Views
Polish Constitutional Court about to review the constitutionality of the jurisdictional immunity of a foreign State?
Written by Zuzanna Nowicka, lawyer at the Helsinki Foundation for Human Rights and lecturer at Department of Logic and Legal Argumentation at University of Warsaw
In the aftermath of the judgment of the ICJ of 2012 in the case of the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) that needs no presentation here (for details see, in particular, the post by Burkhard Hess), by its judgment of 2014, the Italian Constitutional Court recognized the duty of Italy to comply with the ICJ judgment of 2012 but subjected that duty to the “fundamental principle of judicial protection of fundamental rights” under Italian constitutional law (for a more detailed account of those developments see this post on EAPIL by Pietro Franzina and further references detailed there). In a nutshell, according to the Italian Constitutional Court, the fundamental human rights cannot be automatically and unconditionally sacrificed in each and every case in order to uphold the jurisdiction immunity of a foreign State allegedly responsible for serious international crimes.
Since then, the Italian courts have reasserted their jurisdiction in such cases, in some even going so far as to decide on the substance and award compensation from Germany. The saga continues, as Germany took Italy to the ICJ again in 2022 (for the status of the case pending before the ICJ see here). It even seems not to end there as it can be provocatively argued that this saga has its spin-off currently taking place before the Polish courts.
The Greek Supreme Court has decided: Relatives of persons killed in accidents are immediate victims
A groundbreaking judgment was rendered last October by the Greek Supreme Court. Relatives of two Greek crew members killed in Los Llanos Air Base, Spain, initiated proceedings before Athens courts for pain and suffering damages (solatium). Although the action was dismissed by the Athens court of first instance, and the latter decision was confirmed by the Athens court of appeal, the cassation was successful: The Supreme Court held that both the Brussels I bis Regulation and the Lugano Convention are establishing international jurisdiction in the country where the relatives of persons killed are domiciled, because they must be considered as direct victims.
THE FACTS
On 26 January 2015, an F-16D Fighting Falcon jet fighter of the Hellenic Air Force crashed into the flight line at Los Llanos Air Base in Albacete, Spain, killing 11 people: the two crew members and nine on the ground.
The relatives of the Greek crew members filed actions for pain and suffering damages before the Athens court of first instance against a US (manufacturer of the aircraft) and a Swiss (subsidiary of the manufacturer) company. The action was dismissed in 2019 for lack of international jurisdiction. The appeals lodged by the relatives before had the same luck: the Athens court of appeal confirmed in 2020 the first instance ruling. The relatives filed a cassation, which led to the judgment nr. 1658/5.10.2022 of the Supreme Court.
Standard (and burden) of proof for jurisdiction agreements
Courts are often required to determine the existence or validity of jurisdiction agreements. This can raise the question of the applicable standard of proof. In common law jurisdictions, the question is not free from controversy. In particular, Stephen Pitel has argued on this very blog that jurisdiction clauses should be assessed on the balance of probabilities, as opposed to the “good arguable case” standard that is commonly applied (see, in more detail, Stephen Pitel and Jonathan de Vries “The Standard of Proof for Jurisdiction Clauses” (2008) 46 Canadian Business Law Journal 66). That is because the court’s determination on this question will ordinarily be final – it will not be revisited at trial.
News
Webinar on Multistate Torts Ahead of the EAPIL Winter School, 2 December 2024
On 2 December 2024, at 6 pm CET, a free webinar will take place in preparation of the 2025 edition of the EAPIL Winter School on Multistate Torts, which will be held on-site in Como between 10 and 15 February 2025 (see here for the full program and further details).
The webinar will give a glimpse of what the Winter School will be about and will briefly present some of its hot topics, such as online defamation, climate change litigation, artificial intelligence and crypto values.
The speakers are some of those who will be lecturing at the Winter School, namely Javier Carrascosa González (University of Murcia), Anatol Dutta (Ludwig Maximilian University of Munich), Thomas Kadner Graziano (University of Geneva), Tobias Lutzi (University of Augsburg), Satu Heikkilä (Administrative Law Judge), Silvia Marino (University of Insubria), Nadia Rusinova (The Hague University, attorney at law), Geert van Calster (KU Leuven) and Anna Wysocka-Bar (Jagiellonian University).
The webinar will also offer an opportunity to provide information about the EAPIL Winter School.
Join the free seminar to discover what awaits you during the Winter School week, and…if you want to know more, enrol and come to Como in February!
Those interested in attending the webinar shall write at eapilws@gmail.com in order to receive the Teams link.
SICL: Workshop on Providing Information on Foreign Law to Courts on 26 November
As foreign law assumes an increasingly significant role in judicial practice, the Swiss Institute of Comparative Law is pleased to announce a Workshop on Providing Information on Foreign Law to Courts, which will take place in Lausanne on November 26.
Renowned experts, both individuals and institutions, will delve into practical challenges and share insights, comparing practices from various countries, including England, France, Germany, Poland, Switzerland and USA.
Presentations will be conducted in English, in German or in French.
For further information, please contact: marie-laure.lauria@isdc-dfjp.unil.ch
The program for the workshop is available below or can be accessed here.
INDIVIDUAL EXPERTS
9.30-11.00
Chair: Dr. Lukas Heckendorn, Deputy Director, Swiss Institute of Comparative Law
- Experiences in Poland and Germany compared
Prof. Arkadiusz Wudarski, European University Viadrina Frankfurt
- A Common Law Experience
Prof. Franz Werro, University of Fribourg and Georgetown University
- French Experiences
Prof. Gustavo Cerqueira, Université Côte d’Azur
Discussion
11.00-11.30: Coffee break
INSTITUTIONAL EXPERTS
11.30-12.30
Chair: Dr. Ilaria Pretelli, Legal Adviser, Swiss Institute of Comparative Law
- The German Approach: The Max Planck Guidelines
Jan Peter Schmidt, Priv.-Doz., Max Planck Institute for Comparative and International Private Law, Hamburg
- The Swiss Approach: experience of SICL
Lukas Heckendorn Urscheler, Deputy Director, Swiss Institute of Comparative Law
Discussion
12.30-13-30 : Lunch
BARCAMP
13.30-16.00
Moderator: Prof. Nadjma Yassari, Director, Swiss Institute of Comparative Law
A Barcamp session is an open and interactive format that encourages collaboration and idea-sharing. Since all participants join every session, the process is highly collaborative, ensuring focused, inclusive, and enriching discussions for everyone involved.
- Proposing Topics: Any participant can suggest a topic, which will be guided by a moderator.
- Moderated Discussions: A designated moderator ensures the session stays focused and that everyone has the chance to contribute.
- Flexible Structure: Sessions can take the form of a short presentation, group discussion, or collaborative brainstorming.
- Open Exchange: Everyone is encouraged to actively contribute their ideas, perspectives, and questions.
- Shared Learning: The goal is to exchange knowledge, explore new approaches, and learn from each other.
16.00: closure of event
Issue 4 of Lloyd’s Maritime and Commercial Law Quarterly for 2024
Issue 4 of Lloyd’s Maritime and Commercial Law Quarterly for 2024 was just published. It contains the following articles, case notes, and book review:
Katherine Reece-Thomas, “State Immunity and Sunken Treasure: Finders will not Always be Keepers”
Anthony Kennedy, “Unanswered Questions”
Michael F Sturley†, “The Centenary of the Hague Rules: Celebrating a Century of International Conventions Overmining the Carriage of Goods by Sea”
2024 marks the centenary of the Hague Rules, which still play a central role in allocating the risk of cargo loss or damage. To celebrate that milestone, it is valuable to review the history, beginning with the pre-existing risk allocation. When maritime nations applied widely accepted principles differently, efforts began in the late nineteenth century to achieve uniformity by international agreement. Those efforts failed until domestic legislation exacerbated the problem and created greater pressure for a solution. Even after agreement was reached in 1924, however, another fourteen years passed before the Convention was widely in force. Since then, international uniformity has been challenged in multiple ways, and the story continues to this day.
Marcus Teo, “Foreign Law as Fact”
In English law, “foreign law”, as applied under choice-of-law rules, is a question of fact. This “fact doctrine”, however, faces scepticism for three reasons: it remains unclear whether foreign law is truly treated as a question of fact, why it is so treated, and what the precise fact-in-issue is. This article addresses these concerns. It demonstrates that, today, foreign law is treated like any other question of fact. It then argues that foreign law should be classified as a question of fact, and should refer to foreign legal rulings, because this facilitates the accurate prediction of foreign decisions.
Adrian Briggs, “Book Review – Dicey+100. Albert Venn Dicey: A Centennial Commemoration”