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CJEU on the compatibility with EU law of an arbitration clause in an Intra-EU BIT – Case C-284/16 (Slovak Republic v Achmea BV)
Written by Stephan Walter, Research Fellow at the Research Center for Transnational Commercial Dispute Resolution (TCDR), EBS Law School, Wiesbaden, Germany
Today, the CJEU has rendered its judgement in Slovak Republic v Achmea BV (Case C-284/16). The case concerned the compatibility with EU law of a dispute clause in an Intra-EU Bilateral Investment Treaty (BIT) between the Netherlands and the Slovak Republic which grants an investor the right to bring proceedings against the host state (in casu: the Slovak Republic) before an arbitration tribunal. In concrete terms, the German Federal Court of Justice referred the following three questions to the CJEU (reported here): Read more
The impact of Brexit on the operation of the EU legislative measures in the field of private international law
On 28 February 2018, the European Commission published the draft Withdrawal Agreement between the EU and the UK, based on the Joint Report from the negotiators of the two parties on the progress achieved during the first phase of the Brexit negotiations.
The draft includes a Title VI which specifically relates to judicial cooperation in civil matters. The four provisions in this Title are concerned with the fate of the legislative measures enacted by the EU in this area (and binding on the UK) once the “transition of period” will be over (that is, on 31 December 2020, as stated in Article 121 of the draft).
Article 62 of the draft provides that, in the UK, the Rome I Regulation on the law applicable to contracts and the Rome II Regulation on the law applicable to non-contractual obligations will apply, respectively, “in respect of contracts concluded before the end of the transition period” and “in respect of events giving rise to damage which occurred before the end of the transition period”.
Article 63 concerns the EU measures which lay down rules on jurisdiction and the recognition and enforcement of decisions. These include the Brussels I bis Regulation on civil and commercial matters (as “extended” to Denmark under the 2005 Agreement between the EC and Denmark: the reference to Article 61 in Article 65(2), rather than Article 63, is apparently a clerical error), the Brussels II bis Regulation on matrimonial matters and matters of parental responsibility, and Regulation No 4/2009 on maintenance.
According to Article 63(1) of the draft, the rules on jurisdiction in the above measures will apply, in the UK, “in respect of legal proceedings instituted before the end of the transition period”. However, under Article 63(2), in the UK, “as well as in the Member States in situations involving the United Kingdom”, Article 25 of the Brussels I bis Regulation and Article 4 of the Maintenance Regulation, which concern choice-of-court agreements, will “apply in respect of the assessment of the legal force of agreements of jurisdiction or choice of court agreements concluded before the end of the transition period”(no elements are provided in the draft to clarify the notion of “involvement”, which also occurs in other provisions).
As regards recognition and enforcement, Article 63(3) provides that, in the UK and “in the Member States in situations involving the United Kingdom”, the measures above will apply to judgments given before the end of the transition period. The same applies to authentic instruments formally drawn up or registered, and to court settlements approved or concluded, prior to the end of such period.
Article 63 also addresses, with the necessary variations, the issues surrounding, among others, the fate of European enforcement orders issued under Regulation No 805/2004, insolvency proceedings opened pursuant to the Recast Insolvency Regulation, European payment orders issued under Regulation No 1896/2006, judgments resulting from European Small Claims Procedures under Regulation No 861/2007 and measures of protection for which recognition is sought under Regulation No 606/2013.
Article 64 of the draft lays down provisions in respect of the cross-border service of judicial and extra-judicial documents under Regulation No 1393/2007 (again, as extended to Denmark), the taking of evidence according to Regulation No 1206/2001, and cooperation between Member States’ authorities within the European Judicial Network in Civil and Commercial Matters established under Decision 2001/470.
Other legislative measures, such as Directive 2003/8 on legal aid, are the object of further provisions in Article 65 of the draft.
The domino effect of international commercial courts in Europe – Who’s next?
Written by Georgia Antonopoulou and Erlis Themeli, Erasmus University Rotterdam (PhD candidate and postdoc researchers ERC project Building EU Civil Justice)
On February 7, 2018 the French Minister of Justice inaugurated the International Commercial Chamber within the Paris Court of Appeals following up on a 2017 report of the Legal High Committee for Financial Markets of Paris (Haut Comité Juridique de la Place Financière de Paris HCJP, see here). As the name suggests, this newly established division will handle disputes arising from international commercial contracts (see here). Looking backwards, the creation of the International Commercial Chamber does not come as a surprise. It offers litigants the option to lodge an appeal against decisions of the International Chamber of the Paris Commercial Court (see previous post) before a specialized division and thus complements this court on a second instance. Read more
News
The French Project for a Private International Law Code – a Debate at the Comité Français
by Ilaria Pretelli
On Friday October 21 the Comité français de droit international privé held a special session devoted to the last and possibly final version of the project of code of private international law. As such, the project consists of 207 articles divided into 6 books: general rules, special rules, procedure, recognition and enforcement of foreign acts and judgments, provisional and protective measures, transitional provisions.
The session was held “à huis clos” with the discussion among members stimulated by foreign guests specially invited to have a perspective from abroad. Not surprisingly, due weight was given to Switzerland and Belgium, as the former is considered to have a model legislation on the discipline and the latter has the “youngest” statute of continental Europe. Marc Fallon underlined the very different circumstances in which the Belgian legislation was constructed, since it came from a private initiative of Belgian academics, only at a later stage submitted to the Belgian legislator. The opposite path has led to the drafting of the French project, which stems directly from an initiative of the Ministry of Justice. In France, this project is the fourth in time after those by Niboyet (1950), Batiffol (1959) and Foyer (1967). If successful, it will bring to an end the essentially doctrinal and jurisprudential character of French private international law. These traditional characteristics of French private international law were recalled by Pierre Mayer in an already nostalgic note. Andrea Bonomi offered both a Swiss and European perspective, with laudatory remarks on the main innovations of the project: the codification of rules on procedure and on procedural measures, and the codification of the “méthode de la reconnaissance”. Reference is thereby made to the renowned French theory which has developed Picone’s observations on the opportunity of recognising the competence of a legal order (l’ordinamento competente) as a whole to decide a cross-border issue, instead of applying such a foreign order’s rules to decide the same cross-border issue within the forum. This method (or methods, according to subsequent works of the author of the theory, Pierre Mayer), is gaining importance in contemporary practice. On the one hand, the increasing mobility of citizens raises the number of conflicts of laws and creates an appetite for hard and fast solutions. A method allowing to displace the discussion from substance to competence of the authority serves this need. In addition, it is particularly welcome in the EU, where it is coherent with the prevalence of the evaluations of the “country of origin”.
Other rules applauded by the audience were those on public policy and fraude à la loi, although regret was expressed over the fact that these well-known denominations are not mentioned in the corresponding rules (Articles 11 and 12). The rule on public policy is among the many of the project that reveals a constant attention by the drafters to coordinate national rules with the European ones: it explicitly grants a role to the “European notion of public policy”.
Possibly the most controversial rules are those on filiation resulting from IVF with a donor and on surrogacy (Articles 62 and 63). In this respect, the project breaks with French precedent and adopts a solution based on the respect of the legitimate expectations of donors, intended parents and the gestational mother: the lex loci actus.
According to the drafters, legal certainty for all parties involved points to the application of the law of the country in which assisted reproductive technology (ART) was performed or surrogacy was agreed by contract and implemented. These rules represent an exception to the general ones (Article 59), which point to the law of the child’s citizenship at the moment of birth. Article 62 seems to be of limited utility, since it merely confirms that French clinics need to follow French law and vice versa. However, as regards the filiation of children born with the employment of a donor by means of an IVF performed in a foreign fertility clinics, the applicable law will depend on the place of birth. If the latter is in France, the presumptions of paternity of French domestic law will apply in the first place. The scope of application of the foreign law of the country in which the clinic is based will thus be limited to the aspects related to the right of the child to have access to information regarding the donor. In addition, the lex loci actus would open the French border to reproductive tourism and, in so doing, would create the conditions to prevent the need of further strategic litigation before the ECHR in order to decriminalise surrogacy. Some critical voices have observed that the present domestic and international context are too fragile for such a solution to be welcome. The inherent risk is that the advancement in a wider recognition of “a right to parenthood”, including “parenthood for all” may increase existing divisions and undermine the credibility of the universal character of the principle of non-discrimination.
Divisions also exist as regards the timeliness of the code. Paul Lagarde raised his authoritative voice, in the columns of the last issue of the Revue critique, against the very idea of devoting energies to a national code of private international law. The engagement for the French code reveals, he argued, the availability of resources that could have been better employed to contribute to the drafting of a comprehensive code of European private international law based on the numerous existing regulations.
The four panels of the debate allowed a comprehensive analysis:
- structure of the code, articulation of sources, general rules of choice of law (chaired by Marie-Laure Niboyet)
- Procedure, Effect of foreign judgments and public acts (chaired by Jean-Pierre Rémery)
- Roundtable on family law
- Ccompany law – collective labor law ( chaired by Etienne Pataut).
All distinguished participants engaged in the rich and deep discussion triggered by the analysis of the project are looking forward to future arenas where the debate can continue.
“Third-Party Funding: Trends, Developments and the Future” – 7 December 2022, Erasmus School of Law (online)
In the context of the Vici project ‘Affordable Access to Justice’ conducted by the Erasmus School of Law (Rotterdam) and financed by the Dutch Research Council – NWO, the project team is organizing a seminar titled ‘Third-Party Funding: Trends, Developments, and the Future’ (online).
The seminar is scheduled for Wednesday, 7 December 2022 (10:00-12:15 CET) and it will feature presentations by: Xandra Kramer (Erasmus University Rotterdam/Utrecht University, Netherlands), Stefaan Voet (KU Leuven, Belgium), Masood Ahmed (University of Leicester, UK), Adrian Cordina (Erasmus University Rotterdam, Netherlands), Michael Legg (UNSW Sydney, Australia), David Capper (Queen’s University Belfast, UK).
The complete program and information for the online registration are available here.
For updated information on the project, you may follow the Project’s LinkedIn page.
Series of webinars in Argentina every Thursday in November 2022: A new agenda for a post-pandemic world?
A series of webinars will be held every Thursday in November 2022 at 5 pm (Argentina time, 9 pm CET time) in Spanish. The topics range from international family law to environmental justice to the consequences of the conflict in Ukraine for Private International Law.
Registration is free of charge. To register, click here.
The program is available below:
