Views
Conflicts – Between Domestic and Indigenous Legal Systems?
In Beaver v Hill, 2017 ONSC 7245 (available here) the applicant sought custody, spousal support and child support. All relevant facts happened in Ontario. Read more
NIKI continued (now in Austria)
Written by Lukas Schmidt, Research Fellow at the Center for Transnational Commercial Dispute Resolution (TCDR) of the EBS Law School, Wiesbaden, Germany
The Regional Court Korneuburg has opened a main insolvency proceeding – not a secondary insolvency proceeding that the German provisional administrator has applied for – on the assets of NIKI Luftfahrt GmbH in Austria (see here). Therefore, it obviously shares the view of the Regional Court of Berlin that NIKI’s COMI is located in Austria and not Germany. Read more
US Court Refused to Apply the Chosen Chinese Law due to Public Policy Concern
In Fu v. Fu, 2017 IL App (1st) 162958-U, a father brought a claim against his son to revoke an unconditional gift of $590,000 that he donated to his son for the later to pursue an EB-5 Visa to immigrate to the US. Both parties are Chinese citizens and the defendant is currently a resident of Massachusetts. The gift agreement was entered into in China, drafted in Chinese and contained a clause specifying PRC law should apply. The money was held by the International Bank of Chicago. The plaintiff brought the action in Illinois.
Under the US Law (Title 8 of the Code of Federal Regulations, § 204.6) a foreign national must invest at least $500,000 in the US to be considered for an EB-5 Visa, and must ‘show that he has invested his own capital obtained through lawful means.’ (Matter of Ho, 22 I&N Dec. 206, 210 (AAO 1998)) After a few denied EB-5 approval, the plaintiff sought to recover the money, by claiming that the defendant was estranged from his parents, including the donor and refused to support them, and the purpose of the gift contract was for the defendant to obtain an EB-5 Visa but the defendant failed to do so.
Under the Illinois law, a valid gift requires ‘delivery of the property by the donor to the donee, with the intent to pass the title to the donee absolutely and irrevocably, and the donor must relinquish all present and future dominion and power over the subject matter of the gift.” (Pocius v. Fleck, 13 Ill. 2d 420, 427 (1958)). Furthermore, the gift agreement between the parties also used the language that the gift was ‘unconditional’. However, the plaintiff argued that under the PRC law, gifts may be revocable after the transfer of ownership, if the donee ‘has the obligation to support the donor but does not fulfil it’, or a donnee ‘does not fulfill the obligations as stipulated in the gift agreement.’ (PRC Contract Law, Art 192)
The Appellate Court of Illinois First Judicial District affirmed the judgment of the circuit court of Cook County that the gift agreement was irrevocable. The plaintiff failed to successfully prove Chinese law. And even if the plaintiff properly pled PRC law, such interpretation was ‘oppressive, immoral, and impolitic’. Under the US law on EB-5 Visa application, the foreign citizen must prove ownership of those funds to be eligible for an EB-5 Visa. The signed agreement stating the gift ‘unconditional’ would help the defendant to prove he legally owned the funds to acquire an EB-5 visa. If the governing PRC law indeed allows a gift to be given unconditionally and revoked after delivery and acceptance, as argued by the plaintiff, it would facilitate a deception on the US Government and is against public policy.
The full judgment can be found here.
News
Virtual Workshop (in German) on December 6: Christiane Wendehorst on Crypto-Assets in Private International Law
On Tuesday, December 6, 2022, the Hamburg Max Planck Institute will host its 28th monthly virtual workshop Current Research in Private International Law at 11:00 a.m. – 12:30 p.m. (CEST). Prof. Christiane Wendehorst (University of Vienna) will speak, in German, about the topic
Crypto-Assets in Private International Law
The presentation will be followed by open discussion. All are welcome. More information and sign-up here.
If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.
Rivista di diritto internazionale privato e processuale (RDIPP) No 3/2022: Abstracts
The third issue of 2022 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features:
Giovanna Adinolfi, Professor at the University Milan, States’ Economic Measures to Counter Cyberattacks: Disentangling Their (Il)Legitimacy under International Law
The present contribution draws the attention on measures adopted by States to tackle actual or potential cross-border cyberattacks and that may have an impact on international commercial transactions. With a look to the more recent practice, the distinction is proposed between response measures (addressed against those held responsible for cyber operations that have caused an injury to the target State) and anticipatory or preventive measures (intended to prevent cyberattacks). Against this backdrop, the issue is addressed as to whether both types of measures represent international unlawful acts which find a justification within the international legal order.
Bruno Barel, Associate Professor at the University of Padua, Le notificazioni nello spazio giuridico europeo dopo il regolamento (UE) 2020/1784 (Service of Documents in the European Judicial Area after Regulation (EU) 2020/1784) [in Italian]
The second recast of the uniform rules on the service of judicial and extrajudicial documents in civil or commercial matters introduced three innovative elements of particular relevance to the original framework, that dates back to the year 2000 (and which had already been subjected to recasting in 2007). Two of these novel provisions relate to the technological evolution of remote communications, and they consist of the institution of a common IT system for the telematic transmission of acts and documents between national authorities and of the – albeit timid and prudent – opening to direct forms of service by electronic means between individuals, thus surpassing the mediation of authorities. The third – and equally careful – novel provision attempts to reinforce the assistance between the authorities of different Member States aimed at identifying the address of the person to be served. Moreover, the most innovative part of the regulation will be fully operational only in 2025, in expectation of the full development of the decentralised IT system.
The following comments are also featured:
Pietro Franzina, Professor at the Catholic University of the Sacred Heart – Milan, Il ruolo degli Incoterms nella determinazione convenzionale del luogo della consegna: note critiche sulla giurisprudenza della Cassazione (The Role of Incoterms in the Determination by Agreement of the Place of Delivery: Critical Notes on the Case Law of the Italian Court of Cassation) [in Italian]
By a recent ruling (Order No 20633 of 28 June 2022), the Italian Supreme Court addressed the issue of the role played by Incoterms in the determination of the place of delivery of the goods for the purposes of Article 7 No 1(b), of Regulation No 1215/2012 of 20 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. As in previous rulings on the same subject, the Supreme Court was reluctant to regard the incorporation of Incoterms into a contract as signalling the parties’ agreement on the place of delivery. Specifically, the Supreme Court dismissed the claim by the Italian seller that the contract in question had been agreed “EXW” its own premises in Italy: the Court acknowledged that the goods had in fact been picked up by a carrier hired by the buyer at the seller’s premises, but found that the parties had failed to agree “clearly” on the place of delivery, as it could not be established that the parties had unequivocally intended to make the seller’s premises the place of delivery of the goods for the purposes of jurisdiction. The paper contends that the approach of the Italian Supreme Court contradicts the principles laid down by the Court of Justice in Car Trim and Electrosteel. The approach is unpersuasive in two respects. First, the Supreme Court regards the parties’ agreement on the place of delivery as a derogation from the “general rule” whereby delivery must be understood to be due, for jurisdictional purposes, at the place of final destination of the goods (whereas, according to the Court of Justice, the latter is just a residual rule, which applies where the parties have failed to agree on the place of delivery). Secondly, the Supreme Court disregards the rules of interpretation adopted by the International Chamber of Commerce to describe the parties’ obligations under the different Incoterms, and follows, instead, its own understanding of the Incoterms concerned: actually, the Supreme Court asserted in the decision reviewed that, “as a rule”, the Incoterm EXW only relates to the allocation of the costs of transport and the transfer of risk, and has no bearing as such on the determination of jurisdiction.
Michele Grassi, Research Fellow at the University of Milan, Riconoscimento del rapporto di filiazione omogenitoriale e libertà di circolazione all’interno dell’Unione europea (Recognition of Same-Sex Parentage and Freedom of Movement within the European Union) [in Italian]
This paper aims to provide a critical analysis of the judgment rendered by the Court of Justice of the European Union in the Pancharevo case, where the Court was confronted with the sensitive issue of same-sex parenthood and its recognition in the context of free movement rights within the Union. The investigation focuses on the functional approach adopted by the Court of Justice in the application of the mutual recognition principle, and its possible implications on the recognition of same-sex parenthood for wider purposes, not directly linked to the exercise of free movement rights
Finally, this issue features the following book review by Francesca C. Villata, Professor at the University of Milan: Jason Grant ALLEN, Peter HUNN (eds.), Smart Legal Contracts. Computable Law in Theory and Practice, Oxford University Press, Oxford, 2022, pp. XIV-513.
The Greek Supreme Court on the date of service of documents abroad: The end of a contemporary Greek tragedy
The Greek Supreme Court of Cassation (Areios Pagos) rendered a very important decision at the end of June, which is giving the final blow to a period of procedural insanity. A provision in force since the 1st of January 2016 is forcing claimants to serve the document instituting proceedings abroad within 60 days following filing. Failure to abide by the rule results to the deletion of the claim as non-existent. As a consequence, the claimant is obliged to file a new claim, most probably being confronted with the same problem.
[Supreme Court of Cassation (Areios Pagos) nr. 1182/2022, available here.
Facts and judgment in first instance
The dispute concerns two actions filed on 31.01.2017 and 31.03.2017 against defendants living in Monaco and Cyprus respectively. The claimant served copies of the action by using the main channels provided for by the 1965 Hague Service Convention (for Monaco; entry into force: 1-XI-2007) and the Service of Process Regulation nr. 1393/2007. Service to the defendant in Monaco was effected on 08.05.2017, whereas service to the defendant in Cyprus on 19.06.2017. Both actions were dismissed as non-existent (a verbatim translation would be: non-filed) due to the belated service to the countries of destination [Thessaloniki Court of 1st Instance 2013/2019, unreported]. The claimant filed a second (final) appeal, challenging the judgment’s findings.
The overall picture before the decision of the Supreme Court
So far, the vast majority of Greek courts was following the rule in exactly the same fashion as the first instance court. Article 215 Para 2 of the Greek Code of Civil Procedure reads as follows: … the claim is served to the defendant within a term of 30 days after filing; if the defendant resides abroad or is of unknown residence, the claim is served within 60 days after filing. The rule applies exclusively to ordinary proceedings, i.e., mostly civil and commercial matters, with the exception of some pertinent disputes, which are regulated under a special Book of the Code of Civil Procedure [Book 4, Articles 591-465: Special Proceedings]
A countless number of motions were dismissed as a result of this rule since 2016. Courts were refusing claims even when the defendants were appearing before the court, submitting pleadings and raising their defense. Only claims addressed to defendants living in countries which are neither EU member states nor Hague Convention signatories, are ‘saved’. Article 134, in connection with Article 136 Greek of Code of Civil Procedure has established half a century ago the notorious system of fictitious service, akin to the French system of remis au parquet (Article 683 Code de Procédure Civile). This system still applies for countries such as the United Arab Emirates or Madagascar, however not for Cyprus or Monaco, due to the prevalence of the EU Regulation and the Hague Convention, anchored in the Constitution (Article 28). Hence, the non- production of a service certificate is no obstacle for the former, whereas any service certificate dated after the 60 days term is not considered good service for the latter, leading to the dismissal of the claim.
The decision of the Supreme Court
Against this background, the Supreme Court was called to address the matter for the first time after nearly six years since the introduction of the new provision.
The Supreme Court began with an extensive analysis of the law in force (Article 134 Code of Civil Procedure; EU Service Regulation; Hague Service Convention, and Article 215 Para 2 Code of Civil Procedure). It then pointed out the repercussions of the latter rule in the system of cross-border service, and interpreted the provision in a fashion persistently suggested by legal scholarship: The 60 days term should be related with the notification of the claim to the Transmitting Authority, i.e., the competent Prosecutor’s office pursuant to Article 134 Code of Civil Procedure and the declarations of the Hellenic Republic in regards to the EU Service Regulation and the Hague Service Convention.
The date of actual service should be disconnected from the system initiated by Article 215 Para 2 Code of Civil Procedure. The Supreme Court provided an abundance of arguments towards this direction, which may be summarized as follows: Violation of Article 9 Para 2 Service Regulation 1393/2007 (meanwhile Article 13 Para 2 Service Regulation 2020/1784); contradiction with the spirit of Article 15 of the Hague Service Convention, despite the lack of a provision similar to the one featured in the EU Regulation; violation of the right to judicial protection of the claimant, enshrined in the Greek Constitution under Article 20; violation of Article 6 (1) of the European Convention of Human Rights, because it burdens the claimant with the completion of a task which goes beyond her/his sphere of influence.
For all reasons above, the Supreme Court overturned the findings of the Thessaloniki 1st Instance court, and considered that service to the defendants in Monaco and Cyprus was good and in line with the pertinent provisions aforementioned.
The takeaways and the return to normality
The judgment of the Supreme Court has been expected with much anticipation. It comes to the rescue of the claimants, who were unjustly burdened with an obligation which was and still is not under their controlling powers. The judgment returns us back to the days before the infamous provision of Article 215 Para 2, where the domestic procedural system was impeccably finetuned with the EU Regulation and the Hague Service Convention.