Grosse Ruse-Khan on Competing Rationalities in International Law

Henning Grosse Ruse-Khan (Max Planck Institute for Intellectual Property & Competition Law) has posted A Conflict-of-Laws Approach to Competing Rationalities in International Law: The Case of Plain Packaging between IP, Trade, Investment and Health on SSRN.

The idea of employing conflict-of-laws principles to address competing rationalities in international law is unorthodox, but not new. Research focuses on inter-systemic conflicts between different areas of international law – but has stopped short of proposing conflict rules. This article goes a step further and reviews the wealth of private international law approaches and how they can contribute to applying rules of another, ‘foreign’ system. Against the background global intellectual property rules and their interfaces with trade, investment, health and human rights, the dispute over plain packaging of tobacco products serves as test case for conflict-of-laws principles. It shows how these principles allow a forum to apply external rules – beyond interpretative concepts such as systemic integration.

Excessive English Costs Orders and Greek Public Policy

Dr. Apostolos Anthimos is attorney at law at the Thessaloniki Bar, Greece. He holds a Ph.D. in International Civil Litigation and is a visiting lecturer at the International Hellenic University.

Two recent Court of Appeal rulings in Greece have demonstrated the significance of the public policy clause in international litigation and arbitration. Both judgments are dealing with the problem of recognition and enforcement of ”excessive” costs awarded by English courts and arbitration panels. The issue has been brought several times before Greek courts within the last decade. What follows, is a brief presentation of the findings, and some concluding remarks of the author.

I.a. In the first case, the Corfu CoA refused to grant enforceability to a costs order and a default costs certificate of the York County Court on the grounds that Greek courts wouldn’t have imposed such an excessive amount as costs of the proceedings for a similar case in Greece. In particular, the court found that, granting costs of more than £ 80,000 for a case, where the amount in dispute was £ 17,000, contravenes Greek public policy perceptions. Thus, the amount of £ 45,000 + 38,251.47 was considered as manifestly disproportionate and excessive for the case at hand. Consequently, the CoA granted exequatur for the remaining sums, and refused recognition for the above costs, which could not be tolerated by a court of law in Greece.

I.b. In the second case, the Piraeus CoA recognized an English arbitral award despite allegations made by the appellant, that the award’s order for costs contravened public policy. In this case the amount in dispute was in the altitude of nearly $ 3 million, whereas the costs granted did not exceed £ 100,000. The court applied the same rule as in the previous case, and found that the costs were not disproportionate to the case at stake.

II. As already mentioned above, those decisions are the last part on a sequence of judgments since 2005. Free circulation of English judgments is generally guaranteed in Greece; the problem starts when English creditors seek to enforce the pertinent costs orders. For Greek legal views, it is sheer impossible that costs exceed the actual amount in dispute in the main proceedings. This was reason enough for the Supreme Court (Areios Pagos = AP) to establish the doctrine of public policy violation, on the occasion of an appeal against a judgment of the Athens CoA back in 2006 [AP 1829/2006, Private Law Chronicles 2007, p. 635 et seq.]. The Supreme Court held, that granting enforceability to similar orders would violate the principle of proportionality, which is embedded both in the Greek Constitution and the ECHR. At the same time, it emphasized that the excessive character of costs impedes access to Justice for Greek citizens, invoking again provisions from the Greek Constitution (Art. 20.1) and the Human Rights Convention (Art. 6.1). The reasoning of the Supreme Court is followed by later case law: In an earlier judgment of the Corfu CoA [Nr. 193/2007, Legal Tribunal 2009, p. 557 et seq.] the court reiterated the line of argumentation stated by the Supreme Court, and refused to grant exequatur (again) to an English order for costs. Two years later, the Larissa CoA [Nr. 484/2011, unreported], followed the opposite direction, based on the fact that costs were far lower than the amount in dispute.

In regards to foreign arbitral awards, mention needs to be made to two earlier Supreme Court judgments, both of which granted enforceability and at the same time rejected the opposite grounds for refusal on the basis of Art. V 2 b NYC. In the first case [AP 1066/2007, unreported], the Supreme Court found no violation of public policy by recognizing an English award, which awarded costs equivalent to half of the subject matter. A later ruling [AP 2273/2009, Civil Law Review 2010, p. 1273 et seq.] reached the same result, by making reference to the previous exchange of bill of costs particulars, for which none of the parties expressed any complaints during the hearing of the case before the Panel.

In conclusion, it is obvious that Greek courts are showing reservation towards those foreign costs orders, which are perceived as excessive according to domestic legal standards. This stance is not unique, taking into account pertinent case law reported in France and Argentina [for the former, see Cour de Cassation 1re Chambre civil, 16.3.1999, Clunet 1999, p. 773; for the latter see Kronke / Nacimento / Otto / Port (ed.), Recognition and enforcement of foreign arbitral awards – A global commentary on the New York Convention (2010), p. 397, note 245]. The decisive element in the courts’ view is the interrelation between the subject matter and the costs: If the latter is higher than the former, no expectations of recognition and enforcement should be nourished. If however the latter is lower than the former, public policy considerations do not usually prevail.

Final point: As evidenced by the case law above, it is clear that the Greek jurisprudence is applying the same criteria for foreign judgments and arbitral awards alike, irrespective of their country of origin. As far as the latter is concerned, no objections could or should be raised. However, making absolute no distinction between foreign judgments emanating from EU – Member States and non-Member States courts seems to defy the recent vivid discussion that predominated during the Brussels I recast preparation phase (2009-2012). Fact is, that public policy survived in the European context, and will continue playing a significant role in the new era (Regulation 1215/2012). Still, what is missing from Greek case law is an effort to somehow soften the intensity of public policy control in the EU landscape. Whatever the reason might be, a clear conclusion may be reached: Greek case law gives back to public policy a Raison d’être, demonstrating the importance of its existence, even when judicial cooperation and free circulation of judgments are the rules of the game.

Déjà vu: Italian Supreme Court on Jurisdiction over U.S. Rating Agencies

Many thanks to Felix A. Koechel, researcher fellow of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law. This contribution summarizes a presentation he made at one the Institute’s weekly seminars (the so called “Referentenrunde”), which are held every Wednesday from 2 p.m. to 4 p.m.

Prior to the German Federal Supreme Court’s decision in December 2012 (see here), the Italian Corte Suprema di Cassazione (Supreme Court) already in April 2012 was called upon to decide on Jurisdiction over damage claims brought by investors against rating agencies based in New York (Cassazione, 22 May 2012, No. 8076).

In January 2007 one of the three claimants, a stock company based in Bologna (Italy), purchased from another company based in London shares of a company based on the Cayman Islands. After the conclusion of the contract in London, the shares were pooled on the claimant’s bank account in Bologna, and subsequently transferred to two further corporations equally based in the region of Emilia-Romagna and acting as claimants. The decision to acquire the shares was allegedly motivated by positive ratings awarded by the defendants (two rating agencies based in New York) as to the financial standing of the issuer. There was, however, no contractual relationship or even direct contact between the claimants and the defendants. By July 2007 the shares had already lost 80 % of their initial nominal value while it was not before August and December 2007 that the initial ratings were downgraded. Therefore, the claimants sued the defendants in Bologna for damages allegedly suffered as a consequence of both the initial inaccurate rating and the tardive downgrading. The Court of first instance referred the question of jurisdiction to the Italian Supreme Court by means of the regolamento preventivo di giurisdizione (Article 41 of the Italian Code of Civil Procedure).

Although the facts of the Italian and the German case are similar, their outcomes differ considerably: The Italian Supreme Court declined jurisdiction on the grounds of Article 5(3) of Regulation (EC) No 44/2001. Not only is the application of the aforesaid Regulation noteworthy but the case more importantly gives an example of the problems arising from Article 5(3) Brussels I in case of merely financial damages.

Attentive readers of know that according to Article 3(2) of Law No. 218 of 1995, in Italy the special rules of jurisdiction of the Brussels Convention apply even if the defendant is not domiciled in a contracting state (see here). Although it is controversial whether this reference should be read as referring to the Brussels I Regulation, both courts and scholars have clarified that to this date, and lacking the Italian legislator’s intervention, the reference has to be interpreted as designating the Brussels Convention (cf. Cassazione, 21 October 2009, No. 22239; cf. Pocar in Riv. dir. internaz. priv. proc. 2011, 628 ff.). It is therefore likely that the application of the Brussels I Regulation in the present case is due to the very specific wording of the question referred by the Bolognese court and may not be misinterpreted as a change in case law. Taking into consideration the continuity between the Brussels Convention and the Brussels I Regulation in the specific case of Article 5(3) this question should have been without prejudice to the Court’s decision.

In fact, Article 5(3) was the only ground of jurisdiction at hand that could have led to an Italian forum since the Italian legislator has refrained from introducing additional (exorbitant) fora. It is shown particularly in comparison with the German case that the progressive and courageous “Europeanization” of the national rules on international jurisdiction at that time came at the price of possible disadvantages for Italian claimants.

Regrettably, the Court does not address extensively the problems arising out of Article 5(3) in the case of financial damages. In line with the ECJ in Marinari (C-364/93), the Court narrows down the Article 5(3) notion of “place where the harmful event occurred” to the place of the initial damage. According to the Italian Court, this initial damage consists of the acquisition of the shares at an excessive price. Apart from that, the Italian Court neither refers to the principle of ubiquity nor to the relevant and more recent ECJ case law regarding financial damages in Kronhofer (C-168/02). While the localization of the initial damage in London can be well accepted, the Italian Supreme Court missed the chance to contribute to the discussion on the interpretation of Article 5(3) in case of financial damages. It is to be hoped that the financial crisis with its rising flood of claims against rating agencies will shed some light on the problem.

Latest Issue of “Praxis des Internationalen Privat- und Verfahrensrechts” (2/2013)

Recently, the March/April issue of the German law journal “Praxis des Internationalen Privat- und Verfahrensrechts” (IPRax) was published.

  • Miriam Pohl: The Recast of Brussels I – striking the balance between trust and control

Roughly two years after the presentation of the Commission’s proposal, the recast of the Brussels I Regulation was adopted on 6 December 2012. As from 10 January 2015, the recast will replace Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The following article presents the most important changes.

  •  Michael Coester: The Influence of EU-Law on German Conflict Rules for Registered Partnerships

Since the enactment of the German conflict rules on registered partnerships (Art. 17b EGBGB) in 2001 significant changes have taken place. The European Union is progressively building a system of private international law rules in family matters, and the constitutional as well as the human rights approach towards registered partnerships today focuses more on the protection of same-sex relationships against unjustified discrimination rather than on the protection of marriage. As a result, some elements of Art. 17b EGBGB are already today (or will be in the next future) governed by Community law instead of national law (alimony, inheritance, property issues), and basic principles of common private international law become visible. This article explores in detail (1) the scope of EU-regulations with regard to registered partnerships, (2) the convergence of the remaining text of Art. 17b EGBGB with emerging techniques and principles of Community law and (3) its conformity with overriding principles of constitutional, EU- or human rights law. It is suggested that the existing German rules of private international law on registered partnerships need an overall revision in order to bring it in line with existing constitutional law and emerging European Community law. To this end, the author submits concrete text proposals for all areas of German Private International Law on registered partnerships which are still subject to national law.

  •  Eric Wagner/Marius E. Mann: The Merchant Status of Foreign Parties in Civil Proceedings

According to section 95 Judiciary Act (Gerichtsverfassungsgesetz), the functional jurisdiction of the court seized of the matter depends on the merchant status of the parties to the proceedings. This can lead to difficulties in the case of disputes in international business dealings. For example, if a party established abroad is involved, the question arises as to what country’s laws determine whether this party has merchant status. So far there is no Supreme Court case law on this question. The views taken by the lower courts and in legal literature vary. This article offers a view of the status of the discussion and explains why, when it comes to determining, within the scope of section 95 Judiciary Act, whether merchant status is present – also in the case of foreign parties – only lex fori can be decisive.

  •  Peter-Andreas Brand: Cross-border consumer protection within the EU – Inconsistencies and contradictions in the European System of Conflict of Law Rules and Procedural Law

The endeavours throughout the European Union to create a harmonized European Procedural Law, in particular in the context of jurisdiction and recognition and enforcement, and also the process of harmonisation of the Conflict of Law Rules within the EU have realised the importance of cross-border consumer protection. Both the Rome I Regulation and Regulation No. 44/2001 on Jurisdiction and Recognition and Enforcement of Judgements in Civil and Commercial Matters contain specific provisions for the protection of consumers. It is the aim of this article to consider the practical implications of the most important provisions of the EU-Conflict of Law Rules and the Procedural Rules with respect to the applicable law, jurisdiction and the exequator proceedings. Furthermore, current inconsistencies and sometimes contradicting intentions in European legislation shall be highlighted.

  •  Christian Heinze: Keine Zustellung durch Aufgabe zur Post im Anwendungsbereich der Europäischen Zustellungsverordnung – the English abstract reads as follows:

The rules for judicial service in some EU Member States allow service of documents on parties domiciled abroad by a form of “fictitious” service within the jurisdiction. Under these rules, service is deemed to take effect at the moment when a copy of the document is lodged with a national authority, placed in the court’s case file or at the time when it is sent abroad for service, irrespective of the time when the recipient actually receives the document, if the foreign party has failed to appoint a representative in the forum state who is authorised to accept service. The following case note discusses two judgments of the German Bundesgerichtshof and the Court of Justice of the European Union (Case C-325/11 – Alder) which hold that this practice is, for inner-EU cases, incompatible with the European Service Regulation (EC) No 1393/2007 (ECJ) and German domestic law (Bundesgerichtshof). The Court of Justice has rightly coined an autonomous definition of service of a judicial document between Member States for the purposes of Article 1(1) of the Service Regulation. As a consequence, the Service Regulation provides, with the exceptions of Article 1(2) and Recital 8, for an exhaustive list of the means of transmission of judicial documents. The Service Regulation therefore excludes the application of national rules on fictitious service which would deprive the rules of the Service Regulation, in particular the right of the person to be served to benefit from actual and effective receipt, of all practical effect.

  •   Christoph Thole: Verbrauchergerichtsstand aufgrund schlüssiger Behauptung für eine Kapitalanlegerklage gegen die Hausbank des Anlagefonds? – the English abstract reads as follows:

In its judgment, the German Federal Supreme Court held that in a case brought by a consumer against the house bank of a Ponzi scheme in which the consumer had invested money, the courts in his home country enjoy jurisdiction under Art. 15, 16 Brussels I-Regulation. The Austrian bank was considered to have committed itself to the plaintiff to transfer the money paid in by the consumer into the bank’s own account in Germany to the Austrian bank account of the Ponzi scheme. The defendant was thus held to have entered into a contractual relationship with the consumer. Christoph Thole argues the judgment to be feasible, however, the ruling must not be generalized too easily. Furthermore, he emphasizes that the burden of demonstration with respect to jurisdictional issues has a Community law dimension rather than being solely based on national law.

  •  Stefan Arnold: On the scope of the jurisdiction over consumer contracts and on the nature of the doctrine of culpa in contrahendo and actions based on an infringements of sec. 32 German Banking Act (Kreditwesengesetz)

According to the Federal Court of Justice (Bundesgerichtshof), sec. 13 and 14 Lugano Convention 1988 give German courts jurisdiction in proceedings brought by German consumers concerning investments in Switzerland. Actions based on an infringement of § 32 German Banking Act (Kreditwesengesetz) and on culpa in contrahendo (here: breach of precontractual duties of disclosure) must be considered as “proceedings concerning a contract” in the sense of sec. 13 Lugano Convention 1988. The jurisdiction of German courts does not depend on the consumer’s material vulnerability. It is equally irrelevant whether the consumer took the initiative as regards the investment and whether the “specific invitation” addressed to the consumer did not constitute a legally binding offer but merely an invitatio ad offerendum. Thus, the Bundesgerichtshof implicitly argues for a formal analysis in matters of the jurisdiction over consumer contracts and acknowledges the crucial importance of legal certainty in International Procedural Law. The judgment is also relevant for the interpretation of sec. 15 Brussels I Regulation/Lugano Convention 2007.

  •   Florian Eichel: Judicial power and international jurisdiction for the enforcement of a judgment for a specific act (§§ 887 et seq. German Code of Civil Procedure) in case of a foreign place of performance

The German Federal Court of Justice (Bundesgerichtshof – BGH) held that German courts have international jurisdiction to take measures for enforcing a judgment for a specific act even when the act has to be performed abroad. This essay agrees with the outcome of the decision, discusses questions of state sovereignty and suggests that personal jurisdiction should have been derived from the Brussels I-Regulation (EC) No. 44/2001 as an unwritten annex-competence.

  •  Björn Laukemann: Actions for separate satisfaction and the European jurisdictional regime

In the case ERSTE Bank, the ECJ had to decide on the applicability ratione temporis of Article 5 of the European Insolvency Regulation (EIR) in the context of Hungary’s accession to the European Union. Thereby, the Court left out the contentious issue whether international jurisdiction over actions for the determination of collateral securities on assets belonging to the debtor’s estate is to be determined by the Brussels I regime or rather the EIR. Exemplified by actions for separate satisfaction, this article will focus on the jurisdictional delimitation between both Regulations which is now, concerning insolvency related actions in general, regulated by Article 3a of the EU-Commission’s proposal for a recast of the EIR. The article points out that the criteria underlying the principle of vis attractiva concursus are not suitable for actions for separate satisfaction and unfolds the consequences on the dispute at issue.

  •  Klaus Bartels: Interim regulations on corporate headquarters in Europe

The annotated judgment of the OLG Nürnberg deals with questions of cross-border transfer of corporate headquarters. The concrete case shows a moving-in-concept of a Société responsabilité limitée heading from Luxembourg to Germany. The immigration had been planned as a change into a German GmbH with fitting new firm and varied statute, but with affirming its outgoing law-identity. Especially the formation of a new company like in “Vale Építési” wasn’t aimed. Though transfers like that are welcome in Luxembourg, the German Umwandlungsgesetz doesn’t accept immigrations of that kind. In the court’s opinion a request according to Article 267 (2) AEUV is not needed, for even a German duty (with European origin) to create and to offer immigration-friendly statutes wouldn’t help to have the aimed transfer. The court misses the prerequisites of the national Umwandlungsgesetz as well as of the regulations of EWIV, SE and SCE.

Nevertheless, concrete process history and the decision itself introduce to extensive problems of European cross-border transfer of corporate headquarters as they occur at the present and (up to now) without adjusting help of the European Union. This article tries to demonstrate the interim rules and their method intricacies, caused by the conflict of national corporate law on the one hand and the European legal principles on the other. It furthermore offers support by introducing basic rules of intertemporal law.

  •  Bernd Reinmüller/Alexander Bücken: Provokation eines inländischen Deliktsgerichtsstandes im Urheberrecht – the English abstract reads as follows:

This contribution deals with a decision by the French Cour de cassation (1ére civ. 25.3.2009 – ref. no. 08.14.119) on the admissibility of the provocation of domestic tort jurisdiction under copyright law at the application of Article 5.3 of the European Convention on jurisdiction and the enforcement of judgments in civil and commercial matters. In conformity with German case law, the Cour de cassation distinguishes between an admissible test order through which domestic jurisdiction can be established and a manipulative subreption of jurisdiction which does not have the effect of establishing jurisdiction in accordance with the principles of good faith. Furthermore, the “mosaic theory” developed by the ECJ for press law offences is transferred to copyright law. Consequently, the tort jurisdiction established by an admissible provocation of jurisdiction is always restricted to the damage caused in the forum state.

  •  Herbert Roth: Zur verbleibenden Bedeutung des deutsch-österreichischen Anerkennungs- und Vollstreckungsvertrags 1959 – the English abstract reads as follows:

The decision of the OGH addresses problems of foreign lis pendens and their impacts to domestic disputes. Subject matter of the judgment is a proceeding for the division of assets in accordance with Art. 81 et seqq. of the Austrian Marriage Act brought to Austrian Courts prior to the German counterpart. The OGH qualifies the Austrian proceeding for the division of assets as part of the matrimonial property regime and therefore lawfully applies the German-Austrian Convention on the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters, signed on 6 June 1959. Pursuant to Art. 17 of this Convention the sole recourse to the Court shall not be sufficient to prevent proceedings abroad. Instead, the barrier effect depends on the pendency of the suit, which according to the Austrian and German Law requires the formal service of the complaint. In the present case the OGH therefore correctly refers not to the prior recourse to the Austrian Courts, but the formal service of the claim, which was effected by the German authorities earlier than the Austrian delivery. Therefore the Austrian Courts lawfully had to decline their international jurisdiction in favor of the German Courts.

  •  Patrizia Levante: Der materielle ordre public bei der Anerkennung von ausländischen Scheidungsurteilen in der Schweiz – Blick auf die Rechtsprechung – the English abstract reads as follows:

In Switzerland, the question of recognition of foreign divorce judgments arises more and more often. In many international marriages, the divorce is filed and granted abroad. In these cases, the only task that remains to the Swiss courts is to examine whether the foreign divorce judgment can be recognized in Switzerland. This article discusses questions of Swiss substantive public policy (ordre public) in connection with the recognition of foreign divorce judgments. The first section of the article presents the relevant legal provisions. The second section gives an overview of the current jurisdiction of Swiss courts. With regard to the dissolution of marriage, the article highlights in particular, under which circumstances foreign extrajudicial divorces and repudiations can be recognized in Switzerland. Considering the recognition of the financial consequences of the divorce (spousal maintenance, matrimonial property, occupational pension fund), the article shows that the Swiss authorities have to look at the rationale behind a certain order (or lacking order) in the foreign judgment, and to examine whether an adequate financial compensation has been ordered. Regarding children, it is required that the competent authorities act ex officio and settle children’s issues (custody, visiting rights, child maintenance) in a coherent and united manner. In the process of recognizing a foreign judgment, the best interest of the child must be considered.

  •  Gerhard Hohloch: Hans Stoll † (4.8.1926–8.11.2012)
  • Konrad Duden:  „Leihmutterschaften“ – Abschlussveranstaltung der Jahresfachtagung des Bundesverbandes der Deutschen Standesbeamtinnen und Standesbeamten
  •  Céline Camara: Cross-border successions within the EU – Report on a conference by the ERA
  • Christel Mindach: Staatlicher Schadensersatz bei Verschleppung von Gerichtsverfahren und der Vollstreckung von Gerichtsentscheidungen
  • Heinz-Peter Mansel: Beschlüsse der Sitzung der Ersten Kommission des Deutschen Rates für Internationales Privatrecht zur Reform des Ehe- und Lebenspartnerschaftsrechts am 9./10.11.2012 in Würzburg

What Will Happen to the Alien Tort Statute?

As many of our readers know, we are anxiously awaiting the United States Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum.  Although the Supreme Court initially granted certiorari in Kiobel to decide the issue of corporate civil tort liability under the ATS, it subsequently orderd reargument on the broader question of “[w]hether and under what circumstances the [ATS] allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”  Comments by the justices in the Kiobel oral arguments raise the possibility that the Court may require exhaustion of local remedies in ATS litigation.  Some believe it is likely that the Court will limit ATS litigation—perhaps substantially.  All of this raises an important question:  What will human rights litigation look like after KiobelThe Kiobel decision is unlikely to end ATS litigation in the federal courts, but it is likely that many post- Kiobel human rights claimants will consider alternative strategies.

A year ago, right after the first oral argument and before the reargument was ordered, Chris Whytock, Mike Ramsey, and I convened a group of private international law and public international law scholars and practitioners to examine the question of what might happen after Kiobel.  In particular, we were curious to see whether pleading ATS-like claims in state courts under state law was viable.  See here for one view.  The UC Irvine Law Review is about to go to press with the papers from that conference.  For those interested, here is a link to the issue’s introduction where we provide an overview of the papers.

Here is the abstract:

Litigation in domestic courts is only one of many ways to promote and protect international human rights, but it has received much attention from lawyers and scholars.  Attention has focused above all on litigation in the U.S. federal courts under the Alien Tort Statute (the “ATS”). However, plaintiffs are facing growing barriers to ATS human rights litigation in the U.S. federal courts, and it is likely that the Supreme Court’s upcoming decision in Kiobel v. Royal Dutch Petroleum Co. will further restrict this type of litigation — perhaps substantially.

This Essay provides an overview of the legal issues surrounding one possible alternative human rights litigation strategy: human rights litigation in U.S. state courts or under U.S. state law. It highlights both the attractions and the limits of this strategy, and it identifies the challenging legal issues that this strategy will raise for judges, lawyers and scholars, ranging from choice of law and extraterritoriality, to jurisdiction and federal preemption. This Essay also serves as the foreword to a symposium issue of the UC Irvine Law Review that contains articles by leading practitioners and scholars of human rights, international law, and conflict of laws providing in-depth analysis of these and other aspects of human rights litigation in state courts and under state law.



Owusu and National Lis Pendens Doctrines

In Owusu, the Grand Chamber of the Court of Justice of the European Communities held that English courts may not decline jurisdiction on the ground  that a third state court is Forum Conveniens when the Brussels Convention applies. English courts have no discretion when Article 2 of the Convention grants them jurisdiction.

What is the impact of this decision in continental Europe? Civil law jurisdictions do not have forum non conveniens doctrines, but they apply instead national doctrines of lis pendens and related actions. Are these doctrines impacted at all by Owusu?

Let’s take an example. Here is a contractual dispute between a Gabonese company and a French company. The French company initiates proceedings in Gabon. Shortly after, the Gabonese company initiates proceedings in France. The French company is domiciled in France, so the jurisdiction of the French court is governed by Article 2 of the Brussels I Regulation. May the French court apply its national doctrine to decline jurisdiction?

The relevant doctrine is not FNC, but it has interesting features. It is a special form of lis pendens. On the one hand, a number of conditions must be met: proceedings must have been initiated first before the foreign court, the dispute must be the same (triple identity), the foreign jugdment would be recognised in the forum. On the other hand, the French court only has discretion to decline jurisdiction.

In a judgment of February 19th, 2013, the French supreme court for private and criminal matters (Cour de cassation) affirmed a decision whereby the Paris court had declined jurisdiction in that very same circumstances. It seems that the Owusu decision was neither mentioned nor discussed before the Cour de cassation.

H/T: Severine Menetrey

Regulation Nº 650/2012: Some Open Issues

The new Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 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 was published in the OJEU on 27 July 2012 and will apply on a general basis “to the succession of persons who die on or after 17 August 2015”. The need for an instrument at Community level has been emphasized in order to solve the difficulties due to the treatment of the different international succession aspects by means of the respective national rules of Private International Law.

Nowadays, before the general application of the rules contained in the new EU Regulation, in the specific area of the determination of international jurisdiction in matters of succession problems such as positive and negative conflicts of jurisdiction, lack of legal certainty, contradictory answers to situations of international lis pendens and the following obstacles of recognition and enforcement of decisions arise. An interesting question is if the new Regulation will totally or only partially solve this situation.

One of the most delicate issues in this field is that the new legal instrument foresees the problematic term “court” when it refers to the competent authority to deal with an international succession case, establishing an important limitation on the total unification of this aspect at European level, due to the fact that the determination of the competent non-judicial authorities and legal professionals in matters of succession, such as notaries, will be still possible under some circumstances by means of the national legislations of the Member States. This situation will probably entail some compatibility problems.

The new EU Regulation 650/2012 provides different common rules for the allocation of international jurisdiction, starting from the premise of the unity of forum with some exceptions. As it has already been pointed out by the legal literature, this part of the EU instrument causes considerable problems of interpretation, and it does not regrettably incorporate certain aspects which were underlined in the previous legislative proposals. The choice of the last habitual residence of the deceased as a general criterion seems to be reasonable, although in some cases it may be difficult to identify it. Besides, party autonomy plays an important role in this chapter of the Regulation; in this sense, the different mechanisms of choice of the competent authority are formulated in a very complex way that will also probably imply practical problems. Besides, the new instrument in matters of succession allows an exceptional possibility of remission of jurisdiction between authorities of Member States. The wording of this aspect in the final text also presents some significant difficulties relating to the operation and the effects of this flexibility mechanism.

Moreover, the new Regulation on Succession and Wills contains a rule on subsidiary or residual jurisdiction, giving an answer for cases where the deceased’s last habitual residence is not located in a Member State. In this context, it is important to know if this rule will certainly allow identifying a real link between the specific case and the Community territory. Regulation 650/2012 also provides for jurisdiction based on forum necessitatis, an interesting option which had been supported in legal literature and which tries to avoid a loss of effective legal protection.

Besides, the new EU legal instrument incorporates some rules in order to establish a partial declaration of acceptance, waiver or limitation of liability and to adopt provisional measures. The treatment of lis pendens and related actions is also foreseen. Among other questions, providing further details on these rules would have been appropriate, such as time-limits or exceptions to the solution based on the chronological order of the bringing of the claims in the case of lis pendens.

All the aforementioned aspects are examined in a new book entitled La autoridad competente en materia de sucesiones internacionales: el nuevo Reglamento de la UE (Prólogo de Alegría Borrás), Marcial Pons, 2013 (translated into English, it would be “The competent authority in international succession matters: the new EU Regulation (Prologue by Alegría Borrás)”), written by Maria Álvarez Torné, a Postdoctoral Researcher in Private International Law of the University of Barcelona. This work analyzes the different criteria on international jurisdiction in the new Regulation on Succession and Wills, describing the interesting previous decision-making process and also including a brief chapter dealing with the rules on applicable law, recognition and enforcement of decisions, acceptance and enforcement of authentic instruments and the European Certificate on Succession. Facing the new scenario, this book essentially aims to answer to the question of the advantages and missed opportunities in the way of allocation of international jurisdiction contained in the EU Regulation, taking into account that this aspect will condition the following treatment of a succession case with cross-border elements. It is necessary to use the time prior to the application of the EU Regulation to prepare for the application of all its rules, and in this sense opening up forums of debate to discuss about the numerous interpretation difficulties has an increasingly importance.


Google Before the ECJ, Case C- 131/12

Last year the Spanish Audiencia Nacional referred to the ECJ a number of questions in the framework of a process between Google and the Spanish Agency for Data Protection (AEPD); for the application see OJ C 165 from 09.06.2012. Summarizing, what the the Audiencia Nacional wants to know is whether Google is subjected to  Spanish – European- law on data protection; if it is liable for the damages that diffusion of personal data may cause to citizens; and whether the individuals concerned can exercise their rights before the regulatory Spanish body and the Spanish tribunals, or if they have to go to court in the U.S. The Audiencia Nacional also wants to have the scope and contents of the rights to erasure and to block clarified, meaning whether an individual may apply for a search engine to stop indexing information about him/her  published or included on the net by third parties . Google has maintained repeatedly that it merely accommodates third-party contents, and that it is not affected by the European legislation because it is based in California and responds to current regulations in the U.S.

The hearing took place yesterday at the New Great Courtroom. Advocate General Jääskien’s opinion will be published on 25 June; the ECJ sentence might be ready by the end of this year.

ECJ Rules Experts May Take Evidence Directly Abroad (corrected)

The first version of this post relied on an incorrect English translation of the ruling.

On February 21st, 2013, the Court of Justice of the European Union ruled in Prorail BV v. Xpedys NV  (Case 332/11) that the Evidence Regulation does not govern exhaustively the taking of cross-border evidence, and that courts of Member states may designate experts to take evidence directly abroad, without following one of the methods laid down by the Regulation.

On 22 November 2008, a freight train bound from Belgium to the Netherlands was derailed near Amsterdam. In 2009, a Belgian Court designated an expert, defining the scope of his task, most of which was to be carried out in the Netherlands. In the course of this investigation, the expert was to proceed to the scene of the accident in the Netherlands, and to all other places where he might be able to gather useful information in order to determine the causes of the accident, the damage suffered by the wagons and the extent of the damage.

One party challenged the decision and requested the task of the Belgian expert be limited to determining the damage in so far as that task could be carried out in Belgium, that no expert’s report on the Netherlands network and rail infrastructure or any account between the parties be authorised, or if his appointment were maintained, order that the expert carry out his activities in the Netherlands only in accordance with the procedure laid down in Regulation No 1206/2001.

The ECJ rules that Regulation No 1206/2001 applies as a general rule only if the court of a Member State decides to take evidence according to one of the two methods provided for by that regulation, in which case it is required to follow the procedures relating to those methods.

A national court wishing to order an expert investigation which must be carried out in another Member State is not necessarily required to have recourse to the method of taking evidence laid down in Articles 1(1)(b) and 17 of Regulation No 1206/2001.

There is one exception, however. The investigation which has been entrusted to the expert might, in certain circumstances, affect the exercise of the powers of the Member State in which it takes place, in particular where it is an investigation carried out in places connected to the exercise of such powers or in places to which access or other action is, under the law of the Member State in which the investigation is carried out, prohibited or restricted to certain persons.


Articles 1(1)(b) and 17 of Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters must be interpreted as meaning that the court of one Member State, which wishes the task of taking of evidence entrusted to an expert to be carried out in another Member State, is not necessarily required to use the method of taking evidence laid down by those provisions to be able to order the taking of that evidence.

H/T: Maja Brkan

Preliminary Question on Art. 5 No. 3 Brussels I

It has not been mentioned on this blog that the German Federal Supreme Court on August 15, 2012 referred the following question relating to the interpretation of Article 5 No. 3 of the Brussels I Regulation to the Court of the European Union (Case C-387/12 – Hi Hotel HCF SARL ./. Uwe Spoering):

Is Article 5(3) of Regulation (EC) No 44/2001 to be interpreted as meaning that the harmful event occurred in one Member State (Member State A) in the case where the tort or delict which forms the subject-matter of the proceedings or from which claims are derived was committed in another Member State (Member State B) and consists in participation in the tort or delict (principal act) committed in the first Member State (Member State A)?

The facts of the case are in large part disputed, but according to the Federal Supreme Court and for the sake of the preliminary ruling they are assumed to be as follows: the plaintiff (Uwe Spoering) is a photographer. On behalf of the defendant (Hi Hotel), a hotel operator in Nice in the South of France, he took various pictures of the hotel interiour. He granted defendant the right to use the photographs in his brochures and on his website. However, in 2008, the plaintiff found nine of his photographs (re-)printed in two photobooks, one published by Phaidon Press (based in Berlin, Germany) and another one published by Taschen (based in Cologne, Germany). Phaedon Press had received the photographs via a Paris based sister company. The sister company, in turn, had received the photograps from the defendant.

The plaintiff brought an action for copyright infringement in Germany asking for a prohibitory injunction as well as damages. He argued that German courts were competent to hear the case under Art. 5 no. 3 of the Brussels I Regulation. According to this provision a person who is domiciled in a Member State, may be sued in matters relating to torts, delict or quasi-delict in the court of the Member State where the harmful event occurred or may occur.  Plaintiff argued that the harmful event – the copyright infringement – occured in Germany because this is where Phaidon Press distributed the photographs. He further argued that defendant participated in the copyright infringement by handing over the photographs to Phaidon Press. Defendant, in contrast, argued that German courts did not have jurisdiction under Art. 5 No. 3 Brussels I Regulation since he handed over the photographs to Phaidon’s sister company in France and not in Germany.

With the preliminary question the German Federal Supreme Courts wants to know whether jurisdiction under Art. 5 No. 3 Brussels I Regulation covers claims for copyright infringment against accomplices if the accomplice (only) acted abroad.

The full text of the decision can be found here (in German). The reference to the CEU is available here (in English).