” Article 14(3) of the HCCH 2019 Judgments Convention allows States to file a declaration stating that they will not apply Article 14(1).
In this regard, it should be noted that many HCCH Conventions contain a similar provision. This is particularly the case of the HCCH 1980 Access to Justice Convention, whose objective is precisely, as its name suggests, to promote access to justice by ensuring that “the mere status as an alien or the absence of residence or domicile in a State are not grounds for discrimination with regard to access to justice in that State” (HCCH outline of this Convention).
The HCCH 1980 Access to Justice Convention strikes the right balance by eliminating such a requirement and at the same time allowing the enforceability of orders for costs (Chapter II, arts 14-17). The latter is somewhat similar to Article 14(2) of the HCCH 2019 Judgments Convention and undoubtedly was a source of inspiration during the negotiations.
The interesting fact is that Costa Rica is a party to the HCCH 1980 Access to Justice Convention. Thus, Costa Rica is not allowed to impose any security, bond or deposit on the basis of a person being a foreign national or of not having his or her domicile or residence in Costa Rica if the conditions of Article 14 of the HCCH 1980 Access to Justice Convention are met, at least in its relations with the Contracting States to the said Convention.
Nevertheless, the declaration of Costa Rica underlines the fact that some States continue to impose such a requirement (although admittedly this requirement is fading away in some regions of the world). And thus the promotion of the HCCH 1980 Access to Justice Convention and all other HCCH Conventions that promote the principle of non-discrimination continue to be all the more relevant.
***
The HCCH 2019 Judgments Convention is not yet in force. In accordance with its article 28: “This Convention shall enter into force on the first day of the month following the expiration of the period during which a notification may be made in accordance with Article 29(2) with respect to the second State that has deposited its instrument of ratification, acceptance, approval or accession referred to in Article 24.”
There are currently four signatory States: Costa Rica, Israel, Uruguay and Ukraine. The act of signing a treaty does not count towards the timeline specified in article 28 of the HCCH 2019 Judgments Convention as it is not an instrument of ratification, acceptance, approval or accession.
Further to CoL’s posts on recent case law of the ECJ last week, we allow ourselves to draw CoL readers’ attention to the judgment of the ECJ of 9 September 2021, C-422/20 – RK ./. CR, on the interpretation of jurisdictional provisions of the European Succession Regulation (ESR), upon reference by the Higher Regional Court (Oberlandesgericht) of Cologne, Germany. Neither the ECJ’s judgment, nor AG Maciej Szpunar’s Opinion of 8 July 2021 is yet available in English translation. The following summary draws on the original German texts.
The referring national court asked (1) whether it is required, for a declaration of lack of jurisdiction by the court previously seised as provided for in Article 7(a) ESR, that the latter court expressly declines jurisdiction, or whether an implicit declaration suffices if it is clear by interpretation that that court has in fact declined jurisdiction? The national court further asked (2) whether the court of a Member State whose jurisdiction is to emerge from a declaration of lack of jurisdiction by another Member State court is entitled to examine whether the conditions for such a declaration were in fact fulfilled. In particular, the referring court asked (a) whether the second court may examine whether the testator validly chose the applicable law in accordance with Article 22 ESR, whether (b) a request for a declaration of lack of jurisdiction, as required by Article 6(a) ESR has been brought by one of the parties in the first proceedings, and (c) whether the first court correctly assessed that the courts of the Member State of the chosen law are better placed to rule on the succession. In a last question, the referring court asked (3) whether Articles 6(a) and 7(a) ESR are applicable if the testator has not made an express or implied choice of law in a testamentary disposition before 17 August 2015 but the law applicable to the succession may be inferred from Article 83(4) ESR.
The ECJ held that (1) no express declaration of lack of jurisdiction is required under Article 6(a) ESR, as long as the first court’s intention can be clearly inferred from its decision, that (2) the second court has no competence to review the first court’s declaration of lack of jurisdiction and (3) that Articles 6(a) and 7(a) ESR remain applicable if the applicable law may only be inferred from Article 83(4) ESR.
As to the first question, the Court made clear that certain differences in the Spanish language version of the ESR in Article 6(a) – “abstenerse de conocer” (in translation something like: “abstain from assuming jurisdiction”) – on which the Spanish first court had relied – are of no relevance for the autonomous interpretation of the ESR, to be exercised acccording to general and well established principles in light of all of its language versions and its objectives (para. 30). These do not require any particular form for a declaration under Article 6(a), and requiring such a form would jeopardize the objective of the ESR as laid down in Recital 27 Sentence 1, i.e. “to ensure that the authority dealing with the succession will, in most situations, be applying its own law”.
In relation the second question, the Court made reference to AG Spzunar’s Opinion (para. 39) and confirmed the latter’s finding that no second review may take place of the first court’s decision under Article 6(a) ESR (paras. 40 et seq.), not least because such as decision is a “decision” in the sense of Article 3(1) (g) ESR that falls within the scope of Chapter IV of the ESR on the recognition of decisions of the courts of other Member States (para. 42). The Court concludes that the first court’s decision under Article 6(a) ESR is binding for the second court both in its result – declaration of lack of jurisdiction – as well as in relation to its underlying findings about the conditions that Article 6(a) ESR requires. In the latter respect the Court made expressly reference to its earlier judgment of 15 November 2012, C-456/11 – Gothaer Versicherung, which means that its notion of a European res iudicata developed there is to be extended to the type of conditions found fulfilled by the first court here: “Any other interpretation would jeopardize the principles of mutual recognition and mutual trust on which the system of the ESR grounds” (para. 45, translation is my one).
For answering the third question the Court explained that Article 83(4) ESR contains a presumption of a choice of law by the testator that is to be attributed the same effects as a choice of law directly undertaken under the ESR (para. 53).
On Thursday 14 October 2021 an online M-EPLI roundtable will take place on private international law issues relating to the recognition and enforcement of foreign (mostly US) punitive damages judgments in countries outside of Europe.
The event is organised by Lotte Meurkens and Cedric Vanleenhove and the Maastricht European Private Law Institute.
On Friday, 24 September 2021, the Max Planck Institute Luxembourg for Procedural Law will host the EFFORTS National Exchange Seminar for France and Luxembourg (online).
This Seminar is organised in the framework of the EFFORTS project (Towards more effective enforcement of claims in civil and commercial matters within the EU), which tackles the Brussels I-bis Regulation and the Regulations on the European Enforcement Order, the European Small Claims Procedure, the European Payment Order, and the European Account Preservation Order. The Project investigates, in particular, the implementation of these Regulations in the national procedural law of Belgium, Croatia, France, Germany, Italy, Lithuania, and Luxembourg, and is conducted by a consortium comprising the Max Planck Institute Luxembourg, the Universities of Milan (coord.), Heidelberg, Zagreb, Vilnius, and the Free University of Brussels.
The programme of the Seminar is available here.
Participants are kindly requested to pre-register by sending an email including their full name, title and affiliation to secretariat-prof.hess@mpi.lu at the latest by Sunday, 19 September 2021.
More information on EFFORTS and its research outputs are available via the project website and in various newsletters previously posted here, here, and here.
On the EFFORTS German Exchange Seminar, see the previous announcement here.
This Project was funded by the European Union’s Justice Programme (2014-2020). The content of this study represents the views of the authors only and is their sole responsibility. The European Commission does not accept any responsibility for use that may be made of the information it contains.
Project JUST-JCOO-AG-2019-881802
With financial support from the Civil Justice Programme of the European Union
Originally posted today on NGPIL website
The Nigeria Group on Private International Law “(NGPIL”) invites submissions for next year’s NGPIL Conflict of Laws’ Competition. The winner will be awarded for the best essay on any aspect of Nigerian conflict of laws. Entries will be accepted from the following: an undergraduate and/or postgraduate scholar studying in Nigeria, or any Nigerian lawyer five years call or below practicing and residing in Nigeria. The essay should be unpublished at the time of submission. Submitted essays should be in the English language. Submitted essays should also be within five to ten thousand words. Competitors may be citizens of any nation, age or gender but must be an undergraduate and/or postgraduate scholar studying in Nigeria, or any lawyer below or within five years post-call experience practicing and residing in Nigeria. They need not be Members, or on the Participant’s list of NGPIL.
The prize is 300 GBP, and the winner of the competition will be encouraged to publish the paper in any high-quality peer reviewed journal on private international law (conflict of laws). The prize is sponsored by and will be awarded by NGPIL based upon the assessment of NGPIL.
Submissions to the Prize Committee must be received no later than January 10, 2022. Entries should be submitted by email in Word or pdf format. The winner will be announced no later than 2 months after the deadline. Decisions of the NGPIL on the winning essay and on any conditions relating to this prize are final. Submissions and any queries should be addressed by email to ngpilaw@gmail.com. All submissions will be acknowledged by e-mail.
The second thematic volume in the series Studies in Private International Law – Asia looks into direct jurisdiction, that is, the situations in which the courts of 15 key Asian states (Mainland China, Hong Kong, Taiwan, Japan, South Korea, Malaysia, Singapore, Thailand, Vietnam, Cambodia, Myanmar, the Philippines, Indonesia, Sri Lanka, and India) are prepared to hear a case involving cross-border elements. For instance, where parties are habitually resident abroad and a dispute has only some, little or no connection with an Asian state, will the courts of that state accept jurisdiction and hear the case and (if so) on what conditions? More specifically, the book’s chapters explore the circumstances in which different Asian states assume or decline jurisdiction not just in commercial matters, but also in other types of action (such as family, consumer and employment disputes).
The Introduction defines terminology and identifies similarities in the approaches to direct jurisdiction taken by the 15 Asian states in civil and commercial litigation. Taking its cue from this, the Conclusion assesses whether there should be a multilateral convention or soft law instrument articulating principles of direct jurisdiction for Asia. The Conclusion also discusses possible trajectories that Asian states may be taking in respect of direct jurisdiction in light of the COVID-19 pandemic and the political tensions currently besetting the world. The book suggests that enacting suitable rules of direct jurisdiction requires an Asian state to strike a delicate balance between affording certainty and protecting its nationals. At heart, direct jurisdiction involves sometimes difficult policy considerations and is not just about drawing up lists of jurisdictional grounds and exceptions to them.
For further information please visit: https://www.bloomsbury.com/uk/direct-jurisdiction-9781509936427/
This Thursday, the Court of Justice delivered its judgment in the case UM, C-277/20, where it clarifies whether a donation mortis causa may fall within the scope of the notion of “agreement as to succession” in the sense of the Succession Regulation.
AG Saugmandsgaard Øe observes in his Opinion presented today in the case HRVATSKE ŠUME, C-242/20, the Court of Justice has already faced requests for a preliminary ruling where arose a question on qualification of an action for unjust enrichment for the purposes of the Brussels I Regulation. He notes that no conclusive finding has been made so far as to its qualification as a “matter relating to tort, delict or quasi-delict” in the sense of Article 5(3) of the Regulation (point 4). By contrast, the present case is supposed to create an opportunity to provide a definitive conclusion to the jurisprudential saga in question.